Yes, Alvin Bragg's indictment of Trump is political - Here's how, specifically, to assess whether an investigation is politicized -- and how the Trump case measures up.

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Donald Trump and his allies have claimed that Manhattan District Attorney
Alvin Bragg’s prosecution of him is a political, politicized mess.

They’re not entirely wrong.

I’m not particularly inclined to defend Donald Trump as a sterling adherent
to the rule of law. The investigations into him — special counsel Jack
Smith’s federal probes into Trump’s attempt to overturn Biden’s election win
and his classified documents at Mar-a-Lago, as well as the Georgia probe into
whether Trump tried to steal the election there — seem well-founded. Guess
what? If you try to steal the election, you should be rigorously investigated
and charged if the evidence and law merit it.

And yet the Manhattan DA office’s long investigation, culminating in last
week’s 34-count indictment of Trump for falsifying business records, has not
inspired confidence in me that this was an apolitical process and a fair-
minded effort to assess whether laws were broken — rather than an attempt to
“get Trump” for to-be-determined crimes.

I can’t read Bragg’s mind, but as someone who’s been covering investigations
into leading political figures for the past decade, I’ve thought a lot about
how to assess politicization of the rule of law.

I’ve come to think that prosecutions and investigations that can fairly be
characterized as politicized tend to share several of the following traits:

• They’re fishing expeditions — starting focused on one topic, and sprawling
very far afield, often lasting years.

• They focus on obscure or technical matters.

• They resemble few previous prosecutions.

• They feature novel or contested legal theories.

• Investigators are internally divided on the case’s strength.

• They involve scrutiny and an investment of resources that would not have
been put on anyone else.

• Those in charge of them have obvious political motives.

The more politicized an investigation is, the more the end purpose seems to
be to “get” a particular political figure, with the exact crimes at issue
being a matter of secondary importance.

Many of these traits were evident in the investigations Trump tried to order
into his political opponents during his presidency. Many were also present in
investigations into Bill Clinton in the 1990s, which started as the
“Whitewater” investigation and sprawled outward.

And they all arguably fit Manhattan District Attorney Alvin Bragg’s
investigation and prosecution of Donald Trump.

Why the Manhattan DA’s probe looks politicized
Some former prosecutors and Democratic-aligned legal experts have argued that
Bragg’s case is righteous and not political at all — that it’s basically
totally normal and there’s nothing to see here.

Trump “is being treated as any other New Yorker would be with similar
evidence against him,” Karen Friedman Agnifilo and Norman Eisen write. “The
indictment is therefore anything but political. If anything, the more
political choice would have been not to indict when there is so much
scrutiny.”

Yet in my view, a fuller look at the background of the investigation and the
specifics of the charges make Bragg’s prosecution look very political indeed.
Let’s go through the traits I listed above and assess whether they apply.

Is it a fishing expedition? Arguably — it’s certainly been a tangled tale.
The previous DA, Cyrus Vance Jr., opened the case back in 2019 to focus on
hush money payments made to Stormy Daniels. Vance then put that aside and
spent years probing the Trump Organization’s business practices, specifically
regarding real estate valuation.

To try to make that case, he pressured Trump Organization chief financial
officer Allen Weisselberg to flip on Trump by charging him (and the company)
with tax fraud related to fringe benefits Weisselberg had received. Then,
when Bragg took over as DA last year, he wasn’t impressed by the real estate
valuation case and put a hold on it, spurring two prosecutors to resign in
protest. Bragg then returned to the hush money payments and indicted Trump
based on that.

Does it focus on an obscure or technical matter? Yes. The charges pertain to
New York business records law — and specifically about whether the Trump
Organization’s repayments to Michael Cohen for $130,000 in hush money he’d
paid Stormy Daniels were inappropriately logged by the company as legal
expenses.

So the core violation here is, basically, that the Trump Organization logged
hush money repayments improperly. The more small-scale charges like this
after a long investigation seem, the more they suggest prosecutors landed on
them because they tried to make a bigger case that didn’t pan out.

Does it resemble previous prosecutions? In some ways yes, in some ways no.
Business records charges are common in the Manhattan district attorney’s
office. The New York Times called this charge “the bread and butter” of the
office’s white-collar practice, pointing out that during Bragg’s tenure of a
little over a year, 29 individuals and companies were charged with such
offenses before Trump. “The charge of creating false financial records is
constantly brought,” Agnifilo and Eisen write.

Still, there is some dispute about how the charge is being applied in this
case. Fordham law professor Jed Shugerman points out that these false records
were just internal company documents, and that Bragg has not yet specifically
alleged they were used to deceive anyone. Shugerman asked whether there’s
ever been a conviction in such a case. Various former prosecutors in the
Manhattan DA’s office have argued that they can and did file such charges
based on internal documents, but it’s unclear whether the legality of that
theory has been directly tested in court.

Does it feature novel or contested legal theories? Absolutely. Bragg has
charged these business records offenses as felonies rather than misdemeanors.
His legal basis for doing this currently resembles a ramshackle contraption
held together with spit and bailing wire.

