What Just Happened? The Trump Indictment

Sorry, but I had to wait for this one, as nothing was real or final until the indictment was unsealed. Did you watch the non-stop coverage? Pretty riveting. If you liked that, you’ll probably like televised Quidditch.

Let’s get one thing clear upfront: if you want to convict former President Donald Trump–in the court of public opinion–of being a lousy human being, you have my full support. I even know some MAGA-hat wearing people who admit as much. Bu that’s not a crime in the borough of Manhattan, so on to the charges and more importantly, the consequences.

Let’s start with what Manhattan District Attorney (DA) Alvin Bragg charged Trump: thirty-four felony counts. Ignore the number of counts, as they represent simply thirty-four iterations of the same crime: falsifying business records in 2017. Which is a misdemeanor under New York State Law, with a five year statute of limitations. Two problems here: Trump is charged with a felony, but the crime is a misdemeanor, and it is well past the expiration date. But wait, there’s an explanation: under New York law, this crime can be raised to a felony if the fraudulent action was accomplished to hide another crime. And, New York allows the statutory clock to be suspended when a defendant is out of the state (like, in the White House), so we’re on steady ground. Sort of.

But what’s the other crime Trump was hiding, you ask? Well, the indictment doesn’t say, but eventually DA Bragg will have to explain it in court. In a press conference, Bragg referred to both federal and state election laws, and state tax law. The problem with the first is there is legal uncertainty about a state prosecutor alleging a federal crime that no one has been accused of (although Trump was investigated by both the Federal Election Commission and the US Attorney for the Southern District of New York, and neither brought charges). There is precedent for crimes which were charged or tried, but none for allegations. Just as an example, imagine the DA tying the hush money to a UN law on corruption for which the DA had no jurisdiction, with which no one was charged, nor tried, nor found guilty. No one is yet clear how Trump may have violated New York state election law as part of a federal election, as federal law supersedes state law in federal election cases. That leaves state tax laws, which may be the strongest link Bragg has. If you have heard talking heads saying that the indictment rests on an untested legal theory, this is the part to which they are referring. It’s just not clear, and certainly not cut-and-dried.

Back to the title, what actually happened? Regarding an alleged affair, Trump used his attorney and fixer, Micheal Cohen, to funnel hush money to Stormy Daniels prior to the 2016 election. Trump fraudulently listed payments to Cohen as legal expenses, the heart of the charges.

Trump did exactly what the charges say he did. Cohen made the payments (before the election), Trump reimbursed him (after the election), and the paperwork showed a fraud. So why did the former Manhattan DA pause the investigation, and why did the Federal Election Commission and the US District Attorney not bring charges? The argument to charge this rests on the assumption Trump did what he did to win the election. This makes the payments into campaign contributions, which were not reported properly. Which raises the counterargument: did Trump do this to win the election, or to avoid embarrassing his family? After all, this was a man who said “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” This was also a man who gave the infamous Access Hollywood interview with Billy Bush, wherein he was heard bragging he could “grab ’em (women) by the _______” and get away with it. He showed utter disdain for proper candidate conduct, and while he is beyond suffering embarrassment, he is very protective of his family. As always, motive is a difficult thing to prove.

The strongest parts of DA Bragg’s case are in the Statement of Facts. Here the DA relates the prior cases of Trump making hush money payments to Karen McDougal (a playboy bunny with whom he allegedly had an affair) and to the doorman of a Trump building (who thought Trump had an illegitimate child, but was incorrect). These actions, not part of the indictment, establish a pattern of behavior. Also, Bragg reportedly (no evidence has been released) has e-mails indicating Trump wanted to delay the payments to Daniels until after the election, and indicated he might not pay it then. This suggests the payments were about the election, not the family’s embarrassment. Both Cohen and David Pecker (CEO of a media conglomerate who owns the National Enquirer) were involved with and can testify to the payments and the overall scheme.

