Washington Wednesday: Trumped up charges?

MARY REICHARD, HOST: It’s April 5th, 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. Today, the Trump indictment.

Well as you heard a few minutes ago, former President Donald Trump pleaded not guilty to the charges against him. At his arraignment yesterday in Manhattan, the judge read out 34 felony charges of falsifying business records in the first degree. Here’s District Attorney Alvin Bragg at a press conference.

ALVIN BRAGG: It's not just about one payment. It is 34 business records, 34 false statements and business records that were concealing criminal conduct. And the earlier question about New York State election law when we talked about conspiracy to promote a candidacy by unlawful means.

REICHARD: Joining us now to explain these charges and what they mean is WORLD legal correspondent Steve West. Steve was an Assistant US Attorney in North Carolina for more than 30 years. Good morning, Steve.

STEVE WEST, GUEST: Good morning, Mary.

REICHARD: Can you give us a summary of what the charges say? What does it mean to falsify business records in the first degree? Some may wonder why 34 charges for basically one alleged crime?

WEST: Sure, well the indictment alleges 34 violations of New York State law that Donald Trump falsified business records. That is, he called them one thing when they were really something else. And he did that with the intent to aid or conceal the commission of another crime. Those other crimes we heard are violations of New York State election laws in the capital federal campaign contributions, even though Trump doesn't have to be convicted of those crimes. And that's where the challenge is, was this a catch and kill scheme to bury a story or stories that might have negatively impacted Trump's campaign? Or was it an attempt to protect his family and friends from hearing this negative information? If the prosecutor can't demonstrate that intent, then falsifying charges is a misdemeanor, and it's one plagued by a statute of limitations problem, that simply means that too much time has passed to be able to charge that crime.

REICHARD: As you noted, apart from being able to demonstrate intent to defraud, the falsification of business records is a misdemeanor, not a felony. And I’d like to point out here that District Attorney Alvin Bragg has an established track record of downgrading criminal felony charges to misdemeanors … his office reported in November that he downgraded over half of his felony cases since taking office in January, 2022. So how, in this case, can Bragg justify raising a misdemeanor to a felony charge, or rather, 34 felony charges?

WEST: Well, that past practice will likely be part of defense attorneys’ argument that this is an improper and targeted prosecution of their clients, sometimes referred to as selective prosecution. But I'm really not surprised about the number of charges, something that was widely rumored and something that's also common in these cases. Multiple false statements and records that relate to essentially one event can be separately charged, each check for example. Yet I am surprised, given the broader sweep of the statement of facts, that there's not more here. The statement of facts certainly contains information, which suggests there were other payments, but these charges appear to relate only to the alleged hush money payment to one woman, Stormy Daniels.

REICHARD: Steve is there anything else you think would benefit listeners to know about this legal process?

WEST: Well, I think it's good to remember that in this case, just like in every criminal case, the prosecution still has to prove their case beyond a reasonable doubt. Donald Trump has been indicted. That means that the prosecutor met in a room with other jurors, when no one else was present, other than a court reporter and presented a summary of the evidence to those jurors. There may have been witnesses called, we don't know what happened in that room. And those jurors found probable cause to believe that a crime or crimes had been committed. Probable cause just means there's some basis for the charges, some reasonable basis. They still need to be proven.

REICHARD: Well, Steve West is WORLD’s legal correspondent. Thank you for your time.

WEST: Thank you, Mary.

EICHER: Well, as is the case with most high-profile legal cases, this one is not happening in a political vacuum. Far from it.

With an election looming next year and the race for the Republican nomination already in motion, there are several questions about what effect this will have…and is already having…on the race for 2024.

REICHARD: Joining us now to talk about the political fallout of today’s hearing is Marc Clauson. He’s a professor of History and Law at Cedarville University in Ohio. Good morning Marc.

MARC CLAUSON, GUEST: Good morning.

EICHER: In his news conference yesterday, Bragg told reporters that he is prosecuting this case now because a thorough investigation has concluded. The hush money matter has been known in the judicial district as the “zombie” case because of how many times it has resurfaced and then been discarded. Marc, what do you think of Bragg’s answer that we played for why he is prosecuting the first ever criminal case against a president while that person is campaigning for that same office?

