How bad is Alvin Bragg's Manhattan prosecution?

Worse than you thought, because it will do more long-term damage than you thought.

Last week, I gave a talk to American University law students about the dangerous waters our country is entering by having hyper-partisan prosecutors from the party in office use their power to pursue aggressive criminal charges against the candidate of the opposing party in an election year. The talk I gave is similar to the one linked in my last post.

In the question-and-answer period afterwards, a young lady raised her hand. She said she was from Colombia, and that the Trump prosecutions now ongoing are a more poisonous form of banana republic politics than she had ever experienced where she grew up.

Although I think there is merit to one of the Trump prosecutions — the Florida-based charge for obstruction of justice and evading a lawful subpoena — I had to agree. And readers may note that, while we’ll all now be hearing oodles about “hush money” and “porn star,” the one thing we’ll almost never be hearing is the phrase “banana republic politics.” But that’s what’s going on, and it presents massively more of a threat to an honorable judicial system and to the rule of law itself than any porn star and any hush money the world has ever seen.

One of the things I noted in the question-and-answer period at American is that, while we (and conservatives in particular) like to say that our system is about the rule of law and not of men, that’s not actually true. Having been a litigating lawyer most of my professional life, I’ve learned that the character, fair-mindedness and integrity of the people running the system will either build it or kill it. Right now, in Manhattan, it’s killing it, and its corpse will haunt our respect for law and our faith in our politics in ways none of us has seen in our lifetimes. Watergate, awful as it was, doesn’t come close.

Let’s get real, shall we? The true impetus to get Trump has next to nothing to do with his paying off a porn star or his misdescribing those payments (which I’ll assume arguendo that he did). It’s the visceral hate he inspires in huge swaths of people, mostly but not entirely on the Left. And no, it’s not fear that he’ll hijack democracy, or outrage (or pretend outrage) that he’s crass or vulgar or low-life or shameless. There is that sort of fear and that sort of outrage, yes, but that’s not what’s mainly at the bottom of these prosecutions. What’s at the bottom is hate. It’s past time we called it by its name.

How do we know this? Easy. Watch what you see and listen to what you hear every hour of every day on CNN, MSNBC, the NYT, the WaPo, and almost any major outlet except Fox. It’s not news in any previously recognizable sense, and it’s gone beyond mere slant. It’s bile from way down deep and we all know it.

And one other thing that almost never gets mentioned: The linchpin of the hate directed at Trump is the belief that he sought to subvert America itself by seizing and holding power after an election he lost — the “insurrection.” The blow-back from the insurrection (very generously assuming that that’s what it was) has been 91 felony counts spread over four jurisdictions — charges that just happen to be timed to tie Trump down in court for the next six months of what would otherwise be his campaign.

All about “protecting democracy,” dontcha know. Destroying your main opponent’s chance to campaign is “protecting democracy.” This is what the Left feeds us every single day.

But the timing, malodorous as it is, isn’t the main thing. At one point, 1861 - 1865, America had a real insurrection, namely, the Civil War. It lasted four years. The best estimates I can find say that it killed 620,000 soldiers. There were two principal leaders of that insurrection, Jefferson Davis and Robert E. Lee.

Question: Was either Davis or Lee brought to trial for anything ever?

Answer: No. Both were indicted but there was never a trial. Each lived a free man.

But Donald Trump, whose supposed “insurrection” lasted six or eight hours, did not and was never going to change the election’s outcome, and killed no one (except, perhaps, one of the protesters, Ashli Babbitt (but see this NYT article claiming several vaguely related deaths)) — that Donald Trump is, as I write this, on trial for thirty-four felony counts in a ginned-up hush money indictment from a far Left political opponent in a wildly skewed jurisdiction that voted 12% for Trump and 87% for his opponent.

If this is any sane person’s version of Equal Justice Under Law — the motto of our law inscribed above the Supreme Court — I will eat every hat that’s ever been made.

Just how jury-rigged Alvin Bragg’s indictment is was usefully spelled out in this piece by Richard Porter in Real Clear Politics. The case is aptly, if acidly, described in Porter’s first paragraph:

[T]he case of The People of the State of New York vs. Donald J Trump……alleges that the defendant lied to his own check register, and lied to the general ledger of his own company, when the invoice given to him by his lawyer was paid and recorded by someone else, and that the misstatement he made to himself in his own records was done “with the intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”

Ouch!

It is often noted that this is the first time that a former U.S. president is being tried for a crime, although Ulysses S. Grant may (or may not) have been cited for speeding in his carriage. The federal government chose not to prosecute Bill Clinton, who lied under oath during a sexual harassment lawsuit and then dissembled again about sex before a grand jury. Clinton lost his law license, settled the case on unfavorable terms, and was sanctioned by both federal and Arkansas state courts.

