A few thoughts on Trump's indictment.
As most responsible commentators have noted, we do not yet know what, specifically, is in the indictment. We know it's in connection with the hush money payments to Stormy Daniels. But we don't yet know the scope and breadth of the case the Manhattan D.A., Alvin Bragg, is trying to make in connection with that payment.
Michelle Goldberg laid out yesterday a good summation of that case. She noted that it doesn't rise to the level of significance of Trump's attempts to overthrow the results of the 2020 election, about which investigations are ongoing. But Goldberg argues this case is less trivial than others are making it out to be.
Goldberg writes:
As [former Trump fixer/attorney Michael] Cohen told a judge while pleading guilty to campaign finance crimes, tax evasion and bank fraud in 2018, his payments to Daniels and McDougal were made “for the principal purpose of influencing the election.” David Pecker, the former C.E.O. of American Media, onetime parent company of the National Enquirer, said in a non-prosecution agreement with the Southern District of New York that he’d paid $150,000 to McDougal to “suppress the model’s story so as to prevent it from influencing the election.”
Whether Bragg has brought a good, winnable case, is another question, which I'll get to in a moment. But the payment and its purposes are themselves connected to efforts to influence the 2016 election. On its own terms, then, it matters.
Having said that, Elie Mystal, the lawyer and political commentator has provided a sobering assessment of Bragg’s prospects for successfully prosecuting on the central issue. Mystal notes that the facts of the case - that a payment to secure silence in advance of the 2016 election was made contrary to campaign finance and other relevant election laws - are not all that complicated. Mystal is critical of the Justice Department for having failed to file this case any time after January of 2021, since all the relevant facts related to the violation of federal election law were already known. Why they haven't is unclear. But what Bragg is doing now, Mystal believes, is to bring a much harder case based on New York state law in the vacuum left by the Justice Department's failure to act. In addition, he’s doing so when, Mystal has argued, Trump’s lawyers might have a good case that the statute of limitations on the charges Bragg is likely bringing has run out. So, whatever the merits of this prosecution, it’s almost certainly a harder one than a comparable and more expeditious federal case would have been.
That possibility raises the question that many have been asking. If that's the case, is this worth the trouble? I spoke with Josh Kovensky at Talking Points Memo yesterday. I tried to make this (bad) analogy to Josh. In a basketball game, there’s an endless argument about whether a foul committed in the final seconds of a close game should be officiated just like a foul call in the first minute of a game. Some insist a foul’s a foul, whenever it’s committed. Others will retort that we all know that's not how it really works. When the stakes are higher, it's natural for referees to swallow their whistles, as they say. It doesn't mean they should. But one reason for that is they don't want to be responsible for making such a consequential call, especially given the fury they are likely to face.
So, like I said, flawed, if not outright bad analogy. But the point is that while no one should be above the law, we cannot pretend that the politics are irrelevant in this instance. I don't say this to argue that Bragg should not have done what he's doing. And neither is Mystal. But whether or not Bragg says he followed the law irrespective of political considerations, which is what he is supposed to do, it would be naive to pretend that we can treat this like any other case. That means, in practice, that both the evidentiary bar and the consequentiality of what's being prosecuted have to be higher.
That brings me, reluctantly, to the usual bad faith arguments by Trump and his most vocal supporters, including various and sundry governors and House committee leaders. Their attempts to invoke the rule of law to argue that what is happening now is an unprecedented miscarriage of justice is, of course, a sick joke.
Keep in mind that, for this crowd and Trump himself, *any* case against Trump is, by definition, a vendetta, a witch hunt, an attempt by lowlifes and other dark conspiracists to bring down this great and transcendent man. Any legal action against him contradicts the rule of law, because no "fair" legal process could ever conceivably find him guilty of anything.
