By Rich Lowry
Friday, March 17, 2023
How much does a mug shot mean to you?
That’s the question Alvin Bragg is answering as we speak.
All signs point to Bragg, the progressive prosecutor in Manhattan, indicting Donald Trump for his 2016 hush-money payment to Stormy Daniels.
The old Karl Marx line is that history repeats itself first as tragedy, then as farce. This historic first-ever indictment of a former president of the United States would skip straight to farce.
First, there’s the tawdry and relatively trivial subject matter. Trump stands accused by his critics on the left of fomenting an insurrection to overthrow the Constitution, and the criminal offense they are going to get him on stems from a dalliance with a porn star in 2006.
Then, more importantly, there’s the question of the merits. Unless Bragg has something on Trump that no one knows about, this appears to be a prosecution in search of a legal theory.
Everything indicates that Bragg is more interested in subjecting Trump to the humiliations attendant to getting charged (turning himself in in New York, and mug shots and all the rest of it) and the grinding distraction of a criminal defense than in the cogency of the case itself.
(New York doesn’t automatically make mug shots public, but who can doubt that the Trump shots would leak?)
Surely, Bragg would be a hero to progressive opinion, but the price of his moment of glory would probably be a Trump bounce in the polls. Trump feasts on a sense of victimhood and unfair treatment, and, in this matter, he would have his best legitimate example of it since the Russia hoax.
As the New York Times put it last week, the Bragg case “hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony.”
In other words, exactly what you want to indict a former president on.
That description in the Times matches almost exactly one from the paper last year on why Bragg’s predecessor, Cyrus Vance, passed on the Stormy case: The office concluded, “with the help of outside legal experts, that it would hinge on a largely untested and therefore risky legal theory.”
The timeline of the handling of the case suggests a strong desire to find something, anything, to use to indict Trump: The Manhattan district attorney’s office under Vance looked at the Daniels payment years ago and then let it go, while picking up a broader business case against Trump; then Alvin Bragg dropped the business case, outraging his progressive supporters; and now, lo and behold, he has brought things full circle back to Stormy.
The difficulty in making a case against Trump owes to the fact that hush payments are sleazy, but legal.
In this instance, Trump directed Michael Cohen to make the $130,000 payment to Daniels late in the 2016 campaign and then paid him back in installments recorded as legal fees.
As the Times explained last year:
Falsifying business records can be charged as a misdemeanor in New York. To make it a felony, prosecutors would need to show that Mr. Trump falsified the hush-money records to help commit or conceal a second crime.
Mr. Vance’s office examined several secondary crimes Mr. Trump might have been seeking to conceal, people with knowledge of their discussions said, and concluded that the most promising option for an underlying crime was the federal campaign finance violation to which Mr. Cohen had pleaded guilty.
But with help from the outside legal experts, the prosecutors ultimately concluded that approach was too risky — a judge might find that falsifying business records could only be a felony if it aided or concealed a New York state crime, not a federal one.
Vance apparently concluded that, since the presidential campaign was a federal one, any violation of campaign-finance laws was a federal, not a state, matter.
There’s also the question of how to prove that Trump wanted to make the Stormy story go away for campaign reasons rather than, say, to keep Melania from finding out. If the payments are to be considered campaign contributions, then the logic leads to the perverse conclusion that it would have been fine for him to pay off a porn star from his campaign account.
Other difficulties include the credibility of confessed felon Michael Cohen, who would presumably be a key witness, and the inability of prosecutors to turn former Trump executive Allen H. Weisselberg, despite a pressure campaign that has him now sitting in Rikers Island.
None of this apparently matters to Bragg as long as he gets his man — and gets him not necessarily in the sense of convicting him, but of harrying and embarrassing him.
FDR attorney general and future Supreme Court justice Robert Jackson famously said:
If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, 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. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
Alvin Bragg might want to consider that Jackson was issuing a warning, not a guide to action.
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