The New York Hush-Money Case Against Donald Trump Has Damaged American Democracy

Yes, Trump was guilty as charged. But the prosecutor perverted democratic principles by bringing this politicized and legally tenuous case in the first place.

Donald Trump is such a horrific human being – regularly abusing people, institutions, and norms of common decency for his personal aggrandizement – that it is hard to support any of the litany of grievances that he is constantly whining about. 

But his core argument that the New York hush money case should never have been filed is absolutely correct.  That this case went forward and has now resulted in a guilty verdict that could impact the result of the 2024 presidential election is a big blow to the foundation of American democracy.

It is fundamental to our democracy that the criminal justice process is not used for political purposes and that crimes are only charged when clearly warranted by the facts and law. These concepts are so important because they place strict limits on the power of the state. Keeping politics out of the criminal justice system is vital to democracy because it restricts a head of state from using governmental power against his or her political opponents. As Putin and Iran’s ayatollahs have shown over and over again, charging your political opposition with crimes is the first move in an autocrat’s playbook. The more general principle that criminal prosecutions must only be brought when they are clearly justified by the facts and law is also critical to democracy because it limits the awesome power of the state to deprive individuals of their liberty. This principle is especially important when it comes to cases involving political figures because when a dubious case is brought against a politician, suspicions quickly arise that the prosecution is politically motivated, thus eroding confidence in the integrity of our democratic system.

For all these reasons, the clamor to criminally prosecute Donald Trump after he left office in 2021 has been deeply fraught, especially after he announced he was running again for president and immediately became the front runner to win the Republican nomination. The fact that the prosecuting authorities are Democrats in all four of Trump’s criminal matters guaranteed that a portion of the population would see the cases as politically motivated. 

Many will be quick to point out that there is an important countervailing principle at stake which is that no person can be above this law. This is certainly true. Trump should not be immune from criminal prosecution either as a matter of constitutional law (an issue upon which the Supreme Court is now deliberating) or because prosecuting him will alienate his followers. 

However, because the criminal prosecution of a leading national political figure could have such a deleterious impact on our democracy, my view is that the criminal justice process should only be used against a political candidate in very limited circumstances.  At the very least, the prosecuting authority must be scrupulous in ensuring that political considerations do not even appear to have influenced the case, the case must be empirically very strong on both the facts and law, and the prosecution must advance some important governmental interest. Only by abiding by these standards can we ensure that the importance of enforcing the law equally against even the famous and powerful justifies the damage that prosecuting an active candidate for political office will have on the foundation of our democracy. 

The New York hush money case, however, does not meet any of these tests and therefore should have never been brought. 

First, the case was infected by politics from day one. 

To understand why, we need to go back to the Trump presidency when the former Manhattan district attorney, Cyrus Vance, was aggressively investigating various Trump business entities in Manhattan. After winning a victory in the Supreme Court in 2020 that provided him access to Trump’s tax returns, Vance considered filing a sweeping financial criminal fraud case against Trump based, at least in part, on Trump’s practice of using different valuations of his property on his loan applications and his tax returns. But Vance did not pull the trigger on this indictment because it was unprecedented to bring a fraud case when the lenders at issue had suffered no financial harm. Additionally, many prosecutors in the office were worried that using “pioneering legal theories” against a former president from the opposite political party could look like a “selective or vindictive prosecution.” The hush money case was also being investigated in the district attorney’s office, but there was concern that the business records falsification charges at the heart of this theory were only misdemeanors. The prosecutors worried that if the office tried to elevate the cases to felonies (as explained below), there was a high risk that convictions would be downgraded back to misdemeanors on appeal. In the end, Vance decided that he was not going to run for re-election and left these decisions to his successor.

During the campaign to succeed Vance, the question of how investigations against Trump would be handled became a major issue. At a debate during the Democratic primary, the candidates were asked “Would you commit to prosecuting crimes against former President Donald J. Trump and his company.?”  One of the candidates gave the appropriate, ethical response: “I don’t think any of us should answer that question.” But during the course of the campaign, the ultimate victor in the election, Alvin Bragg, did discuss this issue. At one point he boasted that “I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation…I know how to follow the facts and hold people in power accountable.” Bragg also “remind[ed] voters frequently” on the campaign trail that in his former position he “sued Trump more than a hundred times ... I can’t change that fact, nor would I. That was important work.”

Having explicitly campaigned on his record of suing Trump, Bragg should have recused himself from the Trump criminal investigations once he took office in January 2022. But he did not. 

Initially, he agreed with majority of the prosecutors in his office that the broad financial fraud case against Trump should not be brought. The prosecutor who had advanced the fraud theory and spent years on the prosecution, Mark Pomerantz, resigned in February 2022, bitterly criticizing Bragg’s hesitancy. In a resignation letter, he asserted that Bragg’s “decision not to prosecute Donald Trump now, and on the existing record, is misguided and completely contrary to the public interest.” Pomerantz then published a book a year later, that continued to criticize Bragg. As pressure mounted on Bragg, he decided to resurrect the hush-money case—the one case that even Pomerantz had concluded was too infirm to pursue. The indictment was filed a month after publication of Pomerantz’s scathing book.

