Trump on Trial. Are the charges Trumped up?
The Manhattan DA has charged former President Trump with falsifying business records and paying “hush money” to hide a “sexual encounter” with a porn star. When does prosecution become persecution?
MANHATTAN – Just over one year ago Alvin Bragg, the Democratic District Attorney for New York County, aka Manhattan, charged former President Trump with 34 counts of falsifying business records in order to hide a “hush money” payment to a porn star who has alleged an affair with Trump back in 2006. The Manhattan DA is claiming that the payment is an illegal campaign contribution hidden as a legitimate business expense.
Today the trial begins.
Trump plead not guilty at his arraignment and has steadfastly denied the “affair.” At the time, Trump’s legal team said the charges were disappointing. “It’s sad, and we’re going to fight it,” his lawyer said. On the flight back to Florida following the arraignment, Trump posted that he had done nothing illegal and said prosecutors “had no ‘surprises,’ and therefore, no case.”
The charge of falsifying business records is usually a misdemeanor, but if the records are falsified in order to hide an underlying crime, it can be charged as a felony, with a maximum penalty of 4 years in jail. According to the charging documents filed by Bragg, Trump “repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.”
Where’s the crime?
“Here’s the big question that Mr. Bragg still hasn’t adequately answered,” the Wall Street Journal asked in an editorial at the time, “Where is the second crime?” According to the Journal, Bragg cited the federal cap on campaign contributions and “New York State election law,” which “makes it a crime to conspire to promote a candidacy by unlawful means.” Bragg then mentioned “statements that were planned to be made to tax authorities.” “Planned to be made?,” the Journal asked incredulously, “Is this some version of ‘Minority Report’ where Bragg can see crimes committed in the future?”
“the theory on which it rests is debatable at best, unnervingly flimsy at worst.”
Associate Editor of the Washington Post, Ruth Marcus, wrote of the indictment that “the theory on which it rests is debatable at best, unnervingly flimsy at worst.” And, like the Wall Street Journal, Marcus also wonders what the underlying crime is. “Okay,” she wrote after Bragg’s press conference, “but what are the other crimes Trump is accused of covering up?”
The Wall Street Journal and the Washington Post are not the only ones questioning the case against Trump. Prior to the indictment, David French, a New York Times columnist and lawyer wrote “Trump is a citizen of the United States and should enjoy no more — and no less — legal protection than any of us. But no one should face the potential loss of liberty on a case that requires so much acrobatics to make, not even a man as corrupt as Donald Trump.” Following the arraignment and the public release of the charging documents, French wrote, “I’ve now read the grand jury’s indictment and the statement of facts supporting the indictment, and my conclusion is unchanged.”
The crime at the core of the charges brought by Bragg is not the paying of hush money, the crime, according to the Manhattan DA, is the scheme that Trump and his lawyer, Michael Cohen, allegedly cooked up to hide the payments. This “scheme” involved falsifying business and campaign records to disguise the payment as a legitimate legal expense. That, according to Bragg, constituted an illegal contribution to his Presidential campaign since news of the affair “hid damaging information from the voting public.”
Yet the Federal Election Commission has declined to charge Trump, or his campaign, for any violations of federal election law. Bradley Smith, former Chairman of the FEC, has noted that “the Supreme Court has repeatedly held that because campaign-finance laws infringe on core First Amendment activity, they can’t be dependent on vague, subjective interpretations.” So there is no federal crime.
Ironically, Bragg seems to be suggesting that Trump should have paid Daniels through his presidential campaign, and claim it as a campaign expense. “Who really thinks that a candidate can—let alone must—use campaign funds to pay hush money for past affairs,” Smith wrote, “and who knows what else? But that’s what Mr. Bragg’s theory would require. In other words, the ‘crime’ that Mr. Bragg claims is being covered up isn’t a crime at all.”
In a guest essay in the New York Times, NYU Law Professors Ryan Goodman and Andrew Weissmann wrote at the time of Trump’s indictment that in the absence of federal charges not being brought against Trump, Bragg “has had to pick up the slack,” and that the “district attorney’s office has commonly charged people with having made false business filings when a defendant committed fraud, such as insurance or tax fraud, and in the course of that scheme created a false business record to cover up the crime and avoid detection.”
The problem with Professors Goodman and Weissmann’s analysis is that paying “hush money” is not a crime, just ask anyone who has signed a non-disclosure agreement. And to call it an illegal campaign “donation” is a theory so novel many prominent liberal legal experts have dismissed it outright. If that weren’t enough, the two year statute of limitations on this supposed “crime” long ago expired.
Is this prosecution, or persecution?
Trump has repeatedly claimed that the prosecution was political persecution. Bragg, who formerly worked in the New York State Attorney General’s office, often “bragged” during his campaign for DA that in his former role, he sued Trump’s administration “more than a hundred times.”
The New York Times had reported that Bragg’s opponent “has been less vocal about Mr. Trump.” And despite his calling the charge of falsifying business records the “bread and butter of our white-collar work,” the Manhattan DA’s office has rarely charged that as a felony, and even rarer still is a felony conviction.
Why would the Manhattan DA be considering pursuing these charges now? Especially since the former Manhattan DA, Cy Vance, declined to prosecute Trump because he believed the hush money “did not amount to much in legal terms.”
Under New York law a defendant in a criminal case must be in attendance during the trail, which is expected to last as long as six weeks — so the trial will keep Trump off the campaign trail — though certainly not out of the news. And if nothing else, Trump is the personification of P.T. Barnum’s adage “there is no such thing as bad publicity.”
There’s no doubt the prosecution of Donald Trump, even if ultimately unsuccessful, will burnish Bragg’s bona fides with his progressive supporters, while also shining the national spotlight on a politically ambitious prosecutor. Given many progressives continued obsession with Trump, it’s not unfair to question that his motives might be more than justice. In the meantime, Trump has called for protests and pledged to fight what he and his spokesperson called the “weaponizing of the justice system.”
So where do we draw the line between prosecution and persecution? We should all be concerned whenever a prosecutor, whether Democrat or Republican, progressive or conservative, decides to prosecute anyone, even someone as controversial as Donald Trump, for their own political gain or to “punish” someone they find politically or morally objectionable. For Bragg, that’s something to brag about. For the rest of us, it’s an abuse of power.