So, this is a first. And let’s be honest about who is doing what to whom and why.

Porter’s essay is thereafter, I’m happy to say, not plagued by excess subtlety.

Th[e] local prosecutor, Alvin Bragg, is a member of the Democratic Party – and the voters who elected Bragg and from whom the jury will be chosen support the Democratic Party. In 2016, the people of New York County voted 87% for Hillary Clinton and 10% for Donald Trump, and in 2020, 87% for Joe Biden and 12% for Donald Trump. In other words, the jury pool is chosen from one of the most partisan jurisdictions in the country – a place where almost all the judges are Democrats as well.

So the Democratic prosecutor elected in the second most Democratic county in the United States will try the former Republican president and current putative Republican Party presidential nominee before a Democrat-appointed judge and a jury drawn from a pool 87% of whom voted against him (and who are being asked if they watch Fox News or listen to talk radio in the screening process).

One wonders if the law even matters.

Which is exactly the question you get in a banana republic. Up until now, it’s the question we thought we did not have to ask in the United States. That’s all changed. Whether law will continue to matter, or instead will be shoved aside in favor of bile, is the real question in these prosecutions. I am not optimistic about the answer.

[L]et’s review the two statutes at issue to highlight what the law requires the prosecution to prove. First, the prosecutor must prove that Trump violated the relevant statute, which requires a finding that he falsified business records with intent to defraud – that he “makes or causes a false entry in the business records of an enterprise.”

By the way, falsifying business records in the second degree is a misdemeanor, not a felony. Moreover, New York’s statute of limitations requires that misdemeanor prosecutions be commenced within two years of the commission of the act, meaning that under the last provision, this case should never have been filed.

Correct, and a key point. If there’s anything here at all, its a misdemeanor, but the statute of limitations on a misdemeanor ran out years ago.

Bragg elevated this misdemeanor into a felony by including New York  Penal Law 175.10 in the indictment – falsifying business records in the first degree. That statute reads this way:

“A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

There are other obvious difficulties with this case beyond the credibility of the witnesses (a porn star who denied any affair numerous times and a disbarred lawyer convicted of perjury).

Bragg’s star witness is going to be Micheal Cohen, possibly the most dishonest lawyer in America, a man who quite suitably went to jail for perjury. When I was an Assistant US Attorney, I would rather have dismissed the case point blank than call to the stand, and vouch for, a man I knew was a congenital liar. But I’m not Alvin Bragg.

For example, why does the entry in the check register or the general ledger matter at all? When would those entries, as opposed to the allegedly false invoices, be shown to anyone for any nefarious purpose? And were the entries even false? Was there any intent to fool someone to obtain something in making the entries – who was the target of the allegedly false entry in private books and records? If there’s no mark, no victim, then how could there be an “intent to defraud”? Defraud whom? And what is the other crime that the person making the book entry intended to commit or hide? If the other crime is not a New York crime but a federal crime, does every county prosecutor in the United States, including Alvin Bragg, have the jurisdiction to enforce an alleged federal crime indirectly through a state crime?

It’s worth noting that federal Special Counsel Jack Smith, no one’s version of a wallflower, chose not to go after Trump for the supposed federal campaign finance violation.

If this matter did not so seriously threaten our faith in law, I’d have to laugh, honestly. This really is like putting someone on trial for lying to his diary.

The political nature of this trial is obvious, and unprecedented in the United States. Even with irrefutable DNA evidence that Bill Clinton committed perjury, the special prosecutor declined to press criminal charges against him. In America’s recent past, prosecutors tended to exhibit a modicum of restraint. Those days are apparently gone.

And we’ll miss them. As I told the American University law students (and others at, for example, Stanford and Penn), it’s true that prosecuting a powerful man like Trump could  have a bracing effect on future office holders that — hey guys! — you really can wind up in trouble, and maybe in jail, for your lawlessness. But the more probable outcropping of Trump’s prosecution will be considerably less wholesome:  It's less likely to spawn an embrace of prudence than an appetite for revenge.  The Democrats’ appetite will be whetted by their success in putting a despised Republican  in the slammer. The Republicans’ appetite, once they return to power, is too obvious to elaborate: You used the law to screw us and now we’re going to use it to screw you.  These indictments, and Bragg’s Rube Goldberg invention in particular, will launch, not an era of renewed accountability, but a cycle of recrimination. In the real world of hardball politics, a cycle of recrimination  is certain to degrade rather than enhance whatever chances people of good faith have left to restore the rule of law.