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Democrats Finally Indicted Donald Trump - Will They Regret It?
It's the end of the world as we know it, and I feel fine
Well, this is one way to define the right to a trial.
Reactions today from many people — here’s my take:
The indictment of former president Donald Trump by Manhattan district attorney Alvin Bragg is striking for a number of reasons. There is its historic nature, unprecedented and indicative of the weaponization of government entities by partisans who head them. There is the questionable nature of its allegations, which no serious legal scholar believes could pass muster. And then there is the total bifurcation of reaction: for Democrats, they are approaching this conclusion with less joy than solemnity, a gritted teeth approach to revelations that might once have had them dancing in the streets. For Republicans, they seem far less concerned: they think it will even help Trump, and certainly not hurt him, with the American electorate.
It’s possible that everyone is wrong about this. The GOP primary voter may certainly run to back Trump in the face of this attack, but after Russiagate, two impeachments, and the Mar-a-Lago raid, how much more can be done to solidify his support?
As for independent voters, it’s certainly possible the cloud of indictment could turn some of them off — but they were also people who forgave Trump, infamously and surprisingly, for the NBC News “grab em” tape.
And for Democrats, it’s difficult to weaponize this case because of how abnormal and baseless it seems — and not conducive to their more powerful message of election denialism. In the post-Bill Clinton era, are hush money payments even a crime?
The only people who benefit from Donald Trump’s indictment are Trump himself and Manhattan district attorney Alvin Bragg. A significant chunk of the GOP primary electorate will now rally around the first president ever to be criminally prosecuted (though Ulysses S. Grant was once arrested for speeding in his horse-drawn carriage). Bragg, meanwhile, has set himself up for a Democratic primary win—and therefore election—to whatever New York political office he next seeks.
The big losers are the rule of law and the American people, who get dragged evermore into the Trump-versus-anti-Trump muck rather than being able to focus on real issues.
If you think Trump is a bad man who did bad things and doesn’t deserve to be anywhere near public office, you’re worse off because he’s now a better bet to get the Republican presidential nomination. And any further indictments, either from a federal investigation of improperly handled classified documents or the one in Georgia over subornation of election fraud—both of which stand on firmer legal ground—are now politicized and less likely to end up in any real accountability for Trump. The weakness of Bragg’s case undermines all other potential prosecutions.
If, on the other hand, you think that Trump can do no wrong, you’re worse off, too. Bragg’s prosecution makes it less likely that Trump returns to the White House, even if it improves his chances of being on the ballot in November 2024, because swing voters (whether truly independent or just those alienated by partisan radicalization) are turned off by the Trump Show. The only mandate that Joe Biden won in 2020 was not to be Donald Trump. Biden’s overreach since fulfilling that mandate, as well as his age, makes him a singularly vulnerable incumbent. Perhaps the only Republican whom Biden could beat is Trump, whose electoral ceiling at this point (not enough to win a general election) is about at the same level as his floor (enough to win a primary).
And if you just want to see American politics return to a “normal” state, well, you’re also worse off, for reasons I need not spell out.
There may not even be a final verdict here. Trump’s lawyers will move to dismiss the indictment on multiple grounds. First, it’s a stretch to find that an improper recording of a hush-money payment as a legal expense is criminal. Second, this kind of ticky-tack misdemeanor is barred by the statute of limitations. Third, the idea that Trump’s bad accounting, even if intentional, becomes a felony (with an extended limitations statute) simply because the purpose of the hush money was to violate federal campaign-finance laws, is fanciful. Particularly because, fourth, this would be an example of targeted prosecution—going after Trump after several prosecutors (including Bragg himself once) had reviewed the same facts and declined to press charges. There’s simply no legitimate reason, such as newly discovered evidence, to revive a cold case years later.
The former president can also make a strong claim of selective enforcement, defined as the singling out of a particular person when prosecutors generally choose not to charge other people who committed similar offenses. Trump’s lawyers will argue that accounting errors are typically handled as civil matters and that transmogrifying them into election-law felonies would be an unprecedented abuse of prosecutorial power.
Would this case have been brought against anyone else, even any other politician? To ask the question is to answer it. Trump famously said that he could get away with shooting someone on Fifth Avenue. But prosecuting him for this other stuff looks particularly rich, given that District Attorney Bragg has declined to prosecute so much gun crime on other New York City avenues.
Bragg is attempting something that many lawyers think is as improbable as the reanimation of the dead. The Justice Department itself declined this prosecution and both the former chair of the Federal Election Commission and various election law experts have thrown shade on the theory.
