Yielding to Temptation: Why The Trump Case is a Test Not Just for the President but the Legal System

Below is my column in Fox.com on the indictment of former President Donald Trump and how this case is a test not just for Trump but the New York legal system.

Here is the column:

Oscar Wilde once said “The only way to get rid of a temptation is to yield to it. Resist it, and your soul grows sick with longing for the things it has forbidden to itself.”

With the release of the indictment of former President Donald Trump, Manhattan District Alvin Bragg has revealed himself as a follower of the Wilde school of legal thought. Bragg knew that he had no criminal case against Trump. However, after running on bagging Trump for some crime (any crime), Bragg knew that many would not care if he had a basis for a criminal charge. He would be lionized to be the first person to ever indict a former president in the blind rage against Trump.

After charging Trump with 34 counts, Bragg insisted that he will convict Trump of the “crime to promote a [political] candidacy through unlawful means.” He insists that he will prove “attempts to violate state and federal election laws.”

For months, many have raised objections to the effort of the Manhattan District Attorney to use a flawed legal theory to essentially litigate a federal election violation that the Justice Department opted not to charge. This bootstrap theory has been widely criticized, but many in the media sought to cut off that debate by suggesting that Bragg might be basing his prosecution on some unknown crime. Last week, Michael Cohen’s attorney Lanny Davis went as far to “warn all the pundits and everyone speculating…that there are lots of facts, lots of documents, lots of evidence of multiple crimes.”

We now have the indictment, and it is basically what many of us anticipated. It is a series of stacked counts of falsifying business records for the purpose of influencing the election. The indictment seems to address the lack of legal precedent with a lack of specificity on the underlying “secondary” felony. Bragg has done nothing more than replicate the same flawed theory dozens of times. This is where math and the law meet. If you multiply any number by zero, it is still zero.

If the New York bench retains any integrity, this case will be thrown out as legally improper with an admonition to Bragg and his office for politicizing the criminal justice process. That, however, may be asking a lot of state judges who are elected on both the trial and appellate levels. They also may prove to be lawyers on the Wilde side.

The cost, however, to the legal system will be immense. In a single indictment, Alvin Bragg bulldozed any high ground that the Democrats had after January 6th. He has fulfilled the narrative of the Trump campaign by supplying a raw and undeniable example of the politicization of the legal system. What is most shocking is that this attack on the rule of law was met with the rapturous applause of many, including lawyers and legal pundits. They not only will ignore the affront to the integrity of our legal system, but celebrate its demise.

Bragg himself threw a flag on the effort to indict Trump being pushed by a lawyer brought in as a special assistant district attorney for that purpose. Mark F. Pomerantz and his colleague Carey R. Dunne resigned — and their resignation letter was then leaked to an eager media. Pomerantz then took a step that floored many of us: he wrote a tell-all book based on the still ongoing investigation. However, Pomerantz admits that career prosecutors balked at his radical proposals to find a crime — any crime — to nail Trump. That included an entirely bonkers money laundering charge against Trump where he would be the victim of an extortion effort. In his book, Pomerantz admits that “many of the lawyers were relentlessly negative.” Some prosecutors were clearly so upset by his efforts that they “defected” from the team. He also admitted that Bragg told him “that the consensus among the group of prosecutors with whom he had been speaking was not to go forward.”

Despite objections from his colleagues who said he was undermining their efforts, Pomerantz published a book making the case against an individual who was not charged, let alone convicted. It was a grossly unprofessional and improper act. It also worked. Bragg caved to the overwhelming pressure that followed. If figures like Pomerantz was going to yield to temptation, why shouldn’t he?  After all, no one wants to be the last ethical lawyer when everyone else is cashing in.

I remain hopeful that there is still a modicum of judicial integrity in New York to stand against this effort. However, this is a defining moment for many who have rationalized this abuse of the criminal justice system. For those attorneys, they have reached the point described by Robert Oppenheimer after the development of the atomic bomb. He stated “In some sort of crude sense which no vulgarity, no humour, no overstatement can quite extinguish, the physicists have known sin; and this is a knowledge which they cannot lose.”

