The Little Risks in Indicting trump

I went home with the waitress, the way I always do/
How was I to know, she was with the Russians, too?/

I was gambling in Havana, I took a little risk/
Send lawyers guns and money, dad, get me out of this!
- "Lawyers Guns and Money," Warren Zevon

So we'll just get straight to the facts.

Here's what the Manhattan District Attorney filed against donald trump in court this Tuesday April 4th. It ended up as 34 separate counts of Falsifying Business Records, bumped up to felony charges linked to "other crimes" which were implied to be related either to trump's tax records or to his 2016 Presidential campaign (that a straight-up Conspiracy charge wasn't added to the indictment threw a couple of observers off).

Here's a little bit of what Emptywheel describes from what she's read:

Alvin Bragg just explained the case. The argument is that in 2015 and 2016, Michael Cohen, David Pecker, Trump, and others agreed to conduct the catch-and-kill program to help Trump win. That violated three crimes, per Bragg:

• New York State laws prohibiting the promotion of a candidate by false means
• Federal campaign finance laws
• Document falsification by American Media Inc (National Enquirer)

He alleges each invoice and check were an attempt to cover up those 2016 crimes...

There's been interest in how serious a matter this case will be for trump, considering the three other criminal investigations into his misdeeds. For some legal experts, this case is a minor thing and probably not even going to work. Ian Millhiser at Vox is worried the legal theory DA Bragg is using falls under 'dubious' at best:

The actual felony counts arise out of allegedly false entries that Trump made in various business records in order to make the payment to Daniels appear to be ordinary legal expenses paid to Cohen.

But Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.

As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York.

The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law...

And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution.

The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal...

Bragg, in other words, has built one of the most controversial and high-profile criminal cases in American history upon the most uncertain of foundations. And that foundation could crumble into dust if the courts reject his legal arguments on a genuinely ambiguous question of law...

On the other side of the legal argument, Quinta Jurecic at the Atlantic views the case as bad for trump and thinks trump's behavior from 2016 onward could establish grounds for a jury to convict: 

Bragg consistently framed the charges in his press conference as efforts to hold Trump accountable for lies to the public. The statement of facts alleges that Trump and his team set the hush-money payments in motion to better his chances in the 2016 election: “The Defendant did not want this information to become public because he was concerned about the effect it could have on his candidacy,” the district attorney writes of McDougal’s account of an affair. Trump schemed with Cohen to pay off Daniels after news broke in early October 2016 of the Access Hollywood tape, further endangering his campaign. As sketched by Bragg, this was a coordinated effort to deny American voters relevant information in advance of the election. According to the statement of facts, Trump initially suggested to Cohen “that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.”

Trump did not just purchase silence ahead of the 2016 vote. He worked while he was in office to complete the cover-up. When The Wall Street Journal first began reporting about the payments to Daniels and McDougal in 2018, Trump lied repeatedly to the American public and claimed that he had no knowledge of the matter. Before that, as Bragg sets out and as Cohen admitted in his plea deal with the Southern District of New York, Trump repaid Cohen with a series of checks in 2017, after Trump had sworn the oath of office. According to Bragg, the two finalized the arrangements for repayment in a February 2017 meeting held in the Oval Office itself.

Even Jurecic admits Bragg needs to bring more facts to establish directly how the laws were broken. But she sees enough already to think Bragg has a solid criminal case to bring against trump. She also doesn't see any of this affecting the other - more damaging - criminal cases trump faces in Georgia and Washington DC. Even if Bragg misses his shot, Fulton County DA Fani Willis and Special Counsel Jack Smith won't.

So while the Manhattan indictments are nice, we still as a nation have a ways to go before we see justice done with all of trump's sins.

John Cole at Balloon Juice said it best yesterday, and you need to read his quotes in full (this is the part that nails it):

It’s tiring because of the awful shit I am going to have to listen to like “If they can do this to Trump they can do this to anyone!!!one!!!1ELEVEN” No fucking shit. They already do this to everyone else. Are you unaware of the carceral nature of the United States? Are you unaware that every prosecutor in the country chooses to threaten accused with horrible penalties from a jury trial to get them to plead to something lesser? Are you unaware that Michael fucking Cohen did jail time for this already? Are you this blissfully fucking ignorant that the reason we are JUST NOW indicting Trump is because his money and stature and position as President shielded him from earlier prosecution? Are you unaware he was the fucking unindicted co-conspirator in the Cohen case? Trump isn’t being targeted because he is Trump. He was PROTECTED until now because he was Trump. Fucking hell...

Let justice be done.