Columns, Criminal law, Politics

The Trump Indictment: Making History in the Worst Possible Way

Below is my column in Fox.com on the Trump indictment. There is a report of 34 counts against former President Donald Trump, which may be count stacking based on individual payments or documents. We will have to wait to see. In the meantime, the prosecution came about in the most overtly political way from Bragg campaigning on charging Trump to a public pressure campaign to indict from his former lead prosecutor.

Here is the column:

Manhattan District Attorney Alvin Bragg has finally made history. He has indicted former President Donald Trump as part of an investigation, possibly for hush money payments. We are all waiting to see the text of the indictment to confirm the basis for this unprecedented act. But history in this case — and in this country — is not on Bragg’s side.

The only crime that has been discussed in this case is an unprecedented attempt to revive a misdemeanor for falsifying business documents that expired years ago. If that is still the basis of Thursday’s indictment, Bragg could not have raised a weaker basis to prosecute a former president. If reports are accurate, he may attempt to “bootstrap” the misdemeanor into a felony (and longer statute of limitations) by alleging an effort to evade federal election charges.

While Trump will be the first former president indicted, he will not be the last if that is the standard for prosecution.

It is still hard to believe that Bragg would primarily proceed on such a basis. There have been no other crimes discussed over months, but we will have to wait to read the indictment to confirm the grounds.

What we do know is the checkered history leading to this moment.

The Justice Department itself declined to prosecute the federal election claim against Trump. There was ample reason to decline.

The Justice Department went down this road before and it did not go well. They tried to prosecute former Democratic presidential candidate John Edwards on stronger grounds (which I also criticized) and failed. In that case, campaign officials and donors were directly involved in covering up an affair that produced a child.

At the time, Edwards’ wife was suffering from cancer. The prosecution still collapsed. The reason is that you need to show the sole purpose for paying hush money in such a scandal. For any married man, let alone a celebrity, there are various reasons to want to bury a sexual scandal.

For Trump, there was an upcoming election but he was also a married man allegedly involved in an affair with a porn star. He was also a television celebrity who is subject to the standard “morals clause” that’s triggered by criminal conduct or conduct that brings “public disrepute, scandal, or embarrassment.” These clauses are written broadly to protect the news organizations and their “brand.”

Various presidents from Warren Harding to Bill Clinton have been involved in efforts to hush up affairs. They also had different reasons for burying such scandals, including politics. However, scandals are messy matters with a complex set of motivations. Showing that Trump only acted with the future election in mind — rather than his current marriage or television contracts — is implausible. That was likely the same calculus made by the Justice Department.

That is also why the use of the “bootstrapping” theory as the primary charge would be an indictment of the prosecution and its own conduct. The office has already been tarnished by the conduct of the prosecutors who pushed this theory.

When Bragg initially balked at this theory and stopped the investigation, two prosecutors, Carey R. Dunne and Mark F. Pomerantz, resigned from the Manhattan DA’s office. Pomerantz then did something that some of us view as a highly unprofessional and improper act. He published a book on the case against Trump — a person who was still under investigation and not charged, let alone convicted, of any crime.

It worked. Bragg ran on his pledge to bag Trump and Pomerantz ramped up the political base to demand an indictment for a crime. It really did not matter what that crime might be.

While other crimes have not been discussed in leaks or coverage for months, it is always possible that Bragg charged Trump on something other than the state/federal hybrid issue in his indictment. There could be other business or tax record charges linked to banks or taxes. Ironically, the bank and tax fraud issues were also a focus of the Justice Department, which again did not charge on those theories. Moreover, Bragg could face the same statute of limitation concerns on some of the issues previously investigated by the Justice Department.

Finally, Bragg could stack multiple falsification claims to ramp up the indictment. There are reports of 34 counts of business record falsification. But multiplying a flawed theory 34 times does not make it 34 times stronger. Serial repetition is no substitute for viable criminal charges.

Bragg could have something more than the anemic bootstrapping theory — and it would be more defensible. Conversely, if Bragg moves primarily on that theory, the Democrats are inviting a race to the bottom in political prosecutions. That is something that we have been able to largely avoid in this country.

Bragg had a choice to make. He cannot be the defender of the rule of law if he is using the legal process for political purposes. That is what would be involved in a formal accusation based largely on the bootstrap theory. The underlying misdemeanor could pale in comparison to the means being used to prosecute it.

