Trump Gave Them a Sword

By Dan McLaughlin

Thursday, August 10, 2023

 

Donald Trump’s legal problems just keep mounting. He’s been indicted three times: twice by a federal special prosecutor in separate cases in Miami and D.C., and once by the Manhattan district attorney. A fourth indictment may be on the way soon from the district attorney in Atlanta. He’s facing a civil fraud suit by the attorney general of New York. He’s already been found liable for sexual battery and defamation in a civil lawsuit by E. Jean Carroll in federal court in Manhattan.

 

Is Trump being unjustly pursued? Are his legal woes his own fault? Yes and yes.

 

The overzealousness of Trump’s antagonists is undeniable. One of the bedrock values of our rule-of-law system is supposed to be equal justice under law. That means the rich, the famous, and the powerful should get the same law as the poor and the obscure — neither less justice nor more. It means that the law knows no political party or faction.

 

Human nature being what it is, real justice rarely conforms perfectly to the ideal, but we still expect prosecuting authorities to labor to appear fair, impartial, and evenhanded. No fair-minded observer would conclude that this is how the prosecuting authorities have treated our 45th president.

 

Trump has been under essentially perpetual investigation since he won the 2016 election, largely by people who refused to accept its outcome. He was dogged for two years by Robert Mueller’s Russiagate probe, which arose out of FBI misconduct in obtaining warrants from the FISA court on the basis of presenting dubious evidence from foreign cutouts for the Hillary Clinton campaign. In spite of Mueller’s pedigree as a gray eminence of law enforcement under past Republican administrations, the investigation didn’t improve from there, chasing a nonexistent crime (collusion) for which Mueller never developed solid evidence.

 

The Manhattan district attorney’s office, under Cyrus Vance Jr., launched a criminal investigation into Trump’s business practices. Vance consulted a “brain trust” of people outside his office, including veterans of the Mueller probe, whose background was not in pursuing the topics of Vance’s investigation but in pursuing the man. He hired two outside prosecutors just to investigate Trump; one of them came out of retirement to work without pay just to get the Donald. In 2021, Vance indicted the Trump Organization and its CFO, Allen Weisselberg, for comparatively minor tax charges involving Weisselberg’s compensation. When Vance’s successor, Alvin Bragg, declined to bring charges involving an alleged fraudulent overstatement of Trump’s business assets, however, the two outside prosecutors quit publicly, and one of them released a public memo and a book that argued for charging Trump.

 

They had reason to expect more support; during the Democratic primary in 2021, Bragg had said publicly that “this misvaluation of assets to me sounds like the basis of a case that can be criminal.” In that campaign, Bragg leaned hard on his record of bringing civil charges against Trump while he worked at the state attorney general’s office: “I’m the candidate in the race who has the experience with Donald Trump. . . . I know how to litigate with him. . . . Look to what I have done.” He talked about the Trump family’s “pattern of lawlessness over 20 years” and about how “being a rich old white man has allowed you to evade accountability in Manhattan.” He added, “That includes Trump and his children.”

 

New York attorney general Letitia James repackaged the failed criminal charges as a civil fraud case, in spite of the problem that dogged the criminal prosecution: Even if Trump lied to the big banks that lent him money, they never lost a penny on the deal, and they were sophisticated financial institutions that knew what kind of man they were lending to.

 

Meanwhile, Bragg has scaled back his office’s pursuit of gun crimes and other sources of violence, yet he has thrown the book at Trump — even when that required completely changing the theory of what crime he was chasing. The indictment he ended up bringing had nothing to do with the value of Trump’s business or the compensation of Weisselberg; it was instead about accounting for hush-money payoffs to Stormy Daniels, the adult-film performer with whom Trump allegedly had an affair in 2006. The false-business-entries indictment, which boils down to charges that Trump lied to his own checkbook in how he described the hush money, is unprecedented. There is no charge that anybody was deceived by the business entries (or even that Trump ever expected anybody to see them), that any taxes were underpaid, or that the hush money (paid in 2017) affected the 2016 election. The statute requires proof that Trump was covering up another crime, and Bragg hasn’t even specified what the crime is — although he is apparently trying to use state criminal laws to enforce federal campaign-finance regulations. This, in turn, requires a creative reading of FEC rules that are customarily enforced only with slap-on-the-wrist civil sanctions.

