Washington Wednesday: Not all moral offenses are legal offenses

MARY REICHARD, HOST: It’s the 22nd of March, 2023.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Washington Wednesday.

First up, the potential indictment of a former president.

On social media over the weekend, former president Donald Trump predicted that on March 21st he would be arrested. That was yesterday and it didn’t happen.

But it still could, any day now.

Because a grand jury in New York is looking into money Trump allegedly paid to silence claims about extramarital affairs. Some say those payments may have violated campaign-finance law.

REICHARD: Trump denies the encounters occurred and says he has done nothing wrong.

The former president also says the entire investigation has been politically motivated. And even Trump’s potential 2024 Republican rivals seem to agree.

Former Vice President Mike Pence:

MIKE PENCE: I’m taken aback by the idea. Indicting a former president of the United States at a time when there’s a crime wave in New York City, the fact that the Manhattan DA thinks that indicting President Trump is his top priority just tells you everything you need to know about the radical left in this country.

EICHER: And Florida Gov. Ron DeSantis accused Manhattan District Attorney Alvin Bragg of politically weaponizing his office.

Here to help us understand what’s going on and what it all means is Marc Clauson. He is a professor of History and Law at Cedarville University in Ohio.

REICHARD: Professor, good morning!

MARC CLAUSON, GUEST: Good morning.

REICHARD: Well, first of all, let's talk about this what this potential charge or charges might be. Let's assume for a moment that the Manhattan DA does indict Trump, the person who allegedly arranged those payments was Trump's former lawyer, Michael Cohen. He was convicted of campaign finance violations in 2018. Marc, does that make it more likely that Trump could also be convicted?

CLAUSON: Probably doubtful. I think Trump's particular situation is independent of any other situations that the the district attorney's office is concerned with. So I just don't think they're interested in him. I think they're interested in Trump, and they're focused on Trump, and that's not going to make a difference to them. If they think they have a good case, and that's the key. Do they have a good case?

REICHARD: If the Manhattan DA does indict Trump, what is the burden of proof here for prosecutors? What do they have to prove?

CLAUSON: Well, here, here's the problem they face. There are actually two charges. One is a state charge, based upon a misuse or lying on documents relating to this payment. The other, which is the strangest part of this case is, maybe now he may change his mind, the district attorney may change his mind. But the second one was going to be at least an indictment based upon federal election law violations, which of course, doesn't make sense for a state official to be able to do that at all. So that's that that's still up in the air. But the burden of proof for the particular violation depends upon the discretion of the district attorney, whether he wants to indict Trump, I should say, for a lesser crime misdemeanor or a felony version of that, if he chooses the felony version, which he seems inclined to at this point, he has to prove beyond a reasonable doubt, which is a difficult standard to prove in this case, because you have to prove an intent, you have to prove particular actions on the part of the President that would, that would at least give an indication of an intent to deliberately mislead or to lie or to, in some way, doctor a document something like that. So it's not going to be an easy situation for the prosecutor.

REICHARD: Mmm-hmmm. I’m not asking you to politically prognosticate here, but if Trump is running for president under an indictment, how could that change his campaign or his candidacy? Have we ever seen anything like that before?

CLAUSON: Well, no, you haven’t! this is this is the first to indict a president, in particularly in this way, is something totally new. It's hard to say how much it will affect him negatively or positively. There are those who argue, and I think they have a fair argument that because they perceive this is so politicized, that will actually give Trump support from his base, at least, and for many other people to think he's been treated unfairly. There are others who believe that if he's indicted, then this just shows that he's a shady character, he doesn't deserve to be in office. We shouldn't elect him, we shouldn't vote for him. And he'll get defeated in the primaries. At this point, it's so early that it's hard to tell which way that could go. And in part, it also depends on how Trump campaigns based upon this, he could make a big deal of this indictment and really try to draw his base in Will it work? We'll have to wait and see if he doesn't make a big deal of it. Will that work? So right now, too early to tell.

REICHARD: We got confirmation bias going both ways, don’t we?

CLAUSON: Yes, yes, we do.

REICHARD: Republicans note that the Department of Justice passed on prosecuting this case. Why is that, do you suppose?

CLAUSON: The Department of Justice had a very weak case, and theirs was based on federal election violations? Or would have been based on federal election law violations? Here's the problem. It apparently didn't take place from what we know right now, the facts during the actual campaign are very either either that or very early. And secondly, it's not illegal to pay somebody with a nondisclosure agreement. It's legal to do that. You have to you have to have a lot more proof to make the causal nexus between the payment and what you are hoping to do with it. And even if you do that, there's no guarantee that a jury is going to say, Well, yeah, that proves that you violate federal election laws. It doesn't at all prove that necessarily. So, you know, I think they thought they had a very weak case. So they're gonna let it pass district attorneys at the federal level just like they are at the local level are very sensitive to their ability to win a case or not. So not going to waste their resources and time in pursuing cases they don't think they could win.

REICHARD: Republicans also charge that Alvin Bragg, the D-A, has boasted about downgrading felonies and has been soft on crime. They say it makes this potential indictment all the more clearly political in nature. What do we know about the Manhattan DA?

CLAUSON: He is soft on crime. At least standard crime, right, things like theft and murder and so forth. He's very soft on that kind of thing. We already know that through his actions and in bail reform, and in trying to lessen the charges against people who have committed violent crimes. He's already been involved in that he's, and some of his cases have been pretty glaring in that respect. And in on the in the contrast to that, then we have his desire to prosecute Trump for a felony, apparently, which is what he seems intent on doing at this point. Which makes no sense. Why would you why would you prosecute somebody for a felony, when this is such a relatively minor offense anyway, if it is offense at all, that's the one thing or as these other offenses are directly against people and property themselves, which is certainly more than just minor.

REICHARD: House Speaker Kevin McCarthy announced over the weekend that he’s, I’m going to quote here, “directing relevant committees to immediately investigate if federal funds” have been used to, these are his words … “subvert our democracy by interfering in elections with politically motivated prosecutions."
What does that mean and what action could House Republicans potentially take?

CLAUSON: Well, first of all, that just means that he's, he's very interested in finding out what people like Alvin Bragg are up to with regard to Trump and it won't be just Alvin Bragg. There's a case in Georgia, there's one in another state, where these district attorneys are interested in prosecuting Trump for various offenses. And their perception, at least in Congress in the house, is that this is highly political, politically motivated. And it does have all the earmarks of political prosecution. So he wants Congress to get down to the heart of that to, to get to get Bragg in there and testify to, to subpoena documents from his office, take a look at what he was saying between himself and his attorneys to find out basically what he was trying to do and why he was trying to do it. Again, what can come of this? That's a whole different question. Most of these kinds of hearing situations where you call in the person that you want to grill, and I say grill because it's mostly grilling, you want to grill the person and you want their documents. It just blows over. It's mostly just show. And that's true for both parties. Unfortunately. Now, it might be different. In this case, they might actually try to get to the heart of substance. But it's hard to say that it would go much further than that, because Congress really doesn't have the ability, the power to interfere in this local prosecution. They can put pressure obviously on Alvin Bragg. And he says already, he's not going to be pressured, he's shot back at the house and said, Look, you're not going to pressure me into giving in just because you don't like what I'm doing. So it's hard to say that much will come of it.

REICHARD: Professor Marc Clauson with Cedarville University has been our guest. Professor, thanks so much!

CLAUSON: Thank you. Good to be with you.

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