And the more Trump acts in brazen violation of every rule and norm he can think of and the more he insults every single person who dares stand in his way, the more convinced he is that his rights are being presumptively violated by those same obstructionists. Recall that in 2016, a federal judge, Gonzalo Curiel, presided over a lawsuit involving Trump University fraud. Incredibly and repeatedly, Trump argued, Judge Curiel should recuse himself from the case because of, among other things, his "Mexican heritage." Why? Because Trump planned to build a wall to keep out Mexicans and, therefore, Curiel could not be impartial. Since Trump is incapable of separating his own interests and desires from any thoughts he has about how the world around him should be structured, it naturally follows that his attacks on "Mexicans" mean that a judge of Mexican heritage is, by definition, suspect and therefore incapable of fairly administering justice.
That episode should be born in mind as a source code for understanding what Trump means any time he opens his mouth about his legal entanglements.
It is a fact that the administration of justice in the United States is deeply flawed. It overwhelmingly favors the well to-do at the expense of the have-nots. No serious person could deny that. It indisputably disproportionately punishes people of color, especially Black people. In reality, therefore, we fall woefully short of the ideal of the rule of law in practice. Needless to say, those actual realities about injustice in America are wholly irrelevant to Trump and his minions.
But since Trump likes to be hyperbolic, perhaps no man in American history has benefited more from that unequal application of justice than Donald J. Trump, who has gotten away with stiffing contractors, assaulting women, making an absolute joke of the emoluments clause of the United States Constitution and in myriad other ways avoiding legal accountability for a lifetime of misdeeds.
While we’re on the subject of idiotic talking points, let’s dispense quickly with the one that argues Bragg should be focused on all the horrible crime in New York, not on Trump. Of course, if only the most serious problem in a jurisdiction should be the singular focus of every elected official's attention, why are Republican state legislators everywhere passing or trying to pass laws banning books and drag shows when a) the body count from both those things combined is zero and b) there's lots of crime and other problems in those states those lawmakers should be worrying about. If government officials should only be focused on one thing at a time, how can Jim Jordan seriously argue that Hunter Biden's laptop is the most pressing problem facing the United States today? To be clear, for certain people who like to miss the point of what I am saying, I do not agree that government officials should only do one thing at a time. Indeed, that would be moronic. I am arguing, instead, that that's the moronic premise of this particular Trumpian talking point.1
This case does require a considerable expenditure of time and resources. One reason for that is that any investigation involving those privileged enough in our system to deploy an army of lawyers is more resource intensive. If the only crimes we ever prosecuted were the easy ones, involving the least resistance from more or less defenseless accused, our system of justice would be even more skewed and less fair than it already is. That is, of course, the world that Donald Trump and his highest profile shills want to live in, the one in which accountability is only ever for suckers and losers.
Where does this all leave us? I am not sure. For those who feel like this is a perilous moment, that's both understandable and needs to be put in its proper context. I think it's fair to say that it would be better if the Georgia case focused on Trump's election interference were first up. Or his stealing of the most highly classified materials our government holds. We've arguably never had a figure put such stress on our political and legal systems as Donald Trump. He lies like it's a bodily function. His entire existence in public life is an endless exercise in gaslighting, of insisting that up is down, black is white, that he, as great a beneficiary of our flawed system of justice as there is, is its most aggrieved victim.
That makes it hard to think straight about the proper course of action. It's not Alvin Bragg's fault that this all feels so fraught. And waiting for the perfect moment, whatever people imagine that is, is a chimera. To repeat, everyone should hope that Bragg has constructed a strong case, one both with teeth and consequence, if he was going to bring it at all and that its prosecution is executed with integrity. At the same time, as Mystal wrote, invoking The Wire's legendary Omar Little, who said "you come at the king, you best not miss." Trump, of course, wants to be a king, or at least an unaccountable authoritarian ruler. Whether our system, through the proper application of justice, or through the political process can prevent him from doing so remains an open question.
By the way, New York City law enforcement reportedly made 48,000 arrests in 2022 for the seven most serious crimes they track. The system is capable of walking and chewing gum at the same time.
Another great piece, thanks. And agreed on the analogy - not sure the issue with it but it seems like a good way to describe the issue to me.
Excellent post. I really like the basketball analogy. And, really, to me the only fair assessment is some version of: ¯\_(ツ)_/¯