"The Peaceful Transfer of Power" and all that other stuff they never meant

Trump's indictment ushers in an ominous new period for America

How many zillion column inches of anguished outcry have we seen about the January 6 Capitol protesters, Donald Trump’s egging them on (which he did, there’s no use in denying it), and the damage it all did to America’s most hallowed tradition of governance — the peaceful transfer of power from one party to the (sometimes viscerally antagonistic) opposing party? Liberals and others have wailed daily for more than two years that it was Trump’s threatening and soiling this tradition that was by far the most grievous of his numerous grievous sins as President.

In this they are partly right. It was Trump’s biggest failing, and in my view disqualifies him from again holding a position of public trust and power, as I argued here.

It’s now time to ask the critical question that Alvin Bragg’s indictment raises but, oddly, has been all but absent from public discussion over the last week: What exactly has made possible the tradition of a peaceful transfer of power?

It’s one thing above everything else — the losers’ faith that the winning party won’t use the power of government to put them in jail. Last week, that faith disappeared from America.

It disappeared courtesy of a radical DA in a one-party, Trump-hating jurisdiction. No matter what happens from here on in, America won’t be the same. It will be a darker place, and it will be darker whether or not Trump paid hush money to a porn star and whether or not that can be turned into a campaign finance violation — much less into roughly three dozen felonies. Throwing away the critical foundation of the most important tradition of American governance is not, and on any sane accounting cannot be, worth it.

This is not to say that Trump or any other office holder or former office holder should be above the law. They shouldn’t, lest another of our hallowed traditions — that the law is no respecter of persons — likewise be vanquished. But no one should be below the law either, and for a prosecutor to launch the enormous power of his office against a political enemy for a crime as technical, and on a legal theory as exotic, as this, is to operate in way that any mature and realistic person would recognize as being, not law, but giddy revenge. (And the giddiness of it has been on full display for the last week, as, for example, CNN followed Trump’s motorcade from his home in Florida to the airport where he boarded his plane for New York. It reminded me of nothing as much as press breathlessly following OJ Simpson on his low-speed chase through Los Angeles).

Having been a prosecutor for most of my career, I understand the need for broad prosecutorial discretion, you bet. It’s precisely such discretion that will be one of the first casualties of Alvin Bragg’s misadventure. When discretion is abused, and particularly when it’s abused for political pay-back against a detested enemy (as a big majority of the country believes), it will get curbed, and it’s likely to get curbed in excessive, blunderbuss ways that will wind up letting dangerous criminals off the hook.

Paul has already examined some of the reaction this indictment deserves, and I can add only a few strokes to what he has said. Its disastrous undermining of the real source of America’s peaceful transition of power is Number One, but the first corollary should be easy to see, too. If a former President is to be indicted by a politician from the opposing party, it has to be for something unarguably very serious; something any fair-minded person would recognize right off as criminal (malum in se, as we lawyers would put it); and something provable by conventional theories of criminality capable of a ready, intuitive understanding. The Bragg indictment fails all three tests. Indeed, it has correctly been compared to the crashed-and-burned prosecution of Sen. John Edwards on a similar hip-bone-connected-to-the-thigh-bone theory resting on a precarious stringing together of lighter-than-air campaign finance theories.

Second, the indictment flunks one of the key tests I came to understand a charging document should meet. It fails to convey quickly and in plain language what the defendant did wrong and why it’s criminal. As as a Never Trumper attorney acquaintance of mine put it, “I came away with the distinct feeling of ‘where’s the beef.’  When a long indictment doesn’t lead in the first few paragraphs describing blood on the floor, one usually concludes [that] the prosecutor [is] stretching.  X lied to buy a home he couldn’t pay back.  X killed John and Frank and conspired to sell 10 kilos of cocaine.  And so on.” The Wall Street Journal, among other publications, has made a similar point.

Finally for now, it appears that Bragg will call, as an important if not his chief witness, Trump’s former attorney, Michael Cohen. Not to put too fine a point on it, Cohen — himself a felon, jailbird and liar extraordinaire — is one of the most thoroughly dishonest and unbelievable people in pubic life, right up there with one-time Democratic mentioned-for-President candidate, Michael Avenatti.

A prosecutor necessarily vouches for his witnesses. This is no exaggeration: I would sooner quit the job than vouch for Michael Cohen. Everything I learned as a prosecutor tells me that, if your case depends to any significant degree on someone like that, then it ought to have been left on the editing room floor. And it’s not just that Cohen is as slippery as a snake; it’s that there’s a really good chance that, on the witness stand, he’s going to blow up in your face.

For the future of American political culture, this politically hatched indictment is a tragedy, and might not have to wait all that long to become a farce.

UPDATE: It occurs to me that I should more explicitly finish the thought my title implies. The Democrats have been beating the drum at 4000 decibels that Trump imperiled the peaceful transition of power by his actions on January 6. In fact, those actions, while grossly irresponsible and reprehensible in my view, never came close to threatening the certification of Biden’s election. A “shaman” in body paint and buffalo horns, and his pals similarly decked out more for Halloween than The Revolution, had no more realistic chance of nullifying the election than I have of making the Lakers next year. They were routed and hustled out of the Capitol within a few hours, and would have been routed much earlier if the police had been willing to use even modest force. Now hundreds of them are making lame excuses in federal district court.

By contrast, Wokester DA Alvin Bragg’s extermination of our ability to believe that the winners won’t try to put the losers in jail — a belief we had been able to take for granted since at least the Civil War — is a dagger in the heart of civic faith. It would be bad enough standing alone, but it doesn’t stand alone. It comes against the backdrop of the attempted murder of the Republican Majority Leader, Steve Scalise; the attempted assassination (after a Democrat-led hate campaign) of Justice Kavanaugh; and quite recently, the menacing shout-down of Judge Kyle Duncan by Brownshirts posing as students at Stanford Law School, followed by their only slightly less menacing behavior toward their Dean, Jenny Martinez, for having the temerity to apologize for their thuggery.

The Left has been plenty loud about a largely fictionalized coup on January 6, even while, now with Mr. Bragg’s manufactured 34-count indictment, they’re letting us know that the threat of a Banana Republic America — with them permanently in charge of the bananas — is anything but fiction.