Bragg Shouldn’t Be Prosecuting Trump Absent a Serious Crime and Strong Evidence

His charges, even in the unlikely event he can prove them, are too trivial to warrant the baleful consequences that come with them.

S tipulated: No one is above the law.

Stipulated: If a person has committed a serious crime, and prosecutors are in a position to prove it with strong evidence, that person should be charged, tried, convicted, and sentenced to prison. The happenstance that the person is a former president and present presidential candidate does not, and must not, make him immune from prosecution.

That said, Manhattan district attorney Alvin Bragg’s prosecution of former President Donald Trump is a silly case that appears to be supported by dodgy evidence — and a case that Bragg, a partisan Democrat who campaigned for his job by promising Manhattan progressives that he’d exploit the power of the DA’s office against Trump, and who is infamously lax in enforcing the law against real criminals, would not have brought against anyone other than Trump, the Democrats’ bête noire.

I oppose this prosecution mainly because of my experience exercising prosecutorial discretion. Those who argue that Bragg must prosecute Trump because no one is above the law are talking nonsense.

We do not live in a country in which every criminal offense is prosecuted. Every day, prosecutors — very much including Bragg — elect not to prosecute people, even people who are clearly guilty of crimes much more serious than those allegedly arising out of the Stormy Daniels caper. Those exercises of prosecutorial discretion are based on a wide variety of rationales — e.g., to spare a first-time offender a criminal record, the lack of harm caused by the offense (say, a fraud that does not rise to a threshold level), the adequacy of a civil-law remedy, the fact that due-process rules would require disclosure of informants engaged in ongoing investigations that would then be compromised, and so on. These rationales are valid, but many of them are less significant to the public interest than what is at stake in Trump’s prosecution.

Prosecutors, along with the officials and journalists who echo them, are accustomed to speaking as if nothing could be more important than their cases — the supposed demand that offenders be “brought to justice.” But in reality, prosecution is a social value like any other, meaning it has to compete with other things we desire as a society.

For example, as I related in Willful Blindness, when the Clinton administration in 1993 was weighing whether the Justice Department would be permitted to indict the Blind Sheikh (as I, the case prosecutor in New York, was advocating), it was not simply a matter of establishing that we had a case. There were foreign-policy considerations (the prosecution could potentially destabilize countries important to the U.S.), intelligence considerations (the prosecution would require exposure of sensitive information and informants), and even reputational considerations (the prosecution would expose the embarrassing fact that the FBI had removed a key informant from the investigation a few months before the 1993 World Trade Center bombing without an adequate Plan B for continuing to monitor the jihadist suspects). The decision to indict was not a slam dunk, even though the terrorists had conspired to commit heinous crimes and had in fact committed some, and we had strong evidence.

In Trump’s case, Bragg has willfully injected law enforcement into electoral politics, even though it is abundantly obvious that the intrusion of criminal investigations into presidential campaigns has been ruinous since 2016. Given how deeply this has divided the country, it is something no sensible American should want unless there is at issue an egregious crime, readily provable, that any person who was not a presidential candidate would be charged with.

Moreover, Bragg’s low-bar prosecution has eviscerated the norm against prosecuting former presidents, which will make life more difficult for future presidents. Now, administrations faced with tough decisions will know that their partisan adversaries are apt to use criminal prosecution to punish them for policy disagreements, especially — but by no means exclusively — if those decisions turned out badly.

Further, any prosecution of a presidential candidate is certain to create significant tension between due-process protocols and the robust freedom of expression the Constitution guarantees for political campaigns. This is already a problem in Bragg’s case against Trump, and it will only get worse.

To begin with, as a criminal defendant Trump should be present at all important proceedings in the case. Yet his presence creates a security nightmare for police, the Secret Service, the court, and other officials who must ensure the safety of his travel and of the courthouse. The cost to New York (as it edges toward another fiscal crisis) and the federal government (which is deeply in debt) is enormous. Clearly, bearing those costs is justifiable in a serious case. But in this case?

