Regardless of what happens to Donald Trump, all of us will live to regret it.
Regardless of what happens to Donald Trump, all of us will live to regret it.
T he country we love has become unlovely.
It pains me to say that. But I can’t help but feel the same anguish written on the faces of friends who, like me, grew up in the justice system. Friends who couldn’t care less about Donald Trump, who won’t vote for him, who look at the cynical circus that just closed down in lower Manhattan as still more confirmation of his appalling judgment and character . . . but who remember what American law enforcement was at its imperfect best. Friends who verge on weeping openly over what’s happened to it.
Our system embodied the rule of law, the sturdy undercarriage of a free, prosperous, pluralistic society. Now, on its good days, it’s a clown show. On the bad days — there are far too many of those — it’s a political weapon.
If you enact laws that reflect civic virtue, and you enforce them without fear or favor, and if you work really hard at it because it’s no easy thing, you can have liberty in all its feisty splendor. But as the rule of law degrades into the rule of partisan lawyers, a constitutional republic inexorably decays into a banana republic. And it won’t take long.
Again, this isn’t about Trump. He is just the floor model. Don’t mistake him for the phenomenon itself.
A criminal trial is not a morality play. It is not about a person’s suitability for a public office of high trust. If it were, it would be worth recounting in chapter and verse how the facts of People v. Trump attest to Donald Trump’s unfitness for the presidency — the extramarital flings, the lying, the intimate association with rogues like Michael Cohen and David Pecker, the bookkeeping practices that were as mind-bogglingly dumb as they were intentionally misleading. Yes, technically speaking, nondisclosure agreements with porn stars are not campaign expenditures the non-reporting of which is a cognizable federal felony; but that doesn’t make one’s unfair prosecution over them worthy of comparison to the travails of Mother Teresa. And yes, Trump’s record-keeping may be on the right side of the fraud line, barely; that doesn’t make it any more “perfect” than the “perfect” phone call with Zelensky, the “perfect” speech on the Ellipse, and the “perfect” retention of highly classified intelligence at a resort club.
But neither that, nor the daft, self-defeating defense strategy that unfolded over the past six weeks, comes close to rationalizing the shambles that progressive Democrats have made of our justice system in their rabid jihad against Trump.
To objective, experienced eyes, Alvin Bragg’s prosecution of Trump shocks the conscience.
Bragg is a Democrat who campaigned for office on the implied promise that he’d reprise his practice, as a top deputy in the state attorney general’s office, of using the legal process to hound Trump. For that, New Yorkers elected him — just as they’ve twice elected Letitia James based on her now-fulfilled vow to exploit state power against the Democrats’ archnemesis. The decay here is not just legal; it’s cultural.
Such a dog’s breakfast of a case is the “hush money” caper that even Bragg shut it down in 2022 as beneath him. He revived it for two reasons having nothing to do with law and everything to do with politics: The equally ambitious Tish James was lauded by the party’s hard-left base for filing a civil lawsuit against Trump based on the fraud evidence that Bragg, prudently, had opted against charging criminally; and it became clear that Trump would again seek the presidency — meaning that if Bragg could get the case indicted in 2023, he’d be able to push it to trial in the critical months before the 2024 election.
Bragg indicted based on a business-records statute that, as applied in this case, is unconstitutionally vague under New York’s constitution. He resorted to this penal provision because he was bereft of what any prosecutor even thinking about indicting a former president and de facto presidential nominee should have: a serious crime that would be charged against anyone, supported by clear, convincing evidence. Ergo, Bragg had to rely on caprice — which is page one in the selective-prosecution playbook.
The DA did not so much find a crime as manufacture one. But even in New York, where “Orange Man in orange jumpsuit” is a collective fever dream, Bragg had to labor in stealth. The best he could do, in reviving L’affaire Stormy, was to frame Trump’s tawdry NDAs and funky bookkeeping as a campaign-finance infraction. That was a problem, however, because Bragg is a state prosecutor who has no jurisdiction to enforce federal law — which is what controls elections for federal office. Plus, the two federal entities that Congress endowed with exclusive authority to prosecute Federal Election Campaign Act (FECA) violations, the Justice Department and the Federal Election Commission, had thoroughly investigated Trump and determined not to take action — precisely because the NDAs were not cognizable campaign expenditures (unless you think hush money for porn stars can properly be paid using campaign funds — and imagine what Bragg would have charged if Trump had done that).
The DA thus remained cagey and noncommittal about what underlying crime he was alleging Trump had committed. In this and other irregularities, the patently conflicted Judge Juan Merchan abetted the DA — its being no more proper for Merchan to entertain an action in enforcement of federal law than for Bragg to bring such an action in the first place.
One of Bragg’s layers of camouflage was New York election law. That was remarkable too: The provision on which he relied is also a misdemeanor — conspiracy to influence an election by unlawful means. Bragg couldn’t charge this offense, just as he couldn’t charge the business-records-falsification misdemeanor, because the two-year statute had lapsed by 2019. On Bragg/Merchan math, though, these two time-barred misdemeanors somehow added up to a felony with a six-year statute of limitations and a potential prison term of four years, which Bragg multiplied into 34 counts (136 years — though capped at 20 years under New York sentencing law).
Such legerdemain in a state prosecutorial scheme to enforce federal law is noteworthy. Had this been a federal prosecution, Justice Department guidelines would have barred Bragg from slicing a single, trivial, nonviolent offense into 34 counts. That’s the sort of sharp practice engaged in by unethical prosecutors, and it is especially unbecoming of those who pompously preen about rooting out public corruption. It is public corruption for a prosecutor to signal to the jury, in a nonviolent crime case trumped up, as it were, against a political foe, that the defendant must be a really bad guy if the government is throwing the book at him as if he were Osama bin Laden.
