Of Course It’s Political

By Jeffrey Blehar

Saturday, April 01, 2023

 

I have not read Manhattan District Attorney Alvin Bragg’s (still-sealed) indictment of Donald Trump yet; I am as yet captive to the (thorough and well-sourced) reporting about it by multiple outlets, including ours. But unless all reporting about what that indictment contains has been an incredible act of legal misdirection worthy of a stage magician and Bragg pulls a rabbit out of his hat, then he has brought a stunningly irresponsible case based on novel legal theories that will rend the country asunder along sharply polarized political lines — and that Bragg may end up losing anyway. That’s a bad bet.

 

I endorse all the points raised by Rich in his post, and add that the most insulting pretense of all is that this charge is anything but political. Everyone knows by now that Donald Trump slept with Stormy Daniels and then paid her hush money when she threatened to go public, using his attorney Michael Cohen as a cut-out. It is a  sordid (and typically Trumpian) affair, but the crime he is reportedly going to be charged with is the falsification of business records. Normally this is a ticky-tack misdemeanor charge that results in monetary penalties, but Bragg is apparently trying to bootstrap his case into a felony (and thus potential jail time) using a novel prosecutorial theory that, to be charitable, will face significant challenges in passing muster before the court or a jury.

 

Longtime readers will know it gives me no joy to defend Donald Trump. But when an elected prosecutor who ran his campaign on a promise to prosecute Trump revives a case abandoned by his predecessor because of its weakness and runs it afresh without burnishing it in any way . . . of course it’s political. This prosecution would never happen to any ordinary individual, or even any ordinary politician for that matter (the failure of the John Edwards prosecution, over his cover-up of a far seamier scandal, provides instructive comparison here as to why those sorts of cases aren’t normally brought anymore). It is happening solely because the person involved happens to be the extremely unpopular (in New York City, and nationally among Democrats) former president of the United States. The fact that Bragg is being forced to resort to arcane, “creative,” or novel prosecutorial theories to even get the case past a judge makes that transparently clear. You don’t go to this kind of effort to indict Sal the milkman.

 

I fear it is a potentially historic blunder. The same people who shouted about Trump’s shredding of “norms” ought to pay incredibly close attention to the course of this prosecution, because norms do matter — and an enormous one is being shredded here, in a way that promises to open Pandora’s box. The “norm” of not engaging in tit-for-tat political “revenge” prosecutions strikes me as an extremely important one for a functioning civic polity. It is going to be infinitely harder to make an argument for it after Bragg indicts an ex-president for reasons that have to be proposed as wildly creative legal theories in order to merely satisfy the elements of previously understood criminal law.

 

“It’s not political!” we are asked to believe. Good luck with that. The American public certainly isn’t fooled.