Beyond the novel legal theory, the weakest parts of DA Bragg’s case are first that Trump made the payments in 2017, after the election, regardless of what he may have said in an e-mail. So he still acted on the possible scandal when it could no longer affect the election, but could have embarrassed his family. Second, Cohen and Daniels are both poor quality witnesses: Cohen pleaded guilty to lying under oath (to Congress), while Daniels had to pay Trump’s legal fees after he won a civil decision against her.

Some are crowing “No one is above the law” and that is true. However, the law has always treated American Presidents differently. The Constitution specifies that Impeachment by the House of Representatives and trial by the Senate is the way to bring charges against a sitting President. Thus the Department of Justice (under both Republican and Democratic administrations) still holds that a sitting President can not be indicted under federal law; but the Constitution and the courts have never ruled whether this prohibition applies to state courts. Trump is a former President, not a sitting one, so this case is different, but the concept was the same: in America, we treat Presidents differently under the law.

Even history is illustrative here. Richard Nixon committed several felonies within the Watergate affair. After he was forced to resign pending a successful impeachment, newly-installed President Ford gave Nixon a blanket pardon for all crimes related to Watergate, ending the possibility of years of trials and appeals. Note that although Nixon was certainly guilty, and the pardon only applied to federal crimes, no state or local prosecutor sought to bring charges. While most people were outraged by Nixon’s amorality, this case exemplifies how America used to handle such things.

Some claim this is all political: a vendetta by a Democratic partisan against a Republican former President. It is true that Bragg campaigned on bringing charges against Trump, and while that may have been wise as a campaign tactic (he won, after all), it was foolish in practice. Bragg claims he has new evidence, suggesting he has more or better grounds for the indictment; we shall see. I don’t see this trial as political. Bragg is not indicting Trump because he’s a Republican, or a candidate for President. Truth be told, most Democrats relish another Trump candidacy since they feel he will not only lose, he will drag down the GOP with him (probably true). So this is not political, it is personal. Which is a whole ‘nother problem.

In addition to the claim “no one is above the law,” another putative principle of American jurisprudence is “justice is blind,” meaning the law treats all individuals the same: rich and poor, powerful and weak. The personal nature of this prosecution makes it unwise. Tell me honestly, if the defendant in this case was John Smith, that the Manhattan DA would be tying up the resources, stretching the statutes, and breaking the precedents. You can’t.

To further the point, note the glee with which the indictment has been received. The left in general hoped for a perp walk, a mug shot, maybe handcuffs. Notice how few mention that as a non-violent first-time offender, the most likely sentence even if he is found guilty is no jail time. This is about how Trump ‘needed to be got, and was got’ as one New York Times journalist said. Pamela Paul’s article revels in the karmic justice of the indictment, echoing morning talk shows and late-night comedians.

What are the likely outcomes? If you forced me to list them in order of probability, most likely is the judge will dismiss the charges for insufficiency, perhaps telling the DA to refile as misdemeanors and seek a settlement. Next likely is a trial resulting in a guilty verdict overturned on appeal. Least likely is trial and upheld conviction. But in any case, the damage will have been done. What we are talking about now is not a slippery slope; it is precedent.

We now know the answer to a famous trivia question: who was the first former US President indicted for a criminal act? Donald J. Trump. But we also know the answer to another trivia question? Who was the second such President? Joseph R. Biden, Jr. The third? His successor, regardless of party. The family Biden (Joe & Hunter & James) better get real good lawyers, and many, as there are vast swaths of Red America ready to play this game.

Ford did the the right thing; in our system, it is better to put even something as serious as Watergate behind us. It cost him re-election, but it was still correct. We have lost that lesson. Now it is all about blood lust. Perhaps New York Governor Kathy Hochul could end all this tomorrow by issuing a state pardon. Silly me, that would take thinking what’s best for the country. Something about Trump forces otherwise reasonable people ON BOTH SIDES to act crazy or against their interests. Think I’m wrong? Look at the Capitol on January 6th, or Manhattan, April 4th.