International Criminal Court: Sauce for the Goose
March 30, 2023
How much does a mug shot mean to you?
To Alvin Bragg, it apparently means quite a lot.
All signs point to Bragg, the progressive prosecutor in Manhattan, indicting Donald Trump for his 2016 hush-money payment to Stormy Daniels.
The old Karl Marx line is that history repeats itself first as tragedy, then as farce. This historic first-ever indictment of a former president of the United States would skip straight to farce.
First, there's the tawdry and relatively trivial subject matter. Trump stands accused by his critics on the left of fomenting an insurrection to overthrow the Constitution and the criminal offense they are going to get him on stems from a dalliance with a porn star in 2006.
Then, more importantly, there's the question of the merits. Unless Bragg has something unexpected on Trump, this appears to be a prosecution in search of a legal theory.
Everything indicates that Bragg is more interested in subjecting Trump to the humiliations attendant to getting charged (turning himself in, getting fingerprinted and photographed) and the grinding distraction of defending himself against a criminal charge than the cogency of the case itself.
As The New York Times put it last week, the Bragg case "hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony."
In other words, exactly what you want to indict a former president on.
The difficulty in making a case against Trump owes to the fact that hush payments are sleazy but legal. So, the Bragg case involves the bookkeeping around the payment.
There's a reason why Bragg's predecessor, Cyrus Vance, passed on the Stormy Daniels matter. It looked like Bragg was going to pick up a broader business case against Trump instead. When the district attorney dropped that, his progressive supporters were outraged. Now, lo and behold, he has brought things full circle back to Daniels.
As president, Trump inveighed against his political enemies and demanded that they be arrested. This was shameful and disturbing stuff, although, obviously, there were no arrests.
Alvin Bragg is apparently about to do what Trump fantasized about, and what the entire left-of-center universe characterized as an abuse of power when the Republican merely mused about it.
The prospective Bragg prosecution is no different from what would happen if Sheriff Joe were still in office and somehow found a way to get an attenuated legal hook into Joe Biden. How would Democrats feel about that?
An argument in favor of Bragg's prospective move against Trump is that Trump is unique, and uniquely vulnerable to legal charges. There is something to that, but both Bill and Hillary Clinton could have been prosecuted and they weren't. Same with Richard Nixon after a Gerald Ford pardon that is now considered statesmanlike and correct by nearly everyone.
No Democrat should be sure that Biden isn't implicated in the flow of sketchy money into his family, and we already know he violated the law in his handling of classified documents.
It's not that presidents and former presidents are above the law, but the old norm of forbearance is appropriate.
We shouldn't want to conduct an experiment in what happens when a presidential candidate with an intense following, keenly attuned to potentially unfair treatment, is subjected to a nakedly political prosecution.
That said, it should be Trump's responsibility not to inflame an already incendiary situation, but he is. That, though, is another foreseeable downside of going down this route with this particular case.
Trump's enemies never gave up on the idea that the "walls are closing in," and they've decided, where they have the power, to make it a reality. Once again, they feel justified in violating norms in response to Trump's threat to norms.
As most everyone agrees, a Bragg prosecution will help Trump in the GOP nomination fight, at least initially. If he's fortunate in his enemies, the country is not.