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. 

It’s not hard to protect the free speech of all the nice people out there who love puppies and rainbows. Free speech rights exist when the Nazis have a legal right to a parade permit to march through Skokie, Illinois. In the same vein, the state doesn’t tend to weaponize the criminal justice system against Mister Rogers. You’ll get to defend these constitutional rights when you’re willing to do it on behalf of the most loathsome people in our society. John Adams defended British soldiers who killed revolutionaries. American lawyers represented detainees at Guantanamo Bay. Our system depends on giving the same rights and privileges to the bad dudes. 

And, no, it’s not that I feel any sympathy for Donald Trump. Frankly, he is and will be just fine. He’ll have lawyers and appeals and all the other benefits that our system provides. But—and this really bears some emphasis, it would seem: It’s not okay to arrest someone just because they’ll eventually be acquitted. It’s not okay to “teach someone a lesson” about inciting violence on January 6 or undermining the rule of law or being a racist by indicting them for something that isn’t a crime and that they didn’t commit even if it were. And it’s not okay to say, “C’mon, we all know he’s probably committed all sorts of crimes.” Because if that’s true, then go prove it…in a court of law. The same thing I said when Trump’s team claimed there was obviously widespread voter fraud in the 2020 election. 

Waving your hands around is not evidence. Evidence is evidence. 

I’ll conclude this rant with a famous excerpt from the most important book for any lawyer to read: 

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: 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? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil the benefit of law, for my own safety’s sake!

(Fun fact: We did a white elephant Christmas exchange at the Justice Department in 2017, and one of my proudest possessions is a copy of A Man for All Seasons signed by Rod Rosenstein, who quoted this passage to me on what felt like a daily basis.)

If you believe Donald Trump is the devil, all the more reason to be wary of district attorneys carting out indictments seven years later. But that’s not the point of this newsletter. 

What is the point of this newsletter? Two things: the politics of indicting Trump and the politics of electing prosecutors. 

Let’s start with how the conversation around investigating and indicting Donald Trump has affected the 2024 GOP primary. 

I think the “Donald Trump might get indicted” tax was already baked into this race. Everything he is being investigated for is already well-known to potential GOP primary voters. Paying off a porn star? Who hasn’t! Threatening Georgia election officials if they didn’t “find” him 12,000 votes? It was just a suggestion! Trying to overturn the 2020 election results? Yep, we know. Keeping classified documents in his desk drawer? So did Biden. 

And all of this means that these swirling indictments have affected the race less than one might have otherwise thought. Perhaps the biggest effect so far was also the most predictable: Every candidate and potential candidate had to come out and say something last week about how woke or political the Manhattan DA is. 

And to that extent, I think the DA has already made one of his biggest blunders, which is giving Republicans a foothold to dismiss this case as political weaponization when it would have been much tougher ground to defend charges being considered by a Georgia grand jury, for example. 

But DA Bragg’s individual incentives are not the same as Democrats incentives or America’s incentives or anyone else’s for that matter. First of all, only one person can be the first person ever to indict a former president. Wikipedia fame awaits. Second, it’s not like each DA got to pick his or her indictment avatar. New York can’t charge Trump with calls he made into Georgia. Georgia can’t charge him with stuffing classified documents down his pants. 

Third, and this is the part I really want to focus on: Alvin Bragg is elected by the residents of New York County. Or perhaps more to the point, Alvin Bragg will be reelected based on whether the residents of New York County know who he is, know what he’s done, and like the job he did for them.  

Federal prosecutors aren’t elected. They are career federal employees hired through the civil service process. U.S. attorneys and assistant attorneys general, their bosses, are appointed by the president and confirmed by the Senate, which means they have some political accountability but only through the president himself. FBI agents are all career employees. The FBI director is appointed to 10-year terms by the president and confirmed by the Senate. I’m biased but by and large I think it is a system that has worked quite well. 

