BRACING FOR TRUMPER STORM
DA creates a legal monster
‘IT’S moving. It’s alive. It’s alive . . . it’s moving . . . IT’S ALIVE!” The scene from the 1931 movie “Frankenstein” came to mind this week as Manhattan District Attorney Alvin Bragg prepared an indictment of former President Donald Trump.
It is the ultimate gravedigger charge, where Bragg unearthed a case from 2016 and, through a series of novel steps, is seeking to bring it back to life. Of course, like the good doctor, Bragg shows little concern over what he has created in his Frankenstein indictment.
Bragg is combining parts from both state and federal codes. He is reportedly going to convert a misdemeanor for falsifying financial records into a prosecution of a federal crime.
The federal crime is reportedly the failure to report a payment of $130,000 to former porn star Stormy Daniels to hush up an affair. That was just before the 2016 presidential election, and Bragg is alleging that it was an effective campaign donation.
Bragg is attempting something that many lawyers think is as improbable as the reanimation of the dead.
Shaky ground
The Justice Department itself declined this prosecution and both the former chair of the Federal Election Commission and various election-law experts have thrown shade on the theory. Not only did Bragg’s predecessor, Cyrus Vance Jr., not bring this case, but Bragg himself stopped the prosecution.
It was after one of Bragg’s lead prosecutors resigned and wrote a book on prosecuting Trump that pressure became too much for the district attorney, who grabbed his shovel and went to work.
There are serious challenges to this prosecution, including an argument that time has expired under the statute of limitations. The limit is two years for a misdemeanor, and even if he can convert this into a felony, it is not clear whether or not he can meet the longer five-year limitation.
Bragg will have to convince a court that Trump paid the hush money for the sole purpose of the election. As a married man and television celebrity, Trump had other reasons to try to avoid a scandal. That is precisely why such cases (like one against former Democratic presidential candidate John Edwards) failed in prior prosecutions.
However, the greater danger may come if he succeeds in moving this case to trial. Locals in New York will be thrilled, but will the rest of the country join the pitch-fork carrying mob?
This is a patently political prosecution. Indeed, of all of the potential charges that Trump is facing in Washington, Atlanta and New York, this is one that he must have hoped would come first.
The investigation into Trump’s actions at Mar-a-Lago by the Justice Department raise well-established crimes and an array of evidence. While a possible charge in Georgia over election violations is weaker, it is also based on a stronger legal foundation.
If Trump were seeking a way to prove the political weaponization of the criminal-justice system, Bragg just fulfilled that narrative. Now, if these other cases result in charges, it will look like Democrats are piling on to knock Trump out of the race for 2024. They will be painted by this transparently political prosecution.
Indeed, voters could well view the election as a vote against the establishment and the media — the very thing that got Trump elected in 2016.
A prosecution is likely to extend beyond the election.
However, if it is thrown out before that date, it will again reinforce Trump’s claims of political targeting.
The prosecution could add a truly wicked dimension to the election. While Biden is accused of illegally possessing an array of classified material in various locations, the Justice Department has long (in my view, wrongly) followed a policy that it cannot prosecute a sitting president. However, would it indict Trump but not Biden on that basis? Again, the public is unlikely to stand for a perceived double standard.
Then there is the question of a self-pardon. I have long maintained that a president can pardon himself. That would mean that the election could become a vote on who you want protected from prosecution: Biden (under the DOJ rule) or Trump (under a self pardon).
Ominous future
While many celebrate Bragg restoring life to the statutorily deceased, they should consider what he has created.
Bragg is releasing this case into a public that is already on edge. Polls show that a large number of Americans believe that the legal system is being politicized and hold both state and federal government in suspicion. A fifth of Americans now view the government as the greatest threat facing the nation. What is truly shocking is that 53% in one poll agreed with the statement that the FBI acts like “Biden’s Gestapo.”
This case could well succeed at trial, but it will come at a great cost even if overturned on appeal. It is inviting other prosecutors to act with the same political abandon.
In the 1931 movie, Dr. Frankenstein is warned: “You have created a monster, and it will destroy you!” Bragg is risking the reanimation of more than a cadaverous crime. Indeed, he could singlehandedly reanimate the presidency of Donald J. Trump.