New York Style Pizza Pie

The New York district attorney is making a mistake, and I want to talk about the politics of that mistake here. I’ve talked about the legal problems on Advisory Opinions with David French—and it certainty isn’t the point of this newsletter—but let me give you the quick explanation:

As far as we know (and remember we haven’t seen any indictment yet), this case will require that Manhattan District Attorney Alvin Bragg prove that Donald Trump violated a New York law on the falsification of business records for the purpose of committing a federal campaign-finance violation that the federal government declined to prosecute. Again, we don’t need to get into the legal weeds here but 1) it’s not even clear a state prosecutor can use a federal crime to bootstrap a state misdemeanor into a felony, 2) it’s unclear the facts underlying the federal crime even as alleged by the prosecution would in fact be a federal crime, and 3) his own office declined to prosecute this case under his predecessor because the legal grounds were so shaky. 

There are some lawyers who think there is a real case here—though not many—and I think they are wrong. But my beef is not with them. Unfortunately, far more often, I have heard people say that they don’t care because—and I’m paraphrasing here—Trump had it coming. If you keep poking the bear, we don’t feel all that bad for you when the bear spins around and mauls you. Plus, they got Al Capone on tax fraud. 

Here’s the problem with that logic. Tax fraud is an actual crime and Al Capone committed it. So, yes, I’m all for getting Al Capone or Donald Trump or Daffy Duck on crimes that are different or less serious than the one for which you hoped to convict them. But they do need to be crimes. And Daffy Duck needs to have committed said crime. Not caring too much when the criminal justice system is wielded against someone because they were a bad guy anyway? This way lies tyranny.