Conservative legal experts have convinced a lot of folks that Manhattan District Attorney Alvin Bragg’s indictment of former President Donald Trump was deeply flawed and that he’s unlikely to win a conviction on the merits.
Numerous potential liberal prosecutors looked at the case but turned it down on the grounds that it couldn’t be won, including Bragg’s predecessor: Cyrus Vance, Jr.
Bragg himself wouldn’t take the case at one point.
Brad Smith, a former Federal Election Commission chairman, said the core of Bragg’s decision to prosecute—that paying hush money to a woman who accuses a man of having an affair with her—is as common as clay.
“The criminal case against Donald Trump,” he remarked, “lacks a necessary element: there is no federal campaign finance violation.”
Though Bragg went through multiple legal hoops to try to establish one.
Even prominent liberal lawyers say he never proved his allegations.
Alan Dershowitz, the famed Harvard lawyer who voted for Hillary twice, was dumbstruck by the indictment’s incompetence: “I have never seen a case in my 60 years of practice which has so many holes in it.”
Not only did Bragg base his decision on the testimony of Trump’s former lawyer, Michael Cohen, who clearly wove a number of misrepresentations into his testimony against Trump, but he brought the case after the statute of limitations had tolled.
“I don’t see how you can twist and turn to make the statute of limitations disappear,” Dershowitz remarked.
Bragg’s pledge to “Get Trump” if elected district attorney, he said, was also a major violation of legal ethics that could get him disbarred.
He and others also noted the irony of Bragg’s prosecutorial discretion: He stretched the law to put Trump behind bars but favors letting known violent criminals out of jail.
The left-leaning publication Politico.com noted that even Bragg’s allies thought he had botched the indictment.
Why, some of them wondered, had he revived a case he had left for dead just months ago?
And why, as Dershowitz noted, was he bringing charges against the former president six years after the statute of limitations had expired?
Conservatives have been convincing in arguing that Bragg’s successful effort to persuade a grand jury to charge Trump with a federal campaign finance violation doesn’t make sense.
Especially when Smith says no such violation exists in the federal law.
(Nor does anyone, including Bragg, appear to have successfully challenged Smith’s claim.)
Conservatives appear to have won the argument among most legal experts about why the indictment never should have been brought.
But this writer likes to check out what Ruth Marcus, the top legal columnist for The Washington Post, has to say, to see if those I agree with have overlooked an important point they should have considered.
Marcus is liberal and anti-Trump.
But she appears more committed to telling the reader whether the charges launched by a prosecutor are legally valid rather than taking a partisan slap at the accused to help out her ideological allies.
Marcus has also sided with conservatives who believed Attorney General Merrick Garland wouldn’t prosecute Trump for the march that took place at the Capitol on Jan. 6, 2021, because there was no proof Trump had broken any law.
The Bragg indictment, Marcus points out, accuses the ex-president of having engaged in 34 felonies—counts that claim violation of New York’s election laws.
Our 45th president’s former lawyer, Cohen, testified that he, at Trump’s request, paid Stormy Daniels off, then secured reimbursement from Trump for the $130,000 in hush money by falsely describing the payments as legal retainers.
Bragg stressed that these are “felony crimes in New York state no matter who you are. We cannot and will not normalize serious criminal conduct.”
Conduct, he said, that makes it a “crime to conspire to promote a candidacy by unlawful means.” But is it clear, as Bragg contends, that Trump violated the criminal law, which is particularly important, as these are the first criminal charges ever lodged against a former president?
“On that front,” Marcus says, the Bragg indictment “is disturbingly unilluminating and the theory on which it rests is debatable at worst.”
She also notes how the serious charges against Trump, if they were worthy of a felony indictment, weren’t pursued after Trump left office. (A sitting president can’t be charged.)
And how did what is clearly a misdemeanor under state law transmogrify into a felony?
Citing experts on state and federal election laws, Marcus contends that federal election law overrides state law. “The federal law states explicitly that its rules ‘supersede and preempt any provision of State law with respect to election to Federal office.’”
And that, of course, is what Trump’s lawyers will argue.
Her final verdict after meticulously analyzing Bragg’s indictment: This feels “like a dangerous weapon on the highest of wires.”
Her view can’t be comforting to the “Get Trump” crowd.
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