 

Fani Willis, the Fulton County, Ga., district attorney, has yet to unveil charges in her investigation of Trump’s effort to get the 2020 results overturned in Georgia. Willis has leaned heavily on national publicity about the Trump investigation to raise campaign funds. In mid 2022, Democratic operative Adam Parkhomenko tweeted, “Her campaign twitter account has increased by 50K followers this week. She subpoenaed Lindsey Graham. . . . Please consider taking a moment and making a contribution directly to Fani Willis’s campaign account so she has the resources she needs when she needs them for re-election.” Willis shared the thread with her Twitter followers, commenting, “Adam, I am so humbled by your support.  This week has been amazing! 60k [Twitter followers] — WOW. THANK YOU.” Money flowed in from around the country, little of it from people who would otherwise care about local Atlanta law enforcement.

 

Willis herself tweeted a cartoon depicting her fishing Lindsey Graham out of a swamp while Trump says, “I know you’ll do the right thing for the swamp, Lindsey.” While a Georgia judge denied Trump’s motion to disqualify her from the case, nobody has any illusions about how Willis is promoting her political campaigns by being known as a Trump antagonist.

 

Then there’s Jack Smith, a hard-charging career prosecutor whose corruption conviction of former Virginia governor Bob McDonnell was overturned in a unanimous decision by the Supreme Court. While Smith’s wife is a Biden donor who produced a Michelle Obama documentary, his own record suggests none of the partisanship of Vance, Bragg, or Willis. His indictment of Trump over boxes of classified documents stored at Mar-a-Lago is well grounded.

 

Yet Smith’s approach has been both excessive and inconsistent with how transgressions by Democrats were treated. In the boxes case, he compelled Trump’s lawyers to testify against him and raided Mar-a-Lago — both the opposite of how things went for Hillary Clinton, whose lawyers were allowed to sit in with her when she was questioned. Clinton willfully routed State Department communications through an insecure private server and had thousands of emails destroyed. Jim Comey went out of his way not to charge her in large part because she was a presidential candidate. Trump got no such consideration.

 

Smith then brought a much more dubious indictment charging Trump with conspiring to thwart the government’s counting of electoral votes. He charged Trump under a statute that requires fraud, even though the campaign against the 2020 election was largely out in the open, and even though the Supreme Court held unanimously a century ago that the statute doesn’t cover elections. Smith blew by long-standing First Amendment precedents as well by charging Trump with responsibility for the Capitol riot without showing that he ever incited imminent, lawless action.

 

For all of the overreaching of his foes, however, Trump remains the primary author of his own legal problems. Bragg didn’t force Trump to pay $130,000 to cover up an affair. It wasn’t Carroll’s doing that Trump bragged publicly about grabbing women by the crotch — remarks her lawyers used to great effect at the trial. Trump was the one who chose to skip the trial rather than take the stand to defend himself, a choice that played badly with the jury. (Juries in civil trials, unlike those in criminal cases, are permitted to hold a defendant’s failure to testify against him.)

 

Trump’s conduct in the boxes case has been inexplicably self-destructive. He gained little from holding on to sensitive documents without going through the proper channels. He’s apparently on tape admitting that he shouldn’t be showing them and that he never declassified them. He turned down every opportunity to de-escalate the situation, even when it became clear that he wouldn’t get the kid-glove treatment accorded to Clinton — at the same time that Joe Biden was trying to appease investigators looking into his own careless treatment of documents in his garage and elsewhere. Trump lied to his own lawyers and allegedly tried to destroy security footage at Mar-a-Lago. He did everything but wave a red flag in front of the prosecutors.

 

Trump’s actions in contesting the 2020 election were not just indefensible, they were also obviously doomed to failure from the outset. While Trump didn’t incite the Capitol riot in legal terms, he clearly created a highly foreseeable risk that something like that might happen. The unprecedented responses — a second, post-presidential impeachment trial, an irregular and partisan congressional committee, Smith’s indictment, and Willis’s investigation — have all followed behavior by a sitting president that was unprecedented and unethical. Sometimes, you play with matches and end up burning down your whole house.

 

Even the Russiagate investigation, for all of its investigative misconduct and fantasies about Trump being a secret Russian asset for decades, was made plausible by missteps such as Trump’s publicly urging Vladimir Putin, at least half-seriously, to release Hillary Clinton’s emails if he had them, and Donald Trump Jr.’s meeting at Trump Tower with a Kremlin-linked lawyer who promised that “the Crown prosecutor of Russia” could get him dirt on Clinton. Trump proved he had learned nothing from that experience when he leaned on Volodymyr Zelensky to get him corruption evidence to use against Joe Biden.

 

Reflecting on Watergate, Richard Nixon famously told David Frost in 1977: “I brought myself down. I gave ’em a sword. And they stuck it in, and they twisted it with relish. And I guess if I’d been in their position, I’d have done the same thing.” Trump, like Nixon, has given them a sword, and they have used it just the way Trump himself would have.