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Our semi-regular legal correspondent, A.R. in Los Angeles, who will one day be a regular legal correspondent, has some thoughts on the Donald Trump criminal fraud prosecution that are worth sharing. And so:
I offer some observations concerning the drumbeat that the Trump prosecution was "politically motivated."
First, it's always unclear to me what exactly is being called "politically motivated." The trial itself was simply the culmination of the very standard criminal justice process to which all defendants are subject. Trump was ably represented by a team of attorneys, who most of us could never afford. The verdict was rendered by a jury of 12 citizens, randomly selected, and they did their duty despite the enormous pressures even with their anonymity. So, it's inaccurate to characterize the trial in those terms. The indictment was brought forward by a grand jury also composed of everyday citizens who do not know what case they will hear. While even a Supreme Court Justice seems to believe that a D.A. can get a grand jury to indict a ham sandwich, those who followed the very real political travails of Andy McCabe know that's not the case, as a grand jury failed to indict him for lack of evidence.
So, the indictment, which was based on the voluminous evidence, and the trial were not politically motivated and proceeded with all the due process afforded every defendant. Incidentally, the defense could have raised the issue of selective prosecution, as they have in the classified documents case, but did not do so. And despite all the attacks against him, Judge Juan Merchan was actually easier on Trump and gave him and his team many more favorable rulings—which, frankly, is not unusual in a criminal trial. Judges typically err on the defendant's side.
Let's go back to the beginning, then. Was the investigation itself politically motivated? It began in the Southern District of N.Y. with Geoffrey Berman, whom Trump appointed after he fired Preet Bharara. In late 2018, Berman prosecuted Michael Cohen for tax fraud, who pleaded guilty and began cooperating with the Feds—you may remember our introduction to "Individual One." Also at this time prosecutors granted David Pecker immunity and entered into a non-prosecution agreement with AMI. Was that politically motivated? Once that investigation heated up (as well as the investigation into Rudy Guiliani's Ukraine activities), you may recall that Trump tried mightily to get it shut down, even announcing Berman's resignation, which Berman was quick to point out didn't happen. Berman did eventually "resign," but not before handing the case off to his very capable deputy, Audrey Strauss. Trump's efforts and that of his AG, Bill Barr, were politically motivated actions to interfere with investigations into the corrupt activities of his buddies while demanding sham investigations into Democrats to "even things out." So, if we're keeping score, the only politically motivated actions so far are those of Trump.
Ultimately, SDNY declined to go up the chain from Cohen and decided not to prosecute anyone else connected to his crimes. Was the decision not to prosecute politically motivated? The office was still getting enormous pressure from the Barr DOJ and Trump to drop the case. But it could also be that the case was not a slam dunk because of the charges involved (different from the state case), Cohen's credibility problems as well as Trump Organization CFO Allen Weisselberg's, and the unique challenges posed in prosecuting a now-former president. Prosecuting Trump would be... well, now we know what anyone associated with the process will be subjected to. This article gives some good insight into those decisions.
The D.A.'s office simply made a different calculation, by all indications. Their investigation was opened right around the same time that Cohen was indicted, but they put theirs on pause to give the Feds first dibs. When the Feds didn't bring any charges after Trump had left office, their investigation began in earnest. And remember, it was undertaken when Cyrus Vance, who was not running for re-election, was the D.A. And even then, Trump obstructed the process as much as possible, leading to a Supreme Court case, Trump v. Vance, when Trump tried to quash Vance's subpoena to Mazar's for his tax records. You may recall that Trump argued he was absolutely immune from any criminal process of any kind. The Supreme Court held that Trump can rely on the defenses available to everyone else, but enjoys no special treatment as a sitting president. By this point we were in mid-2020 and Vance still didn't have the accounting records to prove his case. But wait, more legal wrangling, more court-ordered stays, until the Supreme Court finally denied Trump's stay request on Feb. 22, 2021. The records were released within hours of that ruling.
In the meantime, the office had charged the Trump Organization with tax fraud and had already won that case (in front of Merchan) before these charges were even brought. But Vance left office at the end of 2021, putting this investigation and this decision in the hands of his successor, Alvin Bragg. And remember again, when Bragg didn't immediately bring charges, two prosecutors resigned in protest. That does not sound like decisions are being made based on politics—that looks like careful, methodical, and responsible review of the investigation. He changed the focus of the investigation and brought in new members to the team. It was not until a year later that the grand jury handed down the indictment, and the attacks started immediately. If this was a political calculation, then it was the wrong one. Why would anyone take this on? Holding the powerful accountable is risky business. But it was done because prosecutors have a duty to follow the evidence where it leads and bring the case even if it's risky and dangerous and involves one of the most vindictive wannabe mob bosses on the planet and all of his deranged followers. This article details those decisions.
Let's talk about who did, and continues to, make this political and the price Bragg and his team have paid for bringing this case and having the audacity to win it. I would urge everyone not to be so quick to throw in with people whose own motives are suspect and jump on the political persecution bandwagon. This case was brought for no other reason than the DA's office was doing its job and had the courage to take it on. We should be thanking them for their service and for upholding the rule of law in the face of this onslaught of lies and smears.
The witnesses and their families, the jury, the judge, the clerk, the prosecutors—everyone associated with this case is being harassed and threatened. Cohen's family was doxxed; people are trying mightily to out the jurors and harass them. That is unacceptable and all of us have a duty to stand up against those threats. Don't you think the next Trump jury might think twice about rendering a guilty verdict or even serving at all? That's the whole point.
It also does a disservice to our justice system and undermines the foundation of our democracy to characterize it as yet another front in the culture wars simply because Trump and his minions have decided to attack it and label the judiciary as "rigged." Do we view our elections as part of the culture wars because they chant "stop the steal" 24/7? Electoral-Vote.com takes great pains, as it should, to combat that kind of misinformation when it comes to elections. The same care and defense should be mounted for our legal system. It's an all-hands-on-deck moment and we all need to step up to combat the attempts to tear it down.
Finally, I'm dismayed to see that old trope trotted out yet again that "everyone does it." No, we don't, because most of us don't run for president and then have to cover up an affair with a porn star to win. But putting that aside, most of us don't cheat on our taxes. And it's not because we can't figure out how, or are scared of getting caught. It's because it's against the law, plain and simple. And if we do break the law and get caught, pointing out that someone else also broke the law is not a defense.
There are plenty of people who just do the right thing—I would like my President to be one of them.
Thanks, A.R.! The only thing we would add is that most/all prosecutions of Donald Trump will be "novel" or will require significant interpretation and re-interpretation of existing law because Trump is very good at operating in gray areas, and at making sure he doesn't leave behind the evidence needed to convict someone in conventional fashion. (Z)