No One But Donald Trump Would Be Charged With These Fake 'Crimes'

posted by Alan Dershowitz at Newsweek 

On Tuesday, a historic event took place: For the first time in history, a sitting U.S. president was indicted and charged. In a Manhattan courtroom, former President Donald Trump became the first president and the first presidential candidate ever to be indicted, arrested and charged.

Since the indictment was announced last week, the nation has waited with bated breath for the indictment to be unsealed in the hopes that there would be something inside that justified such a momentous move on the part of New York's District Attorney, Alvin Bragg.

There was not. Bragg's indictment and accompanying statement of facts produced 34 absolutely ridiculous charges based on bookkeeping and record entries that don't even amount to a prosecutable misdemeanor—certainly not the felony with which former President Trump was charged.

The 34 charges hinge on hush money payments the former President allegedly paid to porn actress Stormy Daniels. Yet paying hush money to prevent publication of an adulterous sexual encounter is not a crime. Alexander Hamilton did it. So did thousands of other high-profile Americans. None of them ever disclosed such payments on public corporate records. After all, why pay the hush money if you have to publicly report the reasons it was paid?

Yet DA Bragg assured the American people that prosecuting such false record cases are the "bread and butter" of his office. I challenge Bragg to show us those cases. He won't be able to, because no one who pays hush money to conceal sex, then discloses that fact in public filings.

Yet that is the essence of Bragg's weak case.

There is a bit more to the indictment and the accompanying statement of facts than the sordid Stormy Daniels matter. District Attorney Bragg has sliced the salami very thin and turned this and related episodes into 34 separate charges. But at the bottom this is a records case.

In order to turn a questionable misdemeanor into an even more questionable felony, Bragg has had to allege that the reason Trump made false entries was to cover up other crimes. Here is where the indictment is at its weakest. Although the indictment itself does not specify which crimes were allegedly in Trump's mind, the statement of facts indicates that they generally related to election issues. The theory is that Trump hid the real reason for the hush money payments for the purpose of helping his campaign, rather than to hide the adulterous affair from his wife, children and business associates.

It's weak at best, and nearly impossible to prove at worst.

There are other, more specific allegations in the indictment and statement of facts, and they will be presented to a jury in order to determine whether the specified felonies have been committed. But the jury it will be presented to will consist of Manhattan voters, if Bragg gets his way. Recall that Bragg campaigned on the promise to get Trump, and so the jury pool will undoubtedly include Manhattanites who voted for him to fulfill that pledge. By voting to convict Trump, they can help Bragg fulfill the pledge he made to voters and presumably jury members.

This does not seem to assure a fair trial, and that is why Trump's lawyers will undoubtedly move for a change of venue—something Bragg will no doubt strenuously oppose, because the last thing he seems to be aiming for is a fair trial.

Despite the 34 charges and the lengthy documents, it remains clear that no reasonable District Attorney would have devoted this much time and this many resources to ferreting out records-keeping violations if there had not been a political motive behind it. Bragg's predecessor had the same evidence and declined to prosecute. So did Bragg at the beginning of his term—a decision which created a backlash and pressure on Bragg to change his mind. Bragg did so, and the result was Trump's appearance in a Manhattan courtroom on Tuesday.

His appearance marked a sad departure from past precedent and a high likelihood that this deeply flawed indictment will create a new precedent under which elected prosecutors of one party will search for possible crimes against their political opponents.

One remarkable aspect of this indictment is that none of the 34 charges cites any alleged victim of Trump's crimes. They are the personification of victimless crimes. But there are real victims: the American system of justice and the rule of law.