Justice should be fair and impartial. Trump’s indictment is neither.
Anti-Trump prosecutors who use the law to further political ends are no better than pro-Trump partisans who think the law should be ignored if it restrains their hero.
Donald Trump thinks the establishment is out to get him.
In the former president’s telling, the Deep State — a shadowy conspiracy of elite politicians and bureaucrats — was working night and day to take him down. It would sound ridiculous, if only the powers that be didn’t keep working overtime to make it look so plausible.
The way Trump behaved in office was at odds with the pattern set by his more conventional predecessors. But just as unprecedented has been the intense emotional reaction to Trump from those whose positions he challenged.
The mainstream press was arrayed against him from the moment he came down the Trump Tower escalator in 2015 to announce his candidacy. He was impeached — twice. Everything he said was taken as gospel by his followers and as lies by his enemies, with neither bothering to consider the facts first.
After leaving office, Trump’s home was raided in what we were assured was a matter of the highest import. Yet more than six months later, that investigation has been quietly forgotten, just like the more extreme allegations debunked by the Mueller report.
It is hard to see New York County District Attorney Alvin Bragg’s indictment of Trump as anything but more of the same: a half-baked attempt to go after one man for who he is, not for what he has done.
But surely Trump deserves it, right? After all, much of what made his presidency so unprecedented was bad, norm-breaking, disruptive — and possibly illegal. Isn’t this merely his just desserts?
It is tempting to think so. Some of the extraordinary efforts against him — including his second impeachment — were justified. The Jan. 6, 2021, riot at the U.S. Capitol was a gross attack on this country and its system of government. To the extent Trump encouraged it, he deserved to be impeached.
But that does not mean that every subsequent effort against him is equally valid. Our system of laws prohibits acts, not people. Courthouses often feature the statue of justice personified, blindfolded and holding the scales. The allegory is obvious: We want justice to be fair and impartial.
Bragg’s case against Trump is neither.
It stems from an alleged campaign violation that, in typical Trump fashion, is made more salacious by the involvement of an adult film star. The exact details will remain unknown until the indictment is published, but Trump’s lawyers have admitted that the alleged crime at the root of this investigation is indeed money paid by Trump’s lawyers in 2016 in exchange for silence about an extramarital affair 10 years earlier.
Having an affair is immoral, but not a crime — those of us old enough to remember Bill Clinton’s impeachment have heard this many times. What is the crime here, then? Federal prosecutors investigated the hush money payment as a campaign violation — not because Trump paid it with campaign funds, but because he paid it with his own corporation’s money. This, they allege, makes it a campaign donation (because it helped the campaign), and since corporations cannot make campaign donations, this was a crime.
Trump’s lawyer, Michael Cohen, who facilitated the payments, pleaded guilty to campaign violations (and lying to Congress), but the feds never charged him. Why? Because the case — already tenuous to begin with — would have been difficult to prove against Trump. Federal prosecutors indicted Democrat John Edwards for a similar crime in 2011, but couldn’t convince a jury to convict. If anything, campaign finance violations usually result in fines, not jail time.
So, we have a federal crime that the U.S. Attorney’s Office thought it couldn’t prove in 2018. How does any of this involve the state of New York? Bragg alleges that by using money from his corporation to violate federal law, Trump committed the state-law crime of falsifying business records. Because this happened in New York, Bragg says it’s a state crime, and the grand jury agreed.
This crime is typically a misdemeanor in New York, and Bragg has famously declined to prosecute nonviolent misdemeanors. Moreover, misdemeanors in New York have a two-year statute of limitations. But again, justice isn’t exactly blind here.
Bragg calls this corporate records violation a felony by saying the falsification was in aid of another crime — a federal crime with which Trump was never even charged, let alone convicted. And even most felonies (including this one) have a five-year statute of limitations, which also expired two years ago.
If you were inclined to believe that the establishment is out to get Trump, Bragg’s credulity-straining charges would be exhibit A.
We are increasingly divided between conspiracy theorists on both sides: those who want Trump to get away with everything (because they like him), and those who want to lock him up, law or no law (because they hate him). True justice requires honest brokers who live up to high ideals. Instead, we have anti-Trump prosecutors who use the law to further political ends and pro-Trump partisans who think the law should all be ignored if it restrains their hero.
A republic cannot long endure like this.
Liberal democracy asks a lot of its citizens. We are meant to put aside tribalist emotions in favor of neutral principles and high ideals. It is not easy. But the reward — equal justice under law — is well worth the price. It is one of the ideals that made this country great. The law is meant to be about justice, not the extension of tribal politics by other means.