We have already watched the unseemly display of Bragg’s former lead prosecutor in publishing a book and publicly calling for charges during an ongoing investigation. Proceeding solely on the bootstrap theory would be a singularly ignoble moment for the Manhattan District Attorney.

What is clear is that whatever comes out of that gate next week, it will not just be Trump who will face the judgment of history.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

371 thoughts on “The Trump Indictment: Making History in the Worst Possible Way”

      1. “Unfortunately, there are some sexual sickos on both sides of the aisle.”

        That is true, but for the most part those on the liberal side flock to them, while those on the conservative side keep their distance.

        1. Mr. Meyer don’t give the spinner an inch – it’s not even close – he will support grabbing your children and chopping off their private parts without your permission – that’s the demo party platform…. DO NOT GIVE THEM AN INCH THEY ARE LIARS

      2. “Friday found Anton “Tony” Lazzaro guilty of seven federal counts involving girls ages 15 and 16 in 2020, when he was 30 years old. ”
        LOL
        oh boy…. appears quite a lot different than a pedo downloading 2000+ including baby pics
        “He was accused of plying petite young girls with cash, liquor and gifts TWO YEARS AGO …”

        In other words, it is not clear he even knew they were underage…. so it’s not the same thing, and he isn’t a top GOP he’s a nobody has ever heard of

      3. the DNC high powered lawyer right now suing Trump…. for the DNC
        “They (FBI) discovered Dolce actively downloading child pornography using peer-2-peer software. Nearly 2000 images and videos of child pornography were recovered from his devices.”

        Soon the DNC will declare AGAIN, with nambla and all their woke striders that pedo is real good and not illegal , and let’s face it they are declaring it right now anyway with their porno shows for everyone else’s children and their chopping off kids gentials for their own amusement

  2. Hillary (aka Jezebel) and her destroyed and subpoenaed classified docs is clearly and in every way above the law. In others, fairness doesn’t exist. Hell is warming up. Aquinas offered 5 prods for the existence of God using only science and philosophy. Have at it lefties!

  4. “But history in this case . . . is not on Bragg’s side.” (JT)

    During the French Revolution, the Reign of Terror’s most powerful weapon was the Revolutionary Tribunals. They “were politically-motivated courts charged with” criminalizing and punishing dissidents. “The Revolutionary Tribunal of Paris, led by the notorious public prosecutor Antoine Fouquier-Tinville, was the most prolific organ of the Terror, sending more than 2,700 people to their deaths, sometimes as many as 30 in a single day.”

    “As the Terror intensified, and the cases heard by Revolutionary Tribunals became more political, they began to override or abandon legal procedures. [. . .] Many of their hearings were little more than show trials, conducted without any regard for evidence, fairness or the rights of the defendant.” The Tribunals’ motto, said Danton, was: “Let us be terrible.”

    So actually, “in this case,” history is on Bragg’s side. If that side is the Reign of Terror. For in principle, Bragg is our Fouquier-Tinville.

    (https://alphahistory.com/frenchrevolution/revolutionary-tribunals/)

  5. Rueters March 31, 2019 10:35 am EST

    New York District Attorney Alvin Braggg announced today that he expects to convict former President Donald J. Trump at the conclusion of the trial. “Nobody is above the law,” Braggg stated, “particularly the nonexistent laws that we create under our esteemed two-tier system of justice.” Bragg, however, continues to maintain that “none of our charges are politically motivated at any level.”

    In fact, in a surprise turn of events, Bragg stated that he even indicted himself today for his own violations of election laws. “Let’s face it, I’m basically diverting federal, state, and local public funds to make contributions to the Democrat National Committee and to President Biden through my clever schemes, without reporting the theft of public funds for the purpose of advancing our political agenda, and should be prosecuted for these crimes” Braggg admitted when questioned about the wisdom of pursuing the case against Trump.

    However, Rueters found that shortly after Braggg filed his indictment charges against himself, he dropped them. When asked about this, Braggg responded, “I cannot in good conscience indict myself. After all, to indict myself, I would have to be a racist, and I would never condone racism.”

    2. Trump is a knucklehead. I do not hate or love him. I like some things about him and dislike others.
      But, face it. Trump brings many hardships on himself. If he didn’t make statements referring to grabbing women’s privates, if he didn’t engage in childish arguments online, if he had opened his home to officials who were looking for secret documents, if he had been more careful in what he uttered to a crowd already fired up to take aggressive measures against the government, if he had better manners and refused to shoot off his enormous mouth, some of his troubles would not be.
      He’s his own mortal enemy.

