KEY TAKEAWAYS
- It’s clear [Trump has] been the target of potential prosecution by politically ambitious local district attorneys in New York and Georgia…for some time.
- Even The New York Times admits that the “case against the former president hinges on an untested and therefore risky legal theory.”
- It seems clear that the only reason Trump was the focus of these investigations in the first place is because of who he is.
The widely reported indictment of former President Donald Trump by the Manhattan District Attorney’s Office, headed by Alvin Bragg, doesn’t come as a surprise.
That lack of surprise, though, isn’t because he’s necessarily guilty of any crimes. Like anyone else accused of a crime, Trump is deemed to be innocent unless and until proven guilty beyond a reasonable doubt by legal and competent evidence.
The lack of surprise stems from the fact that it’s clear he’s been the target of potential prosecution by politically ambitious local district attorneys in New York and Georgia—and by a politicized federal Justice Department—for some time.
Recently, New York Attorney General Letitia James spearheaded a civil investigation into the Trump Organization and many of its business dealings, while the Manhattan District Attorney’s Office, led by then-DA Cy Vance, ran a parallel criminal investigation.
Under Vance’s successor, Trump Organization Chief Financial Officer Allen Weisselberg ultimately pled guilty to a tax fraud scheme and he provided testimony against the Trump Organization, which itself was convicted of participating in that scheme.
Indictment Not Yet Released
Trump himself, though, faced no personal liability in those investigations. Now, however, Bragg, the current Manhattan DA, who came into office touting liberal nonprosecution policies, has apparently charged Trump with alleged crimes.
While the indictment itself has not been released, we know that the investigation focused on what has been labeled as “hush money” payments to adult film star Stephanie Clifford, who goes by the name Stormy Daniels.
Daniels claims she had an affair with Trump, which he has denied. Prosecutors allege that in the final days of his 2016 presidential campaign, Trump paid her $130,000 in hush money through his then-attorney/fixer Michael Cohen and reimbursed Cohen via monthly payments from his company for legal and other services that were not provided.
Cohen ultimately pled guilty to several federal offenses, including perjury and three relatively minor (when compared with the other charges to which he pled guilty) campaign finance charges related to those payments.
With respect to the campaign finance charges, in essence, the government’s theory was that when Cohen made the initial payment to Daniels, he was doing so “in order to influence the 2016 presidential election” and was, therefore, making a campaign donation in excess of the legal limit, for which he was ultimately reimbursed.
The government also claimed, and Cohen admitted, that Cohen arranged an additional $150,000 to Karen McDougal, a former Playboy Playmate, who also claimed to have had an affair with Trump. Cohen is alleged to have arranged this payment from David Pecker, a friend of Trump’s who, at the time, was the CEO of American Media Inc. and the publisher of the National Enquirer, as part of a “catch and kill” scheme to buy the exclusive rights to McDougal’s story in order to ensure that it would never get published.
Federal prosecutors granted immunity to Pecker in exchange for his cooperation, and it has been reported that Pecker testified twice before the grand jury in connection with Bragg’s investigation. The National Enquirer, however, paid a $187,500 fine to the Federal Election Commission after the FEC concluded that the $150,000 payment was an illegal corporate campaign contribution that had been arranged in coordination with people with the Trump campaign, including Cohen.
At the time of his sentencing, Cohen stated that he “acted in coordination with and at the direction of” Trump when he made and arranged those payments.
Shoehorning Allegations Into a Prosecution
Bragg, it seems, is trying to shoehorn those allegations into a prosecution against Trump for several New York state crimes. Essentially, Bragg is trying to elevate a New York state misdemeanor case for falsifying business records (under Article 175 of the New York Penal Code) related to the hush-money payments to a state felony offense by alleging that Trump acted with an “intent to defraud” by making misleading entries in the company’s business records in order to cover up another crime—in this case, the alleged federal campaign finance violation committed by Cohen to assist the Trump campaign.
As one of us explained in a 2018 article, “Those claiming that this settlement with Stormy Daniels was a campaign-related expense and a violation of campaign finance law don’t have much of a leg to stand on.”
It’s also worth noting that neither the Federal Election Commission nor the U.S. Justice Department, which are responsible for enforcing federal campaign finance laws, thought this settlement payment violated federal campaign finance laws. In fact, the Justice Department considered the matter, but ultimately closed its investigation without bringing any charges against Trump.