The same is true for many in our profession. While some of us have warned that Mar-a-Lago could present a serious threat to Trump, we have warned that the Bragg prosecution is the denial of the core legal principle of blind justice. This expensive, drawn out effort would not have occurred for anyone other than Donald Trump. It is not just selective prosecution, it is exclusive prosecution for Trump and Trump alone.

There is a good-faith debate over whether the President should be charged over conduct related to Mar-a-Lago and possible obstruction of justice. This is not that case. For those lawyers applauding this ignoble moment, this is our sin as a profession, and it is “knowledge which they cannot lose” in the years to come.

356 thoughts on “Yielding to Temptation: Why The Trump Case is a Test Not Just for the President but the Legal System”

  1. “If the New York bench retains any integrity, this case will be thrown out as legally improper with an admonition to Bragg….”

    Wishful thinking, Professor Turley. If it were likely, the assigned judge, apparently an active anti-Trump Democrat, would have recused himself.

  2. Professor, like most others’, your column discusses mainly the merits of “indictment of former President Donald Trump” (as it is more realistic: I would word it: Presidential Candidate).

    At the beginning, you quoted Irish writer Oscar Wilde’s Lord Henry Wotton from “The Picture of Dorian Gray”, a philosophical novel. As this criminal case (and others that will follow) targets philosophy of law/jurisprudence, in the future you could focus on how philosophers approaches legal issues. Topics such as what is purpose of criminal law, principle of (equal) justice or legal validity could be your unique selling propositions.

    Happy Easter!

    1. Trump is a regular citizen now, and our Constitution affords him no special treatment.. He’s only a self-anointed candidate to be the nominee.

  3. Trump is accused of trying to “’commit another crime or aid or conceal the commission’ of that other crime. Nowhere in the indictment does the grand jury specify what other crime Trump fraudulently endeavored to commit or conceal by falsifying his records.”

    “That is an inexcusable failure of notice. The indictment fails to alert Trump of what laws he has violated, much less how he violated them.” (Andrew McCarthy)

    So much for the Sixth Amendment:

    “. . . and to be informed of the nature and cause of the accusation . . .”

    In its urge for power, the Left is taking us back to the aristocratic, pre-Draco view of the “law.” It was a time before *written* laws that were clear and could be read by anyone. Pre-Draco, “laws” were merely oral and secret — unknown and unknowable weapons to be wielded against the opposition. Predictably, it was a brutish society of Hatfields and McCoys.

  4. “. . . bagging Trump for some crime (any crime) . . .” (JT)

    While most succumb to a pinprick, through a toxic cloud Trump keeps moving forward. His moral endurance is awe-inspiring.

  5. Democrats want to lead Us to War.
    If you can’t Beat’Em, Join Em

    Sign Up Boys! Get ready to kill Us some Russians and Chinese!
    YaHoo! ~ this is going to be a GREAT WAR!


  6. It’s a sad, sad day in America when a partisan federal prosecutor has to rely on the testimony of a disreputable convicted lawyer who testifies in a retaliatory manner against his own client, a former President. Yikes.

    1. (I should note that Braggs served as federal prosecutor before winning the Democratic primary for the Manhattan DA )

      1. Being 49 years old and spending 20 years in public service one has to wonder how he amassed a fortune worth $41 Million.

    2. It’s a sad, sad day in America when an Administration & Party (Democrats) stop at nothing to create a WAR with the World and force the Russians to re-build the Iron Curtain and raise China to become the leading World Reserve Currency (China ¥ ). They have ruined Our; Diplomatic, Economic, and Trade relations to the East, West, and South of Us. Just a matter of time until the Canadians get fed-up with Them.

    3. It’s a sad, say day in America when a pathological liar with a massive ego who knows he can’t win the popular vote because so many people find his arrogance and him repulsive, has his campaign conspire with a hostile foreign power, citizens of which he’s trying to borrow money from to keep up the front of being fabulously wealthy, cheats his way into office by strategically spreading lies about his opponent. It’s a sad, sad day in America when this person, who never even got a 50% approval rating, and who trashed a successful economy, made a public health crisis worse than it had to be causing schools, businesses and restaurants to close down for 2 years because he lied about the seriousness of a pandemic, had no idea how to lead in a crisis, and pushed phony cures, who started a trade war with China that resulted in shortages of consumer goods and computer chips, and who drove up the national debt to record levels with tax cuts mostly benefitting the wealthiest Americans. spread a lie about his “landslide victory” being “stolen by massive voter fraud”, got impeached twice and then gets his fans to start an insurrection, trashing the Capitol.

