Notice And Comment: The Indictment Of Donald Trump
Is People v. Donald J. Trump a triumph, a travesty, or something in between?
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!
The yuge legal story of the week is the criminal case that Manhattan District Attorney Alvin Bragg just brought against a certain Donald J. Trump, 45th president of the United States. News of the indictment broke last week, but we didn’t see the charging document itself until Tuesday, when Trump was arraigned and pleaded not guilty to 34 counts of falsifying business degrees in the first degree.
As I’ve said before, I don’t love writing about Trump-related legal news—and I don’t feel particularly bad about that. The world doesn’t suffer from a dearth of Trump coverage, and I don’t have any comparative advantage in covering Trump’s travails. I don’t think my knowledge of Trump is any greater than that of most people who follow current events, and I’m not particularly well-sourced in Trumpworld. As for the current case, People of the State of New York v. Donald J. Trump, again I have no special insight; I worked as a federal but not a state prosecutor, and I don’t have a lot of sources in the Manhattan DA’s Office either. (Of course, I’d welcome more sources in either Trumpworld or Braggworld; please contact me if you can help.)
What I do have, though, is a sizable, smart, and well-informed readership of lawyers, some of whom have impressive knowledge of New York State criminal law, campaign-finance law, the intersection of law and politics, and other subjects implicated by People v. Trump. And so I’d like to tap into your knowledge via this Notice and Comment post, in which I select a hot topic related to law and the legal profession and invite you, my readers, to offer your thoughts on it in the comments.
To kick off the discussion, here are some materials you can read or listen to for the purpose of informing your opinions:
Annotated versions of the indictment and statement of facts (via the New York Times).
A New York Times staff editorial, Even Donald Trump Should Be Held Accountable.
A Washington Post staff editorial, The Trump indictment is a poor test case for prosecuting a former president.
A New York Times guest essay, We Finally Know the Case Against Trump, and It Is Strong, by Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney, and Norman Eisen, a senior fellow at the Brookings Institution and special counsel to the House Judiciary Committee for Trump’s first impeachment.
A New York Times guest essay, The Trump Indictment Is a Legal Embarrassment, by Jed Handelsman Shugerman, a law professor at Fordham and Boston University.
The latest episode of the Advisory Opinions podcast, A Mumbling Indictment, featuring Sarah Isgur and David French.
The latest episode of the Serious Trouble podcast, The Indictment, featuring Josh Barro and Ken White.
The latest episode of the Strict Scrutiny podcast, The Arrest Is History, featuring Leah Litman, Kate Shaw, Jon Favreau, Jon Lovett, and Tommy Vietor.
This is just a small sampling of the ocean of commentary out there. In the comments, please feel free to post links to analyses that you found particularly useful.
So have at it: please share your views on the Trump indictment in the comments to this post. If you prefer, you can also email me; if you do, I will treat your comments as okay to post in the comments on your behalf, keeping you anonymous, unless you explicitly designate them as completely off the record and for my eyes only.
As usual for N&C posts, comments are open to all readers, not just paid subscribers. Thanks!
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Posting on behalf of a reader, Nikki, who emailed me:
"Legally speaking, it seems that there is solid basis to indict the president for the conduct here. But an important question in my mind is, is this a good idea? Do the prosecutors really have an iron-clad, open and shut case against 45? Can every element of every charged crime be proved, beyond and to the exclusion of EVERY REASONABLE DOUBT? Based on what has been shown so far, I fear that the answer is no. I'm no legal expert, but it seems that the prosecutors may have trouble proving the intent elements of these crimes. When bringing charges against a former president, it is critical that the prosecutors have a 100% solid case. If 45 is acquitted of the crimes, I truly worry about what will come next. This whole exercise will backfire, majorly.
From a political point of view only, bringing these charges also sounds like an extremely risky bet, given his current campaign and his ability to whip up his supporters into action that can turn violent. Arguably, this fact bolsters the need to bring a solid, iron-clad case to trial. I fear that this is not the case here.
I look forward to what comes next in this saga."
"You come at the king, you best not miss."
If we're going to be prosecuting former presidents, no matter how odious they may be, it's super important the case be ironclad and the charges not be tickytack or abstruse. This doesn't clearly seem to be either. Misrecordings in internal bookkeeping that do not affect any external parties are not something you go after people for normally, least of all when they're being bootstrapped into felonies by an unspecified separate crime. And there are genuinely murky questions about what this underlying crime is -- and whether it might be a state crime preempted by federal law or a federal crime the feds (both under Trump and under Biden) actively declined to charge (perhaps because a previous presidential candidate skated, in a somewhat similar case).
If you're going to prosecute an unfortunately not-at-all marginal political candidate, it's not a time for legally innovative challenges. Now is not a time to make your public pronouncements vague, leaving out key points that are necessary to fully evaluate the charges. The entire country is judging whether these charges are legitimate and justifiable, based on what you do and say. And in these demented times, a marginal challenge is likely to *invigorate* his cause, which is not what any honest person should want now.
But a risky marginal challenge is what we seem to have here now. Perhaps because Democrats *want* to run against this guy, even. What could possibly go wrong?
Bragg is treating this like a normal case where you can swing for the fences, where if you miss it doesn't really matter because it's just nobodies who unjustly suffer. But this is not a normal case. This is not a normal plaintiff. This is the most dangerous criminal defendant in recent history, possibly much longer. You do not play games that increase the political prospects of a racist bigot who blithely roused a mob intent on political violence against *not even* his opponents but against the very structure of government and sat back and watched them with rapt attention rather than stop them.
But instead we have one morally small man taking on a morally much smaller man. It's a pity they can't both lose.
(And all this is before even counting that the underlying matter is -- deliberately putting it exactly as crudely as it is -- a man cheating on his wife by banging porn stars while his wife is at home with their months-old son, then trying to pay one off to keep her quiet. That *alone* should have been enough for everyone to reject him and to not act to improve his political chances. But in this dementedly partisan time, to say so is to invite accusations that you're aligned with the party that opposes him, or to rejoice that you're making your opponents do self-destructive things. Nobody actually cares about this country any more.)