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Last week, a Manhattan jury returned a verdict against Donald Trump. District Attorney Alvin Bragg’s flimsy prosecution may have succeeded in dealing a blow to Trump’s legal and political fortunes, especially in a close election race, but it will come at the cost of unforeseeable damage to our constitutional order.
Once again, Democrats have sacrificed the institutions and norms that underpin our political stability in order to stop one individual who threatens their vision of democracy.
In their verdict last Thursday, jurors unanimously agreed on a complex set of facts that may not have led to criminal charges: They found that in 2016, Trump paid porn actress Stephanie Clifford (whose stage name was Stormy Daniels) $170,000 in exchange for keeping quiet about an alleged affair, which in itself is not a violation of the law.
President Biden said Friday that the judicial system “must be respected” and that it was “reckless” for former President Trump to claim the New York trial verdict was “rigged.” (Getty Images)
The jury would have likely agreed with Trump’s then-lawyer, Michael Cohen, that Trump improperly reported these payments as “legal expenses” rather than as contributions to his presidential campaign — a misdemeanor that may be punishable by a fine, but is not a felony in and of itself.
Trump vs. Biden: A conviction won’t guarantee victory for either of them. What would give them victory?
And a jury would likely have concluded that the bookkeeping errors were an attempt to secretly enable more serious crimes, including violations of federal election and tax laws, even though federal authorities did not charge Trump with paying Clifford the nondisclosure payments.
If this sounds complicated, that’s because it is complicated. It is far beyond the capacity of the average juror to comprehend. Trump has a strong case for appeal. Judge Juan Marchan may have erred in admitting Clifford’s broad and prejudiced testimony that had little to do with accounting rules or campaign finances.
Already, observers have taken issue with Judge Marchan’s allowing Clifford’s inflammatory testimony, his blocking of Robert Costello’s impeachment of Cohen, and his barring of Trump’s election law expert, Brad Smith. While appeals courts have had little interest in questioning judges’ rulings on evidentiary issues, Marchan made some significant legal errors that are likely to be overturned. For example, he allowed the prosecution to withhold a second, larger crime, allegedly enabled by bookkeeping irregularities, until the end of the trial, violating Trump’s constitutional right to be clearly informed of the charges so that he could mount an adequate defense.
In an equally grave error, Marchan allowed the Manhattan district attorney to enforce his personal interpretation of federal election law, as the Supreme Court has made clear in cases such as New York v. United States (1992)., Printz v. United States (1997), Arizona v. United States (2012) argued that the Constitution prohibits state officials from prosecuting violations of federal law because the Constitution’s “duty of care” clause gives that authority exclusively to the President and his subordinates.
Trump’s conviction shows Democrats’ willingness to do whatever it takes to win
It could take years for Trump to appeal through state appeals courts to the U.S. Supreme Court and prevail on just that last issue.
Meanwhile, prosecutors will have already subverted constitutional norms: First, the tradition of not prosecuting a deposed president is gone.
In the 235-year history of the Republic, state and federal prosecutors have left presidents alone. This is not just because every president has been as pure as snow. Elected officials have demonstrated statesmanship by avoiding using the criminal justice system to manipulate elections or punish political opponents. Not only did Gerald Ford pardon Richard Nixon in the Watergate scandal and George W. Bush let Bill Clinton off the hook despite his obvious perjury, but Donald Trump did not pursue Hillary Clinton for forwarding classified emails to her insecure home computer network.
Would a conviction destroy Trump or make him even stronger?
Avoiding the temptation to criminalize political dissent is important not only to safeguard a stable electoral system but also to ensure the fitness of the president. The United States Constitution concentrates all executive power of the federal government in the President — not because the Founding Fathers believed the President to be infallible, but because they knew that only one man can act with the speed, decisiveness, and energy needed to respond to emergencies, defend the nation, and prosecute war.
If the president were allowed to be indicted by state attorneys general or district attorneys, particularly on baseless charges concocted by Manhattan District Attorney Alvin Bragg, his decision-making would have to take into account whether political opponents or opponents would seek punishment in court. The president would be worried about his own risk of litigation, not the risk to the nation.
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The second norm that was lost was the rule of law, which includes, at a minimum, the idea that like cases must be treated alike. Bragg violated that rule by charging a former president with a crime he had never been charged with before: a misdemeanor bookkeeping offense that was upgraded to a felony for allegedly violating federal election law.
People expect courts to enforce the rule of law, but judges refuse to examine “prosecutorial discretion” — the principle that only the executive branch chooses which cases to investigate. Courts cannot force prosecutors to drop cases because they chose a particular defendant, nor can they force prosecutors to indict other defendants to ensure equal treatment.
Trump’s case vividly illustrates the principle that the most important guardians of the rule of law are prosecutors and other members of the executive branch: they ensure that the law is applied equally in choosing whether or not to sue.
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Prosecutors should uphold the ideal that society punishes defendants for committing crimes, not simply because they are unpopular, but by first investigating Trump and then uncovering the crimes, Bragg and his colleagues in Atlanta and Washington, DC, violated the rule of law.
Progressives who celebrate President Trump’s conviction should instead mourn the loss of an institutional norm that has served our country for so long.
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