Sat. Jun 10th, 2023


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Opinion | Why Charging Trump Is Required by the Rule of Law

5 min read

Though it may be tempting to do so, it is a mistake to assess the Manhattan district attorney’s investigation of Donald Trump by comparing its relative severity with those of myriad other crimes possibly committed by him. That is not how state and federal prosecutors will — or should — be thinking about the issue of charging Mr. Trump, or for that matter, any other defendant.

Prosecutors are trained to consider whether a case can be brought — in other words, is there proof beyond a reasonable doubt to support a conviction? They also consider whether a case should be brought — principally, is the crime one that is typically charged by the office in like circumstances? Put another way: Is bringing the charge consistent with the rule of law that requires treating likes alike?

Alvin Bragg, the Manhattan district attorney, would be well within his discretion in determining that the answer to those questions is yes and therefore supports charging Mr. Trump in connection with any crimes arising from an effort to keep Stormy Daniels from disclosing an alleged affair to the electorate before the 2016 election.

This case is just one of a few ongoing criminal investigations into Mr. Trump’s conduct — including potentially a much larger financial investigation by the Manhattan district attorney — and the hush money scheme is no doubt the least serious of the crimes. It does not involve insurrection and undermining the peaceful transfer of power fundamental to our democracy, nor the retention of highly classified documents and obstruction of a national security investigation.

But does that mean the Manhattan criminal case is an example of selective prosecution — in other words, going after a political enemy for a crime that no one else would be charged with? Not by a long shot. To begin with, Mr. Trump’s former lawyer Michael Cohen, who was instrumental in the scheme, has already pleaded guilty to a federal crime emanating from this conduct and served time for it and other crimes. Federal prosecutors told the court that Mr. Cohen “acted in coordination with and at the direction of” Mr. Trump (identified as “Individual 1”). It would be anathema to the rule of law not to prosecute the principal for the crime when a lower-level conspirator has been prosecuted.

Mr. Bragg, however, has had to pick up the slack, since federal prosecutors have not pursued such charges, for reasons that were clear under the corrupt influence of William Barr. Barr is reported to have shut down any follow-up investigation of Mr. Trump, but it remains murky as to why a criminal investigation or indictment of Mr. Trump has not been pursued under the current administration (Attorney General Merrick Garland has not explained publicly any reason for not pursuing this investigation).

As a state prosecutor, Mr. Bragg cannot bring the same federal campaign finance charge to which Mr. Cohen pleaded guilty. He has various options nonetheless. New York district attorney offices have often charged a crime of filing a false business record, both as a felony and as a misdemeanor. The crime is a clear felony if it is done with intent to aid or cover up another crime and otherwise is a misdemeanor.

This charge focuses on the means that Mr. Trump and Mr. Cohen apparently devised to carry out the alleged scheme: Mr. Cohen would arrange for the payments to Ms. Daniels; Mr. Trump would reimburse Mr. Cohen; and Mr. Cohen and Mr. Trump would cover up the true nature of the payments by recording the reimbursement as legal fees pursuant to a “retainer agreement” that the Justice Department said never existed. Because such “fees” would need to be reported by Mr. Cohen on his taxes, the Trump Organization paid Mr. Cohen substantial additional sums to pay for these taxes. Similarly, to keep the Daniels payments secret, neither Mr. Trump nor his campaign would report the payments as a campaign contribution by either Mr. Cohen or Mr. Trump.

The district attorney’s office has frequently charged people with making false business filings, often as felonies but also as misdemeanors. A common use of such a charge is when a defendant commits fraud, such as insurance or tax fraud, and in the course of that scheme creates a false business record to cover up the crime and avoid detection. As a new study co-authored by one of us shows, precedents include charging a teacher for allegedly submitting a fake Covid-19 vaccination card to the New York City Department of Education and her school principal; an auto repair store owner who failed to file proper tax forms, resulting in more than $60,000 in unpaid taxes; and a woman who fraudulently obtained store credit at a Lord & Taylor and then used that credit to purchase several items before she left the store.

While the analogy to Mr. Trump is imperfect, since paying hush money is not itself illegal, in his case the false “legal fee” records appear to have furthered and covered up New York state tax fraud (the false Cohen tax filings) and the failure to report Trump campaign contributions.

Do such potential crimes have potential defenses that will be raised and litigated by Mr. Trump if he is charged? Surely. But such charges are not outside the norm and are well within what is required by the rule of law.

In short, it is Mr. Trump who is asking for special treatment. But his former job does not and should not immunize him from the accountability that would be sought for anyone else.

Mr. Goodman and Mr. Weissmann are professors at N.Y.U. School of Law. Ryan Goodman is a co-editor in chief of the Just Security website. Andrew Weissmann was a senior prosecutor in Robert Mueller’s special counsel investigation.

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