These circumstances have given this case a stench of politicization from before it was even filed. Here you have a prosecutor that strongly implied during a political campaign that he would take action to vigorously pursue criminal actions against Trump. Upon entering office, he decided not to seek an indictment against Trump on one set of charges. But then, after being subjected to severe public criticism, he filed a criminal case that many in the prosecutor’s office had, at least at one point, thought was too weak to pursue. Regardless of whether political pressure actually did influence the decision-making in the hush money case, the strong appearance that it did has tainted the entire prosecution.

Second, this prosecution is not vindicating weighty public interests for the citizens of New York. The heart of the case is the falsification of 34 business records. Yes, it is true, policing the integrity of business record keeping is important for any state, especially one that serves as a world financial hub. But the legislature only thought this interest was sufficiently important to make the falsification of business records a misdemeanor. Moreover, there are numerous other legal actions that have been taken by New York against the Trump Organization for his fraudulent business activities, including one that has led to a judgement in excess of $450 million. Given the legal actions that have been taken against the Trump Organization and some of its employees, the hush-money case was hardly necessary to deter Trump from future business fraud. It was also not necessary to establish an important precedent regarding the falsification of records to cover up a hush-money payment by a presidential candidate—a scenario that will almost certainly never arise again.

Finally, this case is based on a highly dubious legal foundation, as many experts from the left and right have argued. 

Bear with me on the legal technicalities here, but they are important.

As mentioned, the 34-counts of falsification of business records that constitute the core of the case against Trump were only misdemeanors. Moreover, by the time Bragg entered office, the five-year statute of limitations on these offenses had expired. To circumvent these problems, Bragg relied on a New York law that elevated the misdemeanor charges to felonies (and extended the statute of limitations) if the documents were falsified with the intent to commit and conceal some other crime. It took over six months after the indictment, but Bragg eventually identified these other crimes as violations of federal campaign finance law, a state tax fraud law, and a state election law. Relying on each of these laws has serious legal problems and raises novel legal issues that will have to be resolved on appeal. (If you want to dig into these issues, read here). To make matters even more complicated, the New York election law that the prosecutors relied on the most at trial prohibits the promotion of a political candidate “by unlawful means.”  So, to rely on this law to elevate the business records charges up to felonies, the prosecutors have to show that another set of criminal laws (that is, the “unlawful means”) were violated.  

This Dickensian scheme may be technically lawful under New York law; we will not find out for over year on appeal. Regardless, to my mind, the district attorney’s reliance on multiple unproven legal theories in this indictment, including the stacking upon stacking of statutory violations to contort misdemeanors into felonies, renders the case far too tenuous to justify bringing against a political candidate in the middle of an election campaign.

Moreover, if the district attorney and trial judge are wrong regarding the legalities of this case, and it is reversed on appeal after Trump loses the election, even more damage will be inflicted on our democracy. The entire affair will be perceived, with some justification, as having been an illegitimate effort to tip the election against Trump. The MAGA mob will have even more reasons to be angry and resent our institutions of government.

The guilty verdict rendered by the jury this past week does not cure the defects in the decision to file this case against Trump in the first place. The prosecutors did a wonderful job simplifying the convoluted set of charges in the indictment and presented a mountain of evidence demonstrating Trump’s guilt. The jury did its job. Trump’s outrageous verbal assaults on the judge and other claims that the trial itself was biased against him should be dismissed out of hand. But the trial attorney’s successful result does not mitigate the myriad of flaws in the prosecutorial decision to file this set of charges against a political candidate during the run-up to a presidential election.

(By the way, I have no qualms with the two federal indictments of Trump relating to the January 6 riot at the Capitol and his illegal retention of classified documents after leaving office on these grounds. They were brought by an entirely apolitical career prosecutor, they both involve very important interests, and they both have firm factual and legal foundations).

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It is both ironic and a grave danger that a prosecution that violates core democratic principles has resulted in a conviction against Donald Trump.

The irony is that Trump cares not one whit about these democratic principles, and indeed has pledged to violate all of them if he gains power once again. Indeed, he has promised to appoint an Attorney General committed to doing his personal bidding and overtly use the federal criminal justice system to advance his personal and political interests.  This is why he is such a threat to the future of American democracy and must be defeated.

The great danger is that having been the victim of an improper use of the criminal justice system, Trump can now cast his planned evisceration of the rule of law as a needed “reform” to a corrupted system. That argument may well resonate with voters who are dissatisfied with our system of government and the administration of justice. It may also undercut a major theme of President Biden’s campaign that defeating Donald Trump is necessary to preserve our democracy. 

Those relishing Trump’s new title of “convicted felon,” (including the New York Times editorial board), may one day look back and regret that Alvin Bragg abused his prosecutorial power to bring this shabby case against a candidate for president

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