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Not how our justice system is supposed to work

Whether you love Donald Trump or hate him, whether you agree with yesterday’s verdict or vehemently oppose it, there are several key facts to recognize. The prosecution of this case required a unique and unprecedented application of the law and a belief that the money sent to Stormy Daniels through Michael Cohen represented a campaign expense. This was not “treating Donald Trump like any other defendant,” this was an expensive and time-consuming effort to seek a conviction on a matter that almost everyone had forgotten, led by a district attorney who had run for his office touting himself in the Democratic primary as the best man to seek a prosecution of Trump.

In a case that will eventually be remembered as a textbook instance of selective prosecution, the Manhattan district attorney breathed life into an alleged bookkeeping misdemeanor that the statute of limitations had expired on and, Merlin-like, transformed it into 34 felonies.

In his press conference after the jury returned the guilty verdict Thursday afternoon, Bragg said his office did its work without “fear or favor,” an Orwellian portrayal of a prosecution that never would have been undertaken against anyone not named Donald Trump, or if Trump weren’t running for president again.

The typical Democratic talking point since early last night is that “no one is above the law.” What was applied here was not the law; it was a unique interpretation of an infrequently enforced statute that had never been used before. At first glance, the statute of limitations had expired, but Bragg convinced the judge that Trump’s time outside of the state, including his four years as president, didn’t count.

Falsifying business records is usually a misdemeanor, but Bragg’s team argued, and the jury believed, that the records were falsified in the furtherance of another crime. The prosecution contended the payments to Stormy Daniels were an effort to cover up what was essentially an illegal campaign expenditure. Folks, paying porn stars for their silence is not a campaign expense.

Make no mistake, this is all very sleazy behavior, and every voter has the right to judge Trump for what he did in this situation. But Trump is facing four years in prison for each of the 34 counts — conceivably 136 years in prison, although some doubt he will serve any time as a first-time offender — for the crime of listing his payment to Michael Cohen as an ongoing legal fee rather than a loan reimbursement. That’s it, that’s the crime.

Mind you, under this same district attorney, Alvin Bragg, “Armed robbers who use guns or other deadly weapons to stick up stores and other businesses will be prosecuted only for petty larceny, a misdemeanor, provided no victims were seriously injured and there’s no ‘genuine risk of physical harm’ to anyone. . . . Convicted criminals caught with weapons other than guns will have those felony charges downgraded to misdemeanors unless they’re also charged with more serious offenses.”

As far as we know, Bragg’s office and Trump’s attorneys never had any serious discussions about a plea bargain. Based on precedent and numbers, this is highly unusual in a case like this. As Tim Rosenberger of City Journal observed, “In 2019, 96 percent of New York’s felony convictions and 99 percent of misdemeanor convictions stemmed from guilty pleas. In 2019, 57,143 Manhattan felony arrests resulted in only 1,599 prison sentences, an imprisonment rate of less than 3 percent.”

The six-week trial likely cost New York City $1 million to $2 million, with roughly $50,000 per day in additional security costs. The Manhattan DA’s office does not spend seven-figure sums to chase down false business records from 2016 unless the defendant’s name is Donald Trump.

And Bragg explicitly campaigned for district attorney as the man best qualified to prosecute Donald Trump. From a lengthy New York Times profile on Bragg published in April:

Even before [the previous Manhattan district attorney Cyrus] Vance announced in March 2021 that he would not seek re-election, the race had become a referendum on who could best take on Trump. In a primary campaign of would-be Trump slayers, Bragg sold himself as the most experienced.

He talked about supervising the state investigation into the Trump Foundation as chief deputy attorney general in 2017 — a case that led to the charity’s closure. He said he knew how to prosecute fraud in the valuation of properties, one strand of Vance’s Trump investigation. Referring to Trump’s “criminal policies,” Bragg added, “He has embraced white nationalism, misconstrued data and engaged in cronyism, and the result has been a parade of horribles.” Bragg told The Wall Street Journal that he “certainly” had more experience with Trump “than most people in the world.” A rival Democrat’s spokeswoman complained that Bragg attacked Trump “for political advantage every chance he gets.”