CLAUSON: Well, you'd like to think, of course, the best. We know that when Alvin Bragg ran for the office of district attorney, he, he said that one of his his main goals was to go after Donald Trump. And this may be keeping his promise to do that. So So I unfortunately, I think it is politically motivated. That's not to say this is the first time that we've had a politically motivated prosecution. Those do occur, they have occurred in the past. But this one, of course, as you point out is particularly interesting to say the least because it's a former president.

REICHARD: So far, this indictment appears to be going according to plan for Trump’s opponents and his supporters. Opponents are happy to see Trump get his day in court while his supporters see him as a martyr of the radical left. But how could what happens in the days ahead backfire for Trump’s opponents? Conversely, how could it backfire for Trump’s supporters?

CLAUSON: Right, well, the main reason it could it could backfire is because the case is weak to begin with. We have issues already of venue and the unbiased or the biased venue. We have issues with statute of limitations, we have issues of the biased judge, potentially biased judge, and that's before the case itself. The case itself has weaknesses, because you have to deal with the issue of how do you prosecute this particular offense, which would be a misdemeanor by proving a felony on top of it, which is a federal crime to be prosecuted by the Federal District Attorney's, which they refuse to do, and so did the Federal Election Commission. So that kind of leaves you in a, in a strange situation as a prosecutor to try to try to make this case work. Now as for the other side? The fact is that his supporters, because of the fact that this is in New York City, let's assume the weakness of the case, let's assume that really there's nothing there. But he gets convicted anyway. Will that help him or hurt him? I think with his very with a very base of his base. I think he's going to look even better for them. They're going to see him as a martyr. They really are. With people in the middle, independents, people who aren't quite sure, people who are not exactly crazy about Trump personally but voted for him last time. They could be swayed away from Trump in that case, so they could be disappointed if the outcome is is a conviction of Trump.

EICHER: Marc Clauson is professor of History and Law at Cedarville University. Thanks for joining us today.

CLAUSON: Thank you.

EICHER: Well, regardless of what happens next, yesterday truly was a milestone in U.S. history, with a D.A. indicting a former, and maybe even future, President of the United States.

We spoke with a couple of attorneys who think the decision of that D-A has been misguided. You’re first going to hear from Bobby Higdon. He’s a lawyer now in private practice in Raleigh, North Carolina. But from 2017 to 2021 he was a federal prosecutor, serving as U.S. attorney for the eastern district of North Carolina.

BOBBY HIGDON: It's such an improper, in my mind, an improper place to be to have a prosecutor who has campaigned against a potential and now actual defendant. Mr. Bragg should have immediately recused himself from this matter, and allowed individuals that were not subject to those infirmities, handle it to its conclusion, make the decision about indictment about recommending to the grand jury and so forth and so on. I spent 30 years doing this. I never once looked for a crime to match up to a defendant, I found out about crimes and look to find out who did them. The opposite is happening here if you look at Mr. Bragg’s comments, and that's what's really troubling is we never want to be in a place where prosecutors are pursuing individuals just for the sake of settling scores or achieving some result. You look for a crime, then you try to figure out who committed it.

Next we’ll hear from Daniel Suhr. He’s an attorney who works on religious liberty issues, but has experience as senior adviser to the governor of Wisconsin Scott Walker, and as a law clerk in a federal appeals court. Suhr is also a contributor to WORLD Opinions.

DANIEL SUHR: We don't talk about the bill of attainder clause very often, right? But like the bill of attainder clause exists in the US Constitution, and it says, you know, you can't target one individual for going to jail. We can't pass a law that says Bobby must go to jail. But the the principle underlying it, the constitutional value is very real here, in that we don't want prosecutors running on prosecuting specific individuals, right, there's a huge gap between saying, ‘We should crack down on corrupt public corruption,’ and ‘I will go after public corruption as your DA and saying, I will go after Donald Trump, if you elect me.’ Right, there's there's a, there's a meaningful gap there, it reflects this constitutional value that's been with us since the founding.

This case is officially titled People of the State of New York v. Donald Trump.

It’s not likely to go to trial until early next year, but in the meantime, the court of public opinion will be pretty active as politicians, legal experts, and potential voters argue the case.

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