Crimes and Misdemeanours

Tuesday, April 4th was a surreal day; for the first time ever, a former President — like millions of ordinary Americans before him — was formally in custody, and arraigned before a judge to face criminal charges. In my previous article, prior to the unsealing of the indictment against Mr Trump, I averred that the concept that no one is above the law “is a noble ideal.” I vehemently stand by that axiomatic principle; equality before the law is, perhaps, the sine qua non of the rule of law. It is, of course, only a theoretical principle, an aspiration, since the indigent and the marginalised are, almost always, disproportionately cudgeled by the law — and plead guilty without a trial — than the well-heeled and the powerful. Notwithstanding, in any and every case where the law is disparately applied, we tear at the blindfold of Lady Justice. 

Equally, parsimony in criminalisation and prosecution are also virtuous ideals worth defending. Any justice system, especially one as over-criminalised as America’s, cannot prosecute every single transgressor of the criminal code, for every single technical violation. No district attorney in the United States — from Seattle to Tallahassee — has the time or the resources to investigate and prosecute every criminal violation that comes to light. To argue otherwise would be tantamount to engaging in fantasy. Which leads us to the salient question: after over two centuries of Presidential scandals and wars fought on false pretenses, did it make sense for the Manhattan DA to enter unchartered waters, with a local prosecution of an ex-President? 

Following the unsealing of the indictment against Donald J. Trump, one must be deeply sceptical that this was a worthy case to prosecute. Firstly, it appears very far from a slam-dunk conviction for the prosecution, which should have been a prerequisite for such a historic move against an ex-President. Trump has been charged with thirty-four felony counts for falsification of business records; on their own, such charges amount to relatively trifling misdemeanours, and the DA would be statute-barred from bringing them, as the two-year limitation period has expired. Alvin Bragg, the Manhattan DA, bumped all these offences to felonies on the ground that they were committed in furtherance of other crimes, namely violations of federal and state election laws, and New York tax laws; this way, a longer statute of limitations applies, re-animating the charges.

A preliminary question — and a very fair one at that — must be, why didn’t Mr Bragg’s office seek to charge Mr Trump with felonies for breach of New York election and tax laws? Was there insufficient evidence? Furthermore — and this seems to be the unanimous opinion of all prominent election lawyers — it seems very likely that tying the falsification offences to federal election law is a non-starter; additionally, it is quite unclear how New York election law, which concerns the administration of New York State elections, has anything to do with (federal) Presidential elections. As to the state tax offences, we can shed no light on that, as the DA’s office (within its rights) has not put any meat on those bones. 

It bears repeating that Mr Bragg’s predecessor, Cyrus Vance, and the Department of Justice which investigated potential federal election-law violations, declined to prosecute Mr Trump in connection with the hush-money payments made to a pornographic actress, in 2017. Adding fuel to the fire, is the fact that Mr Bragg ran for office on a campaign spewing with not-so-subtle promises to prosecute Donald Trump. Even the most die-hard opponents of the forty-fifth President (full disclosure: I consider Trump to be an existential threat to the United States), must admit that this case isn’t quite Kosher. 

Owing to the panoply of transgressions of previous Presidents (Nixon/Watergate, Clinton/Whitewater, Bush/Iraq/Torture, to name a fraction), any indictment of a former President would raise the spectre of political persecution. The question will arise: why wasn’t Hillary Clinton prosecuted for maintaining an unsecured private email server that allegedly contained classified government materials? What about Barack Obama’s presidential campaign that was found to have violated federal campaign finance laws in 2008 and 2012? It is inexorable that such comparisons will be made, and are being made, to cast the Trump indictment as politically motivated. Sure, one can counter by saying that any criminal violations ought to be prosecuted to the fullest extent of the law (a favourite talking point of “law and order” Republicans, conveniently forgotten in this case), but that doesn’t quite cut it. Trump and his acolytes are now doing a pretty good job of casting him as a victim of Democratic shenanigans; admittedly, this is easier to do with a case that seems very far from hermetically sealed. 

Donald Trump faces another three major criminal investigations, ones that cannot be brushed aside as “minor infractions” or “mere bookkeeping offences”. In Georgia, he faces the prospect of serious felony charges for his attempts to pressure state officials to “find 11,780 votes” to deprive the popular will of the Peach State, and snatch its Electors from the rightful winner. On the federal level, he faces the prospect of being indicted for seditious conspiracy, impeding the lawful transfer of power, and obstruction in relation to efforts to retrieve government property. Potential indictments in these cases concern offences that strike at the heart of American democracy and bedrock constitutional values. 

Robert H. Jackson, a distinguished Supreme Court Justice, and the Chief US Prosecutor at the Nuremberg Trials, made the following observation many decades ago:

“It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him.”

The criminal code (of all states and the federal government) has burgeoned beyond recognition, since Justice Jackson’s prescient observation. The Manhattan prosecution serves up a dangerous precedent; Republican DAs across many Red States, can now trawl through their penal codes in search of any potential jurisdictional infractions of former Democratic Presidents and high-ranking officials. In this febrile climate, those seeking to curry favour with Trump, can make a name for themselves by going after Barack Obama, Hunter Biden, Hillary Clinton, and perhaps in a few years, Joe Biden. That is why, Mr Bragg’s case, which prima facie rests on nebulous foundations, may have been too much of a gamble.