I will surely have more to say on the Trump indictment by the Manhattan DA when I see it. I have written before on the problems with Alvin Bragg’s last legal theory under New York’s laws on falsifying business records, and this one is likely to face similar problems. But for now, let me just reiterate what I wrote twelve years ago about the highly similar prosecution of John Edwards, which ended in a partial acquittal, a hung jury, and the Obama Justice Department abandoning the case against Barack Obama’s onetime primary opponent:
For another . . . graphic illustration [of the perils of enforcing vague and complex laws], look no further than John Edwards, a two-time presidential candidate who 59 million Americans voted to make Vice President in 2004, and who now stands under indictment for taking money from contributors to cover up an affair and illegitimate child. I have no sympathy whatsoever for Edwards, but after the initial rush of schadenfreude wore off, the fact remains that his criminal prosecution, too, raises some troubling questions about the complexity of the law. Much of the original debate about the legal investigation of Edwards was about whether he could be charged with misusing campaign contributions to pay off his mistress, on the theory that this is not a valid campaign purpose. But instead, Edwards was charged under precisely the opposite theory: that taking money from big backers to pay off his mistress, without reporting them as campaign contributions, violated FEC rules because paying her off was for the purpose of advancing his campaign. Edwards was damned if he did and damned if he didn’t.
This is, if you recall, not the first time a major figure on the national political scene has faced a campaign finance investigation or prosecution under rules that are far from clear, ranging from the IRS investigation of then-Speaker Newt Gingrich to the investigation of then-Vice President Al Gore to the conviction of former House Majority Leader Tom DeLay. In each case, there was much controversy over the complexity of the rules involved and the lack of precedents for the charges being levelled – witness Gore’s famous lament, under a provision of the Pendleton Act that hadn’t been enforced since 1883, that there was “no controlling legal authority.” You may find these protestations unconvincing as to those politicians you disagree with, but one of the basic principles of clarity in the law is that you shouldn’t pass criminal statutes if you wouldn’t be prepared to see them used against someone you like. Ad hoc-racy is not democracy in the world of campaign finance any more than it is under the [Armed Career Criminal Act].
Maybe we need to listen more to Justice Scalia and that old military maxim, KISS: Keep It Simple, Stupid.