After Donald Trump's indictment wave goodbye to our justice system, say hello to this
The unsealed indictment of former President Trump is legally deficient and factually anemic
{{#rendered}} {{/rendered}}There is no justice system anymore. There is only a legal system. And it’s corrupt.
That is the tempting conclusion to be drawn from the unsealed indictment of Donald Trump on Tuesday by a Manhattan grand jury. District Attorney Alvin Bragg seeks to bend statutes beyond their limits and stretch alleged facts beyond reason. This constitutes prosecutorial abuse in a brazen attempt to weaponize the law and criminalize politics.
The law is not a rubber band that can be manipulated at will. There are restraints and boundaries. Fidelity to established rules of fairness and equity necessitates restraint. Bragg ignores all that.
{{#rendered}} {{/rendered}}The gravamen of his charges derives from what is originally a misdemeanor alleging that Trump falsified his own business records in 2016 to conceal payments to two women in exchange for non-disclosure agreements, which are perfectly lawful.
It’s a dubious charge that normally constitutes a petty offense.
{{#rendered}} {{/rendered}}So, Bragg waved a magic wand to transform it into a felony by arguing that then-candidate Trump did it "with intent to defraud and intent to commit another crime."
But what crime exactly? And who was defrauded? Shockingly, the indictment doesn’t say. Trump and his lawyers are left to guess. This is a constitutional violation of the Sixth Amendment and Trump’s due process rights. It makes the charging document defective on its face and susceptible to a motion to dismiss the case.
It is a fundamental tenet of law that a defendant is entitled to know the specific crime that he is accused of committing. Unless the judge forces Bragg to provide the defense with what is known as a "bill of particulars" identifying the so-called second crime, the indictment is fatally deficient.
{{#rendered}} {{/rendered}}This is Bragg’s dilemma. He can’t claim a state campaign law was broken because it was a federal election. If he asserts a violation of federal campaign finance laws, he invites the inevitable challenge that he has no jurisdictional authority. A local DA is confined to enforcing state laws, not federal. Bragg’s refusal to disclose Trump’s alleged second crime underscores the folly of his prosecution.
But there’s more. Bereft of a quality case, Bragg resorted to a quantity indictment. It’s a tactic called "count stacking," a pejorative term. Ethical prosecutors refuse to do it. But Bragg has no such qualms. He pulled out his abacus and calculated each reimbursement to Trump’s then-lawyer, Michael Cohen, as separate crimes even though they arose out of a singular transaction.
{{#rendered}} {{/rendered}}He copied and pasted the same accusation 34 times, only changing the dates. Cleaving charges and replicating them to create the pretense of legitimacy is like pouring béarnaise sauce on a waffle. It’s still a waffle.
In the same vein, Bragg’s case is still feeble no matter how he tries to saturate it with 34 redundant charges. It is anemic and flawed because it is not supported by the law.
Non-disclosure payments have never been treated as election contributions, even if they might have an ancillary benefit to a campaign. This means Bragg invented a legal theory that does not exist. The Department of Justice declined to pursue it, as did the Federal Election Commission (FEC). Both examined the matter and correctly concluded that campaign laws do not apply.
{{#rendered}} {{/rendered}}In a recent column in The Wall Street Journal, the former chairman of the FEC, Bradley A. Smith, wrote, "The ‘crime’ that Mr. Bragg claims is being covered up isn’t a crime at all." There were other obvious reasons for payments, both personal and commercial. Preserving the name and reputation of Trump’s eponymous business empire is one of them. Smith explained that "an obligation isn’t a campaign expenditure if it exists ‘irrespective’ of the campaign."
Bragg’s case against the former president faces other roadblocks imposed by the law. The D.A. would have to show that Trump was personally involved in falsifying records. Assuming that mountain can be climbed, Bragg would then have to prove that Trump not only understood the arcane campaign statutes that few people comprehend but that he intended to violate them. Does any reasonable person believe that skirting campaign filings was Trump’s motive in keeping alleged affairs private?
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Trump’s legal team will file several pre-trial motions to get this flimsy case tossed out. To pursue the felony, it would seem that Bragg must first establish the predicate misdemeanor which has a statute of limitations of a mere two years. This is why Bragg cleverly omitted any reference to the misdemeanor hoping to rely, instead, on the longer five-year felony limitation. Yet, both have expired.
While it is true that limitations can be "tolled" or suspended while a potential defendant is outside the state’s jurisdiction, the clear statutory purpose of extending time limits is to locate and apprehend people whose whereabouts are unknown. Trump’s location was conspicuous and never a secret. There was ample time to render timely charges.
{{#rendered}} {{/rendered}}The late Supreme Court Justice Robert H. Jackson once warned that the greatest threat to justice is an unscrupulous prosecutor who picks a person to pursue and then scours the law books to pin some offense on him. This is what Bragg has done. He chased Trump, not crimes.
Bragg ran for district attorney on the campaign pledge of prosecuting the former president. He vowed to exploit the immense powers of his office to bring down his party’s leading opponent. Never mind that candidate Bragg was not privy to any evidence or documents that Trump had violated the law. The absence of facts did not deter him from publicly accusing Trump of felonious conduct.
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{{#rendered}} {{/rendered}}Bragg prejudged the merits of a case he had yet to bring and promised an outcome that was preordained. He perverted the legal system by misusing his prosecutorial authority to punish a political nemesis and advance his own career. He obliterated any semblance of fairness and impartiality.
The case against Trump is persecution disguised as prosecution. As district attorney, Bragg demolished the rule of law and reinforced the belief that there is no system of justice anymore. Only a corrupt legal system.