No matter your politics — and, more to the point, no matter your views on the lightning-rod-of-a-man who is Donald J. Trump — the decision to indict him for violating an as-yet-unknown New York state law 6.5 years ago should be keeping you awake at night. And that insomnia should be coming not from Christmas Eve–style giddiness at the prospect of seeing the Orange Man in orange but, instead, from anxiety over the terrible precedent the indictment sets.
It’s hardly surprising that the grand jury voted to indict. Our degraded grand jury system has served for decades as a rubber stamp for prosecutors. The old ham-sandwich quip comes to mind. Add to that the fact that the pool of eligible grand jurors for Trump’s case came from Manhattan, where seven out of eight voted against Trump in 2020. This was hardly the jury of his peers to which Trump was entitled. Once the case was submitted to the grand jury, the result was all but guaranteed.
So the grand jury vote itself was predictable. But Manhattan District Attorney Alvin Bragg’s decision to pursue charges in the first place was shocking. The tagline on Bragg’s office website reads, “One Standard of Justice for All.” Really? Can Bragg point to a single instance in which he has pursued an indictment under similar circumstances? The five-year statute of limitations likely applicable to Trump’s supposed “offense” — whatever it was — expired long ago, but it appears Bragg is attempting to exploit a legal loophole that allows him to ignore that five-year limit if the alleged offender “was continuously outside th[e] state or … [his] whereabouts … were … unknown” during that five-year period. Was Trump hard to find over the last 6.5 years? Was he concealing evidence out of state that only now has come to light? Of course not.
And what of the crime itself? If the allegations are true, Trump’s affair with Stormy Daniels was the just object of moral condemnation. But was his alleged decision to cave to what appears to be her attorney’s demand for hush money criminal? Hardly. The only hook Bragg appears to have is Trump’s (or, more likely, his counsel’s) alleged decision to make that hush-money payment through Trump’s former attorney and subsequently reimburse those funds to the attorney as payment for legal fees. This supposedly violated a relatively obscure New York law that penalizes offenders for failing to keep accurate business records. That statute was intended to address entirely different situations — corporate fraud and the like.
So the indictment is stale and factually bankrupt. As such, it is deeply unfair to Trump personally. But more than that, it is woefully unfair to the country and to constitutional order. The indictment sends a clear message to a deeply divided country: Partisan prosecutors will stop at nothing in their attempts to criminalize their political opponents.
A look at a few historical examples shows just how unusual and destructive Bragg’s decision is. First, consider the national case most similar to Trump’s. As all fans of the musical Hamilton know, while living in Manhattan and serving as the nation’s first secretary of the treasury, Alexander Hamilton, a married man, confessed to a lengthy sexual affair. What’s more, he further confessed to making regular hush-money payments to his paramour’s husband in exchange for silence. Hamilton, unlike Trump, was in office at the time. Yet he was never prosecuted, in Manhattan or anywhere else. The same is true of former Presidents Bill Clinton, John F. Kennedy, and Warren Harding, all of whom had well-documented affairs while (again, unlike Trump) holding public office, yet none of whom were ever prosecuted. Consider also the most famous case of presidential wrongdoing in the country’s history: Watergate. There, former President Richard Nixon not only avoided prosecution but was affirmatively pardoned by President Gerald Ford.
The point of these examples is not that these men were innocent victims or paragons of moral excellence. Far from it. Rather, the point is that our country has a long and admirable tradition of determining that some “offenses” are best prosecuted in the court of public opinion. For centuries, prosecuting authorities — from presidents down to local district attorneys — have recognized that prosecution of national leaders for moral “crimes” or technical or otherwise non-egregious offenses actually undermines the rule of law. Such prosecutions are inherently political, damage the social fabric of the country, and degrade our standing abroad.
By thumbing his nose at all this precedent, Bragg has opened the floodgates to more cases like this. And let’s be clear what “this” is — a thinly veiled attempt to use exaggerated claims of technical or moral noncompliance with the law to punish elected national leaders for the offense of disagreeing with the local prosecutor’s political ideology. Seen in this light, Bragg’s indictment of Trump is an attack on democracy itself.
And the roles will someday be reversed. In light of Bragg’s precedent-setting recklessness, what, in the future, will keep a conservative local prosecutor from criminally charging former President Joe Biden on similarly trumped-up charges?
Indeed, the roles were reversed not long ago. In the months leading up to the 2016 presidential election, news broke concerning Hillary Clinton’s illegal use of a private server to store classified documents while serving as secretary of state. The phrase “Lock her up!” was frequently repeated at that time, perhaps most often at campaign rallies for Trump himself.
Trump beat Clinton in that election. He won the case against her in the court of public opinion. But upon taking office, Trump — not exactly famed for his restraint — declined to pursue federal charges against her. In so doing, he spared the country from years of legal wrangling, deeper national division, and the precedent of political prosecution of a national political figure. In other words, Trump demonstrated the prudence and respect for constitutional norms that Bragg sorely lacks.
Emmett E. Robinson is a constitutional and appellate lawyer based in Cleveland, Ohio. He frequently represents clients at the United States and Ohio supreme courts.
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