March 31, 2023

Trump Indicted

Donald Trump has been indicted by a Manhattan grand jury after a probe into hush money paid to porn star Stormy Daniels, becoming the first former U.S. president to face criminal charges even as he makes another run for the White House.” Reuters

Here’s our prior coverage of the issue. The Flip Side

See past issues

From the Left

The left argues that no one should be above the law, but worries that the case appears weak.

Criminal charges are not an either/or proposition. Falsifying business records may pale in comparison with the other crimes for which Trump is under investigation, but defendants don’t get a pass on other crimes just because they committed a more serious one… If, based on his careful review of the facts and law, Bragg believes that falsifying business records is an appropriate charge in this case, then it would be inappropriate to decline seeking an indictment just because Trump might also be charged at some later date with a more serious crime in some other jurisdiction…

“Selective prosecution—charging a person for a discriminatory or otherwise arbitrary reason—can result in a dismissal of the case for violating the Equal Protection Clause of the 14th Amendment. But a selective prosecution claim requires a defendant to show that other people who are similarly situated have not been prosecuted for the similar crimes. Here, Trump will be unable to make that showing. District Attorney’s offices in New York have charged numerous other individuals for falsifying business records in recent years. Trump is not a victim of selective prosecution. What Trump really seems to want is special treatment—a pass, simply because he is a former president.”

Barbara McQuade, Time

“Breaches of campaign finance law undermine democracy and deserve to be taken seriously. Yet the potential downsides of indicting Mr. Trump ought to be taken seriously, too. This prosecution is now bound to be the test case for any future former president, as well as, of course, proceedings against this former president in particular — of which there are plenty. Other investigations underway include Justice Department examinations of the Jan. 6, 2021, insurrection and classified documents discovered at Mar-a-Lago…

“These are straightforward cases compared with the one proceeding in Manhattan. A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of ‘witch hunt’ — in light of which House Speaker Kevin McCarthy (R-Calif.) was right to urge supporters to refrain from protesting. Public perception and political strategy shouldn’t dissuade a district attorney from bringing a solid case, but neither should they persuade him to bring a shaky one. This prosecution needs to be airtight.”

Editorial Board, Washington Post

“The district attorney [will need] to prove each element of the crime to a jury beyond a reasonable doubt. That would likely include proving Trump’s intent to contravene campaign finance law. Succeeding here will require Bragg to put [Trump’s former attorney Michael] Cohen on the stand and persuade a jury that he is more credible than the former president. That’s a tall order, and not just because Cohen is a disgraced felon…

“Despite existing evidence of Trump’s extensive involvement in the Daniels scheme, we have not yet seen a smoking gun that proves his fraudulent intent (1) to falsify records in furtherance of (2) helping his campaign… [Bragg will] also need to refute Trump’s defense (already previewed on Truth Social) that Cohen (1) told him the payoff was legal and (2) he relied on this advice in good faith. Again, the resolution of this dispute may well hang on the jury’s determination of credibility between the two men.”

Mark Joseph Stern, Slate

From the Right

The right is critical of the indictment, arguing that it is politically motivated.

The right is critical of the indictment, arguing that it is politically motivated.

“Mr. Trump made clear in a statement that he will make the prosecution part of his campaign… He will add this to the list of false Russian collusion claims, two failed impeachments, and the FBI’s Mar-a-Lago document raid. Whether that political defense succeeds will depend on how the case evolves in court in what will be a media circus for the ages. Mr. Trump’s reckless personal behavior has made himself vulnerable as usual, but Democratic excess could rescue him again…

The danger for America is the precedent this prosecution sets. Mr. Bragg is busting a political norm that has stood for 230 years. Once a former President and current candidate is indicted, some local Republican prosecutor will look to make a name for himself by doing the same to a Democrat. U.S. democracy will be further abused and battered. Mr. Bragg, the provincial progressive, is unleashing forces that all of us may come to regret.”

Editorial Board, Wall Street Journal

This should be a federal case… New York state’s entire judicial process is controlled by Democrats who could lose their positions in party primaries. Alvin Bragg, the district attorney overseeing the case, boasted during his campaign that he had sued Trump or his administration more than 100 times during his tenure in the state attorney general’s office, something he probably did to curry favor with primary voters who loathe Trump. Every New York state judge who would either try the case or hear an appeal is elected on a partisan basis, too…

“Had the case been filed in federal court, the trial and any appeals would be conducted or heard by federal judges who are appointed by presidents from both parties and have life tenure. That means they are far more insulated from partisan pressures and can rule on any issue according to the law, not their own personal futures. And those who might contend that Republican-appointed judges or justices will simply rule politically to let their party’s leader go, note that not one did so during Trump’s contesting of the 2020 election.”

Henry Olsen, Washington Post

Precedent shows that in other similar cases, such as against one-time presidential candidate John Edwards, the defendants have been found not guilty. Bragg’s own predecessor — and the feds! — declined to bring this case against Trump for six years. Bragg is trying to convert a state-level misdemeanor, falsifying financial records, into a federal felony. A less self-interested prosecutor would have dropped it and… we don’t know, gone after the scourge of gun violence or the shoplifting and robbing epidemic on New York’s streets?”

Editorial Board, New York Post

“Unless something radical occurs, this indictment will ensure that the former president secures the GOP presidential nomination

“With this politically-motivated indictment, Democrats have given the greatest showman in American politics today a chance to stretch his persuasion muscles. Love him or hate him, one has to admit that Trump knows how to use this whole thing to his advantage. Indeed, he and his team have already considered how they could leverage this opportunity into winning the nomination… When this is all over, Trump should probably send Bragg flowers and a thank-you card.”

Jeff Charles, RedState

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