Prosecutorial malice
Presidential candidates and campaigns come and go. Some are better and some are worse, but every quadrennial the nation’s citizens get to have their own say. After two terms, every president is put out to pasture.
However, an unprecedented ma- licious prosecution based on preposterous contortions of legal theory, and pitched to partisan jurors in an unabashed attempt to criminalize a political opponent during an election, presents dangerous staying power.
Prosecutors are given far-reaching authority and discretion, which translates into almost unchecked opportunities for perpetrating miscarriages of justice.
“The prosecutor has more control over life, liberty, and reputation than any other person in America,” said Robert H. Jackson, the only person in American history to have served as U.S. Solicitor General, U.S. Attorney General and U.S. Supreme Court Justice.
Speaking in 1940, one year before his Supreme Court appointment, he continued:
“He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. … The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard.”
Jackson noted that because of “this immense power to strike at citizens” using all the force of government itself, federal district attorneys were vetted by presidential appointment and U.S. Senate confirmation.
“While the prosecutor at his best is one of the most beneficent forces in our society,” Jackson summed up, “when he acts from malice or other base motives, he is one of the worst.”
State prosecutors also have power over life, liberty and reputation, but in 47 states they are elected rather than appointed, without the character safeguards presumed by approval of two separate branches of government.
In New York City’s Manhattan, prosecutor Alvin Bragg campaigned as the best choice among Donald Trump-slaying wannabes, even using Trump-style hyperbole to woo voters.
“It is a fact that I have sued Trump over 100 times,” Bragg told The New York Times in April 2021. A fact check revealed only 30 cases against Trump or his federal agencies during Bragg’s time at the New York attorney general’s office. Responding to the discrepancy, Bragg’s campaign spokesman admitted that “our use of the word ‘suit’ isn’t as limited as your definition.”
Manhattan is more solidly Democratic than Arkansas is Republican, and Bragg promised the party faithful he would prosecute Trump, not under the rule of law or in pursuit of justice, but regardless of either.
Bragg and defeat-Trump-at-allcosts Democrats are hoping reports of widespread American illiteracy are accurate, and praying the average voter will not take time to read up on the ludicrous details of this historic “criminal” trial.
The core charge of Bragg’s case is falsifying business records (a misdemeanor) regarding hush money, which is perfectly legal and common in high-profile political and celebrity circles.
“We regularly bring cases involving false business statements,” Bragg said at the time of indictment last year. But the statute of limitations in Trump’s case had long expired.
Bragg’s cure for that roadblock was to accuse Trump of falsifying records in “furtherance of another crime,” namely federal election law. But the Federal Election Commission had already investigated Trump’s payments and determined no violation occurred.
FEC violations rarely rise to criminality anyway. Even after finding that President Barack Obama’s 2008 campaign concealed millions of dollars in improper contributions, the FEC’s penalty was not criminal prosecution, but only a civil fine of $375,000.
To elevate the misdemeanor charges against Trump to felonies, a corresponding accusation includes “intent to defraud,” but that laughably turns on the dubious theory that Trump could defraud himself, and simultaneously be both criminal and victim. Legal experts have yet to unearth a court case allowing a false-filing conviction that didn’t include reliance by an outside party, such as a bank or insurance company.
In a courtroom where violent criminals routinely get their felonies pleaded down to less serious offenses, Bragg’s charges expose Trump to more than a century of imprisonment—without showing any harm was done.
Like Trump or hate him, liberty-loving Americans of all political persuasions should blanche at a prosecutor permitted to be driven by blatant malicious intent and political motives.
Trump’s wealth provides him resources to wage war against prosecutorial abuse that average citizens don’t have. A candidate for sheriff or mayor in a local race might lack the wherewithal to stand up to a politically hostile DA similarly abusing their powers.
Polls already give this prosecution a disapproval rating as high as President Biden’s. Indeed, the most politically astute thing Biden might do is pre-empt this perilous farce and pardon Trump on all charges. He could valiantly assert that no prosecutor on Joe Biden’s watch would be allowed to stretch felony law to ridiculous lengths for the purpose of criminalizing partisan opponents.
Trump would bristle ungraciously at the gesture, and Biden’s statesmanship would earn him a bounce among independents.