The Trump indictment, or, Be careful what you wish for

I could not care less what Democrats think about indicting Donald Trump. What Trump’s most ardent supporters think is similarly uninteresting.

It is more interesting to see what conservatives and libertarians who are not worshipping at the Trump altar think. We begin with Trump non-fan Paul Mirengoff:

Here are my immediate (and not very hot) takes on the decision to indict former president and current presidential candidate Donald Trump:

First, the New York prosecutor’s case against Trump is garbage. Almost everyone knows this, even the editorial board of the Washington Post.

Second, the Post’s editors fret that a failed prosecution of Trump in the New York case could put in jeopardy possible prosecutions over the January 6 events and the taking of documents to Mar-a-Lago. It could, but I doubt it will.

Third, the garbage indictment may lead to protest demonstrations. Such protests would be understandable and, if non-violenet, reasonable.

Fourth, if the protests become violent, some Trump-hating Democrats won’t be unhappy. The January 6, 2021 rioting has largely receded from the consciousness of the general public. A new outrage would help fill the void.

Fifth, this indictment won’t be last indictment of a former president by a local prosecutor looking for applause and/or acting out hatred. Democratic ex-presidents will have less to fear than their Republican counterparts because D.C. prosecutors won’t touch them and prosecutors in Blue states, from which Democratic presidents generally hail, won’t be likely to, either.

However, Bill Clinton came from Arkansas, where the Whitewater investigation arose. A local prosecutor could easily have gone after Clinton and, certainly, his wife. Pete Buttigieg comes from the Bright Red Indiana. If he somehow becomes president, Buttigieg might have to worry about local Hoosier prosecutors conjuring up crimes for which to prosecute him.

Sixth, the potential for mischief isn’t limited to former presidents. The risk of garbage prosecutions designed to take down prominent office holders has just risen.

Seventh, the conventional wisdom is that this indictment will help Trump secure the GOP presidential nomination. This is a plausible view.

There was a time in America when even a garbage indictment relating to paying hush money to a porn star would have been a political minus for the defendant. But that time has probably passed.

However, a poll by Echelon Insights cuts against the conventional wisdom. It found that an indictment of Trump by the Manhattan District Attorney would harm, not help, Trump with Republican voters deciding whom to support for president. We’ll see.

Eighth, I gather that most Democrats regard Trump as easier to defeat than any credible GOP rival. If so, it’s fair to ask whether the decision to prosecute Trump in New York was motivated by a desire to help him become the nominee.

I don’t think it was. The Manhattan DA’s decision requires no explanation beyond his ambition and his campaign promises. If more explanation is needed, I would cite what I assume is his animus towards Trump. However, we can’t rule out the possibility that a desire to help the Democrats win in 2024 also factored into his decision.

Ninth, if the DA is trying to help the Dems, he might have overplayed his hand. It’s possible that this prosecution won’t just help Trump with Republican voters. It might also help him with independents.

Tenth, there are more criminal law-related chapters to be written about Trump between now and the 2024 election. What will happen with this prosecution? What other prosecutions of Trump, if any, will emerge?

Until we read these chapters, any attempt to assess the political impact of yesterday’s indictment is even more speculative than the usual chatter this far in advance of a presidential election.

Jacob Sullum:

The New York indictment of Donald Trump, which won’t be unsealed until he is arraigned early next week, reportedly includes “more than two dozen counts.” That’s a surprisingly large number if the case is based entirely on the $130,000 that Trump lawyer Michael Cohen paid porn star Stormy Daniels in 2016 to keep her from talking about her alleged 2006 affair with Trump. The litany of charges reinforces the impression that Manhattan District Attorney Alvin Bragg, a Democrat, is trying to justify this belated and dubious prosecution by transforming minor misconduct into a case that looks serious until you consider the underlying allegations.

According to reporting based on anonymous sources close to the investigation, Bragg is relying mainly on a state law that makes it a misdemeanor to falsify business records “with intent to defraud.” Trump, who reimbursed Cohen for the hush payment to Daniels, allegedly broke that law when his business misrepresented the reimbursement as payment for legal services under a nonexistent retainer agreement. If the Trump Organization recorded the payment in more than one document, those records could be the basis for several counts under this statute. But each of those counts would still be a Class A misdemeanor, punishable by a maximum fine of $1,000 and/or up to 364 days in jail.

Falsification of business records becomes a Class E felony, punishable by up to four years in prison, when the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” This is where federal election law comes into play: Federal prosecutors argued that Cohen’s payment to Daniels amounted to an excessive campaign contribution, and he accepted that characterization in a 2018 plea agreement.

