Red flags arise

The indictment of former president Donald Trump by Manhattan District Attorney Alvin Bragg tests several fundamental principles of our republic. In America, no man is above the law. This includes presidents, which is why Bill Clinton had to provide a deposition in the civil lawsuit brought by Paula Jones. It includes ex-presidents, such that Gerald Ford likely ended his hopes of election to a full term in the Oval Office when he pardoned Richard Nixon to spare him criminal prosecution for his role in the Watergate coverup.

On the other hand, America is not a sham government where our current and former elected leaders are prosecuted as a way to score political points. One reason dictators hold on to power so desperately is because the loss of power is so often followed by prosecution and jail time at the hands of the newly empowered. We appropriately hold police and prosecutors to a high standard when they intervene in our politics through a prosecution. We Americans prefer to judge the character of our leaders for ourselves. This was the reason so many on both sides of the aisle were so outraged as the FBI waffled on charging Hillary Clinton for her handling of classified emails.

The weaponization of prosecution to political ends is doubly dangerous when matched to the criminalization of campaign finance law. Normally campaign finance violations are paper crimes that are punished by a fine rather than jail time for the candidate. Of course, some violations of campaign-finance laws are truly criminal and deserve jail time, like taking bribes in the form of campaign contributions in exchange for a vote on pending legislation. But whether alleged “hush money” payments served a political purpose is a matter of difference of opinion among lawyers, and basically involves a judgment call about the candidate’s motives.

That requires jurors to decide why the payments were made, a judgment call that is hard to separate from one’s feelings about the character of the candidate overall. Many will point to the failure to convict former North Carolina Senator John Edwards on similar charges involving payments to his former mistress during his presidential run.

Red flags arise on the case against Trump when DA Alvin Bragg is not even responsible for enforcing federal campaign finance rules. The appropriate federal officer, the United States Attorney, already passed on filing charges, as did the Federal Election Commission. Bragg is using New York’s law against falsifying business records to launder a federal offense into state court.

And it’s even more of a stretch given the passage of time. Normally a criminal charge for falsifying business records is a misdemeanor that must be brought within two years in New York (the limited window for when a crime can be charged is known as the statute of limitations). But Bragg is choosing to charge it as a felony by alleging an intent to conceal or advance another crime (the campaign finance violation), which has a longer window and greater penalties (and sounds scarier as a felony).

And on top of all that, the massive leaking to the media of what is supposed to be a sealed indictment from a closed grand jury process does not bode well for seeing this case proceed with the regular order due any citizen facing criminal charges.

None of this is to say that President Trump made the right decisions in trusting Michael Cohen, his personal attorney, to handle paying hush money for an alleged affair with porn star Stormy Daniels through his real estate company. As much as it may offend our American sense that we ought to know everything about those who seek to lead us, Trump will hardly be the first public figure in politics, show biz, or business to enter into a non-disclosure agreement to minimize attention to an uncomfortable situation.

The burden should now rest on Bragg to prove his case to a jury, establishing Trump’s guilt beyond a shadow of a doubt. But in the real world, Bragg has already won the moment the mug shot of Trump hits the AP wire. As former U.S. Attorney General Robert H. Jackson explained in a famous speech, treating the indictment like victory is itself a terrible betrayal of the legal profession and the rule of law.