Indictment is unintelligible from a legal perspective
By Jonathan Turley
“We cannot and will not normalize serious criminal conduct,” Manhattan District Attorney Alvin Bragg said of his indictment of former president Donald Trump.
Yes, the man who has routinely knocked down felony crimes to misdemeanors — or dismissals — actually suggested that he had no alternative but to charge Trump with 34 counts of falsifying business records.
After all, he insisted, our “business integrity” is at stake. After all, as Bragg intoned with no sense of self-awareness, he has always believed that “the bedrock of the basis for business integrity and a well-functioning business marketplace is accurate record-keeping.”
It is all about a well-functioning business marketplace — not his campaign pledge to bag Trump on some (unnamed) crime.
When people think Bragg, they think business.
The first indictment of a former American president was a historical moment and Bragg failed to rise to that moment.
Bragg released an indictment that was so vague on key elements that it is unclear what the grand jury thought it was voting on. He vaguely referenced state and federal election laws and later refused to add any details on how they relate to the prosecution.
The result is an indictment with the substance of a legal Slurpee: it was immediately satisfying for many with virtually no legal substance.
Bragg solved the problem over his uncertain authority by avoiding any specificity on that authority. He could have put “details to follow” in the caption of the indictment.
Legal experts went immediately into a frenzy over what this could mean and what was the crime that Trump was allegedly covering up with payments to cover up alleged affairs with three women.
If these experts were left scratching their heads on such key elements, how did laypersons on a grand jury understand the basis for this indictment?
We may learn more from the bill of particulars, but this indictment is unintelligible for a legal perspective in understanding the basis for the prosecution.
After the arraignment, Bragg made sweeping references to state and federal election laws before saying that he didn’t have to give such details. He just filed the first charges against a former president and refused to specify the basis for the felonies.
He then held a press conference and refused to answer questions about this basis because he “doesn’t have to.”
What is particularly maddening is that, while Bragg refused to explain the basis for the indictment, he did undermine his own case . . . whatever it may prove to be.
He insisted that Trump could not be allowed to use “fictitious legal services” for political purposes. As with his claimed intolerance for criminal conduct, Bragg’s professed outrage was bizarre given analogous conduct by Democrats like Hillary Clinton on campaign-finance allegations.
The Clinton campaign had previously denied funding the dossier, which was used to push false Russia collusion claims against Trump in 2016, and it buried the funding in the campaign’s legal budget through former Clinton campaign General Counsel Marc Elias.
Last year, the Federal Election Commission fined the Clinton campaign for funding the Steele dossier as a legal expense. Those fictitious legal services did not produce the same revulsion in Bragg or other prosecutors.
This is no time for the niceties of reason in an age of rage. Bragg showed that the only important thing was the name on the indictment caption rather than its basis.
That reality was evident in a new CNN poll. Over half (52%) said that politics had played a “major role” in the indictment. Over three-fourths (76%) said that the move was at least somewhat political. More importantly, only one-third (37%) thought that Trump’s alleged payments to Stormy Daniels were illegal. However, 60% said that they still supported charging Trump. So it is a political prosecution and most do not see a crime, but it is still supported by many citizens.
In Manhattan, the basis for charges against Trump is largely irrelevant. This is a thrill kill case and Bragg just delivered on his campaign promise to bag Trump on something . . . anything. We still do not know what that was but it does not matter.
Bragg knows his audience. The question is whether he knows this judge. Bragg is counting on Judge Juan Merchan being intimidated or distracted by the historical moment. Even if he is right, Merchan will not be the last judge who will have to review this case.
At some point, Bragg will have to state the actual criminal basis for these 34 counts.
Until then, history — and Trump — will simply just have to wait for Alvin Bragg.
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John Bolton decimates Alvin Bragg’s Trump Indictment in a minute and a half
ALAN DERSHOWITZ: We’ve seen the laughably flawed indictment – and it was a body blow to American justice. But now if a jury with Trump Derangement Syndrome unfairly convicts Donald… our nation may never recover
Responsible prosecutors generally don’t prosecute crimes where there is no victim
By Alan Dershowitz
The most anticipated indictment in modern history has been released. And, believe it or not, Manhattan DA Alvin Bragg found an alleged crime.
Only it’s not the supposed offense that he’s prosecuting.
The only potential criminal wrongdoing identified after months of investigation by experienced professional prosecutors appears to be extortion.
But I’m talking about extortion of Trump, not by Trump. That’s what it’s called when an individual threatens to release damaging information about someone else unless they’re paid to keep quiet.
Now, of course, I’m not calling for Stormy Daniels to be prosecuted. I wish her only the best. But this indictment speaks to how laughable and blatantly political this prosecution really is. It’s a tragedy.
Bragg labored mightily – ultimately he produced a mouse.
Read the indictment documents for yourself. At first glance, the layman may assume that it holds some evidence of wrongdoing. 34 counts laid out over 13-pages of an accompanying statement and couched in intimidating legalese.
