NYTimes: The Trump Indictment Is a Legal Embarrassment https://www.nytimes.com/2023/04/05/opinion/trump-bragg-indictment.html?partner=slack&smid=sl-share By Jed Handelsman Shugerman Mr. Shugerman is a law professor at Fordham and Boston University. Sign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Tuesday was historic for the rule of law in America, but not in the way Alvin Bragg, the Manhattan district attorney, would have imagined. The 34-count indictment — which more accurately could be described as 34 half-indictments — was a disaster. It was a setback for the rule of law and established a dangerous precedent for prosecutors. This legal embarrassment reveals new layers of Trumpian damage to the legal foundations of the United States: Mr. Trump’s opponents react to his provocations and norms violations by escalating and accelerating the erosion of legal norms. The case appears so weak on its legal and jurisdictional basis that a state judge might dismiss the case and mitigate that damage. More likely, the case is headed to federal court for a year, where it could lose on the grounds of federal pre-emption — only federal courts have jurisdiction over campaign finance and filing requirements. Even if it survives a challenge that could reach the Supreme Court, a trial would most likely not start until at least mid-2024, possibly even after the 2024 election. Instead of the rule of law, it would be the rule of the circus. Let’s start with the obvious problem that the payments at issue were made around six years ago. The basic facts have been public for five years. There are undoubtedly complicated political reasons for the delay, but regardless, Mr. Bragg’s predecessor, Cyrus Vance Jr., had almost a year to bring this case after Mr. Trump left office, but did not do so, and Attorney General Merrick Garland’s Justice Department also declined. To address the perception of a reversal and questions of legitimacy, Mr. Bragg had a duty to explain more about the case and its legal basis in what’s known as a “speaking indictment,” which the team of former counsel Robert Mueller made famous in its filings. Legal experts have been speculating about the core criminal allegation in this case, because the expected charge for “falsifying business records” becomes a felony only “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” Astonishingly, the district attorney’s filings do not make clear the core crime that would turn a filing misdemeanor into a felony. Neither the 16-page indictmentnor the accompanying statement of facts specifies, though the statement of facts does drop hints about campaign laws. In a news conference, Mr. Bragg answered that he did not specify because he was not required to by law. His answer was oblivious to how law requires more than doing the minimum to the letter — it demands fairness, notice and taking public legitimacy seriously. As a result of all this, Mr. Trump and the public still know shockingly little about the case — not which particular statute he allegedly violated or whether it is a state or federal campaign crime, a tax crime or something else. That’s why the indictment really contains only 34 half-counts. This open-ended indictment reflects a rule that jurors don’t have to agree on which underlying crime was committed, only that there had been an underlying crime, yet it is also standard when charging some cases to specify “crimes in the alternative.” Giving only partial notice might be standard operating procedure in Manhattan, but that standard procedure — suddenly in the bright lights yesterday — seems like a systemic infringement of a New Yorker’s right to know “the nature of the charges and evidence against you,” a normalized Sixth Amendment violation. On the bright side, maybe the backlash will force Manhattan prosecutors to end this general practice. Still, it is hard not to ask whether Mr. Trump was actually treated worse than other similarly situated defendants, because after so many years of delay, surely a Manhattan prosecutor would have informed another defendant of at least the basic underlying crimes and their statutory basis. The public could be forgiven for imagining that Mr. Bragg has not settled on his own theory. Unfortunately, he has given fodder to those who would portray this case as a political prosecution still in search of a legal theory. Even based on the half-felony that we do know — the false business filing with “intent to defraud” — it remains unclear whether a court has ever allowed a false-filing conviction based on an entirely internal business record that no other party, like a bank, insurance company or customer, would have relied on. I am yet to see any legal experts who have argued for this statute as a basis for the case against Mr. Trump who has identified a New York case along these lines.
