The Michelle Dauber of prosecutorial commentators, Andrew Weissmann, has come to New York County District Attorney Alvin Bragg’s defense.
Prosecutors are trained to consider whether a case can be brought — in other words, is there proof beyond a reasonable doubt to support a conviction? They also consider whether a case should be brought — principally, is the crime one that is typically charged by the office in like circumstances? Put another way: Is bringing the charge consistent with the rule of law that requires treating likes alike?
Alvin Bragg, the Manhattan district attorney, would be well within his discretion in determining that the answer to those questions is yes and therefore supports charging Mr. Trump in connection with any crimes arising from an effort to keep Stormy Daniels from disclosing an alleged affair to the electorate before the 2016 election.
The case reflects a novel legal theory, never before tried in New York, whereupon the misdemeanor of falsifying business records is elevated to a felony by attributing its purpose to committing or concealing another crime, in this instance a federal election law violation. That may be the motive, but there are also other plausible motives having nothing to do with the election, such as concealing his infidelity (or, if you believe Trump, there was no infidelity and this was extortion) to protect his own reputation or spare his current wife humiliation.
The case doesn’t bear upon any of the multitude of wrongs committed while in office. It’s the sort of crime that’s rarely prosecuted because it rarely comes onto a prosecutor’s radar, and even when it does, it’s more likely a matter for taxing authorities to address, as its only harm relates to expensing out a cost that should be taxable.
Ironically, the prosecution’s star witness in the case, Michael Cohen, may be one of the least credible or likable witnesses to ever get a free donut at One Hogan Place. Would you want to bet your prosecution on the likes of such a witness?
At worst, the crime would be a Class “E” felony, which in the ordinary scheme of things, would be pleaded down to an “A” misdemeanor and a fine or some community service as a first offense. Even if it goes to trial and results in a conviction, the felony would get probation at worst as a first offense. Usually, anyway.
But chances are pretty good that this case will never make it to trial, and will be tossed for one of a variety of reasons along the way.
And if this was anyone, anyone at all, other than Trump, would any prosecutor even be considering this prosecution? If this came after a serious indictment was brought, say in Georgia or by the feds, it would barely make a ripple in the legal puddle surrounding Trump. If it was tossed, or lost, while he was being prosecuted for something serious, it wouldn’t even be mentioned by Rachel Maddow. But if it comes first, a stand-alone indictment among the myriad crimes under investigation, it will become the national focus. Is this really the case that will take Trump down?
If you come at the king, you best not miss.
On the other side, the argument is that district attorneys prosecute “ordinary” people for the most trivial offenses all the time, and they do. They prosecute “ordinary” people for offenses with tenuous evidence, dubious theories and no socially responsible reason. Why, then, should the “ordinary” person be subject to the power of the state, even for lesser crimes, that a former president is not? Is he “above the law”?
Politically, indicting Trump will outrage his supporters and give them a rallying point, similar to what Dobbs did for the Democrats. Even worse, should the case against Trump be dismissed, or Trump be tried and acquitted by a jury, it will validate his claims of a witch hunt. Given all he’s done, is this one the witch hunt?
Is this, as Weissmann argues, required by the “rule of law,” or is this a misbegotten, desperate attempt to bring down the pariah that will be little more than a paper cut if it succeeds, but will more likely fail and serve to make Trump both stronger as well as the pathetic victim he constantly claims to be?
*Tuesday Talk rules apply, within limits.
Anti-Trumpism at its usual. This is the low-hanging fruit for mooks who can’t be “special” or get kudos from the cool kids any other way. It even worked for Avenatti for awhile. The point here is that everyone has to know this particular mook tried his best to “get” Trump, whatever comes of it. It will be his claim to fame forever, and hereafter, he will boast of this instead of his LSAT score.
What a load of crap. There are a lot of reasons this is a bad prosecution, that is not one of them, else it would have been charged long ago.
I absolutely loathe Il Douche and the schadenfreude I’m enjoying watching his legal woes mount is exquisite, but I’m forced to recognize that this prosecution challenges one of my most deeply held beliefs. This being, “The law applies to all, or it applies to none”. I doubt many other people would be charged if they found themselves in similar circumstances.
Damn you, Scott, you keep making me confront/ question my beliefs and making me think.
Trump and the circus surrounding him is the most entertaining political phenomenon of my lifetime (I wasn’t around for Andrew Jackson). I heartily applaud Bragg’s attempt to bring him back for another encore, and I wish him success. Trump isn’t going to jail, but he will continue to entertain us with outrageous antics and spectacular insults directed at his frenemies, enabled by Bragg and his fellow Trump “haters” in politics and in the media.
Clowns to the left of us, jokers to the right. My fear is that politically and in so many other ways we are getting exactly what we deserve.
A competent prosecutor would recognize that it is almost impossible to prove beyond a reasonable doubt that the purpose of the false entry was to commit election fraud rather than protecting Trump’s reputation or his marriage or preventing him from being marked as an easy touch by opportunistic litigants. If the defendant wasn’t our favorite bogey man there would be no indictment. This abuse of prosecutorial discretion only makes Trump look like a martyr and inflames many of the people who voted for him. Trumpism needs to be confronted as a political problem, not a criminal problem. Weaponizing the criminal justice system to target political enemies is a bigger threat to civil society than Trump’s racist demagoguery.
There’s no upside here. Far too many hurdles, not the least of which is acquittal, and even if convicted, it doesn’t relate to anything Trump did in office or to stay in office, but his being a pig, which isn’t in question for anyone midwit or higher.
And the downside is huge. Unless Bragg has a trick up his sleeve, this prosecution would be nuts
It appears that Trump was being blackmailed, and yet he is the one being prosecuted. No matter how much I hate Trump, there is something very wrong there. And if this is worst that they can find, he is much more honest than I thought.
Much like newspaper headlines that end in a question mark, the answer to anything that starts with “I can but should I?” is almost certainly “no”
I dare say that no SJ commenter would like to see Don Cheetohee get his comeuppance more than I do, but I fear this ain’t it for all the reasons you cite and more. It’s old news and hypocritical after taking the progressive line on prosecutorial discretion.
“Yes, we are a banana, a banana republic we are”
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.