The felony charges require that these false business records were created
with the intent to commit or conceal another crime. Reportedly, Bragg’s team
has for some time been mulling over exactly what crime they would argue was
in play here, because all of the possibilities have some problems. And in the
indictment and an accompanying press conference, he punted this issue,
mentioning three possibilities — state election law, federal election law,
and tax law — but keeping his specific reasoning vague. (He argued in a press
conference that he doesn’t have to explain his thinking on this yet.)

The first possibility is a federal election crime, since federal prosecutors
previously asserted Cohen’s hush payments to Daniels essentially amounted to
a campaign donation to Trump, given that it was aimed at helping him win the
election, and it should have been disclosed and subject to contribution
limits. In itself, that was a somewhat innovative interpretation of campaign
finance law without much clear precedent.

On top of that, though, there’s the fact that Bragg is a state prosecutor
without authority over federal law. Some have argued that New York’s business
records statute says a felony occurs when “another crime” is invoked and
doesn’t specify that it has to be another state crime, so he could try that
argument with judges. But at the very least it’s extremely uncertain whether
this will survive court scrutiny, with both state and federal courts
potentially set to get involved, as my colleague Ian Millhiser writes.

The second possibility is a state campaign finance crime. New York state law
says it’s illegal to “conspire to promote or prevent the election of any
person to a public office by unlawful means.” Yet Trump was running for
federal office, and it’s questionable that state election law could be
invoked over a federal campaign.

The third possibility is a tax crime. The Trump Organization paid Cohen back
double, so he could claim the repayment money as income and pay half of it in
taxes. Bragg’s statement of facts asserts that Trump and Cohen “took steps
that mischaracterized, for tax purposes, the true nature of the payments.”

One possible implication here is that the Trump Organization intended to
deduct the payments as business expenses, and that’s why they characterized
it as legal fees. Yet Bragg does not outright allege this — so it’s unclear
whether he has the evidence to back this up.

Are investigators internally divided on the case’s strength? They have been.
There has been no sign of dissent from the current team on the strength of
the case Bragg brought, but overall this has been an unusually leaky
investigation, with acrimony between members of the prosecution team
frequently spilling into public view.

As mentioned, Bragg wasn’t impressed by the real estate valuation case that
lead prosecutor Mark Pomerantz had been building, and Pomerantz resigned and
wrote a book complaining about Bragg. This led others on the team to complain
about Pomerantz to Ankush Khardori of New York magazine.

One regular sticking point is Michael Cohen’s usefulness as a witness.
Federal prosecutors looked into the hush money, too, as recently as early
2021, and according to CNN legal analyst Elie Honig’s recent book
Untouchable, they had mixed opinions about the case and ended up taking a
pass.

Does it involve scrutiny and an investment of resources that would not have
been put on anyone else? It’s hard for me to imagine that this years-long
investment of resources into this topic would be brought against anyone other
than Trump.

Do those bringing the case have obvious political motives? Bragg is an
elected Democrat who, if he runs for another term, would be running in
Democratic New York City. When he initially put the brakes on Vance’s
investigation, he faced intense backlash from progressives who thought he was
letting Trump off the hook. So, yes, he has a motive to get back on
progressives’ good side.

Is this defending democracy and the rule of law?
Politicians shouldn’t be above the law — if they commit crimes, and there’s
evidence to show that, they should be charged. But criminal law shouldn’t be
weaponized for political reasons against the opposing party’s enemies. When
that happens in other countries, we generally view it as a sign of
dysfunction or corruption.

Now, there is a difference between the politicized cases Trump wanted to
bring against his political enemies, and this current situation, which is:
Many liberals believe Donald Trump is a grave threat to democracy. (And I
think they’re correct.)

The right has long tried to portray Trump as the victim of endless witch
hunts from investigators. Of course, Republicans managed to convince
themselves Hillary Clinton was tremendously dangerous for American democracy,
too (remember the “Flight 93 election?”).

But, again, Trump did go to extraordinary lengths to try to steal the 2020
election, which really should end all talk of him as some kind of unfairly
persecuted innocent. A second Trump term, should he win, would probably also
be quite dangerous for the rule of law.

Many liberals who have been hoping and arguing for Trump’s indictment seem to
have this justification in mind, even if few will say it explicitly. In 2021,
when it looked like Bragg’s predecessor, Vance, might bring charges, he was
profiled in the New Yorker, and the former president’s niece Mary Trump
weighed in. “It’s incredibly urgent that Vance prosecutes Donald now,” she
said, because the Republican Party certainly wasn’t going to stop him.

Per this mindset, it would be naive to have academic concerns about
politicization of the rule of law, when the nation’s continuing existence as
a democracy is at stake. Find some crimes, and lock him up!

Maybe it will work — polls show that though most Americans say they think
Bragg has political motives, most also think the investigation is significant
and should disqualify Trump for office.

Or maybe this prosecution will backfire, spurring Republican voters to rally
around him and easing his path to the GOP nomination, making our country’s
divisions even worse — setting us off on a cycle of retribution. We’ll find
out soon enough.

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Let's go Brandon!