Since Cohen said he was acting at Trump’s behest, the implication was that Trump had solicited and accepted an illegal campaign contribution. Yet the Justice Department never prosecuted Trump for that alleged violation, even after he left office. In 2021, an evenly divided Federal Election Commission (FEC) declined to pursue charges against Trump, his business, or his campaign.

Federal prosecutors would have faced at least two daunting obstacles in trying to make a case against Trump based on the hush money payment. First, as former FEC Chairman Bradley Smith pointed out after Cohen’s guilty plea, “it is unclear whether paying blackmail to a mistress is ‘for the purpose of influencing an election,’ and so must be paid with campaign funds, or a ‘personal use,’ and so prohibited from being paid with campaign funds.” Smith argued that “the best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime.”

The distinction between a personal expenditure and a campaign expenditure hinges on the question of whether Trump was trying to avoid publicity that could have hurt his chances of defeating Hillary Clinton or was merely trying to avoid embarrassment and/or spare his wife’s feelings. While the proximity of the payment to the election supports the first inference, convicting Trump of violating federal law would have required proving that hypothesis beyond a reasonable doubt.

The difficulty of doing that was illustrated by the 2012 trial of former North Carolina senator and Democratic vice presidential nominee John Edwards, who was accused of accepting several hundred thousand dollars in illegal campaign contributions from a wealthy supporter. Edwards used the money to hide an extramarital affair and the baby that resulted from it. Federal prosecutors argued that his intent was to avoid a scandal that would have compromised his campaign for his party’s 2008 presidential nomination.

Edwards argued that covering his mistress’s living expenses was a personal expenditure aimed at deceiving his wife, who was dying from cancer at the time. Jurors evidently favored that interpretation, because they acquitted Edwards of one charge while deadlocking on five others.

The other major challenge in proving a case like this is related to the ambiguity that the Edwards jury confronted: Prosecutors have to prove that the defendant “knowingly and willfully” violated federal election law. In Trump’s case, it is not clear that he had the requisite intent, because he seemed genuinely confused about what federal election law requires.

In addition to the count based on the payment to Daniels, Cohen pleaded guilty to causing an illegal corporate campaign donation by arranging for The National Enquirer to pay former Playboy model Karen McDougal $150,000 for her story about sex with Trump, which it kept under wraps. “Those two counts aren’t even a crime,” Trump told Fox News after Cohen’s guilty plea. He emphasized that he reimbursed Cohen with his own money, as opposed to campaign funds, which “could be a little dicey.”

Responding to those comments, CNN political correspondent Chris Cillizza observed, “What Trump doesn’t know about campaign finance law is, um, a whole lot.” But if Trump did not understand the law, which Smith argues is hazy on this point, and/or did not anticipate how federal prosecutors would interpret it, he did not “knowingly and willfully” violate it.

“With respect to both payments,” the sentencing memo in Cohen’s case says, “he acted in coordination with and at the direction of Individual-1″—i.e., Trump. But that does not necessarily mean that Trump understood the payments to be illegal, which would have required rejecting what a former FEC chairman describes as “the best interpretation of the law” and recognizing a distinction that Smith thinks is  “unclear” at best.

In short, federal prosecutors probably had good reasons for declining to charge Trump. Yet now Bragg is relying on that uncharged and unproven federal crime to prosecute Trump for a felony under state law. There are a couple of problems with that.

First, if Trump did not think he was violating federal law, it is hard to see how he could have falsified business records with the intent of concealing that crime. Second, it is not clear that a violation of federal election law counts as “another crime” under the New York statute.

The most promising basis for that claim seems to be Section 17-152 of New York’s election law, which says “any two or more persons who conspire to promote or
prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” Cohen and Trump are two people, and Cohen says they conspired to promote Trump’s election by paying off Daniels and arranging the National Enquirer payment to McDougal.

The Justice Department (and Cohen) described both payments as violations of federal election law. If that counts as “unlawful means,” the violation of Section 17-152 could qualify as the other crime that Trump allegedly was trying to conceal by falsifying business records.

“Under New York law,” Joshua Stanton and three other attorneys say in a recent Just Security essay, “‘unlawful means’ appears to be construed broadly—and is not limited to crimes….In a 100-year-old opinion, the state appellate court with authority over Manhattan ruled that ‘unlawful means’ as written in another statute does not necessitate ‘the commission of a crime.’ Instead, the court held that ‘unlawful means’ simply refers to conduct ‘unauthorized by law.'”

That definition, Stanton et al. say, “is consistent with what we would expect to find when construing the meaning of section 17-152.” According to the New York Court of Appeals, they note, undefined statutory terms “are generally to be given their ‘usual and commonly understood meaning,'” and “dictionaries are ‘useful guideposts’ in ascertaining that meaning.” They quote the Merriam-Webster definition of unlawful as “not lawful” or “illegal.”

