Trump indicted, but don't bet on him being convicted

It’s perfectly obvious that Alvin Bragg’s indictment helps Donald Trump. It’s a flimsy theory of the law, and it reeks of political overreach. That it’s being offered by a soft-on-crime, Soros-backed district attorney makes it all the more thrilling for conservatives to oppose it.

Trump’s camp will make the argument that Trump’s persecution is a sign of his authentic challenge to the system. They will connect Trump’s legal problems to the general conservative suspicion that government is being weaponized against conservatives. Populist leaders thrive on this identification with their supporters. All persecution is held to be  shared between them — they’re going after me, because they want to continue to run a government that doesn’t serve you.

Earlier this month, former Arkansas governor Asa Hutchinson, who is considering a GOP presidential bid, said Donald Trump should quit the presidential race if he’s indicted.

“It’s out of respect for the institution of the presidency of the United States. And, that’s a distraction that is difficult to run for the highest office in the land under those circumstances,” Hutchinson said in an interview with USA Today.

I am certainly not a fan of Donald Trump, but the guilt or innocence of the accused does not and should not depend upon what you think of the accused. Hutchinson made an extremely flawed argument that blurred the line between being indicted and being convicted.

It is not all that difficult for a prosecutor to convince a grand jury to indict a suspected criminal. There is no defense attorney for the accused person present; there is no cross-examination of witnesses. The grand jury, made up of approximately 16 to 23 adults, only hears the prosecutor’s arguments, evidence, and testimony from witnesses chosen by the prosecution. After the presentation, the grand jury votes in secret, and it does not need to be unanimous; according to the U.S. Department of Justice, at least twelve jurors must concur to issue an indictment.

The grand jury votes in secret on whether it believes that enough evidence exists to charge the person with a crime, which is a slightly different and lower standard than whether the accused is guilty of the crime. Sol Wachtler, the former chief judge of New York’s Court of Appeals, famously said that, “District attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.’”

The famous saying, “You can get a grand jury to indict a ham sandwich,” is meant to emphasize that an indictment is not an indication of guilt, and that a skilled prosecutor can usually sway a grand jury to believe almost anything.

Those who are indicted may be guilty, or they may be innocent; that’s why we have trials. If you believe that no figure who is indicted of a crime should run for president, you are giving prosecutors effective veto power over who runs for president. Conviction of a crime is a completely different story; that requires convincing twelve jurors after a fair trial with legal representation for the accused — and then sustaining that conviction on appeal.

Last night, Hutchinson adjusted his argument slightly:

It is a dark day for America when a former president is indicted on criminal charges. While the grand jury found credible facts to support the charges, it is important that the presumption of innocence follows Mr. Trump. We need to wait on the facts and for our American system of justice to work like it does for thousands of Americans every day. Finally, it is essential that the decision on America’s next president be made at the ballot box and not in the court system. Donald Trump should not be the next president, but that should be decided by to voters.

Ardent Trump critics such as David French and David Frum both thought Bragg was assembling a particularly unconvincing criminal case against Trump. (When even the David Frs are skeptical, you’re playing an intensely weak hand.) While we have not seen the indictment yet, it is widely believed that Bragg is seeking a felony conviction over falsifying business records, which is usually, but not always, a misdemeanor.

Mark Pomerantz was a retired lawyer who joined the staff of Cyrus Vance, the then-district attorney of New York County, in February 2021 to work on Vance’s investigation of Trump. This year, Pomerantz’s book about his time on the DA’s staff, People vs. Donald Trump, was published. Pomerantz wrote:

Legally, the money-laundering charges held together only if the hush money was “dirty money,” that is, the proceeds of a crime. I thought that the hush money could be charged as the proceeds of Clifford’s extortion of Donald Trump. [Stormy Daniels’s real name is Stephanie Clifford.] Admittedly, this was a somewhat awkward construct. Step one would be to prove that Trump was, in effect, a blackmail victim. We would be claiming that Clifford had committed larceny by extortion when she threatened to publicize her alleged tryst unless Trump paid her money. We did not actually have to bring a criminal case against Clifford (or her lawyer), but we would have to allege that Trump had been extorted. If we established the extortion, we could go on to step two: charging Trump with money laundering because he had worked with Cohen to conceal his identity of the extorted funds. It was a creative legal theory, neither intuitive nor obvious. The district attorney raised his eyebrows at the notion that we would be claiming that Donald Trump was the victim of blackmail, but he was intrigued by the idea.