      1. Tom, this requires a response.

        “refering to grabbing womens private parts”
        A private conversation. Something all most all people partake in.

        ‘”engage in childish arguments online,”
        Well, here we all are at this blog. I can go back through Obama’s social accounts and claim the same.

        ” if he had opened his home to officials who were looking for secret documents,”
        Yes, that is exactly what the President did. Trump, Like every single President for a century, negotiated with the NA about Presidential documents, vs personal documents. Trump did invite the NA into his home and released some of personal documents to the NA, on multiple occasions. All was good until Garland issued a search warrant….Something that has never been done to any other President. Hint: The PRA is civil, not criminal law.

        ‘”if he had been more careful in what he uttered to a crowd already fired up to take aggressive measures against the government, ”
        It is clear The President encouraged protestors to go and peacefully voice their grievances. As Capitol video is released it is clear you have been lied to by the Democrats. Because 99.9% of the protestors were peaceful.

        if he had better manners

        AND there is the real problem. Trump fought back.
        6 years of the RUSSIA, RUSSIA, RUSSIA, hoax and you think Trump should be a priest.

        As I have laid out, all your “problems” with Trump is nothing but the propaganda, fed to, you the willing, by a corrupt DC establismetn and media cabal of thieves….But you think Trump is the problem

        1. “refering to grabbing womens private parts”
          A private conversation.

          Not a conversation. An act: grabbing women’s genitals without consent. An act: kissing without consent. He’s been accused by over 2 dozen women of sexual assault, some including rape. A civil trial for one of the rape allegations starts this month.

          The PRA is civil, not criminal law.

          Obstruction is criminal, not civil law.

          1. Anonymous – the reference to “grabbing women’s private parts” was a private conversation between Trump and Billy Bush, it was not an actual videotaped act or even an allegation by anyone. So, it proves nothing. The PRA is clearly civil in nature, and without a remedy, including the right to use the FBI to seize documents. As for your statement that dozens of women have accused Trump of sexual assault, can you refer us to a source which identifies the women and their allegations?

            1. Absolutely there are allegations that he ACTED on what he described to Bush. Over 2 dozen women have alleged this: https://www.businessinsider.com/women-accused-trump-sexual-misconduct-list-2017-12?op=1 (scroll partway down to see the names and allegations)
              So drop that BS that “it was not … even an allegation by anyone.”
              And you can read the civil suit filed by E. Jean Carroll: https://www.courtlistener.com/docket/65895581/carroll-v-trump/ (see also: courtlistener.com/docket/18418220/carroll-v-trump/, which is awaiting a ruling from the appeals court)

              As for “The PRA is clearly civil in nature,” 3 crimes — including obstruction — were alleged in getting the warrant for the search.

          2. Anonymous, yah, kinda like when Bill Clinton gropped Catherine Willey’s breast.

          3. Obstruction is criminal, not civil law.
            Keeping what is yours is not obstruction.

            Trump said they girls allowed it. Never said he obliged. No one ever made such a claim.

        2. Give me something with teeth. I don’t even have to begin to think to destroy your silliness. Jimbo Carter never grabbed a… or discussed it. Nice try. Oh, of course Trump had no intentions of stirring up that crowd. No way! Fighting back? I like that about him, but he wasn’t fighting back. He’s immature, impulsive and foolish. Come on, man. I agree that libs are and will be more vile–look at the innocents Clinton abandoned to the swords of the Hutus. But, he can be a big boy and grow up and not stoop to the lowest common denominator as the POTUS.

    3. A persiflage, why not. Apart from that, the “expectation” is not absurd: Defendent is Donald J. Trump, the trial court is in New York, NY, the former president thinks that NY County Supreme Court Judge Juan Merchan hates him & later jurors will have their say.

      However, nothing is set in stone: Douglass Mackey (aka “Ricky Vaughn”) was convicted of the charge of conspiracy against the constitutional right to vote. In ’16, he advised his twitter followers to vote via “Hillary” text messages instead of waiting in line at poll stations.The verdict followed a one-week trial before US District Judge Ann M. Donnelly in Brooklyn, the jury remained deadlocked for three days.

      https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-convicted-election-interference-2016

  6. “Alan, most women don’t even know they’re pregnant at 6 weeks. Doesn’t sound like you’ve read any scientific articles on this subject.”

