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Bragg's Indictment of Trump is Nothing to Boast About
How a weak New York case against Trump may do more harm than good
Legal experts—including many who like me would like to see Trump driven out of American politics—have pointed to serious legal weaknesses in the case that New York City Attorney General Alvin Bragg has brought against the former president and current presidential candidate. These could lead to an acquittal or even a dismissal of the case that would appear to vindicate Trump. But there are political pitfalls in Bragg's case that go well beyond the possibility of boosting rather than marginalizing Trump.
Bragg's case rests on a tenuous combination of state and federal law. Under New York law, it is a misdemeanor to falsify the records of an “enterprise.” But it is a felony to do so in order to commit an additional crime. Bragg is charging that Trump falsified business records in order to violate election laws. He doesn't specify in the indictment what these election laws are—whether they are state or federal—but they are laws whose violation would likely be counted a misdemeanor. In other words, Bragg is trying to combine two misdemeanors in order to create a felony that could potentially land Trump behind bars for four years.
There are several points at which Trump's lawyers might attack Bragg's indictment:
Trump is charged with falsifying the records of what New York law calls an “enterprise,” but the checks that Trump paid to reimburse Michael Cohen for paying off porn star Stormy Daniels who threatened to go public with Trump's sexual affairs came from his family trust fund and his personal account. These are not, by any conventional meaning, “enterprises,” which is a synonym for businesses.
The indictment doesn't specify what election law Trump violated. If it is a federal law, that would create a legal problem of using state courts to prosecute a federal case—one, incidentally, that federal prosecutors decided not to pursue, and federal law is supposed to pre-empt state law in federal elections. New York law seems to suggest that for a case of falsification to rise to the level of a felony the other crime must be against New York law. In Bragg's press conference after the arraignment, he cited a New York law that “makes it a crime to conspire to promote a candidacy by unlawful means.” But as Washington Post columnist Ruth Marcus remarked:
If I understood Bragg’s argument correctly, there is a certain circularity to saying that a false statement on corporate books becomes a felony, not a misdemeanor, because state election law makes it a misdemeanor to promote a candidacy by unlawful means, such as making false statements.
In order to prove that Trump violated a federal or New York state election law, Bragg would have to prove that Trump consciously intended to do so—that he was fully aware of the law and not relying on his lawyer's opinion, and that he intended by offering hush money to improve his election prospects and not merely to prevent a personal embarrassment to his family. Bragg may be able to establish a political motive based on Cohen's testimony that Trump wanted to delay payments to Stormy Daniels until after the election, but that leads to another problem with the indictment.
The case against Trump rests almost entirely on convicted felon Michael Cohen's testimony. But according to Southern District of New York prosecutors, Cohen did not cooperate “comprehensively”—that is, inform prosecutors of any possible criminal activities that he or associates had engaged in. They feared as a result that he would lack credibility as a witness.
In short, Bragg's legal case looks pretty shaky. Marcus calls it a “dangerous leap on the highest of wires.”
Some liberal commentators have warned that Bragg's indictment will almost certainly ensure that Trump wins rather than loses the Republican nomination and even becomes president again. I have my doubts about this argument. The polls are very fickle at this point. A year before the 2008 presidential primaries, Hillary Clinton was riding high and John McCain was faltering. A year before the 2016 primaries, Jeb Bush seemed like a shoo-in for the Republican nomination and Hillary Clinton had virtually no opposition. Trump is currently winning the sympathy of Republican poll respondents, but as the primaries roll around, with a trial pending, voters could worry about his electability. A lot will depend on the quality of his opponents.
I have different political pitfalls in mind. I'd make a distinction between Trump's legal troubles in Georgia—where he could be indicted for trying to overturn a lawful election—and his troubles in New York. His Georgia troubles mark Trump out as a danger to the nation and the case, if it comes to trial, will involve his trying to manipulate and intimidate members of his own party. Bragg's case is very different. It really comes down to the kind of campaign violations that have been happening periodically over the last two hundred years and have never led to the indictment of a president.
In the indictment, Trump's principal offense—concealing or misrepresenting a campaign expenditure—is exactly what the Federal Election Commission charged Hillary Clinton and the Democratic National Committee with doing when they described as legal services to a law firm the payment for the research that led to the Steele dossier in 2016. For that, Clinton and the DNC were simply fined. They were not indicted for a felony and threatened with jail time.
Bragg and his defenders claim that his prosecution of Trump upholds the principle that “no man is above the law.” But upon coming to office, Bragg himself announced that he was not going to prosecute a host of crimes and that he was going to reduce felony gun possession and even some cases of felony armed robbery to misdemeanors. The prosecution of justice remains selective, and what Bragg's selection in Trump's case suggests is a desperate attempt to put Trump behind bars for what amounts to a minor offense. As New York Magazine columnist Jonathan Chait remarked, “Trump is being prosecuted…because he paid hush money to a mistress, something it's inconceivable he would have been charged over if he were never a candidate for office.” Bragg's indictment of Trump looks hyper-partisan. And that can have two ill effects.
First, it can damage the reputation of his own party among voters who are not zealous partisans. Some political scientists like to portray America's electorate as being evenly polarized between fanatic Democrats and Republicans, but the polarization exists more at the margins. There is a large group of voters who are turned off by politics and partisanship. That is evident, for one thing, in the growth of “independent” as a political identification.
As the parties have become increasingly identified with the extreme stands their partisans take, more voters have identified themselves as “independents.” According to Gallup, Democrats and independents took up equal parts of the overall electorate in 2008, but the ranks of independents began to swell after that. In 2022, 41 percent identified as independents compared to 28 percent as both Republicans and Democrats. Voters have over the last sixty years chosen for very different reasons to become independents. In the 1970s, the ranks of independents were swelled by Southern Democrats moving toward the Republican Party. But from what I heard from focus groups and interviews, a great many of today's independents are turning away from both parties out of a disgust with their extreme wings. Bragg's prosecution of Trump, which appears blatantly political, will, I fear, hasten the movement of Democratic voters into the independent column.
Second, Bragg’s indictment of Trump sets an awful precedent that can set off a wave of similar attempts to use criminal indictments to defeat political opponents. Eli Lake warns we shouldn't “be surprised when an ambitious Republican prosecutor from, say, Texas or South Carolina indicts Hunter Biden on a similarly thin legal pretext. Bragg has set a new precedent in American politics, and we should expect Republicans to take advantage of the new standards he’s just created.”
Bragg's indictment of Trump on what are really flimsy charges could speed rather than halt the corrosion of American politics that began with the Trump presidency and seemed to reach a climax on January 6, 2021. Democrats need to step back and re-examine what the New York City district attorney has wrought. It may well be bad for their party and the country.
John B. Judis is author most recently of The Politics of Our Time: Populism, Nationalism, and Socialism and of the forthcoming book with Ruy Teixeira, Where Have All the Democrats Gone?