moar NYTimes: In my own research, I have not yet found one. That hole in the case should have given prosecutors pause: What, in practice, is the meaning of “intent to defraud”? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it. Even if one can argue that the statute should apply to internal records, this is not the ideal time to test a seemingly novel (or even a very rare) application. Because of pre-emption, it’s entirely possible that the State of New York cannot prosecute a state case based on a federal election filing violation. The underlying crime, as best as we can tell from Mr. Bragg’s news conference and a statementto the press, is a campaign finance violation — spending money for a campaign cover-up without reporting it. However, for a federal election, there is what one might call “double pre-emption” or “confirmed pre-emption”: Both Congress and the State of New York agree that cases about federal campaign filings are for federal courts only, not for states. The Federal Election Campaign Act has a broad pre-emption clause: “the provisions of this Act, and of rules prescribed under this Act, supersede and pre-empt any provision of state law with respect to election to federal office.” New York State law confirms that state “filing requirements and the expenditure, contribution and receipt limits” under state law “shall not apply” if there is a federal requirement and a federal filing (in other words, they don’t apply to federal elections). Federal pre-emption applies most strongly when the subject is the candidate’s own campaign conduct (as opposed to donors’, for example) and when it relates to core issues like filing rules (as in this case against Mr. Trump). Some defenders of yesterday’s indictment cited some examples of federal courts allowing states to proceed based on state law, but those cases were not about basic campaign filing rules but about a fund-raiser funneling money to his own for-profit business, or they were about rules for donors’ contributions or political action committees, as opposed to the candidates’ conduct. These legal experts did not specify any case allowing a state to prosecute a candidate for his or her own behavior in a core area of campaign regulation like filing requirements. Federal courts allow for states to regulate the “times, places and manner” of elections, voter registration, ballot theft and the like. They allow exceptions for pre-emption when the state laws are “more tangential to the regulation of federal elections.” This state filing law is not tangential to federal campaign filing law, nor is this allegation tangential to the field of federal campaign law. But federal courts have emphasized that the federal law applies most strongly to candidate behavior, especially on filing questions. The application of this state filing law overlaps much more closely with the federal law’s field of campaign finance and filing. There is good reason for pre-emption for federal campaign finance: the danger of local prosecutors bending state law against federal candidates of the opposing party. Congress and New York have traditionally agreed that federal campaign finance and filing law are for federal courts. Pre-emption, abstention and federal jurisdiction are complicated. Even if there is a valid argument that somehow the state statute and this case are only tangential to federal election law or that federal courts should abstain from taking it, Mr. Trump’s lawyers still can go back to the game book from their tangle with the previous Manhattan district attorney, Trump v. Vance, and the subpoena for tax returns. Mr. Trump’s lawyers filed for an injunction in federal trial court, took the appeals up to the Supreme Court and delayed the subpoena for about a year. This case is headed up the same road. The Supreme Court has ruled in favor of federal pre-emption in cases with less clear pre-emption language, and Mr. Trump has a substantial chance of winning, given the clarity of the federal pre-emption language and confirmation of pre-emption in New York State law. Even if Mr. Bragg prevails, would a trial eight or more years after the underlying events, either at the height of the 2024 election or soon after, really be a win for the rule of law? Perhaps Tuesday was really an indictment of the Department of Justice under William Barr and Merrick Garland. If anyone should have brought this case, it was one of them. And if the Garland Justice Department should bring a case, there are stronger, more recent and much more serious charges to bring. Jed Handelsman Shugerman (@jedshug) is a law professor at Fordham and Boston University.
So the count should have stopped with the house? Or are you questioning the validity of the senator's votes? It seems the process was handled according to the rules. Maybe there will be another chance to bring him down.
I don't think the senators voted in good faith. Our Constitution references that impeachment was designed to remove an officeholder from public office—not a private citizen. Given that President Trump no longer holds public office, my ‘no’ vote today is based solely on this constitutional belief… The actions and reactions of President Trump were disgraceful, and history will judge him harshly. oh he is guilty but ima vote no b/c he's no longer president. The Founding Fathers designed impeachment as a way to remove a President from office. That is why I believe it is unconstitutional and voted against trying to apply impeachment to a former president, after he has left office…President Trump should not have encouraged the protest on January 6, but those rioters who broke the law are responsible for their actions… oh he is guilty but ima vote no b/c he's no longer president. Former President Trump’s actions that preceded the riot were a disgraceful, disgraceful dereliction of duty…There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day… There is no limiting principle in the constitutional text that would empower the Senate to convict and disqualify former officers that would not also let them convict and disqualify any private citizen. ...The Senate’s decision today does not condone anything that happened on or before that terrible day Oh he is guilty but ima vote no b/c he's no longer president. Can't trust republicans to do the right thing, they will defend trump to the very end.
