With the indictment of former President Donald Trump by Manhattan District Attorney (DA) Alvin Bragg, the United States has crossed into dark and unchartered territory. Charging a man with fraud may be nothing new, but having the political party in power arrest the de facto leader of the opposition and former occupant of and current candidate for the Oval Office is unprecedented. This is not a plea for immunity from prosecution for former presidents or presidential candidates. Rather, if a prosecutor chooses to go down this road, the evidence must be incontrovertible and the legal theories upon which the case is based must be well established, consistently applied, and easily understood.
The indictment of Donald J. Trump fails this basic test.
The indictment alleges that Trump falsified business records concerning “hush money” payments to women he allegedly slept with while married in order to prevent the women from going public during the 2016 presidential campaign. Such payments are not uncommon among celebrities and are themselves legal. The DA’s core witness is the convicted liar, and the world’s most disgruntled former employee, Michael Cohen, Trump’s ex-attorney.
First, even assuming records were falsified in this case, the two year statute of limitations has run out under that misdemeanor charge. Second, the contorted attempt to turn the misdemeanor into a felony by linking it to a federal campaign law violation, and thereby extending the statute of limitations to five years, also fails.
Putting aside the fact that federal law is not the Manhattan DA’s purview, both the Federal Election Commission (FEC) and federal prosecutors in Manhattan looked at the same facts and both declined to prosecute. Moreover, in cases involving former President Barack Obama and former Secretary of State and two-time Democratic presidential nominee Hillary Clinton, where significant election law violations were found in 2008 and 2016, respectively, fines against the campaigns were issued, not criminal prosecutions.
Mr. Bragg has claimed his investigation is about the rule of law, and yet he previously declined to seek a prosecution of Mr. Trump and only re-opened the case after being publicly admonished by former deputies in his office who criticized him for not going after the former president. Meanwhile, Bragg has a policy of downgrading violent felonies to misdemeanors and charging victims of crimes who try to defend themselves.
Does anyone think we would be here if the defendant were named Donald Smith?
Neither Mr. Bragg nor any other investigator has even looked into the possibility that one or more of the women involved may have committed extortion against Mr. Trump by threatening to go public with their alleged affair in the absence of a payout. And don’t expect an investigation into the felonious leaking of the Trump grand jury information to the news media over the last week.
American politics has always been rough, just ask Alexander Hamilton, and we’ve been on the path to this moment for at least fifty years. Following the Watergate scandal and the rise of the special prosecutors, and later the independent counsel, the weaponization of the justice system has been steadily boiling over. While the vitriol dissipated slightly between Democrats and Republicans following independent counsel Ken Starr’s out-of-control investigation into former President Bill Clinton and Monica Lewinsky, it did not last. The gloves came off with the appointment of Bob Mueller as special counsel to investigate a non-existent conspiracy between the Trump campaign and the Russians to help Trump win the 2016 election.
The weaponization of the justice system not only threatens liberty, election integrity, and the rule of law, it also erodes the credibility of the system itself. Twenty years ago, if a political candidate had his or her home raided by the FBI or was indicted by a local prosecutor, their political careers would be over. Today, having suffered both indignities, Donald Trump’s poll numbers and fundraising have actually risen. This was foreshadowed in 2013, when Democrat DA Rosemary Lehmberg’s office out of Austin, Texas indicted the then-sitting Republican Governor of Texas, Rick Perry, on felony abuse of power charges. In a potentially ominous precursor for the Manhattan DA, the charges against Perry were later dismissed by the courts, and he went on to serve as Secretary of Energy under none other than President Trump. Lehmberg did not seek re-election following the episode.
In 1940, former Supreme Court Justice and U.S. Attorney General, Robert Jackson, speaking to a group of federal prosecutors, cautioned against weaponizing the justice system when he said, “while the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” He went on to warn that, “the most dangerous power of the prosecutor [is] that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”
It is with “malice” that Alvin Bragg and the Democrat Party have weaponized the justice system to a degree never before seen to “get” Donald Trump. The consequences of this disastrous abuse of power will reverberate for decades and its proponents will rue the day they plunged the nation deeper into a state of lawlessness.
