Bragg bags Don. Beggars something bigger

Partha Chakraborty-

In 1872, Ulysses S. Grant, the 18th President of the United States of America was racing a two-horse buggy against his friends on the streets of Washington, DC. DC Police Officer William West, a Black Union Army veteran, caught him speeding, the second time in two days. Officer West stuck out his hand asking President Grant to stop, which he did. Grant drove West to the police station in his own carriage, where an arrest was processed. Members of the racing party were made to put up bail of USD 20 a head, about USD 430 today, and released; Grant walked back to the White House.

With that, Grant became the first US President ever, in office or out, to be arrested.

“I am very sorry, Mr. President,” West is reported to have said, “to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.” West was a servant of the State, so was Grant.  Whether they realized it at the time, at that instant the US – the country had only recently fought a particularly bloody Civil War to put an end to an Original Sin – validated itself as a country of law and equality.

Former US President Donald J. Trump was indicted and arraigned – the first time a US President, sitting or not, was formally charged with a criminal offense. Charges stemmed from the investigation by the Office of The Manhattan District Attorney, Alvin Bragg, in part triggered by The Wall Street Journal articles in 2018. The 34 felony charges included allegations of hush money payments to avoid release of potentially damaging allegations of sexual impropriety during the height of 2016 general election that Mr. Trump won. Mr. Trump pleaded not guilty to all 34 counts and returned to Florida. In public speeches and on social media he has since been railing against the entire saga, particularly against the Judge and the DA. Court dates are being talked about in December 2023, setting it right in the middle of the election cycle for 2024; Mr. Trump has already declared his candidacy for the Republican ticket.

I have made little attempt to hide my disgust at most things Donald Trump, the person, embodies. Among other things I have called him the “orange ogre”, the “impotent nincompoop” and, my favorite, “the Last King of 1600 Pennsylvania Avenue”, among others. I chronicled “Barbarians at the Capitol Gates” in the wake of Jan 6th when Trump acolytes’ “Lies before Liberty, and the Pursuit of a Myth” could go no further.

“Buyers’ Remorse Wears Uneasy on the GOP”, I lamented, but that was too late.

Looking back at the events of this week, I find no consolation, no relief. To the contrary, I portend a return of the Ghost of a January past, and more.

Whether Mr. Trump caused payment of hush-money is not the issue, very likely he did – that is not illegal. Various business records concerning those payments to Mr. Cohen, an accompanying statement of facts said, falsely characterized them as being for legal services performed in 2017. For each such record, the grand jury charged Mr. Trump with a felony bookkeeping fraud under Article 175 of the New York Penal Law. A conviction on that charge carries a sentence of up to four years. But bookkeeping fraud is normally a misdemeanor. For it to rise to a felony, prosecutors must show that a defendant intended to commit, aid or conceal a second crime — raising the question of what other crime Mr. Bragg would allege.

Part of the charges is that he lied about the payments to affect an election, alleging violation of both NY State and Federal election laws – a theory that rests on controversial whataboutism that are hard to prove. It can be ambiguous whether paying off a mistress was a campaign expenditure or a personal one. As a matter of legal process, to cite federal law raises the untested question of whether a state prosecutor can invoke a federal crime even though he lacks jurisdiction to charge that crime himself. Still, Article 175 does not say that the second intended crime must be a state-law offense. Indeed, a range of election-law specialists on Tuesday expressed fresh doubt about whether Mr. Bragg could successfully use campaign finance laws alone to elevate the bookkeeping fraud charges to felonies.

Indictment also includes a claim that Trump falsified records to commit a state tax crime. It is a much simpler charge that avoids potential pitfalls. “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme,” Mr. Bragg wrote in the statement of facts that accompanied the indictment. “The reference to false tax filings may save the case from legal challenges that may arise if the felony charges are predicated only on federal and state election laws,” said Ryan Goodman, a law professor at New York University.

