If Harris has the skill set to tell a compelling story with evidence, she has yet to show it.
One of the big themes of the Democratic/media push behind Kamala Harris is that “Kamala the prosecutor” is the right person to take down “Trump the felon.” So, where is this prosecutor we keep hearing about?
The theme — the vibe, to use the phrase du jour for the impressionistic moods that substitute for a record of statesmanship in this campaign — is not that Harris is a tough-on-crime courtroom Batman, an Eliot Ness or a 1990s Rudy Giuliani who rids the streets of gangsters and thugs and makes life safe for law-abiding folk. It’s all about how Harris is supposed to be just the person to make the case in the court of public opinion for why the lawfare campaign against Trump should be taken seriously by voters as proof that Trump is a criminal unfit for office.
Let’s check how that argument is going. Here‘s Harris on Saturday in Pittsfield, Mass.:
I was elected attorney general of California. And before that, district attorney of San Francisco. And before that, I was a courtroom prosecutor.
All that to say — (laughter and applause) — in those roles, I took on perpetrators of all kinds — (laughter and applause) — predators who abused women, fraudsters who ripped off consumers, cheaters who broke the rules for their own gain. So, hear me when I say: I know Donald Trump’s type. (Laughter and applause.)
In fact, I have been dealing with people like him my entire career. (Laughter.)
For example, as attorney general, I took on one of our country’s largest for-profit colleges that was scamming students. Well, Donald Trump ran a for-profit college that scammed students. As a prosecutor, I specialized in sexual abuse cases. Well, Trump was found liable for committing sexual abuse. As attorney general, I held the big Wall Street banks accountable for fraud. Donald Trump was just found guilty of fraud — 34 counts.
Here‘s Harris yesterday in Atlanta:
I was an elected attorney general and an elected district attorney. (Applause.) And before that, I was a courtroom prosecutor. (Applause.)
So, in those roles, I took on perpetrators of all kinds — (applause): predators who abused women — (applause); fraudsters who ripped off consumers — (applause); cheaters who broke the rules for their own gain — (applause). So, hear me when I say I know Donald Trump’s type. (Applause.) I know the type. And I have been dealing with people like him my entire career. For example, as attorney general of California, I took on one of our country’s largest for-profit colleges that was scamming students. Well, Donald Trump ran a for-profit college that scammed students.
AUDIENCE: Booo —
THE VICE PRESIDENT: As a prosecutor, I specialized in child sexual abuse cases and sexual abuse cases. Well, Trump was found liable for committing sexual abuse.
AUDIENCE: Booo —
THE VICE PRESIDENT: And as an attorney general, I held the big Wall Street banks accountable for fraud. Donald Trump was just found guilty of fraud — (applause) — 34 counts. So, in this —
AUDIENCE: Lock him up!
THE VICE PRESIDENT: So, in this campaign —
AUDIENCE: Lock him up! Lock him up! Lock him up!
THE VICE PRESIDENT: (Inaudible.) (Inaudible.)
Now, leave aside the fact that the people who were scandalized by the “lock her up” chants at Trump rallies in 2016 and even today warn darkly that Trump wants to imprison his rivals are eagerly rallying behind a campaign with its own “lock him up” chants. Leave aside Harris’s implying that Trump was criminally convicted for child sex abuse. What exactly is Harris’s argument about Trump’s conviction in Manhattan? That he “was just found guilty of fraud.”
No details. Fraud against whom? When? How? This is not how real prosecutors talk. They dig into the facts. They drive home the emotional impact of those facts. They both make you think and believe that the defendant committed a crime and make you feel that the crime is a serious one worthy of punishment. Harris doesn’t do any of that. She goes straight to the bottom line of the verdict (which she gets wrong), declares her opponent guilty, and plays the whole thing for swagger and laughs.
That’s partly a comment on the vapidity of Harris, whose last serious attempt to make a case on the facts was in the Brett Kavanaugh hearings, when she tossed out a bunch of non sequiturs without finishing her thoughts, mugged for the cameras so egregiously it became a punchline, and read into the record the absurd and since-discredited gang-rape charge ginned up by the currently incarcerated shyster Michael Avenatti. If Harris has the skill set to tell a compelling story with evidence, she has yet to show it on the national stage.
