The Reckless Trump Indictment

National Review Online

Friday, March 31, 2023

 

Alvin Bragg crossed the Rubicon.

 

A Manhattan grand jury has indicted Donald Trump on reportedly more than 30 charges related to his hush-money payment to porn star Stormy Daniels. Trump is set to be arraigned, including getting fingerprinted and photographed, on Tuesday.

 

Although the indictment is still sealed, every indication is that the case is extremely flimsy on the merits, and especially shabby given the historic import of a first-ever indictment of a former president.

 

Hush payments may be sleazy, but they are legal. The violation of the law in the Daniels payment may have been in how it was logged in the Trump Organization accounts. The payment was agreed to near the end of the 2016 campaign, and then–Trump fixer Michael Cohen paid it with his own funds and Trump reimbursed him across 2017. In the Trump Organization books, the payments were called legal expenses, suggesting that they were for ongoing legal work.

 

This was dishonest but, at most, is a misdemeanor. The idea of going after a former president, with all the political consequences involved, on such a piddling charge was so self-evidently absurd that no minimally self-respecting prosecutor would do it.

 

The question, then, was how to bootstrap up the alleged misdemeanor into a felony. Under New York law, the false bookkeeping could be a felony if it was in service of another crime, which Bragg apparently posits was a campaign-finance violation. Yet it’s not clear that the payment was a campaign-finance violation at all. Trump can plausibly argue that he wished to avoid personal embarrassment. It is easy to imagine the same people going after Trump now equally objecting if he had used campaign funds, on grounds that a payment resulting from an alleged affair is a personal matter.

 

Then, there’s the problem that the campaign-finance offense would be a violation of federal and not state law, and such a crime has never been prosecuted in New York. There’s also a question of whether the statute of limitations has expired on these supposed offenses, and of the credibility of two of the star witnesses, confessed fraudster Michael Cohen and a porn star, among other issues.

 

There’s a reason that this is a case that federal prosecutors passed on and that Bragg’s predecessor, Cyrus Vance, decided wasn’t worth pursuing. Bragg was going to pick up a larger business case against Trump but, when he dropped that and progressives were outraged, he returned to the Daniels payment.

 

Bragg promised to prosecute Trump during his campaign for DA, and all signs point to this being an instance of promises made, promises kept. But deciding that a certain individual should be prosecuted, and then twisting the law to find a way to nail him, is a gross violation of how our system of justice is supposed to work.

 

The prosecution is going to create an unprecedented situation, with a former president and the leading candidate for a major-party nomination dragged through a criminal case as he runs for president. It is going to heighten emotions and drive further political divisions. It should be incumbent on everyone to avoid irresponsible rhetoric — of course, Trump, with his taste for the incendiary and conspiratorial, won’t do that — and trust that the system will ultimately reach the correct conclusion even if Bragg is abusing it.

 

In sheer political terms, Trump will benefit, at least in the short and medium term, from the attention and Republican sympathy that will come with the indictment. Any further indictments, whatever the merits, will inevitably be discredited to some extent or other by Bragg going first with these dubious charges. There will surely be other, unforeseen consequences, none of which are likely to be good.

 

This act might serve Bragg’s political purposes, but the country will reap the whirlwind.