Assuming that New York courts read “unlawful means” broadly, Section 17-152 could supply the underlying “crime” that elevates falsification of business records to a Class E felony. That would essentially mean transforming two misdemeanors (falsifying business records plus conspiring to promote someone’s election through “unlawful means”) into a felony. Based on the same assumption, Trump also could face separate misdemeanor charges under Section 17-152 for the Daniels and McDougal payments.

New York’s statute of limitations ordinarily requires that misdemeanors be prosecuted within two years and that Class E felonies be prosecuted within five years. But that law includes an exception for “any period following the commission of the offense during which…the defendant was continuously outside this state.”

Trump lived largely in Washington, D.C., during his presidency, and in 2019 he switched his official state of residence to Florida. In determining whether the prosecution can proceed, a 1999 ruling by the New York Court of Appeals indicates, the time that Trump spent in D.C. and Florida should be subtracted from the time that has elapsed since the Trump Organization misrepresented Cohen’s reimbursement.

Assuming that Bragg can get around the statute of limitations, the question remains: Why bring this case at all, let alone six years after the conduct underlying it?

There was nothing inherently criminal about paying off Daniels or McDougal. Those payments become criminal only by construing them as illegal campaign contributions. Although that is how federal prosecutors interpreted the law in Cohen’s case, they conspicuously declined to charge Trump under the same theory. Manhattan prosecutors under Bragg’s predecessor for years mulled the possibility of building a state case based on the same conduct and ultimately decided it would not fly.

Bragg’s reconsideration of that conclusion reeks of desperation to punish a reviled political opponent, which is exactly how Trump and his supporters are portraying it. When you decide to make history by prosecuting a former president, especially when that former president is seeking that office again by running against an incumbent who is a member of your own party, you had better have a solid case involving serious crimes. Bragg, who is relying on debatable facts, untested legal theories, and allegations that are tawdry but far from earthshaking, does not seem to have such a case.

“We’re going to indict a former President for, essentially, misdemeanor falsification of business records?” asks former Rep. Peter Meijer (R–Mich.), who voted to impeach Trump after the Capitol riot in 2021. “We’re crossing the Rubicon for that? That seems like f—ing weak sauce.”

Elizabeth Nolan Brown:

The charges—filed by Manhattan District Attorney Alvin Bragg—are expected to be related to a years-old payment that Trump directed “fixer” Michael Cohen to pay to porn star Stormy Daniels. (For more details and backstory about the payment, see this previous Reason Roundup.) The payment, made in 2016, led to a criminal conviction for Cohen. But the Federal Election Commission decided against pursuing further action against Trump over the payment.

The fact that federal authorities didn’t see room for a case here makes the evidence of criminal wrongdoing seem weak, lending credence to Trump’s claims that this is more of a politically motivated crusade against him than anything else. The fact that it’s coming now, after Trump announced he’s running for president again in 2024, is also raising suspicions.

Whether the case will harm or help Trump’s 2024 chances is unclear—there are decent arguments for both outcomes—but it’s undeniable that this could affect the 2024 election. Already, conservatives are rallying around Trump like they haven’t in quite some while.

“This is Political Persecution and Election Interference at the highest level in history,” Trump declared in a statement, alleging that “the Radical Left Democrats” have had it out for him “from the time I came down the golden escalator at Trump Tower.” …

It’s not just Trump and his biggest lackeys framing this as political persecution or an attack on election integrity; a lot of Republican members of Congress are making such claims as well.

“Alvin Bragg has irreparably damaged our country in an attempt to interfere in our Presidential election,” commented House Speaker Kevin McCarthy. “The American people will not tolerate this injustice, and the House of Representatives will hold Alvin Bragg and his unprecedented abuse of power to account.”

“This is more about revenge than it is about justice,” said Nikki Haley, the former governor of South Carolina, who is herself running for the Republican nomination.

Florida Gov. Ron DeSantis—Trump’s chief rival for the nomination—announced that his state “will not assist in an extradition request” in the Trump case.

Even conservatives who aren’t Trump supporters expressed qualms.

For instance, former Rep. Peter Meijer (R-Mich.)—who voted to impeach Trump—reupped a statement from last week: “We’re going to indict a former President for, essentially, misdemeanor falsification of business records? We’re crossing the Rubicon for that? That seems like f—ing weak sauce.” Noting that “the feds looked at and declined to move forward on” charges against Trump related to the Daniels payment, Meijer continued: “There are other more serious cases against Trump brought by more sober parties. Alvin Bragg fulfilling a campaign promise to target Trump on these shaky grounds is an historic misstep.”

