Trump’s prosecution stretched the law to find him guilty

Donald Trump was convicted of 34 felonies on Thursday. What were they? I bet most of the people out there celebrating the jury’s decision couldn’t tell you. But most of those lamenting it couldn’t, either. That should be your first clue that Manhattan District Attorney Alvin Bragg’s prosecution of the former president was not exactly a clear-cut, run-of-the-mill case.

Was it that Trump had sex with an adult film actress? No. He did, but that isn’t a crime. Was it that he paid her a bunch of money? No, not exactly — Bragg wasn’t really interested in prosecuting that kind of offense. Was it that Trump paid her through his lawyer instead of just handing her a wad of cash? That gets closer to the matter at hand, but even that isn’t exactly it.

Is it that the money came from his company? No: As the Washington Post explained: “11 checks were made out to [attorney Michael] Cohen, totaling $420,000. Two of the checks were from the Donald J. Trump Revocable Trust Account, but nine were from Trump’s personal account.” The invoices came through the Trump Organization, but only Trump’s personal money was used to pay them.

Bragg’s theory of the case is that all of this constituted the falsification of business records, which is a crime. Already, that’s a stretch.

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Surely the vouchers show these payments as money owed the Trump Organization’s lawyer, Cohen, not money due to Stephanie Clifford (also known as Stormy Daniels), but the company didn’t even pay out the money — Trump did. Nevertheless, that’s a misdemeanor in New York, according to Bragg. But — whoops! — Bragg wasn’t elected until 2021 and this alleged crime happened in 2015, and misdemeanors in New York have a two-year statute of limitations. Case closed? Obviously not.

Bragg, who came to office promising not to prosecute nonviolent misdemeanors, had an easy solution: Upgrade the crime to a felony. This is possible under New York law if the falsification of records is in furtherance of another crime. That stretches the statute of limitations to five years, which is also expired, but if you fudge the numbers a bit — the last payments were not issued until 2017 — it’s close enough.

But what is the underlying crime? This is where it gets even more tenuous: There are several possible crimes, none of which Trump was ever even charged with committing. It could be that the payoff to Clifford was a campaign finance violation (because it didn’t come out of campaign money, not because it did, oddly enough). The Federal Election Commission considered this angle but never brought charges — likely because it brought similar charges against U.S. Sen. John Edwards and failed to convict him. But it could also be income tax evasion because he paid Cohen enough to cover taxes on income even though the transaction wasn’t really payment to Cohen at all. Again, the feds never brought charges on this point.

The lack of precision is fine, according to Judge Juan Merchan — his instructions told the jury they didn’t have to decide unanimously that Trump did any one of these underlying crimes, only that they all must agree he did something illegal. In other words: You must agree that he broke a law, but you don’t have to agree on which one.

My law license is from Pennsylvania, not New York, and I have read New York lawyers say this is an accurate description of New York precedents. So maybe it’s fine, as a legal matter. But it certainly doesn’t build confidence in this theory of Trump’s criminality.

Still, they took this Rube Goldberg indictment and won a conviction. Maybe it’s a credit to the skill of the prosecutors in being able to convince a jury to connect all these dots. Maybe it’s the venue, a county where Trump won just 12% of the vote in 2020. But more likely it’s the result of decades of writing expansive criminal laws and only enforcing them against certain people.

You don’t have to be a Trump supporter to see the injustice of targeting one man and finding a crime to nail him with. CNN’s Fareed Zakaria said even before the verdict that “I doubt the New York indictment would have been brought against a defendant whose name was not Donald Trump.” Later, former U.S. Rep. Justin Amash — again, not a MAGA guy — said the verdict is “an affront to the rule of law and a perversion of justice. Bragg weaponized the legal system to indict Trump on charges that never would have been brought against anyone else.”

This is not to say Trump did nothing wrong. He committed adultery and paid money for it. But these aren’t the crimes he was charged with, nor is anyone else in public life made to go to jail over their infidelities, no matter how grotesque.

Nor is it to say that every case against him is a political effort. Some clearly are. Others are not. The classified documents case involves a law and a fact pattern that, while not always enforced against all who break it, at least represents a real crime that has the potential to harm the country.

But this is not that. Bragg chose the criminal and found a crime to catch him with. In doing so, he stretched the law so far that even if the conviction survives the inevitable appeals, it will be a stain on the idea of equal justice under the law.

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Many of those who hate Trump do not care about this, and no number of opinion columns about neutral principles and liberal democracy will change their minds. They want him in jail and are not particular about the reasons why. None of those celebrating this ruling are doing so because of their lifelong commitment to accurate corporate record-keeping; they’re happy because the guy they hate is being punished.

Likewise, there are many in Trump’s camp who decry this ruling, but would also love to see the same thing happen to Joe Biden. That’s no better. And, unjust though the prosecution is, we should not lose sight of the fact that Trump could have avoided all of this by just not cheating on his wife.

When we break our country into warring tribes, it is all too easy to forget that we are a nation of laws and principles. It is all too easy to cynically say, “The other side doesn’t care about laws, so why should we?” But our allegiance shouldn’t be to one political party or one man; it should be to the country and its people.

I don’t hold out much hope for this. Tribalization and polarization have only increased in the 21st century, and will likely continue to do so. In 2016, Trump and his supporters shouted “Lock her up” when speaking of Hillary Clinton and her own classified documents crime, but once elected, he did not, in fact, lock her up.

I doubt that level of restraint will prevail for much longer.