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It's a Matter of When, Not If Trump is Indicted
This was the wild week that wasn’t. According to former President Donald Trump (via Truth Social, an app used for purchasing high-end toilets), he was going to be arrested on Tuesday, March 21st and arraigned in Manhattan. Tuesday came and went, then Wednesday came and went, and now we are heading into the weekend without a single picture of Donald Trump in handcuffs. Is Donny Trumpet finally getting arrested?
I’m sure a lot of people were feeling a little disappointed by how this week unfolded, but if these events show us anything, it’s that the one person not to trust in all of this is Donald Trump (who - unless he had a surrender agreement - would have no knowledge of when he’s going to be arrested).
That is a somewhat veiled way of saying that the majority of the leaks that we’re seeing from this investigation are probably coming from Trump’s team. The Manhattan District Attorney’s office isn’t as quiet as the SDNY, but they have been remarkably tight-lipped about this (take my word for it). So, to give an accurate and quick summary of everything that has been going on, I’m going to use this post to answer the following questions:
What is the quick, one paragraph summary of why Trump is being (potentially) investigated?
How strong are those charges?
Is this politically motivated?
Is Trump vulnerable to other charges?
What is even going on?
During the 2016 Election, Trump paid off a porn star with whom he previously had sex with to keep their affair under wraps. He did so through his personal attorney, Michael Cohen, who directly made the payment of $130K to the woman in question, Stormy Daniels. Trump later reimbursed Cohen for the payment. Because the payment came from Trump personally, it was deemed a violation of Campaign finance law, as it directly benefited his campaign, was over the legal limit for a contribution, and was made illegally (Cohen did it through an LLC).
Relatively simple, right? Cohen pleaded guilty to his crime and served his time in prison, even getting out early for good behavior/COVID. And, it’s worth noting, if Trump had lost to Hillary Clinton in 2016 and returned to being a private citizen, he would have likely been indicted with Cohen back in 2018. The only thing that protected him was the Department of Justice’s inability to indict the President.
All in all, it was a pretty clear case to prosecute for the Federal government, which - we should all remember - was under the control of the Trump Administration at the time. To make it even clearer, Trump was named as an un-indicted co-conspirator in a Federal crime by his own Department of Justice. Pretty wild.
How strong are the charges?
So, two weeks ago I called the charges being brought by Manhattan’s District Attorney, Alvin Bragg, the “bankiest of bank shots.” And while it is centered on the summary I gave above, it seems like there is a little bit more behind it. I would say based on the new reporting we’ve seen, I jumped the gun a little.
Bragg’s investigation does center on the old case involving Michael Cohen, but it has taken on new life. I think a lot of people assumed that Bragg would be taking the somewhat stale charges against Cohen and then attempt to shoehorn them into some sort of relevant State charge (Bragg cannot prosecute Trump for Federal crimes). That is sort of true, but it isn’t related to some weird New York State law about campaign finance violations. What many of us forget is that Bragg successfully prosecuted the Trump Organization in a tax fraud scheme, during which he had full access to the company’s financial records. It feels like that happened ages ago, but the trial only concluded in December of 2022.
Immediately after that (and this was overlooked by many people, including your humble fabulous), Bragg began the investigation into Cohen’s payments to Stormy Daniels and even brought in an outside prosecutor to help with the investigation. Here is The New York Times from December 6, 2022:
The verdict carries limited financial repercussions and will not directly threaten to imperil Mr. Trump’s company. But the conviction, and the prosecution’s explosive claim in closing arguments that Mr. Trump had been “explicitly sanctioning tax fraud,” could reverberate through his nascent 2024 presidential campaign, providing fodder for political opponents.
It is also expected to embolden Mr. Bragg as he intensifies his broader criminal investigation into Mr. Trump, which focuses both on his business practices and on hush money paid to a porn star who has said she had an affair with him, according to people with knowledge of the matter. Mr. Bragg came under fire earlier this year after he declined to seek an indictment of Mr. Trump.
All of the above is my emphasis. Part of what has led to the wrong impression of Bragg’s case is that there are so few public details about what he’s investigating. It sounds to me like Bragg wanted to start with an investigation into Trump’s company, get his CFO on the government’s side, and build a case against Trump from there. If you think about it, that is very much the way a more “modern” prosecutor would conduct their case, rather than rely on a witness like Michael Cohen. And let’s not forget: Bragg also was part of the team that exposed Trump’s charity organization as a fraud and shut it down.
Why is Alvin Bragg so mean to Donald Trump?
The GOP criticism of Bragg’s actions has been somewhat predictable: Bragg is a District Attorney in a big, Democratic city, and of course he has it out for Trump. I am sure that Bragg does not like Donald Trump, and generally feels the way about him that every other Democrat does. But I think there are a few strong marks against this being political, while accepting that it is impossible to take politics out of this.
Bragg was reluctant to bring a case against Donald Trump.