So did the FEC, when it closed its investigation without any finding of wrongdoing.
The Washington Post said that it “would be unusual for a state prosecutor to use an alleged violation of a federal law, rather than of a state campaign finance law, as grounds to elevate a false-paperwork case from a misdemeanor to a felony.” (Bear in mind that New York state campaign finance laws do not apply to a federal candidate running for the presidency or for Congress.)
And even The New York Times admits that the “case against the former president hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony.”
Bragg’s case is also not helped by the recent testimony of Robert Costello, Cohen’s former legal adviser. Costello told Fox News that he told the grand jury that Cohen, who would be Bragg’s chief witness on the supposed federal campaign finance violation, is a “serial liar.”
Appealing to Bragg’s Base
Bragg’s pursuit of this case stands in stark contrast to his pledge not to prosecute many other crimes and cases—even violent crimes. Still, it’s not surprising since by filing these charges, Bragg will immediately become a political rock star to some on the Left.
In terms of federal authorities, we know that special counsel Jack Smith, a career prosecutor who most recently prosecuted war crimes at The Hague, is investigating potential crimes allegedly committed by Trump related to the events surrounding the Jan. 6, 2021, Capitol riot and the retention of classified documents after he left office.
While the Justice Department doesn’t comment on pending investigations, we do know that in relation to the Jan. 6 investigation, Smith has seized cellphones and other evidence from Trump advisers and has issued subpoenas for a number of Trump allies, attorneys, and administration officials to appear in front of a grand jury.
Some, such as former Vice President Mike Pence and Trump attorney Evan Corcoran, are fighting the subpoenas based on the speech or debate clause of the Constitution, attorney-client privilege, and other privileges.
Meanwhile, in Atlanta
Like the federal investigation, the Fulton County district attorney, Fani Willis, a Democrat, has focused on Trump’s conduct in the aftermath of the 2020 election. And like the federal investigation, she compelled a number of Trump allies and officials to appear before a special grand jury to give testimony.
At one point, a state court judge barred Willis from targeting a state senator, now the lieutenant governor, after she held a fundraiser for his Democratic opponent, who was running as a candidate for the same office.
That incident is revealing about what might be Willis’ true motivations.
We don’t know much about what evidence this special grand jury collected. Grand jury proceedings, by their nature, are secret, or at least should be. However, we did get a glimpse of what could be coming when the special grand jury’s forewoman gave a series of bizarre interviews hinting that it had recommended indicting multiple people.
Under Georgia law, though, a different grand jury would decide which, if any, indictments to return. Likely charges would include conspiracy to commit election fraud (§21-2-603 of the Georgia Code) or soliciting others to commit election fraud (§21-2-604 of the Georgia Code).
Racketeering?
It has also been rumored that Trump might be charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act (§16-14-4 of the Georgia Code).
Although modeled after the federal RICO statute, which was created to help combat traditional organized crime, the Georgia statute is significantly broader. For example, while the federal statute requires proof of continuity and an enterprise, the Georgia statute can be used to prosecute individuals who violate (including attempting or conspiring to violate) two or more of the 42 specifically delineated federal and state crimes (which are classified as “racketeering activity” and listed in §16-14-3) over a relatively short period of time “in furtherance of one or more incidents, schemes, or transactions that have the same or similar intent, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents.”
In other words, the two criminal acts have to be part of a pattern of behavior—not isolated acts—done with the same intent, to achieve a common result, or that have other distinguishing, interrelated characteristics.
A conviction under the Georgia RICO statute carries a potential penalty of 20 years’ imprisonment and a fine of $25,000 or three times the amount of any financial gain, whichever is greater.
The genesis of this investigation was an hourlong telephone call that transpired on Jan. 2, 2021, primarily between Trump and Georgia Secretary of State Brad Raffensperger. Others on the call were Mark Meadows, John Eastman, Rudy Giuliani, three other Trump attorneys (Cleta Mitchell, Alex Kaufman, and Kurt Hilbert), and Raffensperger’s general counsel, Ryan Germany.
