I fear we are only at the beginning of a long legal and political nightmare that has no good ending.
A Manhattan jury’s decision to convict Donald Trump of falsifying business records to break federal election law is being heralded by The Usual Suspects as a moment in which “no one is above the law.” Indeed, both prosecutor Alvin Bragg, who brought the charges, and Judge Juan Merchan, who acted as a member of the prosecution, have proven that they themselves are above the law and can act well outside legal boundaries because no one will set boundaries for them.
Beyond the hoopla and celebration by Democrats for this “victory” over their hated adversary, one suspects that the U.S. Supreme Court will overturn the verdict even after the appeals court and supreme court of New York State will surely uphold it. Should that happen – and I predict it will – then we will be treated to more political angst in which Democrats will claim that SCOTUS is illegitimate and nothing more than a Trump political ally willing to do his dirty work.
Beyond the rhetoric, however, we need to understand what is happening and why we should expect this kind of thing to be a future norm in our body politic. When Bragg first indicted Trump a year ago April, I wrote that his actions were reminiscent of something done in banana republics where those in power find ways to jail or kill political rivals. The events afterward confirmed my fears, as Democratic prosecutors, both state and federal, have indicted Trump for various alleged offenses, all done in state and federal districts dominated by Democratic Party voters, almost guaranteeing juries that consist of mostly, if not all, Democrats.
Before going further, I need to point out that nothing in this article is an endorsement of Donald Trump for office or even is an attempt to paint Trump as an innocent victim of Democratic Party dirty tricks. Trump has achieved something I would have thought impossible, and that is being the target of questionable criminal charges, yet still making himself appear to be an unsavory character.
As former federal prosecutor Andrew C. McCarthy has pointed out, Trump’s attorneys have been less-than-competent throughout the trial – and perhaps we should not be surprised. Despite Trump’s wealth, his overbearing personality and micromanagement style do not mesh with how good criminal defense attorneys like to present their cases. But to make matters worse, as McCarthy notes, Trump’s attorneys generally stood by while Judge Juan Merchan stacked the deck in favor of the prosecution:
With Merchan’s help, and not much resistance from defense lawyers, Bragg’s team has shrewdly conflated two very different things: (1) the knowing and intentional burying of politically damaging information through NDAs (non-disclosure agreements), which is legal, and (2) the knowing and intentional flouting of FECA (Federal Election Campaign Act) regulations — which would be illegal if prosecutors could prove it, but of which there is no evidence against Trump. (Emphasis mine)
The gist of the case was as follows: Bragg alleged that by arranging for Stormy Daniels to receive $130,000 in exchange for being quiet about her having sex with Trump (and these agreements are legal, as McCarthy has written), the way the payments were entered into his business records amounted to falsification of those records, which normally is a misdemeanor under New York State law. However, if that falsification is done to enable someone to break another law, then the falsification can be charged as a felony.
However, one must be able to prove in a proper court of law that the other law actually was broken, and here is where the case falls apart. The law Bragg alleges was broken is federal law, and the Biden Department of Justice already decided not to prosecute Trump on that charge. A state court is NOT the proper jurisdiction to determine if a federal law was broken, as a state jury has no legal standing to decide on federal law.
Thus, at best, a New York state jury can only express an opinion as to whether they believed Trump broke federal law, and an opinion is not proof. At the very least, the charges are unconstitutional, as they cobble together federal and state law into an unwieldy set of criminal charges. In other words, Alvin Bragg engaged in legally questionable behavior because he knew that no Democratic judge (and all judges in Manhattan are Democrats) would rule against him.
In a recent column, David French of the New York Times, a staunch never-Trump writer, questioned the validity of the charges while simultaneously condemning Trump for his behavior. Wrote French:
…the underlying legal theory supporting the prosecution’s case remains dubious. The facts may be clear, but the law is anything but — and that could very well mean that the jury convicts Trump before the election, an appeals court reverses the conviction after the election, and millions of Americans, many of them non-MAGA, face yet another crisis of confidence in American institutions.
French, who also is an attorney, continued:
Mark Pomerantz, a former prosecutor in the Manhattan D.A.’s office, said that the case was “too risky under New York law” and noted that “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.” Numerous legal analysts, including people who are no friends of Trump, have expressed grave reservations about the case, in large part because of the difficulty of linking the falsified records to an additional, separate crime.
If Trump were convicted, French goes on, the aftermath would be bleak no matter what happened on appeal:
To be clear, an untested legal theory is not the same thing as a weak or specious theory. If Trump is convicted, his conviction could well survive on appeal. The alternative, however, is dreadful. Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon and the Biden campaign runs ads mocking him as a convict. If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law.
He wrote further:
But there are deeper issues at stake. Our court system does not exist to guarantee political results, no matter how much one might want Trump to lose the election. And defeating Trump with an assist from a criminal prosecution that falls apart on appeal would exacerbate the mistrust that helped make Trump president in the first place and sustains his hold on the Republican Party. (Emphasis mine)
This is not the only case Democratic prosecutors have brought against Trump and given the political dynamics and the makeup of potential juries, Trump well could be convicted in any or all of those cases. Furthermore, by using the criminal courts as a pure political weapon, the Democrats have opened the proverbial Pandora’s Box, as Republican prosecutors may well retaliate against Democratic office holders.
Even if SCOTUS were to overturn the New York guilty verdict, it cannot declare Trump not guilty, but only remand the case back to trial with new instructions and limitations. Given the political dynamics, one can see Bragg looking for other ways to bring criminal charges against Trump in never-ending legal warfare. I fear we are only at the beginning of a long legal and political nightmare that has no good ending.