Then again, this wasn’t really a prosecutorial enforcement of federal law because Bragg and his sidekick-in-a-robe didn’t really apply FECA. They made up their own FECA.
That’s never been done before, for a very simple reason. The DOJ and FEC zealously guard their turf. If a state prosecutor had tried to enforce FECA against any defendant other than Trump — in particular, if a red-state DA tried invoking the Bragg rationale in order to indict a prominent Democrat — the Biden Justice Department would have gone on the warpath. Attorney General Merrick Garland’s prosecutors would have demanded that the federal courts shut the state enforcement effort down, just like they do when states try to enforce federal immigration law because Biden won’t. But in this case? Crickets.
When Trump rails that even the state prosecution of Biden’s 2024 opponent is Biden’s doing, he’s not wrong — even if the evidence of collusion is the DOJ dog that didn’t bark.
As Bragg played peekaboo regarding his enforcement of federal campaign law, Merchan ensured that actual federal law would not intrude. He denied Trump’s defense the right to call former FEC commissioner Bradley Smith, who would have explained that (a) the NDAs were not campaign expenditures, and (b) even if the Stormy NDA on which the business-records charges were based had been a campaign expenditure, there would have been no reporting obligation until after the election. That is to say, Bragg’s fairy tale that Trump stole the 2016 election by skirting FECA reporting requirements was utter fiction, in addition to being legal nonsense.
It is not enough to say Merchan kept Smith off the witness stand while allowing Cohen and Pecker to opine on federal campaign law, a matter regarding which they — like Bragg and Merchan — are out of their depth. The judge further invited prosecutors to tell the jury, again and again and again, that Cohen had pled guilty to FECA crimes and Pecker struck a non-prosecution agreement with the Justice Department because he feared FECA prosecution.
Merchan knew this evidence was inadmissible against Trump. In one of the more cynical exercises in judicial malfeasance you’ll ever see, however, Merchan purported to admit the evidence to help the jury “weigh the credibility” of Trump’s two associates. The judge was well aware that the guilty pleas and non-prosecution agreement did not bear on the credibility of these prosecution witnesses — that the defense did not want the evidence in the case and the prosecution was not remotely interested in impeaching its own key witnesses. Bragg wanted the evidence in the case for precisely the reason the law makes it inadmissible — to argue that Trump must be guilty because he directed the commission of these “crimes” that his associates admitted. It was Merchan’s job to protect Trump from prosecutorial abuse; instead, he assumed the role of undercover prosecutor.
So many times did Merchan allow Bragg’s prosecutors to stress Cohen’s guilty pleas and Pecker’s non-pros deal that the jury cannot have thought prosecutors actually had to prove the FECA offense. It was as if Merchan had taken judicial notice of it — like it was an established fact of the case, as undeniable as the sun’s rise in the east. In point of fact, there is no evidence of Trump’s intent to commit FECA crimes — or, indeed, that Trump gave a moment’s thought to FECA in 2016 when the NDAs were being negotiated or in 2017 when Cohen was being reimbursed.
That’s a gaping hole in Bragg’s case. Not to worry, though: Merchan filled it by declining to instruct the jury on willfulness, the state of mind that Bragg was supposed to prove beyond a reasonable doubt in order to convict Trump.
As a whole, moreover, the jury instructions were a road map to conviction. En route, the jurors were told that they needn’t agree on what unlawful conduct Trump had engaged in to conspire to corrupt the election (which, remember, was not charged in the indictment). Rather, Merchan served up a menu of three Bragg theories — FECA, tax irregularities, and more business-records shenanigans — and told the jurors to pick any one they liked. As long as each juror found one, it wouldn’t matter if they all found the same one.
How can there be guilt beyond a reasonable doubt if the jury doesn’t agree on whether prosecutors have proved a key element of the case? Don’t ask such impertinent questions. And which one or ones of the menu items did the jurors pick? We’ll never know. Merchan dispensed with the routine procedure of jury interrogatories on this make-or-break issue in the first ever criminal prosecution of a former American president. Interrogatories, after all, would have documented the jury’s conclusions for appellate courts to review.
So even in the end, the defense doesn’t know what the jury found — which is nice symmetry since from the beginning the defense wasn’t told what Bragg was alleging. Trump wouldn’t have had a chance even if Merchan hadn’t invited the prosecutors to elicit Stormy Daniels’ graphic testimony of the sexual encounter she says she had with Trump in 2006 . . . and which she now intimates may have been nonconsensual (after years of saying otherwise). What on earth did that have to do with how the Trump organization booked NDA reimbursement payments to Cohen eleven years later? Clearly nothing, which is why a flustered Merchan admonished prosecutors for adducing the testimony he himself had green-lighted, and blamed defense lawyers for failing to object after he’d already overruled their motions to preclude this outrageously prejudicial testimony.
Needless to say, this testimony had nothing to do with vindicating the rule of law or stamping out public corruption. Manifestly, the point of the porn star’s testimony was to humiliate Trump. Manifestly, the point of the prosecution was to enable Joe Biden to call his opponent a convicted felon from now through November 5.
If you think this was a one-off, you’ve not only missed the last 15 years of what passes for law enforcement under both the progressive-prosecutor project in America’s big blue cities and — for most of that time — Democratic Party control of the Justice Department. You’ve missed over a century of American legal devolution, during which the law was reimagined into an extortionate weapon of social “progress,” due process devolved into punitive process, and bad precedents were inevitably exploited into monstrous precedents.
What happened in Manhattan was monstrous. The fallout is the antithesis of a constitutional republic that presumes innocence, imposes the burden of proof on the state, venerates its due-process rules, and guarantees equal protection of law. The antithesis is now the norm. Regardless of what happens to Donald Trump, all of us will live to regret it.