For Bragg, this was a break with lawyerly protocol — to be talking about a potential case before seeing all the facts, at the risk of appearing biased. Yet in this election cycle, and especially with Trump newly vulnerable after his 2020 loss, holding him to account seemed vital to being elected in Manhattan.

Bragg’s campaign was hardly all Trump. He also championed the sort of criminal-justice-reform issues — for example, ending long prison sentences for low-level street crimes — that had helped progressive prosecutors sweep into office nationwide. But he seemed to double down on Trump as the campaign went on, simplifying and exaggerating his record. “It is a fact that I have sued Trump over 100 times,” Bragg told The New York Times in April 2021, an often-repeated claim that would be published everywhere from CNN to the BBC. “I can’t change that fact, nor would I. That was important work.”

As prosecutor Joshua Steinglass told the jury of the payments to Daniels, “We’ll never know if this effort to hoodwink voters made the difference in the 2016 election, but that’s not something we have to prove.” And lucky for them, Donald Trump had developed a reputation as a notorious philanderer since the 1980s. The idea that learning about Trump’s sexual encounter with Daniels would have swayed the election — by doing some sort of damage to Trump’s support that the Access Hollywood tape didn’t or couldn’t do — is extremely dubious.

The January 6 case, the classified-documents case — whatever you think of special counsel Jack Smith — those indictments are about real crimes and real felonies, ones that are directly relevant to Trump’s actions as president. Before Bragg brought his case, even Trump’s most ardent critics had largely forgotten about Stormy Daniels.

We will see if any juror on this trial chooses to tell the story of the deliberations, either in an interview or in a book deal. Right now, we don’t know what was going through the minds of those jurors. It may well be that they carefully weighed the evidence, found Michael Cohen to be a credible witness, and concluded, beyond any reasonable doubt, that Trump was guilty on all charges.

Or it may be that they all thought Trump was a sordid, rotten guy, and this was the chance to get him, and to heck with the details. As I said earlier this week:

If it’s a guilty verdict, hey, what did you expect? He’s Donald Trump, it’s a Manhattan jury, and the entire operation to cover up an affair with Stormy Daniels during Melania’s pregnancy was sleazy as all hell. When you spend 30 years or so developing a reputation as a notorious, shameless, brazen, and barefaced liar, you should not be surprised that juries are inclined to believe you’re the kind of guy who would falsify a business record.

Trump has compared himself to Al Capone, and implicit in that comparison is the fact Capone was convicted and went to prison on income-tax evasion, when his much more serious crimes were his violent reign of terror as the most notorious mob boss in Chicago. I was reminded of a comment from a member of O. J. Simpson’s legal “dream team” from his murder trial, Carl Douglas, discussing Simpson getting 33 years in prison after being convicted for armed robbery and kidnapping.

Douglas would later refer to the verdict in Nevada as “the fifth quarter”:

I grew up in Los Angeles, at Washington high school, man, and our school was not the greatest football team. But we had people who fought well. And whenever we would lose the football game, there would often be a fight after the game. We called the fight the fifth quarter. So, we may lose the game in the fourth quarter, but we were going to win the fight in the fifth quarter. That is exactly . . . what happened here. Although O.J. was found not guilty in Los Angeles, for the murder case, I believe, the judge sentenced him to 33 years based upon what happened in L.A., and that was the fifth quarter.

Lots of people who don’t like Trump have seen him slip through their fingers, over and over again. The Access Hollywood tape, the Robert Mueller investigation, two impeachments — lots of times, it appeared that Trump’s career in American politics was doomed, and yet he kept escaping, Houdini-like, to live and fight another day.

It may well be that Bragg’s case represented the fifth quarter — that yes, the falsifying of business records is small potatoes, but everyone on that jury believed that Trump had never been held accountable for his numerous other misdeeds, and this was the chance to give Trump his long-delayed comeuppance.

That’s not how our justice system is supposed to work. But that’s why we have an appeals process.

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