The Trump Indictment Danger

The move may cut a meandering path through the law to punish an unpopular former president.

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Manhattan District Attorney Alvin Bragg speaks at a press conference in January. (Photo by Michael M. Santiago/Getty Images)

In A Man for All Seasons, William Roper suggests he would “cut down every law” to get the Devil. Sir Thomas More responds, “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?”

I’m not a particularly religious person, but I’m open to the possibility that Donald Trump is actually the Devil.  Even so, the existence of the rule of law in our country is dependent on giving everyone its benefits. And that brings us to Manhattan District Attorney Alvin Bragg and his case against Trump. We have not yet seen the sealed indictment against Trump but I fear, in More’s words, that Bragg is ready to “cut a great road through the law to get after the Devil.”

Trump is reportedly facing 30-plus counts related to business fraud. Based on what we know from the grand jury, at least some of those counts will require the DA’s office to prove that Trump falsified business records when the Trump Organization labeled payments to adult film actress Stormy Daniels as a legal expense—and that Trump did it to hide or facilitate a federal campaign finance violation. For now, I will focus on this charge, which I believe sets a dangerous precedent and undermines our legal system. 

Others have gone into great detail outlining why this charge—a state crime that relies on proving an uncharged federal crime that rests on a legal theory that has also been criticized as “murky”—has been met with so much skepticism by lawyers. But for the time being, let’s assume that this indictment strains the text and purpose of the law to reach actions we think are bad by a guy we know is bad. Would that be such a bad thing? 

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  1. Avatar photo
    Ben Connelly

    “ And the rule of law is more important than any one person. Even the Devil himself.”

    That, to me, is a very principled position to take.

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    Ajax81613

    I don't think Trump should be prosecuted for this. There are bigger fish to fry.

    That said, if this blows up and turns Trump into a martyr and the GOP nominee, that's a win for Dems and democracy. Trump is the candidate Biden is best able to defeat in the general election. The Dems WANT Trump to be the nominee -- or they should.

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    SandyG

    Whether the theory is rock solid or not and Trump is being selectively prosecuted will be argued before a judge in a motion to dismiss hearing. That will put all your fears to rest, Sarah. Yes?

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      Sarah Isgur vertical-nib Author

      Except this isnt a selective prosecution claim. It's actually a legally sufficiency claim in a motion to quash. But same thing. The thing I don't know under NY law is whether you can appeal the denial of a motion to quash. If you can, then yeah, that solves my problem except for the whole 'it undermines the rule of law to bring bad charges in the first place.' Sort of like how arresting someone that you know is innocent just to harass them isn't ok just because they get the case thrown out.

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    O.W.L.

    I'm willing to hear this argument after the charges are made public. Until then, speculation like this is irresponsible, since it feeds the narrative that Trump has established--"they" are out to get him.

    As others have said, there is no reason to think Bragg took this extraordinary step without being completely aware of the risks and the political implications of charging a former president/current candidate. A reasonable person would be open to the idea that, since grand jury proceedings are secret, we don't know that the case rests on the well-chewed cabbage of "hush money to a porn star."

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      SandyG

      Agree it's speculative. Well said.

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  5. Andrew M

    I don't think Mr. Bragg is an idiot. Nor do I think he's blind to the potential political and physical ramifications of charging a popular former president with a crime (regardless of how misguided that popularity is), knowing that most likely there are people out there willing to kill on his behalf. (New 2024 slogan: Trump - putting the cult back into cult of personality!)

    Based on those considerations, I have to think that the case is much stronger than people believe. Of course, we won't know until the charges are published.

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      SandyG

      I am fully prepared to find, once the indictment is unsealed, that the case is much stronger than Sarah fears. Also prepared for the weak case some have speculated.

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    Patterico

    If we assume that the indictment— which we haven’t seen and the evidence for which we don’t know —is a legal stretch, then it is the product of a Stalinist mindset, and no serious person other than Trump would be charged with it. I think that’s a fair summary of what I just read.

    But Michael Cohen was charged with and convicted of a crime that can serve as the basis for elevating this charge against Trump to a felony. The feds could not have charged Donald Trump with that same crime at the time they charged Cohen, because of DOJ policy against prosecuting a sitting president. And at least some reporting says the Biden DOJ later passed on the case against Trump due to political considerations, not because they thought Trump to be not guilty.

    That makes it sound like Trump was above the law, not below the law. And personally — while many might say I am not a serious person — I think that is the larger concern.

