Crossing the Rubicon in destroying respect for law

Alvin Bragg's sideshow of a prosecution is somewhere between a bad joke and a catastrophe, more likely the latter.

In my post here, I argued that Alvin Bragg’s putative campaign finance prosecution of Donald Trump is worse than ordinarily thought, even by Trump’s backers, because its long-term damage to democracy and the rule of law is greater than most people understand or appreciate.

I may have understated the case, as Alex Berenson explains. His arguments have had me so depressed that I haven’t (yet) taken aim at the neo-Nazi “protesters” who are showing, at Yale and Columbia among other places, what happens when anti-Semitic bullies meet administrative cowards.

Berenson starts out:

“A criminal scheme to corrupt the 2016 presidential election.”

That’s the crime prosecutor Matthew Colangelo - a top official in Joe Biden’s Justice Department until he joined the Manhattan district attorney’s office to prosecute Donald Trump - claimed last week Trump had committed.

That “scheme” is why Trump faces 34 New York state felony charges for “falsifying business records,” a crime that is normally a misdemeanor, Colangelo said in his opening statement to the Manhattan jury that will decide if Trump is guilty.

Colangelo’s participation in the New York case is not illegal so far as I know, but it casts in bold relief the main danger the case against Trump poses, namely, the signature of banana republic governance — the party in power manipulating the justice system to kneecap the party out of power. This is a poison and a blight our country has not faced before.

In mid-April, a Richard L. Hasen, a left-leaning expert on election law, wrote in the Los Angeles Times the New York charges “are so minor I don’t expect they will shake up the presidential race.”

Hasen was half-right. The charges are minor. But the way prosecutors are framing the case is not. Local Democratic prosecutors want to send Trump, a Republican, to prison, for a “crime” that comes down to beating Hillary Clinton in 2016.

Win or lose, their effort may destabilize the American legal system for decades.

Of course the aim is not merely to punish Trump for winning in 2016 — an indignity that continues to infuriate the Democratic Party — but much more importantly to paralyze his campaign this year, hence to elect a decrepit and unpopular incumbent who otherwise would be toast, even according to CNN.

[L]ocal prosecutors, who answer only to local voters in a heavily Democratic county, aren’t just stretching a state criminal statute to its limits. They are doing so explicitly to punish a Republican politician over his tactics in his race for president - the only truly national election in the United States….

In fact, the actual crime Trump supposedly committed is almost farcical in its unimportance. He supposedly misclassified $420,000 in expenses in internal accounting records as “legal services” when they were actually reimbursements for payments that his lawyer Michael Cohen made on his behalf.

Seamy, for sure. And in 2021, Pecker agreed to pay $187,500 to settle a [civil] Federal Election Commission investigation into whether the payment to MacDougal was an illegal campaign contribution.

It will be critical that Trump’s lawyers persuade the judge to charge the jury that making hush money payments to kill a story is not illegal. Whether they can do so with this judge very much remains to be seen. But it’s essential because Bragg’s chances of convicting Trump depend almost entirely on making the jury believe that Trump is a bad man and deserves to be punished, even if the actual case presented more closely resembles a Rube Goldberg contraption than a coherent legal theory — a case Jonathan Turley makes in this must-read piece.

Assume the prosecutors are correct. Assume Trump’s only motive for hiding his affairs [including prominently the one with Stormy Daniels] was to improve the chances he would win the 2016, that he didn’t want to keep them secret for some other reason.

Which assumption, by the way, defeats this prosecution all by itself, since no reasonable juror could conclude beyond a reasonable doubt that Trump paid the hush money mainly to influence voters about his character — which the electorate had known for years was, shall we say, imperfect — rather than for the far more common reason, to wit, to keep it from his wife.

Assume also that he actually coordinated with Pecker and the National Enquirer to hide MacDougal’s story.

The correct response remains, So what? Why on earth is Trump on trial?

In 2016, Hillary Clinton’s campaign used campaign funds to pay for the infamous “Steele dossier,” the research report that falsely linked Trump to Russia. This is not a conspiracy theory. In 2022, Clinton’s campaign and the Democratic National Committee paid a $113,000 fine to the FEC to settle an investigation into the payments.

Clinton’s campaign then worked with friendly news organizations to plant stories based on that research….

If Donald Trump is being indicted for his 2016 shenanigans, why isn’t Hillary Clinton?

Ummmmmm, because when a Democrat does it, it’s OK, but when Donald Trump does it, it’s almost three dozen felonies?

[A]s Finley Peter Dunne famously said in 1895, “Politics ain’t beanbag.” Any candidate worthy of the name will want to win badly, and will do everything possible to portray himself in the best possible light and his opponent in the worst. That’s true in every election, much less one where the world’s most powerful office is at stake.

For local prosecutors to attempt to turn what are most technical legal violations into felonies on the basis that Donald Trump wanted to keep his private affairs private in a presidential election is a dangerous overreach.

That’s understating it. We see overreaching all the time in campaigns. Indeed, we see plenty of outright lying (and Trump isn’t guiltless either, not of that). But what we have not seen up to now in this country is the in-party dragooning the fearsome power of prosecution to cripple the opponent of the out-party.

The New York Times argued convincingly this weekend in a long piece (paywalled) that Trump’s view of the United States and the American justice system has darkened considerably since 2016.

But what the Times didn’t acknowledge is that Trump now has every reason to view American law as hopelessly politicized and prosecutors as targeting him. Whatever the strengths and weaknesses of the three other indictments Trump faces, the Manhattan case is a travesty, a poison pill that no amount of sugarcoating can hide.

Which right there captures the huge and ugly extent of the danger the Manhattan prosecution poses. If Trump loses a close election, millions of people will believe it was because of this politically-based, jury-rigged case and the relentless partisan hype that followed it. If he wins, he’ll bring to his Office an (understandably) jaundiced view of the prosecution function, with all the dangers that poses in the man who will appoint the Attorney General and every United States Attorney. And it won’t stop there, either. There’s the prospect, if not the probability, that he would further corrupt the power of prosecution in the ways his opponents did, in order to exact revenge on them — in other words, to ingrain in the justice system, for years if not decades, a cycle of recrimination over fair-mindedness that would degrade the rule of law, and respect for law, in ways America has never seen on such a scale before. As Berenson puts it:

Win or lose, the Manhattan district attorney’s office has made a terrible mistake. At best, it has opened the way for partisan local prosecutors in all 50 states to look for any excuse to interfere in federal elections.

And if Trump wins this fall, he will be in a position to unleash federal law enforcement on his opponents. He shouldn’t, of course. But after this indictment, even a man far more patient and forgiving than Donald Trump would have a hard time not wanting revenge.