Not trying to be a dick but do you know how impeachments work? In each case only a handful of Republicans IN THE SENATE were needed in order to remove and bar him from office. Those Republicans had a choice and they chose to make Trump the DOJ and state prosecutors’ problem. I continue to wonder why folks like yourself keep trying to let Republicans off the hook for abandoning their constitutional duty and punting that responsibility onto the DOJ officials and state DA’s. The constitution seems clear to me that impeachment is the solution to this problem you seem to want to ignore in order to let Republicans off the hook.
The problem is no one really knows until discovery and more facts are known. I agree with you. On its face this looks very weak legally. However, unlike the vast majority of Federal cases, the state case New York the prosecutor doesn't get up and verbally lay out the statement of fact and show all the links. Maybe Bragg is withholding this intentionally or maybe he just doesn't have a legit case and is grandstanding. I guess we will find out.
When Republicans said “but he is no longer president” that was the same thing as saying “he is now the DOJ and state DA’s problem.” People like @Astrodome can’t have it both ways and support Republicans decision to not vote to impeach on the basis they invoked and at the same time sit here and say that state DA’s have no right to make a prosecutorial decision on Trump. Talk about people like @Astrodome trying to have it both ways.
Here is a very good article from a lawyer who does not like Trump and he has issues with the case. Most of which @Kim has already laid out. https://www.rollingstone.com/politi...ragg-trump-case-still-mystery-1234709858/amp/
Fixed the headline for you. YOU and the entire GOP SHOULD be embarrassed by your cult-like following of the Criminal in Chief, DJ Drumph.
You are probably right. However it seems Fox News is pushing the even crazier idea that the Dems are playing 4D chess and the whole point of the incitement is to invigorate Trump’s base so that he will win the primary and lose the election.
The dog is wagging the tail. The base is nuts and the politicians are following along. Ted Cruz has a mullet for f@cks sake. They either have to pretend to be a dip ****, actually be one or get primaried by a bigger moron. The Republican Party is having a race to the bottom.
That's literally what the democratic party is doing .....it's what they've been doing since 2022 in midterms... Secular talk aka Kyle in your video was bashing democrats all last year for lifting up MAGA candidates and said the party was a disaster...turned out the strategy worked 100% lol
Yet the strategy is disingenuous. If the party is actually serious about being in favor of protecting democracy, they wouldn't support candidates that deny election results. It is a case of Democrats putting politics over principle. The fact that it worked, doesn't matter. Democrats who are serious about preserving democracy wouldn't pay to help candidates that are against democracy.
Would the midterms have went as well as they did if they didn’t do that strategy? I fear for what our democracy would look like if there was actually a red wave. and at the end of the day, Idk how much help the right wing candidates even need from Democrats…these crazy people are who the republican base wants in overwhelming fashion…Fox News knows it too which is why they continue pushing their lying agenda to these mindless drones so I don’t have much of a problem with the Democrats‘ tactics continue to keep MTG and the rest of em in the limelight, it just makes more and more people repulsed with the republican party
I totally agree, the gop will do anything (and I mean ANYTHING) to get a red wave which scares the hell out of me, the dems have been way to tame.......stop bringing a knife to a gun fight, I want to stay above the fray when needed but not afraid to get a little muddy when its called for. The base wants trump and I am all for letting them have him win the primary as I think he may be the only one we can beat, I think Desantis would win if he were the primary winner but I think he is going to take a back seat. What scares me is the trials are all going to possibly fall around the same time frame and would that work if its 2024 and trump is still in the middle of trials, would we still have a normal election.............and even crazier what if trump wins but then is found guilty on any of the indictments.................makes my head spin
I used to think DeSantis would win, but not anymore What’s he gonna run on? Being anti-business, anti-gay/trans, and anti-woke while touting all his fascist policies to the general public? He’s Floridian Ted Cruz to me at this point. MAGA hates him too. Dems been timid and trying so hard to be above the fray for decades while the other sides rolls around in slop…it’s about time they got a little dirty they should be doing all they can to show how extreme and vile the GOP is because it works while at the same time passing their agenda