This is undeniably true. In fact, when Bragg declined to bring charges against Trump last year, two guys who were hired as outside counsel (that I have mentioned before) resigned from their positions. Bragg immediately caught heat from those on the Left:
Seriously, go through Twitter from around this time last year and you will find a lot of hate on the Left for Bragg. On the flip side, I don’t have to tell you that conservatives now feel very differently about Bragg than they did last year:
Long story short: Everyone has been mad about Bragg for either being too aggressive or too weak. That is not a bad spot to be in if you’re trying to argue you are neutrally applying the law (and it could still be true that Bragg is being overly aggressive with Trump).
A prosecution of Trump would be consistent with New York criminal procedure.
There has been a lot of spilled ink on how Bragg’s charges are “weak” and the “least serious” considering he is being targeted in four other investigations (see below). It should be stated, off the bat, that just because a case “feels” weak doesn’t mean that it shouldn’t be prosecuted. Just looking at the available facts, it is unfair to prosecute a low-level goon (Cohen) and not the principal of the crime (Trump). But Just Security has a good summary of cases where New York has prosecuted tax fraud cases (which it looks like Bragg is going for) and just applying the law neutrally would mean that Trump should be indicted:
A core crime that the Manhattan District Attorney will likely include in an indictment of former President Donald Trump is “falsifying business records in the first degree,” a felony under New York State law (N.Y. Penal Code § 175.10). Prosecutors and indeed all of us are compelled by the rule of law to consider how such a charge compares to past prosecutions. Are like cases being treated alike?
Here it appears they are. Prosecution of falsifying business records in the first degree is commonplace and has been used by New York district attorneys’ offices to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized. We reach this conclusion after surveying the past decade and a half of criminal cases across all the New York district attorneys’ offices.
They have a long list of cases in a PDF, but by my count it is roughly sixteen cases since just 2017. At some point, Trump’s defenders should be asked: When does it become political not to prosecute someone who has obviously committed a crime?
What about the other investigations?
It is true that Trump faces four other investigations:
The Georgia election fraud case (they may be the next ones to indict Trump).
The Mar-A-Lago documents investigation.
The January 6th investigation (may be combined with the Mar-A-Lago investigation).
Tax fraud in New York State (may become superfluous depending on Bragg’s investigation).
This doesn’t include the civil case he is facing from E. Jean Carroll either (who will be very interested in getting some sort of DNA from Trump if he is booked in Manhattan). So, just from the law of percentages (is there a law of percentages?), if any other person were facing this many criminal investigations, you would bet on at least one of them panning out.
Does this mean these investigations will keep Trump from running for President? I think the easy answer to that question is, “No, you big silly goose.” In fact, I think the reason Trump announced his candidacy so early was to head-off these investigations. You see him using that defense (“How can they investigate a Presidential candidate?!”), but you also see other Republicans using it as well.
I also don’t think it is has ever been more clear that Trump is best-positioned to win the GOP nomination. He is now leading DeSantis in basically every poll, which should trouble the latter since it all comes after Trump has actively been attacking Meatball Ron™.
Another thing to consider is that a trial - at least in Bragg’s case - is going to take a long time to get underway, and it may not actually result in serious jail time. The biggest one of these cases that is a threat to Trump is the January 6th investigation, and charges there aren’t expected until the Summer, at the earliest.
All in all, if anyone is waiting for these cases to bring Trump down, they will be waiting a long time. He is 100% a Presidential nominee and a serious contender for the Presidency in 2024. Does it help Trump within the GOP primary if he is indicted? My gut tells me it does, but in a general election it effectively kills his chances, even against a weaker Joe Biden.
Hillary Clinton lost in 2016 just because of the specter of an “email investigation” that was deemed criminal by her opponents. And while Clinton’s team blamed the media for overhyping the scandal (a fair criticism, given what we know now), it was also Hillary Clinton’s choice to use a private server. No one forced her to do it.
So, I want to close with this, which is related: No one is forcing the GOP to defend Trump. All of his potential Primary opponents have made some sort of comment defending him, or half-heartedly defending him. House Republicans are trying to interfere with Bragg’s investigation, which is just a wild abuse of power that probably deserves a separate Jackal (try to imagine the reaction if the Senate went after the U.S. attorney investigating Hunter Biden).
Republicans also could have avoided this very scenario (having to deal with Donald Trump doing his best O.J. Simpson impression during a GOP Primary) had they voted to convict him during his impeachment in 2021. It would have barred him from running for President, leaving them to peacefully fawn over Ron DeSantis instead of trying to thread a needle with one of Trump’s butt hairs, which is what’s happening now.
I have zero sympathy. Republicans have rejected every off-ramp that Democrats have tried to give them and instead repeatedly go out of their way to say over and over again that they love Donald Trump and want him to be the leader of their Party. If you believe otherwise, you are LARPING:
Guess who is getting it right though? I’ll give you one hint!
See everyone next week, at which point, we could be talking about Trump’s indictment.