Not only did Bragg’s predecessor, Cyrus Vance, not bring this case, but Bragg himself stopped the prosecution. It was after one of Bragg’s lead prosecutors resigned and wrote a book on prosecuting Trump that pressure became too much for the district attorney, who grabbed his shovel and went to work.
There are serious challenges to this prosecution, including an argument that time has expired under the statute of limitations. The limit is two years for a misdemeanor and, even if he can convert this into a felony, it is not clear if he can meet the longer five-year limitation.
Bragg will have to convince a court that Trump paid the hush money for the sole purpose of the election. As a married man and television celebrity, Trump had other reasons to try to avoid a scandal. That is precisely why such cases (like one against former Democratic presidential candidate John Edwards) failed in prior prosecutions.
However, the greater danger may come if he succeeds in moving this case to trial. Locals in New York will be thrilled, but will the rest of the country join the pitchfork carrying mob?
This is a patently political prosecution. Indeed, of all of the potential charges that Trump is facing in Washington, Atlanta and New York, this is one that he must have hoped would come first.
First, the falsifying-records statute requires that the defendant make, or cause to be made, a false entry in an enterprise’s business records. Until an indictment is handed up and unsealed, we won’t know precisely which Trump Organization record is alleged to be false, or what part then-President Trump purportedly played in making that record.
Presumably Mr. Trump, as company CEO, had a limited role in the details of the Trump Organization’s record-keeping practices. That role surely became even more limited once he entered the White House. It is thus unclear how the prosecution would prove beyond a reasonable doubt that Mr. Trump knew how the payment to Ms. Daniels would be recorded in the Trump Organization’s books. Perhaps Mr. Cohen’s testimony, or the testimony of some currently unnamed Trump Organization employee, can show Mr. Trump’s personal knowledge of and involvement in the alleged false record-keeping. But, in the absence of such testimony, the prosecution’s case may founder on this elementary point.
Second, there is a clear division in New York case law about the meaning of “intent to defraud” in the falsifying-business-records statute. One line of cases holds that “intent to defraud” in this context requires a showing that the defendant intended to deprive a victim of money, property or a pecuniary interest. But other courts have held that no such requirement exists; all that must be shown is that a deliberately false entry was made in a business’s records. The prosecution’s theory will likely be that Mr. Trump’s motive for falsifying business records was to deceive federal election-law authorities—and voters. But if the precedents that require an intent to cheat a victim out of money are held to govern, the prosecution will fail.
Mr. Trump’s most favored defense will likely be a factual one. His lawyers will undoubtedly argue that no jury should believe anything Mr. Cohen or Ms. Daniels says. Any defense attorney would salivate at the chance to cross-examine these “star” witnesses. Mr. Cohen has been convicted not only of making false sworn statements to Congress, but also of lying on his federal tax forms. His many inconsistent statements about the Daniels matter make staking a conviction on Mr. Cohen’s claims a significant challenge for the prosecution.
Ms. Daniels will surely be portrayed by the defense as a witness unworthy of belief by virtue of both her profession and her prior statements. Mr. Trump’s lawyers will assert that she has at times been paid to tell different stories. Why should Ms. Daniels be believed now, in the circuslike atmosphere of a Trump trial?
In sum, Mr. Trump’s best defense may be the boring legal argument that even if all the facts alleged by the prosecution are accepted as true, he lacked the required intent to cheat a victim out of money or property. But when has Mr. Trump ever chosen the boring option?
More reactions from:
Items of Interest
“General Dunlap first used the term in a 2001 paper that came on the heels of the 1999 Kosovo campaign, in which both lawyers and public debates about the legality of the war figured prominently. “Is lawfare turning warfare into unfair?,” he asked, and his basic answer was “Maybe.” General Dunlap defined “lawfare” as the “use of law as a weapon of war,” which he described as “the newest feature of 21st century combat.” The paper gave many examples of relatively weak U.S. adversaries using legal principles dishonestly and strategically to “handcuff the United States” in an effort to “exploit our values to defeat us.” After cautioning against overreaction and insisting on the importance of adherence to the law of armed conflict, he concluded that “there is disturbing evidence that the rule of law is being hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as well as the law itself.” General Dunlap subsequently wrote many more essays about “lawfare,” and in part (I think) to rebut misinterpretations or misappropriations of his work, he expanded the definition of the term to mean “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”
— Jack Goldsmith