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      Patterico

      I have always been and continue to be very firmly in the camp that says we must treat everyone equally regardless of their fame, political power, etc. And I am firmly in the csmp that says you don’t get to cite the other side’s bad behavior to justify your own.

      I just happen to see no such problem at work in this case, based on the limited information we know. My belief is based on details about the statutory language, the feds’ reasons for their charging decisions, and those sorts of things. Those considerations leads to the conclusion that, whether you think this theoretical case is wise or “rock-solid,” it is very far from a Stalinist abuse.

      I’m not even sure why we should care that it’s seven years old, if it comes within the same statute of limitations rules that are applied to ordinary citizens not named Donald Trump. Here again: treat everyone the same under the rules.

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        JDW

        Let me caveat here the assumption that what seems likely to be in the indictment is what is actually in the indictment. Like Sarah I am hoping it is much stronger and we don't know everything they know.

        The problem give my assumption above is that a normal citizen would not have been prosecuted. That is the issue. There is prosecutorial discretion and when you have a history. If the history is to not charge then Trump is being treated differently. For me, I'm not 100% sure this argument sways me but that is Sarah's argument. It probably sways me some. I do think at some point it is within the bounds of the law to prosecute someone who is continuously running afoul of it to a level not seen for ordinary mostly law abiding citizens.

        Let's hope the case is stronger and let's hope the other indictments from Georgia and Virginia come in soon. Georgia to me seems a lot stronger.

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        1. Avatar photo
          Patterico

          Normal people get prosecuted for falsifying business records to cover up campaign finance violations. Richard Brega was.

          https://www.justsecurity.org/wp-content/uploads/2023/03/survey-of-criminal-prosecutions-for-covert-payments-to-benefit-political-campaigns-just-security.pdf

          His campaign finance violation was a state one, but am aware of no similar case where the violation was federal and the New York prosecutors decided to take a pass simply for that reason.

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  7. Georges

    One thing seems certain and that is we are doomed to “all Trump, all the time” for eternity — or at least what seems like it.
    Whatever the merit of the charges, whatever M Trump’s culpability, I find myself wishing he would just go somewhere far away and get out of our national attention.
    ARGHHHHH!

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    Earl King

    The concept of not stretching the law to get a criminal seems a bit lost on our political class. Trumps bad, get him any way you can is such a bad road to go down on. Most Americans in these instances cannot understand that the Law is protective. More like our laws that govern our driving. If driving laws were removed or not enforced how long before we see more accidents and more deaths. Ignoring the laws that protect us how long would it be before our justice system would be more like Mad Max? Although the vision of Trump in the Thunder-dome is a pleasant one to envision.

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  9. Jack H Wolf

    Well said, and as much as we should avoid any pre judgement given that nobody knows the details, one cant help but look at Alvin Bragg who has tangled repeatedly with his Democratic colleague Mayor Admas b/c of his prioritizing of social justice over public safety.
    I remember Braggs involvement in the infamous case of the bodega owner who was assaulted by a customer and stabbed him in self defense and Bragg arrested the owner. That put him at odds with the mayor and most of NYC.
    If it were Merrick Garlan who is a bit more cautious I could speculate there was something here, but Alvin Bragg is a progressive zealot and I dont trust him.

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    Dan Baldwin

    What happens if the Devil has already chopped down all the trees that would otherwise protect us and be used against him? Do we ask him to pause and wait while we plant a new forest? Do we ask him to abide while we try to rebuild people's faith that a forest actually exists?

    I agree with Sarah; I find myself wondering about the half-life of this truth.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      This may feel like a non sequitor but bear with me. When I came out publicly to say that, while I didn’t agree with her judicial philosophy, I thought Elena Kagan was qualified to be a Supreme Court justice, a lot of the pushback I got from the right was that “they don’t do this for our nominees.”

      That was true. And I thought about it for a bit and then decided it didn’t change my mind. Why? Bc what I was going to say was factually true. Their silence (or even lies) were their choice. But if each side only speaks up when it helps “their team” where will that leave us? The answer, btw, is our current confirmation process, which is ugly and partisan.

      To put it another way, an eye for an eye leaves everyone blind. Someone has to break to cycle. Maybe it won’t work. Maybe it probably won’t work. But the rule of law is gone if we justify making an exception this time bc they made one first.

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        SandyG

        FWIW, I'm definitely NOT on Trump's side, but I don't support making any exceptions for prosecuting him. If the legal process allows him to "get off", then so be it. The rule of law is sacrosanct.

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      2. Brook

        Fine column. Even better comment.

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