Ubiquitous
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On Thursday, February 15, Acting Justice Juan Merchan in the Manhattan trial
court ordered that Alvin Bragg's 34-count felony case against former
president Trump, alleging falsification of business records regarding hush
money he paid to adult performer Stormy Daniels in 2016, proceed to trial
scheduled for March 25, 2024.
It is no accident that the trial date is scheduled for three weeks after
Super Tuesday, when sixteen states and territories, representing almost
three-quarters of the delegates needed to win the GOP nomination, hold their
primaries, and right before five more states hold their primaries on April 2.
At best, it would be extremely difficult, if not impossible, for Trump or any
presidential candidate to campaign and raise money while in the middle of
criminal trials. In fact, during the hearing, Justice Merchan said that he
spoke twice last week to Judge Tanya Chutkan of the U.S. District Court in
D.C., who is overseeing Trump's January 6 criminal case, which special
counsel Jack Smith is pushing hard to start as soon as possible.
Though it was inevitable that at least one of Trump's many upcoming trials
was going to start and almost certainly finish before the November 5, 2024
election, in perhaps a bit of political luck for Trump, Bragg's case is the
weakest and least relevant to Trump's time in office, and thus fuels Trump's
political claim that Democrats weaponized the justice system to "persecute"
him in order to prevent his returning as president. It seems that Trump's
strategy of appearing in court and attacking what his supporters view as a
biased legal system is still paying political dividends for him, as it keeps
him atop the nation's political attention.
Donald Trump
Republican presidential candidate, former U.S. President Donald Trump attends
a pre-trial hearing at Manhattan Criminal Court on February 15, 2024 in New
York City. Media reports said Trump smiled as a person was heard clapping...
Republican presidential candidate, former U.S. President Donald Trump attends
a pre-trial hearing at Manhattan Criminal Court on February 15, 2024 in New
York City. Media reports said Trump smiled as a person was heard clapping in
the court. Steven Hirsch-Pool/Getty Images
Bragg's case alleges that Trump, through his former fixer Michael Cohen and
the Trump Organization, falsified business records with the intent to defraud
and commit another crime. Trump allegedly violated federal campaign finance
laws when he paid Daniels $130,000 through Cohen to sign a NDA about their
alleged sexual encounter—something we have to glean not from the indictment
but from Bragg's statement that Cohen pled guilty to campaign finance
violations; Cohen, who paid Daniels the money out of pocket, labeled his
invoiced reimbursements as "legal services" instead of something like
"reimbursement for settlement payment re: extra-marital sex."
Bragg turned this single transaction, which normally would have been one
misdemeanor charge, into 34 separate felony counts with a maximum combined
sentence of 136 years by throwing in the federal charge and aggressively
subdividing each invoice, check, deposit, etc. into its own charge.
All Bragg needs is a conviction on one of the 34 counts to destroy Trump.
Justice Merchan's opinion apparently ignored several important points of law.
For example, it seems to contradict the U.S. Supreme Court's body of cases
which limit criminal fraud cases to depriving traditional property interests
such as money, not something ephemeral. That's assuming there actually was an
intent to defraud, because the only person whom the incorrect labeling
affected was Trump himself.
In fact, Bragg's indictment never specifies what the "another crime" is,
which is a minimum requirement for any indictment, let alone one of this
magnitude.
Also, it is doubtful that Bragg may charge the federal crime. State
prosecutors may not prosecute federal crimes because under Article II of the
U.S. Constitution, only the president, through his Department of Justice, has
that power. Imagine that a district attorney decided to prosecute Hunter,
Joe, and Jim Biden for FARA violations because he or she felt that the DOJ
was protecting them, or a district attorney in Arizona or Texas decided to
prosecute illegal aliens for violating the Immigration and Nationality Act or
the Trafficking and Violence Protection Act, which would contravene the U.S.
Supreme Court's decision in Arizona v. United States (2012).
Prior to Bragg's indictment, SDNY prosecutors investigated Trump's alleged
campaign finance violations, as did the Federal Election Commission, but both
declined to pursue the case because Trump used his own money, not campaign
finance money, and because reimbursing someone for a hush-money payment does
not fit the definition of an in-kind campaign contribution. In fact,
candidates do not have to disclose expenses that would have been incurred
even if no campaign existed; it is highly likely that Trump would have paid
Daniels regardless just to avoid any marital strife or embarrassment to
himself and his family.
Furthermore, because Cohen paid Daniels on October 26, 2016, 13 days before
the election, and Trump did not complete his reimbursement payments until
December 5, 2017, Trump would not have had to report the payment to the FEC,
assuming he had to at all, until February or March of 2017 at the earliest,
well-after the 2016 election ended.
Moreover, Bragg's assertion that disclosure of the payment would have
affected the electoral outcome is wrong; in 2016, Trump lost the State of New
York by more than 20 points, a ginormous margin; disclosure would not have
made a difference.
Again, imagine that a district attorney decided to charge Tony Blinken and
Hunter Biden for an illegal, undisclosed in-kind campaign contribution when
they lied in October 2020 to conceal that the abandoned laptop actually
belonged to Hunter ("earmarks of a Russian information operation").
It seems clear that Bragg twisted the law to bring this case only because the
defendant is Donald Trump. A state court system that truly enforced the rule
of law would stop its prosecutors from abusing their discretion as Bragg did.
Justice Merchan should know better because he worked as an ADA under
legendary district attorney Bob Morgenthau. A justice system with fairness
and integrity would put the brakes on the rush to convict the former
president. As Justice Robert H. Jackson once said, a prosecutor who singles
out "some person whom he dislikes or desires to embarrass" is where "the
greatest danger of abuse of prosecuting power lies," and that such a
prosecutor "has a perverted sense of practical values, as well as defects of
character."
: John Yoo is the Emanuel S. Heller Professor of Law at the University of
: California at Berkeley, a nonresident senior fellow at the American
: Enterprise Institute, and a visiting fellow at the Hoover Institution. He
: served in the U.S. Department of Justice from 2001 to 2003. John Shu is a
: legal scholar and commentator who served in the administrations of
: Presidents George H. W. Bush and George W. Bush.
--
Let's go Brandon!