It may not be that clear. Even with the addition of the claim about intended false statements to tax authorities, Robert Kelner, the chairman of the election and political law practice group at the firm Covington & Burling, remained uncertain that it would show an intent to commit another crime. “The local prosecutors seem to be relying in part on a bank shot exploiting Michael Cohen’s guilty plea in a federal campaign finance case,” he said. “But there were serious questions about the legal basis for the case against Cohen, making that a dubious foundation for a case against a former president. Prosecutors also allude vaguely to ‘steps’ taken to violate tax laws, but they say little to establish what that might mean.”

In other words, waters are muddied enough for the thundering herd of GOP hide under and trumpet triumphantly their support for their “unfairly” deposed carouser-in-chief.

By most accounts, Bragg’s case against Trump is weak. The legal theory using alleged election impropriety is tenuous; in any event Bragg does not have jurisdiction over federal election issues. Trump used his family office checks to reimburse fixed Michael Cohen for hush money, so his behavior does not violate corporate laws, in a strict reading of the statutes. Even if Bragg alleged violation of state election laws, and he does so to elevate a falsification allegation to felony level, Bragg needs to prove Trump consciously intended to violate. That brings out the hole in his argument, it depends critically on testimony by Cohen, a convicted felon who pled guilty to tax fraud, lying and other violations. It is very likely Cohen will be deemed unreliable on cross-examination, thereby throwing out the entire litany of charges. Charges may survive a New York jury, but upon appeal to higher courts – and Trump already promised to go as far as it goes – they will very likely fall flat.

It is unreasonable to presume Bragg did not know – or anticipate – such an outcome. That he still went ahead, and committed his department to it, begs a question – why? A zealous antagonist to Trump – who is not in New York? – Bragg boasted having brought tens of lawsuits against Trump and his businesses previously. During his campaign for the position of Manhattan DA he openly promised to indict Trump. Previous DA Cyrus Vance – Vance was no wallflower by any means, won three four-year terms before retiring – declined to prosecute Trump because he was not sure he had a solid case. It is reported that Bragg’s own office declined initially, before coming back with a re-do.

All in, one cannot escape the feeling that Bragg was fishing for a charge, a theory, even a venue, to bring charges against Donald Trump. He seems to have decided on the person first, and then find an infraction he can bring a charge against.

That is not what is supposed to be. When Officer West stopped President Grant, the evidence was indisputable – no novel theory required. Grant was acquiescent, something nobody expects Trump to be. He, and Republicans, were already square-dancing to a beat that hails Trump as a martyr in the hands of a political vendetta, .and this adds fodder to their fire. Their cries of politically motivated prosecution makes light of any other infraction Trump is currently under investigation for, including his abetment of Jan 6 violence. When those charges come in, Trump will claim another “witch-hunt” and reiterate that the “real target” are his supporters, he simply gets in the way.

Some would recount how the prosecution of former leaders is an everyday occurrence in other parts of the world. Brazil, Nicaragua, Peru, Venezuela, South Korea, Pakistan have all seen waves of prosecution of recently deposed leaders under the customary corruption charges, and others. Not that these leaders were shining examples of propriety, but these things come in cycles. Current holders of power start with stuffing loyalists in the judiciary, use pliant judges to bar opponents from participating in a coming election (if they are kind enough to bring a charge at all, often opponents just get thrown in the dungeon), then the political mood shifts. The opposition, some of their leaders just released from jail (or not), sweep into power and then repeat the process, first by incarcerating the previous dictator wannabe. Lady Justice is just a wand in the hands of the reigning cabal, till she is not, and then held hostage by another group.

More likely in the US, a “victim” Trump is the stepping stone to a victor Trump. His ascension to the Republican ticket is all but announced by now. If he plays up his victimhood, with help from Bragg and his bag of bric-a-bracs, it is easy to see how he sways a swath questioning the “theoretical” indictment. If so, we will see a second coming of Prophet Trump No, we are not a banana republic – not by a mile. Yet. But an emboldened, twice embittered, and always unhinged Trump will get us there faster, and with more viciousness and stupidity cloaked in swagger.

In his zeal to be the first to indict a President, Bragg did bag the Don, for now.  But he beggared something much bigger – the Republic – in the process. Shame.



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