Manhattan District Attorney Alvin Bragg wasn’t formally involved in last Thursday’s Supreme Court hearing in Trump v. United States, yet his transparently politicized prosecution of the former president provided a poignant subtext for the oral arguments. The hearing concerned Special Counsel Jack Smith’s claim that ex-presidents enjoy no immunity from prosecution for crimes allegedly committed while in office. It could hardly have been lost on the justices that, as oral arguments proceeded, Trump was cooped up in a New York courtroom while Bragg’s prosecutors accused him of offenses that legal experts of all political stripes have pronounced legally unintelligible.
[T]he Supreme Court will probably give Trump a win on immunity and his poll numbers will continue to climb.
Writing in the New York Times, for example, Boston University law professor Jed Handel Shugerman described the Bragg prosecution as an embarrassment and a historic mistake: “As a reality check: It is legal for a candidate to pay for a nondisclosure agreement.” Yet Bragg and his lead prosecutor Matthew Colangelo — late of the Biden Justice Department — have gone through all manner of legal contortions to transform Trump’s NDA with a porn star into an election interference case involving the 2016 presidential contest. Moreover, serious legal experts are struggling to divine what crime Trump is alleged to have committed. As Jonathan Turley of the George Washington University Law School writes in The Hill:
I must confess that after a week of testimony, some of us have developed a weird fascination with the utter madness of the scene unfolding in Manhattan. It was not until the second week of proceedings that Bragg even revealed part of his theory of criminality. For months, even liberal legal analysts have expressed dismay that Bragg’s indictment had not clearly stated what specific crime that Trump sought to conceal by allegedly misrepresenting payments to former adult film actress Stormy Daniels.
This is why Professor Shugerman describes the Bragg case as a historic mistake. It will dominate the news at the worst possible time for those who oppose immunity, inevitably reminding several justices why they favor some legal protection for ex-presidents. The questions from the bench suggested that at least five justices lean in that direction. Chief Justice John Roberts, for example, questioned the tautological reasoning used by the appeals court to reject immunity. Addressing Michael Dreeben, who represented Special Counsel Smith’s office, Roberts said, “As I read it, it says simply a former president can be prosecuted because he’s being prosecuted.” Dreeben agreed that it wasn’t the “proper approach in this case.” (READ MORE from David Catron: Why SCOTUS Will Toss 350 J6 Convictions)
Most of the conservative justices were also concerned about the abuse of prosecutorial power against political enemies. Neil Gorsuch put it thus: “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” Justice Bret Kavanaugh added, “It’s not going to stop, it’s going to cycle back and be used against the current president and the next president and the next president after that.” Justice Thomas trenchantly pointed out that past presidents illegally ordered actions “like Operation Mongoose when I was a teenager and yet there were no prosecutions.” Justice Samuel Alito made the strongest case about the precarious position of former presidents lacking any immunity:
All right. Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.
The liberal members of the Court asked questions leavened with politically tendentious terms like “fake electors.” Justice Sonya Sotomayor asked Trump’s attorney, D. John Sauer, “What is plausible about the president insisting and creating a fraudulent slate of electoral candidates?” Before the 2020 election, these were known as alternate slates of electors. Indeed, John F. Kennedy and the DNC created one in Hawaii, where the 1960 election was very close. Sauer also cited other historical precedents, but it was obvious that Sotomayor wasn’t interested. Likewise, Justice Elena Kagan had little interest in immunity unless it allowed implausible contingencies in which a losing incumbent would order a military coup d’etat. (READ MORE: Will the 2024 Election Get Lost in the Mail?)
All of which brings us back to Alvin Bragg’s show trial and his clumsy attempt to convict Trump of something that will change the trajectory of the 2024 election. It’s a lost cause. According to the latest AP-NORC Center for Public Affairs Research poll, “Only about one-third of U.S. adults say Trump did something illegal in the hush money case.” This leaves us with the following state of affairs — legal experts can’t figure out what the Bragg case is about, the Supreme Court will probably give Trump a win on immunity and his poll numbers will continue to climb — as they did in the new CNN survey released Sunday. Unless they chain Trump to a damp wall in the Château d’If, he’s poised to party like its 2016.