Next, there are discovery problems. Notwithstanding his own post-indictment press conference and history of partisan anti-Trump commentary, Bragg now wants to muzzle what Trump can say about the case, including what he learns about the state’s evidence and its witnesses. Bragg is blaming Trump for this situation, but the DA is the one who decided that this trivial case was worth the trouble made unavoidable by Trump’s mandatory access to discovery. As readers know, I am no fan of Trump’s social-media rants or, frankly, of his 2024 candidacy. Nevertheless, he is a candidate for president whose opponents are (rightly) making an issue of his fitness based, in part, on the criminal allegations against him. His defense, which he would be entitled to make even if the DA had not stirred the political pot, is that Bragg’s case is a partisan hit. On that score, Bragg has given him a lot to work with.

It is not unusual for judges to impose gag orders on the lawyers in a case — they are privileged members of the bar who get privileged access to discovery, and they thus voluntarily give up their free-speech rights for these benefits. Trump, however, is not a volunteer; he is a criminal defendant who is presumed innocent, who is being forced to participate in the proceedings against him, and who has not constructively waived his First Amendment rights. The legal basis for muzzling non-lawyer participants in a criminal case is much more tenuous.

Here, the constitutional implications are profound because Trump is campaigning for public office, as he has a right to do. Any muzzling that the judge may be persuaded to impose would necessarily interfere with Trump’s First Amendment rights in the sphere — political speech — where those rights have their highest constitutional protection. Also at issue is the interference of a single state government in a national election for the highest federal office, something any state should hesitate to do unless there is unmistakable urgency.

Because of Trump’s proclivities, Bragg is also arguing that some of the discovery must be kept in the “exclusive control” of Trump’s lawyers, unreviewable by the accused outside the lawyers’ presence. Bragg may have understandable reasons for this, but the inconvenient fact is that due-process rights — including access to discovery — belong to the defendant, not his lawyers. Theoretically, after all, Trump could decide to represent himself. While that is unlikely, the point is that Bragg would not be allowed to withhold discovery from Trump if he were acting as his own lawyer. Ergo, the notion that he may do so because Trump has retained counsel — lawyers who are his agents, not the state’s — is untenable.

This is just the tip of the iceberg. The conflict between criminal procedures and electoral politics is going to create excruciating dilemmas on a regular basis, from now until the case is resolved. That is why Trump’s lawyers should be trying to get it dismissed now, and why Judge Juan M. Merchan should be open to an early dismissal motion rather than letting things fester until December, as is currently contemplated. I am not saying there necessarily is an adequate basis to throw the case out at this early point (though I suspect there is); just that if there is one it is in the public interest to hash that out promptly.

To repeat what I stipulated at the start, sometimes compromises between criminal prosecution and our electoral process must be made. If a criminal allegation is sufficiently weighty, justice must be done, no one is above the law, and undesirable (probably imperfect) compromises have to be made for the sake of enforcement. But we should only be put in this position if there is actually a serious crime readily provable by convincing evidence.

Bragg, to the contrary, has put us in this bind over nonsense. Even worse, by doing so, he is encouraging politically minded prosecutors on the other side of the spectrum to do the same thing. Does he really think there is not some Republican prosecutor who is already conjuring up a dubious case against President Biden or officials connected to his 2020 campaign, on a theory analogous to Bragg’s? Perhaps that the letter from the 51 former intelligence officials that Biden’s campaign seems to have orchestrated to suppress the Hunter Biden laptop coverage — which, the creative prosecutor can claim, surely influenced the election — was an in-kind donation, and that the Biden campaign’s failure to disclose it was therefore a felony under federal election law?

Democrats can cheer Bragg on as much as their collective id desires. To the extent some commentators have candidly conceded that he should not have brought the Stormy case, perhaps they will nevertheless rationalize that Trump is a sui generis menace, and thus deserves whatever he gets. Bragg’s exercise of discretion, however, was reckless. His charges, even in the unlikely event he can prove them, are too trivial to warrant the baleful consequences that are already coming into view.