With word from former President Donald Trump that he will "be arrested" on a criminal indictment engineered by Manhattan District Attorney Alvin Bragg over alleged hush money payments made during the 2016 campaign, it is essential to examine what motivated the charges.
At its core, the case represents an egregious abuse of power and the corrupt weaponization of the law for political gain. Bereft of any credible evidence, Bragg is contorting the law in a brazen attempt to inflate his case. His actions constitute serious prosecutorial misconduct. It is the culmination of a years-long effort by the District Attorney’s Office to target Trump for something – anything.
It doesn’t seem to matter to the progressive DA that his case against the former president is the definition of flimsy and stale as month-old bread. Bragg is determined to hack off the mold and sell it as something fresh and new.
Former President Trump said he will "be arrested" on a criminal indictment engineered by Manhattan District Attorney Alvin Bragg, (Associated Press)
Forget about the statute of limitations that expired years ago. Or that his predecessor declined prosecution because the law does not support a criminal charge. Or that the feds who investigated the case determined that the evidence just wasn’t there. Never mind that Bragg’s legal theory is novel, if not bizarre. Or that his star witness, Michael Cohen, is a confessed liar who went to prison and whose name is synonymous with sleaze and dishonesty.
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In a sensible world, all of that should matter. But it doesn’t because Trump is the Democrats’ eternal boogeyman. Since he’s running again for president, he has to be stopped – by hook or by crook.
So, Bragg exhumed a seven-year-old corpse of a case and appears to have snookered a grand jury into indicting the former president. The end justifies any malevolent means.
Manhattan District Attorney Alvin Bragg during a press conference in New York on Sept. 8, 2022. (Victor J. Blue/Bloomberg via Getty Images)
In Bragg’s twisted book, Donald Trump should be treated like a hardcore criminal because money was given to porn star, Stormy Daniels, in exchange for keeping her mouth shut in the run-up to the 2016 election. Bear in mind, such agreements are legally permissible. Silence that is conditional upon payment is not against the law. Non-disclosure agreements with pecuniary benefits attached are a common method of maintaining confidentiality. Even if it involves consensual sex, which Trump vigorously denies.
The DA’s only impediment was the law and how to circumvent its narrowly defined language to trump up a case against Trump. That’s when Bragg was forced to get creative. He dreamed up a legally cockamamie plan to supercharge a misdemeanor into a felony by bootstrapping a supposed secondary crime to it.
Here’s how it works, at least in Bragg’s brain. It is a mere misdemeanor under New York law to falsify business records. But by claiming that the Stormy payment was somehow calculated to violate arcane campaign reporting laws, viola! A second crime that elevates it to a felony.
Michael Cohen leaves his apartment to report to prison in Manhattan on May 6, 2019. (Reuters/Jeenah Moon TPX Images of the Day/File Photo)
Bragg’s scrutiny of campaign laws must have been cursory. In his zeal to nail Trump, he apparently skipped over the part about "dual purpose" contributions. That is, if money paid serves a double or ancillary function then it is not a reportable expense or donation to the campaign. Hence, no crime was committed. This has been Trump’s argument all along. He did it primarily for personal and commercial reasons.
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There are a few other pesky problems with Bragg’s strategy. First, it would have to be shown that Trump himself was involved in falsifying records. Second, Bragg would have to prove that Trump not only understood the complex and convoluted campaign laws that few people comprehend, but that he intended to violate them. Third, which set of campaign laws applies? There’s the rub.
It’s been reported that Bragg is considering citing New York’s campaign statutes as the "second crime." But wait, the presidential contest was a federal election. Moreover, state campaign laws are preempted by federal campaign laws. So, that’s a stretch. What about using those same federal laws as the second crime? Can someone be charged under state law for violating a federal law? Not likely. Prosecutors would be exceeding their jurisdictional authority. The DA can only charge under state statutes.
It is obvious that Bragg doesn’t give a hoot about the law. He’s banking on the likelihood that a liberal New York judge will let the case go to a Manhattan jury stacked with biased Trump-haters anxious to ignore all the legal constraints and convict the former president despite the paucity of incriminating evidence. However, I wouldn’t bet on any conviction being upheld on appeal.
Also, don’t be fooled by the theatrics of an expected grand jury indictment. That was a cinch. There are rarely any enforceable rules of evidence because the proceedings are secret and lopsided. Double hearsay, unauthenticated documents, and all kinds of sketchy stuff that is otherwise inadmissible at trial can be introduced without objection.
Adult film actress Stormy Daniels (AP)
No one from the defense is present to contest the purported evidence or to challenge the witnesses. Jurors tend to accept as gospel the pablum prosecutors spoon-feed them. It’s the equivalent of a turkey shoot. And a charade. Hence the old saying, "You can get a grand jury to indict a ham sandwich."
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The tortured history of trying to criminalize the Stormy episode undermines Bragg’s entire rationale. The Justice Department, as well as the Federal Elections Commission, long ago examined whether Trump violated election laws. They summarily dropped the matter after concluding there was no viable case. But Bragg won’t let a dead horse remain unbeaten. He is resolved to resurrect a feckless and moribund case.
As the chief prosecutor in a city reeling from rampant crime, you would assume that Bragg is preoccupied with public safety instead of pursuing a politically motivated case. Wrong assumption. The lawlessness that plagues New York City doesn’t seem to interest him in the least.
The great irony is that Bragg has spent most of his tenure in office downgrading felonies to misdemeanors. But now he wants to upgrade a misdemeanor to a felony because his target’s name is Trump. His selective prosecution is an affront to the principle of equal justice under the law.
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I suspect that the district attorney’s real goal is to interfere in the upcoming presidential election by knocking out Trump. In a democracy, that important decision should be left up to voters, not a local prosecutor doing the bidding of his political party. Fortunately, most Americans are smart enough to see through the veneer of a sham case.
Indeed, Bragg’s actions may well have the unintended consequence of rallying even more support for Donald Trump.
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