And clearly I don’t like what the Manhattan district attorney is doing, and I think the reason that the feds declined to prosecute this case but Bragg is moving forward has a lot to do with the difference in which the two sets of prosecutors get and retain their jobs. 

So I’m against electing prosecutors right? Nope. It’s not perfect but it is the best system available. 

Criminal justice isn’t a science. There are far more laws on the books than there are resources to prosecute every violator. (Its own problem, one might argue.) Prosecutions, therefore, reflect priorities and tradeoffs. When I was at the Department of Justice, some prosecutors were moved off white collar crime (fraud, tax evasion, etc.) and moved onto gun crimes (felons in possession of guns, straw purchasers, etc.). The hope is that prosecutors reflect the needs and priorities of their communities. And then the question is how we create a system that most fairly executes the laws and reflects those priorities and tradeoffs in the application of limited resources. 

Very few people are going to change their vote for president because an assistant U.S. attorney in Nashville brought too many tax evasion cases and not enough gun cases. Even if everyone in Nashville is pissed off, it won’t make any difference to a national political race. And when it comes to federal crimes, I think I can live with that—after all, we also need to balance some uniformity with local needs too. That’s why we have a deputy attorney general in Washington who oversees all 94 local U.S. attorney districts.

But on the local side, isn’t this exactly the system we want? When he first took office, Bragg issued a memo that instructed his prosecutors to “avoid seeking jail time for certain crimes including robbery, assault and gun possession.” Then there was, as you can imagine, a lot of pushback. So he backtracked some. 

Now, his office has reopened the case against Donald Trump that his predecessor had declined to bring. I think there’s a decent chance the case gets tossed out before it even goes to trial and a near certainty it would get reversed on appeal in the event of a conviction. In the meantime, he will have spent all sorts of time and resources trying to get this one dude whom his constituents don’t like only to see him walk away scot-free once again. Maybe they’ll be happy he tried? Maybe they’ll wish his attention had been more focused on violent crime? Either way, it’s their call. 

The alternative is to have DAs appointed by the governor (who actually appoints in the case of a vacancy), but again there’s only so much you can hold one person accountable for. The more we spread accountability and localize it, the more voters can pick and choose the government they actually want. And that’s the whole point!  

To summarize the politics: I don’t think this changes Donald Trump’s chance for the Republican nomination very much either way. It’s gotten him some much needed short-term attention. Some of that is good for him. Some of it is bad. But the much more interesting political game theory is for poor Alvin Bragg who has a bad case he can bring or not bring and at this point it’ll be one of the only things he’s remembered for when Manhattan’s voters go back to the polls in 2025. The politics of that … ain’t good either way.

Skipping Dessert

I try to make these fun or funny, but my heart isn’t in it right now. For those who heard about yet another school shooting and moved on with your day, I’d urge you to take another look at this girl’s face. Imagine how grateful her parents must feel right now. At least their child came home alive. Three 9-year-olds aren’t getting tucked in tonight.

There is no easy solution or “one quick trick to stop this from happening ever again.” Indeed, that is the problem with our conversation—everyone wants to tell you they could solve this if only their opponents weren’t in favor of dead kids. That’s just not true. It’s having the right laws on the books; it’s about having the will and the resources to enforce the laws we already have; it’s about mental health; it’s about culture. Congress has a role. So do we. Neither political party is wholly virtuous on these issues; neither is wholly to blame. 

I’m as big a fan of Chesterton’s Fence as any girl out there. A Burkean through and through. And I’m certainly not for Congress doing more just to do more. But it feels like we’ve hit a wall here. So perhaps I can make a small suggestion? 

Would it be too much to ask that we require everyone to look at this photo before they get to tell the other side why it’s not even worth trying to implement some of their proposed solutions? Maybe if we spent more time saying “I don’t know but it’s worth a shot” and less time saying, “We can only do it my way,” we might be able to get somewhere that isn’t here.