Bragg’s Case against Trump Has a U.S. Constitution Problem

A ccording to press reports, Manhattan District Attorney Alvin Bragg is close to indicting Donald Trump, or at least wrestling with the decision. While Trump has predicted “death and destruction” if he is arrested, his defenders should focus instead on the prosecution’s legal flaws. In fact, at the heart of the case rests a critical — but so far unexplored — defect that should bring down Bragg’s house of cards.

According to leaks from the DA’s office, Bragg intends to seek a grand-jury indictment of Trump for a $130,000 hush-money alleged payoff to porn star Stephanie Clifford (a.k.a. Stormy Daniels). Nondisclosure deals do not by themselves violate criminal law. The DA’s star witness is Trump’s fixer, Michael Cohen, who was convicted of a federal felony for carrying out the scheme. (Cohen has proven such an unreliable witness that federal prosecutors decided to drop any further investigation into the payoff years ago.) The apparent claim here is that Trump violated the law by trying to account for the hush money as a payment to bagman Cohen for “legal services.”

But fiddling with the corporate books can only support a misdemeanor charge, one that has to be brought within two years of the act. As the payoff occurred in 2016, the Manhattan DA ran out of time years ago. So to elevate this minor infraction into a felony incurring significant jail time and subject to a longer statute of limitations, Bragg apparently plans to claim that Trump falsified his business records to conceal another crime. What crime? According to press reports, Bragg claims that Trump violated federal campaign-finance laws by concealing what was effectively a contribution to his own presidential efforts.

In other words, if he proceeds (which is not yet completely clear), Bragg would charge Trump because he did not pay Clifford out of campaign funds. It is not even clear that Bragg could prove that the payment had anything to do with the campaign, as Trump could claim that he would have paid the hush money anyway to spare his wife and family from humiliation.

Put aside the absurdity of these acrobatics. Building Trump’s prosecution on federal campaign law would breach a central principle of the Constitution’s separation of powers. National Review’s Andrew McCarthy has observed that Bragg “lacks jurisdiction to enforce federal criminal law.” We would go even further and note that the defect does not just pertain to jurisdiction, but to the Constitution’s fundamental structure as expressed in the separation of powers.

Under Article II of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” Only the president can decide whether and how federal law is to be enforced. The president and his designated subordinates not only must determine whether a violation of federal law has occurred, but also whether the public interest is best served by devoting resources to pursue specific defendants. Neither Congress nor the judiciary may place federal law-enforcement authority outside the control of the president.

In Printz v. United States (1997), the Supreme Court made clear that state officials also could not infringe on the president’s control over law enforcement. In that case, Congress sought to commandeer state sheriffs into conducting background checks for firearm sales. Printz held that the law was unconstitutional because it transgressed core principles of federalism, namely the autonomy of state government. But it also concluded that the law violated the separation of powers by leaving state officers “to implement the program without meaningful Presidential control.”

In the Trump case, Bragg would be interpreting and prosecuting a violation of federal campaign laws. In this, he would be acting contrary to the settled view of the U.S. Justice Department, which conducted its own probe and chose not to bring a prosecution. He could decide that hush-money payoffs constitute campaign contributions even if presidents and attorneys general concluded otherwise. The president could not fire Bragg, though he could remove or countermand any U.S. attorney for acting contrary to his decisions on enforcing federal law.

Should Bragg go forward, courts should strike down his unconstitutional backdoor effort to enforce federal campaign law. Imagine if Bragg were to succeed. Not only could Republican district attorneys launch similar investigations into the Biden family, but Republican states could start advancing policies that intrude on federal prerogatives and that are at odds with the priorities of the elected branches of the federal government. For example, Arizona could pass a state misdemeanor law that punishes violations of federal immigration law, which would allow a state to increase border enforcement beyond the Biden administration’s wishes. The Supreme Court struck down exactly such a state law in Arizona v. United States (2012), underscoring again that a state official such as Bragg cannot interfere with federal law enforcement.

This core constitutional principle rips the bottom out of Bragg’s boat.

But the constitutional problems with Bragg’s potential indictment do not end there.

The chairmen of three House committees charged with overseeing government operations have sought testimony and documents from Bragg. Bragg has responded that their demands violate the principle of federalism. The committees likely will issue and seek to enforce a subpoena against him.

That would pose the question of the subpoena’s constitutionality. When congressional Democrats demanded the release of Trump’s income-tax returns, the Supreme Court ruled in their favor, noting in Trump v. Mazars USA that “a congressional subpoena is valid only if it is related to, and in furtherance of, a legitimate task of Congress.”

Federalism, together with the respect normally due to a prosecutor’s nonpartisan conduct of a criminal investigation, would count heavily against a congressional demand for a state prosecutor’s testimony and related documents. But the House committees’ interests are legitimate.  Bragg is proposing to target an individual who is not merely a former president but a declared candidate for president. As the chairmen’s letter says, Bragg’s unprecedented action would “unalterably interfere in the course of the 2024 presidential election.”

It would be hard to imagine a more legitimate congressional concern than the abuse of prosecutorial power by a local DA that could skew a presidential election against a particular candidate. Even on a robust understanding of federalism, Congress should be on the alert when a rogue state prosecution warps a presidential race.

The problem therefore is not that the House is interfering in a state prosecution, but that a state prosecutor is intervening in a presidential election.

The House committees have other legitimate reasons for their inquiries. Congress has a right to know how federal funds appropriated for local law enforcement are expended, and one set of documents requested by the committees consists of “all documents and communications referring or relating to [the DA’s office’s] receipt and use of federal funds.” One is hard-pressed to see how the principles of federalism preclude fulfilling such a request. Rather, in light of the committees’ investigation, Congress might decide to attach conditions to funding for state law-enforcement activities that prohibited their use in ways such as Bragg’s. This request helps Congress make an informed decision about funding — a legitimate, indeed a core, legislative responsibility.

Bragg is pursuing a politicized prosecution under the guise of law-enforcement activity. Even leading Democrats acknowledge this and have criticized Bragg for discrediting public confidence in the criminal-justice process. Former New York governor Andrew Cuomo observed that when the public sees prosecutors bringing these political cases, it just “affirms everybody’s cynicism . . . I think it’s all politics.”

Alvin Bragg should forget about indicting Donald Trump on the charge he’s contemplating. Aside from any other weakness in his case or its political nature, it violates the core constitutional principle of separation of powers.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. Robert J. Delahunty is the Washington Fellow at the Claremont Institute’s Center for the American Way of Life.