As expected, the central narrative focuses on the payment of hush money to a former porn in exchange for a non-disclosure agreement. But the document also broadens out the alleged Trump scheme to include payments to suppress the story of a former Trump Tower doorman, who was peddling an unconfirmed and likely false story of a child that Trump fathered out-of-wedlock, and another payment to former Playboy model Karen McDougal to hide the tale of her alleged extra-marital affair with Trump.
Now look closer. All 34 counts are relatively similar. Bragg has sliced the salami very thin. In essence, this is a case about book-keeping.
Trump is accused of not accurately recording hush money payments on public financial documents.
Consider how ridiculous that is. As I’ve written before, while immoral, such payments are legal and, in fact, common among high-profile people. It is also not uncommon to withhold why the actual hush money is paid. Obviously, to do so would be to disclose that which the hush money was paid to keep hush.
And in order to turn these questionable financial misdemeanors into even more questionable felonies, Bragg has alleged that the reason Trump made the false entries was to cover up other crimes.
Here the indictment is at its weakest.
Tellingly, the document itself does not even specify which crimes Trump tried to cover up. Although the law doesn’t require it, such specifications are often provided in indictments.
Bragg’s theory is that Trump concealed the true purpose of these payments, which Bragg alleges was done to protect Trump’s 2016 presidential campaign, rather than to hide the adulterous affairs from his wife, children, and business associates or shield his brand.
But there’s no apparent evidence to support Bragg’s claim beyond the questionable evidence of Michael Cohen.
Moreover, in order for Bragg’s theory to hold water, Trump would have had to have known that he was committing a crime to benefit his campaign when he allegedly made the false entries.
But how could he possibly have known that he would benefit?
In the end, the revelation of his consensual adulterous affair with Daniels got out anyway – but it did not turn the election to Hillary Clinton. I wish it had.
I am a Hillary Clinton supporter. I voted for her, and I contributed to her campaign.
But Trump won.
For his part, Bragg attempted to play the hero at his news conference following the indictment.
He looked the American people in the eye and claimed that he was acting in good faith to fulfill the mission of his Manhattan office overseeing the business capital of the world.
‘We regularly bring cases involving false business statements,’ he claimed.
That’s totally disingenuous.
I challenge you, DA Bragg. Find me one example of someone prosecuted for paying hush money and not having recorded it on business records.
The case doesn’t exist.
Why? Because responsible prosecutors generally don’t prosecute crimes where there is no victim.
Stormy Daniels is not a victim. She willingly accepted Trump’s money.
The American people are not victims. They elected Trump regardless of his behavior.
Ironically, Bragg – who has failed to go after criminal predators in the streets – has devoted time and resources, which could have been spent going after real killers and rapists and Ponzi schemers to instead go after a man for a victimless, alleged crime.
Clearly, none of the matters to Bragg. He finally has the case that he told the voters of Manhattan he would deliver to them.
During the 2021 race to elect the next Manhattan District Attorney, a New York Times headline blared, ‘Two Leading Manhattan D.A. Candidates Face the Trump Question.’ As the article noted, Bragg wore his animosity towards Trump on his sleeve.
‘I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation,’ Mr. Bragg told a December 2020 candidate forum. ‘I know how to follow the facts and hold people in power accountable.”
In November 2021, Bragg was elected.
Now, those same voters will make up the pool from which Trump’s jury will be selected.
And by voting to convict Trump, these future jurors would help Bragg to fulfill the pledge he made to them.
This does not seem to assure a fair trial.
The anti-Trump passions in New York City are incredible. I’ve experienced them myself.
My acquaintance of many years, Caroline Kennedy, told me at a dinner party: ‘Alan, if I had known you, who have defended Trump on the floor of the Senate, was going to be at this dinner party, I would not have come. But I am too polite to get up and leave now.’
A friend, comedian Larry David, confronted me outside a store shouting, ‘Alan, you’re disgusting,’ over my defense of Trump.
Despite our friendship, they were furious with me, because I simply disagreed with them. You cannot reason with people, who have Trump Derangement Syndrome.
That is why Trump’s lawyers will undoubtedly appeal to the judge for a change of venue, which Bragg will strenuously oppose. The last thing he wants is a fair trial. He wants a trial that will allow him to realize his campaign promise.
This case should be moved to one of the New York City boroughs, such as Staten Island, or to another part of New York state. But the judge, also an elected Democrat, is unlikely to grant that request.
The American legal system took a body blow yesterday.
Trump’s appearance in a courtroom to become the first former president and the first current presidential candidate ever to be indicted, arrested and charged marked a sad departure from precedent. And this deeply flawed indictment will now create a new precedent under which elected prosecutors of both parties will search for possible crimes against their political opponents.
Whatever the outcome of this Bragg prosecution, Trump should eventually prevail. An appeals court should never uphold such an obvious misapplication of the law.
But I don’t know if the American legal system can come back from this as easily. This is a perversion of justice. And if Trump is convicted, it will be a travesty of justice.
Americans everywhere now have cause for concern, because today it is Trump – but tomorrow it could be you.
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