      It’s a sad, sad day when a defective and incompetent person like this hides behind the dignity and awesomeness of the Office of President that he cheated to get to try to evade crimes he committed just to help get into office, because he knew that most Americans can’t stand him and that the “unborn baby-saving” Evangelicals might not vote for him if they knew he consorted with a porn actress and nude models. It’s a sad, sad day when he throws his lawyer under the bus when his lawyer committed crimes to try to cover up the liaison with a porn actress, and then, his current lawyer lies about trying to spare his third wife’s feelings, when the cover up payment was structured such that if he lost the election (as was predicted) he could just not pay her–which proves 3d wifey’s feelings weren’t the impetus for the cover up at all. And then, when it appears he will finally be brought to justice, calls on his fans to bring about “death and destruction”. You want to call Michael Cohen “disreputable”? Wow! Lin: how much does the campaign pay you to post the slop you write?

      1. It’s a sad, say day in America when a pathological liar with a massive ego who knows he can’t win the popular vote because so many people find his arrogance and him repulsive, has his campaign conspire with a hostile foreign power, citizens of which he’s trying to borrow money from to keep up the front of being fabulously wealthy, cheats his way into office by strategically spreading lies about his opponent

        Yerah, we know what Hillary Clinton did, creating a hoax and then commissioning a fake intelligence dossier for the purpose of convincing intelligence agencies and law enforcement agencies to give the illusion of credibility to her hoax.

        Make no mistake, Hillary Clinton is an ethics corrupter.

  7. He can make that argument in court. And it will be countered with this evidence (from the SoF):
    “The Defendant directed Lawyer A to delay making a payment to Woman 2 as long as possible. He instructed Lawyer A 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. As reflected in emails and text messages between and among Lawyer A, Lawyer B, and the AMI Editor-in-Chief, Lawyer A attempted to delay making payment as long as possible.”

    1. If the goal of Defendant was to avoid disclosure before the election, why would he delay making the payment? He should have wanted to make the payment as soon as possible.

      1. ATS makes the case that it would have been legal to pay this using campaign funds because that would be something he would not want the public to find out.

        If ATS was correct (he isn’t), then candidates running for office trying to seal their embarrassing divorce records would pay their divorce attorneys from their campaign funds. That would be a ridiculous campaign expenditure that ATS agrees with.

  8. Lindsay Graham: “I’m sorry, I’m so upset, but please help President Trump”.

    The South Carolina senator made this pitch last night on Sean Hannity’s show. Graham then apologized for being choked up. But one has to note that Donald Trump is a billionaire who already raised millions from last summer’s documents case. So why is Graham begging for money on Trump’s behalf?

    1. Lindsay Graham is one of Joe Biden’s oldest and best buddies. He is not MAGA or Trump. He is a snake who is not on our side. Hopefully Trump has figured it out by now.

  9. Former President Trump will get his day in court. Didn’t Nancy Pelosi promise that he would get his day in court to prove his innocence? If we can’t believe a former Democratic Speaker of the House, who can we we believe?

    1. Anyone else on earth. Does the presumption of innocence sound familiar? It is foundational.

  10. The 14th Amendment of the U.S. Constitution prohibits anyone who has engaged in insurrection or rebellion against the United States from holding public office. As per January 6th Panel recommendations Mike Pence is now compelled to testify with the Jan. 6 Grand Jury. Pending this outcome, [Mr. President] this is the Bar from Holding Office the Democrats are looking for.

    Donald – If you’re going down, take as many of the Democrats as you can down with you. You still have many, many other ways to MAGA.
    If you survive the Jan. 6th Grand Jury, You may serve as: Senator, V.P., Sec. of State, Representative, … if You don’t, then consider LOBBYIST (K Street). Put the fear of Hell in Them, Fight Fight Fight


  11. Former VP Mike Pence won’t appeal a summons to testify for Jack Smith’s January 6th probe. Pence’s testimony could be damaging to Trump. That deposition might happen this month.

    Pence may have to describe the pressure Trump put on him to delay the 2020 vote count. And no one will be able to say that such testimony was ‘politically motivated’.

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