But more to the point, it’s a comment on the flimsiness of Alvin Bragg’s case against Trump. Trump wasn’t convicted of fraud but of making false business entries with intent to defraud — a significant distinction, because the crime does not require proof of anyone having been defrauded, and the trial judge instructed the jury that “the People need not prove that the defendant acted with the intent to defraud any particular person or entity.” In fact, the prosecution never even tried to come up with a theory of how the business entries in Trump’s checkbook and Michael Cohen’s invoices ever defrauded anybody or could ever have been expected to do so (which is one reason the conviction was legally bogus).
Worse than the challenge of explaining a fraud that wasn’t really a fraud and never had any victims would be if Harris tried to explain the theory of fraud pursued by Bragg’s prosecutors: that Trump stole the 2016 election. The prosecution argued that the business entries in 2017 were intended to conceal federal-election-law violations in 2016 that consisted of improper payments to hide from voters Trump’s sexual affairs. Again, this is a crackpot theory, for reasons I’ve noted before when it was retailed by Democratic election lawyer Marc Elias:
First, the chronology. Donald Trump was convicted of 34 instances of making false business entries. The earliest of those entries was made on February 14, 2017 — after the election was decided and Trump was already president. It would require a time machine for those business entries to have decided the 2016 election.
Second, the documents. Who was deceived by the business entries? The prosecution never introduced evidence that they were seen by anyone other than Trump, Michael Cohen, and people who worked for Trump until a separate investigation of Cohen turned them up.
Third, the disconnect between the illegality and the election. The business entries did not disclose that a hush-money payment had been made to Stormy Daniels regarding her alleged sexual affair with Trump. Elias seems to be claiming that if only the Daniels affair had been made public, Trump would have lost the election. The prosecution did not claim — nor could it — that the hush-money payment to Daniels was illegal. Bragg’s theory was, instead, that the payments violated federal campaign-finance laws in how they were structured and recorded. In other words, had Trump simply handed Daniels a stack of $130,000 in cash, and had he then recorded the payment in Federal Election Commission filings as “Nondisclosure Agreement,” that would have been perfectly legal and had exactly the same impact on the election. Elias, Bragg, and Tribe, being lawyers, undoubtedly know perfectly well that this is a completely bogus stolen-election theory.
Fourth, the disconnect between FEC reporting and the election. Anything done in October 2016 that had to be reported to the FEC would fall into a reporting period after the election was over. Thus, even if Trump had written HUSH MONEY PAYMENT TO PORN STAR I BANGED on his FEC filings, it was too late to matter to voters in the 2016 election.
Fifth, the Pecker disconnect. Bragg’s other theory of a campaign finance violation was that David Pecker, American Media, Inc., and the AMI-published National Enquirer conspired with Trump to cover up payments that AMI made (allegedly in violation of federal campaign-finance laws on the theory that this constituted an AMI contribution to Trump) to a different woman, Karen McDougal, who also claimed an affair with Trump. The problem with connecting this to the 34 counts of false business records is that none of them had anything to do with Pecker, AMI, or McDougal. They were all just recordings of the Daniels hush money. Had the court done its job, it would never have admitted any of the Pecker/AMI/McDougal stuff into evidence because it had no relevance whatsoever to whether the Daniels business entries were false or whom they were intended to deceive.
Sixth, the McDougal disconnect. Did the concealment of McDougal’s story result in Hillary Clinton’s losing the election? In fact, it was published before the election. On November 4, 2016 — four days before the election, less than a month after the Access Hollywood story broke, and a week after James Comey’s email-investigation bombshell — the Wall Street Journal reported not just the McDougal affair claim but also the Enquirer‘s role in covering it up. And it had zero impact.
The Bragg case is factually convoluted, legally abstruse, unprecedented, and — if you take seriously its premises — an insane stolen-election conspiracy theory. That’s why Harris only wants to talk bottom line (“fraud”) and is neither willing nor able to argue that it should be treated as if it were a real crime. Even she knows there’s nothing there to talk about.