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Third World Politics: Details of the Trump Indictment
The rule of law, which seems so precious to holier-than-thou Democrats these days, depends above all on one thing: a belief among the majority of us that while no one is above the law, the law will also be applied fairly to all those it does affect. Whether you loathe Trump or love him, you know this: what is happening now in Manhattan is unfair and inconsistent with a nation that once prided itself on believing in the rule of law. Who is still a believer today?
The previously sealed indictment shows Donald Trump was charged with 34 felony counts for falsification of business records, the only crime actually charged. The falsification of business records is normally prosecuted in New York as a misdemeanor. But Bragg’s office apparently bumped up all the charges to felonies on the grounds that the conduct was intended to conceal another underlying crime, violating election finance law (“with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”) There is more smoke than fire; no wonder the DA wanted to keep this mess sealed as long as possible and the judge won’t allow cameras in the courtroom. But specifically, how is this unfair?
Overcharging and stacking charges. Two basic prosecutorial transgressions. If anything, Trump should have been charged with a simple misdemeanor, the so-called falsification of business records for his seemingly characterizing money legally paid to Stormy Daniels and others as part of a nondisclosure agreement as “legal expenses” as well as payments to the National Enquirer to “catch and kill” a story about Trump’s alleged affair with Karen McDougal and other stories.
The overall case has no victim of Trump’s “crime,” and is basically a tempest over bookkeeping. Bumping all this up to felony charges based solely on Bragg’s supposition that the error was made with the intent to cheat on campaign finance laws is just overcharging, trying to make this all seem more important than it is.
Stacking, the second basic prosecutorial transgression, refers to a DA’s attempt to break one “crime” into as many pieces as he can (34 counts, one for each check cut to lawyer Michael Cohen allegedly for Stormy, et al) to also exaggerate the importance of it all and justify the felony upgrade.
Ignoring precedent cases to “get him.” Alvin Bragg ran for office on prosecuting Trump. He is fulfilling a campaign promise and paying off his backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.” Indeed, if Bragg were to have looked fairly at precedent he would have run right into the John Edwards case. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011 on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign.
The government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
Creating New Political Precedent. If this is all they found in years of obsession with destroying this man, he must be the cleanest person to ever hold office. As former Supreme Court Justice Robert Jackson observed decades ago about unfairness, “It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him,” something that is inherently unfair.
The law applied equally. For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. To do this, someone will have to address the case of Hillary Clinton, who maintained an unsecured private email server processing classified material. Clinton destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) kitchen. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests (a crime with the intent to commit another crime) ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine for their bookkeeping “error.”
In addition, those who claim Trump’s indictment is not unfair will also have to account for the fact that Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
Unequal prosecution. This concern extends past presidential politics. On Sunday, Speaker of the House Kevin McCarthy tweeted “DA Alvin Bragg is abusing his office to target President Trump while he’s reduced a majority of felonies [in NYC], including violent crimes, to misdemeanors. He has different rules for political opponents.” The DA’s tactics have led to a surge in crimes committed in Manhattan as prosecutions have fallen. Bragg claims equity demands he selectively prosecute; Bragg reduced 52 percent of all felony charges to misdemeanors, opposite of what he did to Trump.
The Future. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the United States (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case? Could things get to the point where the rule of law means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware. Historians would have to call it the Bragg Rule.
If you’re curious about how that might work, just have a look at post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office, but they were not convicted. Overall, whether a former South Korean president goes to jail after their term depends on various factors, such as the evidence against them, and more significantly, the political climate. Is this America’s future? Ask Alvin Bragg.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Indicted
What would you have done if you were Alvin Bragg? Would you have indicted Donald Trump? Or would you have walked away, concerned about accusations you as a Democrat were playing politics, and more concerned the indictment would somehow help the man you are trying to take down? You don’t play with such fire around a guy like Trump casually.
At Bragg’s insistence, Trump was indicted by a Manhattan Grand Jury on Thursday. The actual charges will not be announced until Trump is arraigned before a judge, likely in about a week. The charges will however be based around Stormy Daniels, who allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. She willfully violated the NDA to revive her career and profit selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, Trump’s now disbarred former lawyer Michael Cohen, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of New York business records law (a misdemeanor) and Federal campaign finance law (potentially a felony.) If this all sounds complicated, it’s because it is. No wonder even the Washington Post labeled this a “zombie case.” It is also the weakest case in the universe of legal troubles around Trump.
But there is a bigger question: if you were Bragg, can you win? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, prosecuting a Federal case locally in Manhattan? Candidate Trump, surrounded by an aura of legal invincibility, is already earning partisan points claiming he is the victim of banana republic politics, and this indictment will allow him to claim he was right all along. Trump will fire both barrels, one aimed at Bragg, the other likely at Biden (who he will accuse of playing a role.) He was already the victim of partisan use of justice, as the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Alvin Bragg through his indictment just reelected Trump to the White House as a sympathy candidate. CIA spooks, no strangers to manipulating elections abroad, call that blowback, and it is a real threat in this instance.
For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Bragg will have to address the case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine.
In addition, those who claim Trump’s indictment is not political in nature will also have to account for the non-actions against the Obama campaign. Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
There is also the case of John Edwards. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011, on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign. Sound familiar?
Specifically, the government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
The other fear which should have held Bragg back is that business records mismanagement and even campaign finance violations are typically dealt with either via administrative penalties and fines (Trump will not go to jail for any of this.) Most of the laws Trump may have broken require some sort of intent to do wrong. In other words, Trump would have had to have taken the steps with Stormy not just for ego or his presidential library or as some crude souvenir of virility but with the specific intent to commit harm. Proving a state of guilty mind — mens rea — will be the crux of any actual prosecution. What was Trump thinking at the time. “It should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.
The final questions are probably the most important: Bragg knows what the law says. If knowing the chances of a serious conviction are slight, why would he take the case to court? Then again, if knowing the chances for a serious conviction are slight, why would he have gone to the Grand Jury at all, his predecessor and the Department of Justice having passed on this case. No one is above the law, but that includes politics not trumping clean hands jurisprudence as well.
If Bragg successfully navigates the politics, if he proves his case in court, then what? Trump’s “crimes” are minor. Could Bragg call Trump having to pay a fine or even do some sort of community service during the 2024 campaign a win? It seems petty, as even a conviction would not disqualify Trump’s bid for the White House (Eugene Debs ran for president while locked up.) Controversy is home turf for Trump; he is clearly again the center of attention and the dominant figure in his party. It sure seems Trump wins politically big-picture whether he wins or loses at court. If you were Alvin Bragg, how would you answer accusations of the weaponization of the legal system to advance a political agenda?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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