    No matter what icon you use, you remain the same know-nothing.

    Different states have different times. If one waits too long in one state, there is another place across the states border. At the same time, you get your choice in some states where the abortionist can kill the baby at 9 months while it comes out of the vagina. If you like dismembering babies, that is your choice.

    ” your “Real News” article about Nevada’s midterm election was way, way off with that 1.2 million ignored mail-in ballots. That number is not even close to reality.”

    Then provide the real numbers, but you can’t. You are ignorant and can’t produce anything of value, but I can.

    It looks like you have had problems with your identity on this blog so perhaps you don’t behave normally. That is expected from a person willing to dismember a full-term child exiting the vagina.

    Here is the data:

    https://publicinterestlegal.org/wp-content/uploads/2023/03/NV-2022G-Mail-Ballot-Rejects.pdf

  7. This is the elites in the uniparty shooting down the American people. How dare someone who isn’t beholden to the monied special interests ride down an escalator with no lobbyists by his side, saying he wants to run for President! How dare he, and what’s more, we’ll teach him a lesson even if he wins.

    To all American citizens who are not frothing-at-the-mouth left-wing ideologies and communists and not part of the 0.1% elite in the country: this is a punch in your face for having the temerity to vote for him.

  8. Speaking of ham sandwiches John Fetterman is coming home from hospital stay.

    1. @Independent Bob…
      Wrong!

      He’s the proverbial glass of water.
      -G

  9. Now the new mantra from the left is rule of law, rule of law, rule of law. Their definition of the rule of law is keeping the Jan 6 Shaman in solitary confinement for eleven months. The law books don’t say what the law is. They just make up the law as they go along. They are taking your freedom away bit by bit and piece by piece. It’s time to stop tucking your tail and running away. They shamed you for harming society by not wearing a mask but the real shame that you should have is in sitting at home on election day if your party affiliation is Independent or Republican. Your vote can make a difference.

    1. Saying “nobody is above the rule of law” in this situation is moronic. This is not the rule of law, but a political persecution, an imaginary crime. Everyone is above that.

  10. Alan Dershowitz Warns Alex Jones: Trump Indictment Threatens American Republic

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    Constitutional lawyer and author Alan Dershowitz issued a grave warning on the future of the American Republic as news broke of an indictment against former president Trump.

    https://banned.video/watch?id=6427454b551f0f61f7cd9634

  11. He should have acted with humility knowing his many, many sins. Had he gotten along with others from the moment he joined the RNC Presidential Primary, he would not be alone today. Lesson for all Americans: dont burn bridges with people whom you might need one day. Even Hillary knew that.

    Trump is no martyr. Just the opposite. He did this to himself.

    1. Anonymous, you are correct Hillary had her lap dogs at the FBI. Your formula for safety by a politician is to fold and lose any integrity that you may have once had. There have always been a million cowards for every one brave man. Thank you Donald Trump for standing up to the controlers.

  13. Now is a good time to indict Obama for drone striking a 16 yo American for no reason. Prosecute him!

    Now Hillary can be indicted by any county DA in the country and POS James Comey can be forced to be the star witness. Prosecute!

    let’s do it….

  14. Fellow Republicans: Don’t take the bait. They want us to react violently so they can pull another Jan 6.

    Instead, be sure to vote, vote, vote.

    But whatever you do, don’t take the bait.

  15. Peolosi should stfu, or not display her ignorance of basic law.

    Tulsi …its a republic..of laws…not people………..nor a democracy.

    Trump is the perfect example of how every norm regarding treatment of our elected officials has degraded to child like conflict.

  16. Just thinking, will this be just the first DA to prosicute a politician? Will there be others?

      1. This is different. This is nothing more than an extention of the 2 impeachments. You got a DA who won’t prosicute violent criminals in New York City but chose to prosicute an ex president for paying off an exotic dancer through his lawyer. This opens the door for more persecution/ prosicutions by the other side. What we are going to do is waste time playing legal politics instead of doing whats going to be beneficial for this country.

        1. “This is nothing more than an extention of the 2 impeachments.”

          This is nothing like an impeachment, so drop that.

          “You got a DA who won’t prosicute violent criminals in New York City”

          Can you name a violent criminal in NYC who wasn’t prosecuted?