At this point, however, my creative theorizing smacked into [the District Attorney of New York]’s cautious and conservative culture, as it would several times during my tenure. Some of my new colleagues balked at the notion that Clifford’s demand for hush money qualified as extortion. I was told that the extortion cases that the office had brought in the past had involved threats of physical violence, and that explicit demands to pay money “or else” something very bad would happen to the victim. By contrast, Clifford had retained a lawyer and had been shopping the story to the media when Michael Cohen reached out to “purchase” her silence. This so-called “extortion” had been very soft and unthreatening, and therefore might not constitute a crime at all, or so the pushback went.

A few paragraphs later, Pomerantz laid out another legal complication:

Under New York law, the crime of “larceny by extortion” is complete only when the perpetrator actually obtains money by making a threat. Until the money is received, there has been no larceny, because the essence of a crime is an illegal taking. Similarly, if you are mugged on the street, the crime of robbery occurs only when you hand over your wallet or pocketbook — that is when your property has been illegally “obtained” by force.

In the Trump case, this meant that Clifford had not committed larceny by extortion until she or her lawyer received the $130,000 in hush money that Michael Cohen had agreed to pay on Trump’s behalf. At that point, the crime of larceny by extortion was complete, and the hush money became “criminal proceeds” within the meaning of the money-laundering statute. But this was too late to support the money-laundering charge I had in mind. The money had to qualify as “criminal proceeds” when Cohen sent it; otherwise sending it was not money laundering. If the money became criminal proceeds only when received, the crime of money laundering had not taken place. Money laundering involves dealing in “dirty money.” Legally, the hush money payment had not become dirty money until Clifford (or her lawyer) received it, so neither Cohen nor Trump had committed money laundering by sending it.

Note that in the mentality of Alvin Bragg, Stormy Daniels did not commit a crime worthy of prosecution when she blackmailed or extorted Donald Trump, but Trump did commit a crime worthy of prosecution when he paid her because he was being blackmailed. I think that, to the average American, this is an absurd argument — and perhaps the average Manhattan juror will agree.

In New York, the statute of limitations for a felony charge of falsifying business records is five years, which would have passed in 2021, although Bragg apparently convinced the jury that the time that Trump spent out of state should not apply toward the statute of limitations. The case will rely heavily on the testimony of convicted felon Michael Cohen.

Trump’s lawyers will file motions to dismiss, and who knows? Perhaps some judge will look at all of this and conclude there isn’t sufficient evidence to continue with the criminal case.

The Alvin Bragg prosecution is a bad idea on every level and will stress our political and legal system in unpredictable ways. There should be a high bar for setting out on this path, but instead every indication is that the prosecution is flimsy and political. It may serve Alvin Bragg’s narrow purposes, but the country is going to reap the whirlwind.

You know who should be seething about Bragg’s actions this morning? Fulton County DA Fani Willis down in Georgia. If those prosecutors think they have a legitimate shot at convicting Trump on first-degree criminal solicitation to commit election fraud, the last thing they want is some other prosecutor bringing a weak case against the former president — “based on a largely untested legal theory” in the words of the New York Times — that even some Trump critics see as a political witch hunt. Trump is arguing that all of the criminal investigations involving him are political witch hunts, an effort by the deep state to prevent his reelection and — ahem — lock him up for the crime of politically opposing them, as opposed to any genuine violation of the law. Bragg is living down to Trump’s ugly portrait of a soft-on-violent-crime DA who is willing to go to extreme lengths to indict a political foe.