Some Republicans were disappointed in these types of reactions.

“Why can’t a single one of Trump’s challengers get this right?!” tweeted Heath Mayo, of the reformist conservative group Principles First. “It’s literally the easiest lay-up he could possibly give you and no one seems able to take it. Easy: ‘The rule of law is paramount & no one is above it. I respect our legal system. The outcome will speak for itself.'”

“Seems to me that no one outraged or pretending outrage on behalf of Donald Trump actually tries to claim he’s not guilty,” Bill Kristol tweeted.

Meanwhile, Bill O’Reilly suggested that Trump’s prosecution would distract from more important issues …

But the Republicans rushing to Trump’s defense vastly outnumbered other types of responses. And this “scramble to come to Trump’s defense” might prove “a pivotal moment” in Trump’s comeback, suggests Time‘s Molly Ball:

Just a few months ago, Republicans’ disappointing performance in the midterms marked the third straight national election Trump tanked for the GOP, and a new consensus began to form: he was weak, a loser, yesterday’s news. With at least five civil and criminal investigations percolating and a new generation of candidates in the mix, it was finally time for Republicans to cut the cord.

But when the time came to actually stand up to him, Trump’s primary rivals and political enablers were too cowardly or calculating to throw much of a punch.

While Trump’s campaign launch was lackluster, the indictment may prove the jolt it needs among his own party.

Indeed, “Trump’s indictment…breathes new life into his favorite campaign tactic—running as the aggrieved victim of a Democratic-run Deep State hellbent on keeping him and his supporters out of power,” writes Mark Niquette at Bloomberg. “Just when Republicans were beginning to believe that Trump was vulnerable if he ran a campaign about all the people he believes are out to punish him, Manhattan District Attorney Alvin Bragg gave the one-term ex-president no reason to change his tune.”

Fox News hosts who had been souring on Trump (at least in private) also rushed publicly to his defense yesterday.

Meanwhile, a lot of Democrats have been expressing variations on the same sentiment—look, no one is above the law!—while suggesting that Trump could or should be indicted for more serious transgressions.

“No one is above the law,” tweeted Rep. Chuy Garcia (D-Ill.). “Still, the former President’s crimes go far beyond what he has been indicted for here.”

“No one in this country is above the law—including former President Trump,” said Rep. Jamaal Bowman (D-N.Y.) in a statement, calling the Manhattan indictment “only the beginning” of how Trump should be held accountable. “It’s time that we ensure Trump is banned from running for any public office again and from there, finally take action to fix our democracy.”

Some commentators suggested that this indictment could somehow get the ball rolling on other charges. “Other pending cases involving Jan. 6, classified records, and election interference are much more straightforward,” wrote Slate‘s Mark Joseph Sten. “Perhaps Bragg’s move will embolden other prosecutors to bring charges related to the former president’s alleged misconduct in these arenas. If so, that domino effect may be the case’s most important legacy.”

That’s not really how prosecutions work. But it is a good example of the liberal wishcasting around this prosecution.

Other media outlets suggested this prosecution was a mistake precisely because it might detract from other, more serious prosecutions.

“The legal case against him in Fulton County, Georgia, where he is accused of interfering with election results looks much stronger. If Donald Trump is to be prosecuted, it should be for something that cannot be dismissed as a technicality,” tweeted The Economist.

“Of the long list of alleged violations, the likely charges on which a grand jury in New York state voted to indict him are perhaps the least compelling,” editorialized The Washington Post. “A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of ‘witch hunt.'”

The fact Trump was indicted by a grand jury … by now you’ve certainly heard the famous phrase that a grand jury would indict a ham sandwich. Turning Trump into a political martyr is not a good idea. And it’s not hard to figure out that Democratic presidents can be indicted too.

Bob Unruh:

Manhattan district attorney Alvin Bragg has made history “in the worst possible way” with his indictment of President Trump.

The case, announced Thursday, still hasn’t been released, so few people know what it actually contains now.

Turley explained, that the case may revolve around a payment made by a former Trump attorney to a stripper to keep quiet about an affair – an affair both have denied happened.

“History in this case — and in this country — is not on Bragg’s side,” he explained. “he only crime that has been discussed in this case is an unprecedented attempt to revive a misdemeanor for falsifying business documents that expired years ago. If that is still the basis of Thursday’s indictment, Bragg could not have raised a weaker basis to prosecute a former president. If reports are accurate, he may attempt to ‘bootstrap’ the misdemeanor into a felony (and longer statute of limitations) by alleging an effort to evade federal election charges.”

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