The Manhattan indictment against Trump is unjust, unwise and damaging

The indictment against Trump tramples key “rule of law” principles and could transform the 2024 presidential election. For what?

I am all for the idea that no one is above the law, including a former president and current leading presidential candidate. But I am far less convinced than many that the indictment handed down by a Manhattan grand jury last week against Donald Trump represents the “magnificent principle of equality before the law” or will serve the best interests of our nation.

If the charges in the sealed indictment are along the lines that media outlets have unanimously reported, Trump has been charged with multiple counts of falsifying business records, a misdemeanor that is often used by the DA in prosecuting white collar crime. It has also been reported that Manhattan District Attorney Alvin Bragg will enhance these misdemeanors to felonies under New York law by showing that the document falsification was committed with the intent to commit another crime, which in this instance is a violation of federal campaign finance law. Bragg reportedly will claim that Trump’s hush money payments to Stormy Daniels to silence her about an alleged affair in the weeks prior to the 2016 presidential election were an unreported contribution to Trump’s campaign and thus illegal under federal campaign finance law.  

Prosecutors like Bragg have enormous discretion as to which cases to investigate and which charges to file. There is far more criminal activity in Manhattan than the DA can possibly scrutinize. So, the prosecutor must ask – what is the value for my constituents in using their tax dollars to file criminal charges and litigate a case to verdict?

As far as I can tell, the answer to this question with respect to the Trump case is “not much.”

Trump is alleged to have falsified some business records. This is conduct that must take place thousands of times in New York City every day. The conduct at issue took place over 6 years ago, was publicly revealed 5 years ago, and was investigated extensively by federal prosecutors in 2018, leading to the conviction of Trump’s “fixer” Michael Cohen. Why is this old story being revisited now, in 2023, by the Manhattan DA?

Charges against Trump relating to the hush money payments could have been brought by federal prosecutors when Trump left office in January 2021. But for two years, they have declined to do so. So, the federal prosecutors don’t think it is appropriate to bring charges against Trump to vindicate federal campaign finance law in relation to a federal campaign. What business then is this of the Manhattan DA?

One key purpose of criminal prosecutions is to deter future criminal conduct, but this case will have virtual no deterrent value for Manhattan County? Will potential future business document falsifiers in New York possibly be deterred by a guilty verdict against Trump?  How many people out there will possibly be contemplating hiding hush money payments as a business expense in order to avoid an embarrassing revelation just prior to a presidential election?

Not only is the underlying campaign finance law violation well outside the purview of the Manhattan DA, but Bragg is reportedly relying on a novel campaign finance law theory that has been rarely used by federal authorities in criminal prosecutions, let alone a local DA. The theory is that a hush money payment to cover up embarrassing behavior during an election is akin to a campaign contribution because it aids the candidate’s electoral prospects. That is precisely the concept deployed by federal prosecutors against John Edwards in 2011, but the jury was unconvinced and acquitted him. Like Edwards, Trump will claim that he made the payments to avoid public embarrassment of what he contends to be false accusations of marital infidelity, not to aid his campaign. This may well be an effective defense for a person who has been paying off people for various purposes for decades.

Bragg’s stretching his authority well outside the core interests of his mandate and the novelty of the charges he has presented to the grand jury all raise legitimate questions as to whether the indictment of Trump is a fair application or perversion of the rule of law.

The rule of law is a fundamental, essential component of democracy. It requires prosecutors to evaluate a case on its merits, without any consideration of the power and position of the defendant. This means that the law must be applied equally without favor to the rich and powerful.  But it also means that the law cannot be applied because the defendant is rich and powerful. In other words, the case should only be brought against Donald Trump if it would also be brought against another defendant that engaged in the same or very similar conduct.

Not only do the facts and law suggest that the rule of law is not being applied fairly, but the atmospherics around this case also should have been considered by DA Bragg in exercising his substantial power. Bragg ran for DA boasting about how many times he had sued Trump. After taking office, he reviewed a different fraud case against Trump, decided not to move it forward, and then received widespread political criticism. Only then did he decide to revisit the Stormy Daniels hush money incident. Whether political motivations actually infected this case or not, there is an undoubtably a sufficient appearance of impropriety that ethical warning lights should have been flashing red.

In sum, this feels like a federal case being picked up by a local DA after the feds decided it lacked merit, it is based on a very untested and weak interpretation of federal law, and there is at least a credible claim of politicization. It has an odor that suggests the DA would have been well advised to decline to prosecute.

There is more.

I understand the argument that it is inappropriate for a DA to consider anything other than the facts and law. But prior to issuing a history-making indictment that will affect not only Manhattan, but the entire nation, Bragg also would have been wise to take into account a variety of other factors cautioning in favor of restraint.

A critical feature of the rule of law is that special care should be taken to insulate the criminal justice system from having a political impact. Indeed, that is why former FBI Director James Comey’s intervention in the waning days of the 2016 election about Hillary Clinton’s emails was so deeply ill-advised.  How ironic it is that we are still mired in the events of the fall of 2016, and yet again the criminal justice system is interfering with yet another presidential election. 

Had Bragg thought through this more deeply, there were innumerable reasons for him to refrain from prosecuting this case. 

First, we live in a highly polarized country that needs healing, not the pouring of battery acid on the flames of partisanship. Having a DA accountable mostly to liberal Manhattan Democrats try to put the culture-warrior-far-right-icon Trump in jail is an exceedingly bad look.

Furthermore, this prosecution is likely to derail the distancing from Trump that has been slowly taking place in the GOP especially since the November election. The 2024 presidential primaries were shaping up to be a moment of reckoning for the GOP, where it would decide if it wants to continue to be organized around Trump’s cult of victimhood and the ideology of white Christian nationalism or return closer to its traditional conservative roots. The indictment has now dramatically reduced the possibility that this will occur as elected officials, and even Trump’s opponents, have been forced to side with Trump in castigating what they perceive to be a partisan abuse of power. The pathway is now open for Trump to cruise to the Republican nomination. 

This indictment has also breathed new life into both Trump and the quasi-fascistic ideology of Trumpism just when both were beginning to fade. Trump is no longer the force he was when he descended the golden staircase in Trump Tower 7 1/2 years ago. His public appearances lack energy, freshness, and verve. His verbal acuity is slipping with age. He is more self-absorbed than ever, trapped in his narrow world of personal grievance. His campaign is almost four months-old and he hasn’t begun to craft a vision of where he would attempt to take the country other than to recover the White House as his own personal fiefdom. And with a war for the future of democracy raging in eastern Europe, tension with nuclear super-power China, a fragile economy, and considerable domestic division, Trumpism seems to have no answers for what is ailing America and the world.

But the indictment has now given Trump an animating purpose.  He will purport to be the only force capable of fighting against and saving the “real” America from the liberal, Democratic, east coast, urban, power-abusing, deep-state, monied, snobby, over-educated, multicultural, woke elites. He will cloak himself as the vehicle for saving a way of life for the white Christian voters of the heartland and vast rural landscape of modern America.

He may well ride this grievance train straight to the GOP nomination.  God help us if he can the craft another electoral college majority and regain the presidency.  

And if this happens, we may well be asking if a criminal indictment based on a tawdry pay-off to cover up an extra-marital affair just to prove that “no one is above the law” was truly worth it.