A brief additional note on the Trump indictment
Lots of misgivings among legal scholars; lots of guesswork about its political meaning
There are highly consequential political developments at the state level, some really good and some really bad, which I plan to write about soon. But I did want to say a bit more (for now) about the indictment of Donald Trump in New York on falsification of business records in connection with hush money payments.
When I wrote about this last weekend, I expressed some misgivings about whether this case was a strong enough case to bring, either on the merits itself or its potential consequences. I am not a lawyer, so I cannot evaluate the legal merits of the case. But it’s undeniable, no matter what anyone says, that this more than a legal matter. It’s a uniquely loaded political one as well. What that means, in part, is that the more challenging the legal case, the more one has to make clear the stakes and consequences for our political system of the underlying conduct and the failure to prosecute it. On the latter point, on his podcast, Preet Bharara, former federal prosecutor for the Southern District of New York, pronounced himself underwhelmed by the indictment. Bharara noted that while Manhattan DA Alvin Bragg is not legally required (yet) to present the full legal justification for his case, the political reality makes it surprising and disappointing that Bragg did not do more to explain the justification and consequences for bringing his case at his press conference.1
Rick Hasen, the eminent election law scholar, argued in Slate more directly that he considers this indictment to be a mistake.
Hasen has written previously that the hush money payments were “likely a federal campaign finance crime,” as Elie Mystal also wrote recently. But the state case is a far more challenging one, premised on what Hasen variously describes as “complex” and “novel” legal theories.2 That fact, in the context of the high political stakes, requires a bar Hasen believes Bragg has not cleared:
These legal problems raise the political issues with bringing these claims against Trump as a felony based on proving “other crimes” that might not be proven….
It is said that if you go after the king, you should not miss (ed. note - this seems to be everyone’s favorite metaphor these days). In this vein, it is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks.
Trump is not above the law, and if they can prove the misdemeanors, then by all means they should go after him….But this kind of case can give credence to Trump claims of a witch hunt.
The last part is a political judgment, not a legal one (we’ll allow it, since Rick is also a political scientist by training :)). Nevertheless, to reiterate the key point, there’s really no way to disentangle the legal arguments from the fact that the target of the investigation is a former and perhaps future President. The insistence by Trump’s most vocal supporters that he is, in essence, always and in perpetuity above the law is nonsense, of course. But given the crimes for which he may also be in legal jeopardy, including his attempts to overturn the 2020 election, this prosecution arguably makes it easier to trivialize his more serious bad acts by tethering them in people’s minds to this prosecution.
The premise of that last point, which has many Democratic-aligned commentators worried is that a meaningful swathe of voters may be swayed in their views of Trump and his fitness for office by this or any other headline. And that premise is questionable. Initial polling shows a majority of Americans support the indictment. I don’t think that means very much, insofar as the polls likely mostly capture how people feel about Trump more generally and a majority of Americans dislike Trump. But the larger point is we simply don’t know what kind of impact the indictment might have and, indeed, we’re really going to have no way to know, since subsequent events, including potential prosecution for other crimes, could have a more significant effect on Trump’s political fortunes.
All of which is to say that while the merits of the case in political context are debatable, anyone trying to guess at their political impact is just guessing.
Former US Attorney Joyce Vance and lawyer Benjamin Wittes expressed somewhat more positive views of the case than Bharara did on the podcast. Neither was wowed by its strength, however.
Including those of the sort that underlined former Senator John Edwards’ prosecution, which Hasen opposed.
"The insistence by Trump’s most vocal supporters that he is, in essence, always and in perpetuity above the law is nonsense, of course."
Who, in God's name, has ever made such a statement. Give me one example! It is completely ridiculous. I suppose, by inserting in your assertion the words "in essence" you can say anything, but some examples please of what you're talking about.
Trump has never been indicted - seven years of investigations, impeachments and hearings. Does that fact have no meaning for you? Seven years!