          “but chose to prosicute an ex president for paying off an exotic dancer through his lawyer.”

          The indictment is still sealed. We do not know what the charges are. Don’t pretend to know

          1. Anonymous – you challenge Ind Bob to name a violent criminal who wasn’t prosecuted by Bragg. Although I don’t live in NYC, I remember a case of a woman who, along with her boyfriend, attacked an attendant in a store in Harlem. The boyfriend was killed and the woman and attendant were injured. Bragg failed to prosecute the woman and originally charged the attendant.

            1. Is this the attack you’re referring to? https://lawandcrime.com/high-profile/manhattan-da-drops-case-against-bodega-worker-who-killed-late-night-attacker-the-state-could-not-carry-its-burden-at-trial/
              If so, it suggests that the woman didn’t attack Alba until after Alba was already stabbing Simon. Is that what you’re saying should have been prosecuted — a woman who was trying to keep her boyfriend from being killed in a fight he started?

            2. ATS is full of cr-p. I am not a NYC resident but have a home in Midtown Manhattan that, before Covid, I frequented regularly. My visits got shorter because the leftist mayors didn’t protect those who paid the bills. I used to walk all the streets, walking to and from the theater to the southern tip of Manhattan and north into south Harlem. I seldom used public transportation and mostly walked to wherever I went. I had only one major incident, which I averted by recognizing the sound of sneakers behind me, at which time I grabbed my wife’s purse and put her on the inside without ever looking at the perpetrator. He took off to the next block in the familiar diagonal pattern.

              Today, I limit where I will go. My friends have experienced mugging, and the police don’t pursue the perpetrators. One can’t name cases because absent prosecution, they remain hidden. ATS is full of sh!t. He says things to make others do much work to prove him wrong but rarely admits he is wrong.

              Though much of the city is reasonably safe during daytime (that still means an increased risk of assault) at this time, it wasn’t due to leftist mayors. It was very much due to Rudy Giuliani’s policies that have held down a lot of crime even through today.

              Crime, however, is picking up, and much of it is not reported or recorded. The stories in the news media are frequently inaccurate. When last in the city, I limited where I went using cabs and limited the streets I walked on and the places I visited. Some areas offer a lot of protection, mine is one of them, but those who report the news live in similarly protected areas.

              My neighbor, who is also my friend, was mugged in midtown on the street in an upscale location, only to find out she was the second mugged on that street seen by the locals that day. The police did not bother to go after the mugger though it appeared many knew who it was. Other friends were accosted as well. We have gone back to a time decades ago before Giuliani when the streets weren’t safe.

              When I was younger, I was used to such problems and didn’t worry, but today my spouse and I are the targets.

              ATS is full of cr-p, and most of his citations are also. NYC is a leftist city (probably ~80%), so those with voices who have money and live in the best areas have money to pay for cabs and the like don’t feel the pain. ATS is an a$$ who, most of the time, knows little of what he talks about.

  17. @carolmswain
    Be very afraid of what the Left will do while the world is distracted by the #TrumpIndictment. It gives the FBI an excuse to focus on triggered Trump supporters rather than hate crimes perpetrated against Christians. It also interferes with the electoral process by crippling the strongest opposition candidate. #2024Elections

  18. Trump will face a gag order from the judge for sure. Meaning he won’t be able to rant away on his truth social platform and he is likely to break it and end up paying heavy fines or be banned from using social media.

    1. “Trump will face a gag order from the judge for sure. “

      You are very loose with the facts.

      “Meaning he won’t be able to rant away on his truth social platform “

      The controversy has increased the price of Truth Social stock. Trump thanks you and your friends for you stupidity in increasing his value in Truth Social to almost $1Billion.

  19. Meanwhile, back in da jungle.

    Obama, through Actual President and Biden Puppet Master “Suzy Q,” is ordering bought-and-paid-for Joke Buydem to stand down in deference to the communists and allow China to replace the U.S. dollar with the Yuan as the world’s reserve currency.

    Obama delivered the South China Sea, etc., etc., etc., on a silver platter to his heroes in the Chinese Communist Party while in office.

    Goodnight, America.

    Hello, Tin Horn Dictatorship.

  20. In other news, Dominion’s suit against Fox will go to trial on the issue of actual malice, but Dominion got a huge win today: it won summary judgment on the issue of falsity.

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