That “Perfect” Call
The accusations against Trump include directing Raffensperger to “find” votes for him in order to overturn the results of the election in that state. While the call was not “perfect,” as Trump claims, it’s also not at all clear from the transcript of that call that Trump was doing any such thing.
If anything, it appears as though Trump was telling Raffensperger that all Trump’s attorneys had to do was “find” a sufficient number of votes in order to get the results overturned by a judge in one of the many pending cases that his lawyers had already filed in that state that contested the validity of the election and claimed that fraudulent votes had been submitted and that all of the legitimate ballots cast had not been properly counted.
Trump might also be charged with lying—what the media has labeled “The Big Lie”—about the fact that the election was stolen. It’s not enough, however, to prove that Trump was wrong when he claimed that the election in Georgia (and elsewhere) had been stolen. Georgia prosecutors would have to prove that he knew he was wrong at the time and was, therefore, lying.
While it’s clear that there were many people even within his administration who did not believe the election had been stolen and who were telling Trump that, it’s equally clear that there were other individuals that Trump trusted who were telling him that the election was stolen and that they would ultimately be able to prove that in court and in the court of public opinion.
By relying on the latter group rather than the former, Trump might have been wrong, perhaps egregiously so, but that doesn’t mean that he was lying when he made those claims in the immediate aftermath of the election, or even today.
Even though an indictment has not yet been returned, Trump’s attorney is already fighting back, having filed a lengthy document seeking to quash the special grand jury’s report, disqualify the Fulton County District Attorney’s Office from any further involvement, and preclude any prosecuting office from using any of the evidence that was presented to the special grand jury.
Also deeply troubling is the fact that some of the people who have been designated as “targets” by Willis are local Republican Party activists who served as alternate or contingent electors—who opponents have labeled “fake” electors—for Trump.
The idea of alternate electors isn’t new. It happened in 1876 and 1960, when the outcome of particular states’ presidential vote remained unclear. A slate of electors for each candidate met, cast their ballots for their preferred candidate, and waited for the dispute to be resolved.
In the 1960 election, the votes of the alternate slate of electors from Hawaii who cast their votes for John Kennedy ultimately had their votes counted, even though the governor of Hawaii initially certified the votes that had been cast by electors voting for Richard Nixon.
In 2000, then-Rep. Patsy Mink, D-Hawaii, suggested that then-Vice President Al Gore designate a slate of contingent electors who would vote in Florida while litigation in the aftermath of that election was ongoing in that state. If a slate of electors didn’t cast their ballots for Gore on the date prescribed by federal law, Gore wouldn’t have a remedy even if he eventually won his electoral challenge. Gore decided to concede on Dec. 13, five days before the electors met to officially cast their votes.
Dangerous Precedent
Were any of the alternate electors or Mink indicted for attempting to obstruct an election? Of course not. Only now, when these alternate electors—who opponents have labeled “fake” electors—cast their ballots for Trump have they been subjected to potential criminal liability.
That’s a dangerous precedent to set.
Party activists should be allowed—indeed, encouraged—to participate in the hurly-burly of the political process without having to worry about the criminal law being weaponized against them.
Moreover, under §21-2-172 of the Georgia Code, the authority to choose electors is given to the “state party or body chairperson of such political party,” so members of the state Republican Party and its chairman appear to have been acting in compliance with state law in selecting a group of contingent electors as a backup in case any of the election contests were successful in court. Ditto for the candidate and campaign for which those electors cast their ballots.
A judge disqualified Willis from continuing her investigation into one of the alternate electors because she had hosted a fundraiser for his political opponent. As one of us previously wrote, “Think about that: She hosted a fundraiser for someone who was running against an individual whom she had already publicly labeled as a target of a criminal investigation that she was conducting.”
This is all, of course, completely unprecedented. Never before has a former president, much less one who is currently running to regain his old office, been charged with a crime.
While we must wait to see what evidence prosecutors have marshaled to support their charges, it seems clear that the only reason Trump was the focus of these investigations in the first place is because of who he is—not necessarily because of the severity of any violations.
Commentary By
John Malcolm
@malcolm_john
Vice President, Institute for Constitutional Government
Zack Smith
@tzsmith
Legal Fellow and Manager, Meese Center for Legal Studies
Hans A. von Spakovsky
@HvonSpakovsky
Election Law Reform Initiative Manager, Senior Legal Fellow
