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A Manhattan jury returned its verdict on Donald Trump last week. District Attorney Alvin Bragg’s flimsy prosecution may have succeeded in damaging Trump’s legal and political fortunes, especially in a close race. But this will come at the cost of unforeseeable damage to our constitutional order.
Once again, Democrats have sacrificed the institutions and norms that have strengthened our political stability to stop a single individual who threatens their vision of democracy.
In Thursday’s verdict, the jury unanimously agreed on a complex set of facts that may well not amount to a criminal offense. It revealed that in 2016, Trump paid porn star Stephanie Clifford (stage name, Stormy Daniels) $170,000 to keep quiet about an alleged affair. This in itself does not violate the law.
President Biden said Friday that the justice system “should be respected” and that it was “reckless” for former President Trump to claim that the verdict in his New York trial was “rigged.” (Getty Images)
The jury had to agree with Michael Cohen, Trump’s lawyer at the time, that Trump had improperly classified these payments as “legal fees” rather than a contribution to his own presidential campaign. This may be an offense worthy of a fine, but not a crime in itself.
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And the jury had to conclude that this accounting error was secretly an attempt to enable a more serious crime, such as violating federal campaign or tax law – even though federal authorities had not filed charges against Trump for the payment of the non-disclosure agreement to Clifford.
If this sounds complicated, that’s because it is – way beyond the comprehension of a normal jury. Trump will have strong reasons to appeal. Trial Judge Juan Merchan may have erred in allowing Clifford’s extensive and damaging testimony, which had little to do with accounting rules or campaign finance.
Observers have already objected to Judge Merchan’s acceptance of Clifford’s incendiary testimony, his interruptions in Robert Costello’s indictment of Cohen, and his bar on the appearance of Brad Smith (Trump’s expert on matters of campaign law). Appellate courts have little interest in second-guessing a trial judge on evidentiary rulings, but Judge Merchan made several serious legal errors well-positioned to be overturned. For example, he allowed the prosecution to withhold until the very end of the trial the second, most serious crime, allegedly made possible by the accounting shenanigans. This violated Trump’s constitutional right to be clearly informed of the charges so that he could present an adequate defense.
In an equally egregious error, Merchan allowed the Manhattan district attorney to enforce his personal version of federal election law. The Supreme Court has made clear in cases such as New York v. United States (1992), Printz v. United States (1997) and Arizona v. United States (2012), that the Constitution prohibits state agents from prosecuting violations of federal law. The Constitution’s Prudence Clause vests this authority only in the President and his subordinates.
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Years could pass before Trump can appeal through the state appeals court all the way to the U.S. Supreme Court, where he would win on the latter issue alone.
In the meantime, the prosecution will have already destroyed our constitutional norms. The tradition of not prosecuting presidents after they leave office first disappeared.
Throughout the Republic’s 235-year history, both state and federal prosecutors had left presidents alone. And it wasn’t just because all the presidents were as pure as driven snow. Instead, elected leaders demonstrated political acumen and avoided using the criminal justice system to manipulate elections or punish political rivals. Not only did Gerald Ford pardon Richard Nixon for Watergate, or George W. Bush left Bill Clinton in peace despite the latter’s obvious perjury, but Donald Trump did not prosecute Hillary Clinton for her routing of classified emails to his network unsecured home computing.
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It is important to avoid the temptation to criminalize political differences not only to protect a stable electoral system, but also to ensure an optimal president. The Constitution concentrates all executive power of the federal government in the hands of the president. It does so not because the Founders thought presidents would be perfect, but because they knew that a single individual could act with the speed, determination, and energy necessary to respond to emergencies, protect the nation, and make the war.
If we allow any state attorney general or local district attorney to prosecute presidents — especially on frivolous charges concocted by Manhattan District Attorney Alvin Bragg — presidents will have to consider in their decision-making whether their political rivals and opponents will turn to the courts to punish them. . Presidents will worry about the risk of litigation rather than the risks to the nation.
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The second missing norm is the rule of law, which at a minimum includes the idea that similar cases should be treated equally. Bragg violated the rule of law by charging the former president with a crime – an accounting offense made a felony by an alleged violation of federal election law – who had never been charged.
People expect courts to uphold the rule of law, but judges refuse to investigate “prosecutorial discretion” – the principle that only the executive branch selects which cases to investigate. Courts cannot force prosecutors to drop charges because they singled out a specific defendant, nor can they force prosecutors to indict other defendants to ensure equal treatment.
The Trump case highlighted the principle that prosecutors and other members of the executive branch are the most important protectors of the rule of law. They ensure that the law is applied equally in deciding which cases to bring and not to bring.
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It is up to prosecutors to live up to the ideal that society punishes defendants for committing crimes, not simply for being unpopular. But by first investigating Trump and then revealing the crimes, Bragg and his colleagues in Atlanta and Washington, D.C., violated the rule of law.
Progressives celebrating Trump’s conviction should instead mourn the loss of the institutional norms that have served our nation so well for so long.
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