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Indictment Illusions

The Trump indictments may be flimsy, but that doesn’t mean they can’t do plenty of damage to American political life.

(Meir Chaimowitz/Shutterstock)

The sheer pleasure ordinary Democrats, never mind mainstream journalists, got from seeing Donald Trump in court was disgusting.

The palpable disappointment when it was announced that he would not be paraded as a captured curiosity, a circus freak, through a perp walk. The t-shirts that wouldn't be made out of his mug shot, all the let-down leavened with glee that years of investigations finally yielded Trump in court facing criminal charges, the fruition of #PinkHats. To hear MSNBC, you'd think we were days away from the Orange Man being thrown into a van with no windows for his last ride upstate, in an orange jumpsuit, “Orange Is the New Black” jokes echoing behind him—the last thing he hears before being violated in the prison showers while multitudes cheer.


I'd seen all this before—in post-military-dictatorship Korea, where prosecuting one's political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office. Overall, whether a former South Korean president goes to jail after their term depends on various factors, occasionally such as the evidence against them, but more significantly, the political climate surrounding them. 

That's no rule of law; it is revenge. That's the new America you're cheering for?

And yet for all the schadenfreude turned up to eleven, we're left staring blankly at the TV and asking: Is this all there is? After 8 years of intense judicial and media scrutiny, after two impeachments, after the January 6 coven of elders committee, after Russiagate and even after the state of New York and the House finally did get his tax documents, this is it? Teflon Don is going down over...falsification of business records?

Never mind the thirty-four counts; that's just stacking, an old DA trick to turn one "crime" into many to make things look more dramatic. It just seems impossible that, after all this, there is no debt to Putin, no tax scam, no KGB handler, just a bookkeeping error. And spare us the "Al Capone went to jail over tax returns." Capone was a known mobster, a murderer, a man who left a long string of broken bodies alongside his wholly criminal business. Trump may have committed a bookkeeping error. He'll pay a fine at worst.

When you blow away the smoke, Trump is charged with only one minor crime. That stems from the allegation that money Trump paid to his lawyer Michael Cohen (continuing to call him a "fixer" just prolongs the awful Godfather references) to in turn legally buy silence from Stormy Daniels, Karen McDougal and others. Trump, supposedly purposely but inaccurately, labeled this legally spent money as "legal fees."


The indictment instead claims it a violation of business records law because the primary purpose was to influence an election. This supposition by the D.A. allowed him to upgrade a misdemeanor, falsification of business records, into multiple felony accusations. Backing all this up is the word of disbarred felon Michael Cohen and former National Enquirer honcho David Pecker (you just can't make this stuff up, folks). That Pecker supposedly was granted immunity to testify and Cohen himself is facing a lawsuit from Trump has nothing to do with nothin'.

The problem is that D.A. Alvin Bragg, who actually ran for his office on the promise of prosecuting Trump for...something...and is now paying off his promise to his George Soros-tied backers, has to win the case. That is going to be as legally tough as the case itself is legally flimsy.

The D.A. has to prove a crime not even charged (the unspecified campaign finance laws, or maybe something to do with taxes, the so-called "core crime"), show a misdemeanor for everyone else is actually a felony if you're Trump by demonstrating Trump's criminal state of mind when this all happened. He must do all that based primarily on the testimony of Cohen and a pseudo-journalist named Pecker. 

Otherwise, Trump will be acquitted. And while the news is chock full of articles on the threat to our democracy if Trump is found guilty, no one has been saying much about how he will be empowered if he wins. It is said that, if you go after the king, you should not miss.

There is nothing in this case that will stop Trump from running for president, even if he is somehow found guilty or even serves time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. If the standards being applied in New York hold, then while this is the first indictment of a former president, it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents for federal crimes after they leave office (remember Jim Garrison and the JFK assassination). Perhaps over the Hunter Biden case?

Could things get to the point where the "rule of law" misinterpreted as a "rule of revenge" means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa for Democrats? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Democrats salivating over the charges against Trump will feel differently when one of their own mascots ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office eager to make their bones by taking down a president of the other party. Imagine an aging Joe Biden as a virtual prisoner of a Democratic safe-house in Delaware.

It is easy to brush this off as exaggeration, but Trump's opponents react to his provocations and grandstanding by escalating the erosion of legal norms, as in the Mueller investigation, and the impeachments. Ask Mitt Romney, who said, “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.” And don't forget that Alvin Bragg's predecessor had almost a year to bring this case after Trump left office, but did not do so, and the Department of Justice also declined. Historians will call this all the Bragg Rule.


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