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April 05, 2023

Andrew McCarthy: This "Indictment" Does Not Even Contain an Actual Indictment

Even the National Review softcocks object to this latest brutalization of the law and our Democratic Norms by the party they softly support.

Andrew McCarthy:

What a disgrace. It's always possible to be surprised. The indictment brought by Manhattan's elected Democratic district attorney Alvin Bragg against Donald Trump is even worse than I'd imagined.

Bragg's indictment fails to state a crime. Not once . . . but 34 times. On that ground alone, the case should be dismissed -- before one ever gets to the facts that the statute of limitations has lapsed and that Bragg has no jurisdiction to enforce federal law (if that's what he's trying to do, which remains murky).

Bragg's indictment charges 34 counts, just as we said it would, based on media reporting that clearly came from illegal leaks of grand-jury information -- a crime, you can be sure, that goes in the overflowing bucket of serious offenses that Bragg refuses to prosecute.

The 34 counts are arrived at by taking what is a single course of conduct and absurdly slicing it into parts, each one of which is charged as a separate felony carrying its own potential four-year prison term.

Trump reimbursed Michael Cohen in monthly installments during 2017 for the $130,000 paid to porn star Stormy Daniels right before the 2016 election for her silence about an alleged affair. That, in reality, is a single transaction: Trump paying back a debt to Cohen. Yet, because Trump paid in installments and each installment includes an invoice from Cohen, a bookkeeping entry by the Trump Organization, and a payment to Cohen by check, Bragg not only charges each monthly installment separately; he subdivides the installments into installments (as if the invoice, book entry, and check were independent criminal events). Voilà, one transaction becomes 34 felonies!

As I observed a few days ago, this is exactly the sort of abusive behavior that rogue prosecutors engage in, and thus that the Justice Department admonishes federal prosecutors to avoid. Here -- from the Manhattan DA's office that the legendary lawman Robert Morgenthau led for 34 years, no less -- we now have as egregious an example of this low tactic as one can find. In a real prosecutor's office, the district attorney is the adult who makes sure his inexperienced young subordinates don't abuse their enormous power this way. In the Manhattan DA's office, Bragg is the exemplar of abuse.

Alvin Bragg commits an even greater abuse: He has indicted a man while refusing to say, 34 times out of 34, what crime the man is being indicted for.

He's concealing this because, if he specified that he's attempting to enforce federal election law, the case would be dismissed instantly: A state prosecutor has no power to enforce federal law. (Not to mention, the FEC already looked at the Stormy Daniels payment and decided that no law had been violated, bringing up the doctrine of federal preemption: the state cannot rule in an area a competent federal body has already decided.)

So instead of admitting what law he is pretending to be prosecuting, Alvin Bragg just says, literally, "the law doesn't require me to disclose what law I'm claiming was violated, so I'm not disclosing that."

The worst due-process abuse of Bragg's indictment, however, is that . . . it's not an indictment. The Constitution's Fifth Amendment guarantees that Americans may not be accused of a serious crime -- essentially, a felony -- absent an indictment approved by a grand jury. The indictment has two purposes. First, it must put the defendant on notice of exactly what crime has been charged so that he may prepare his defense. Second, the indictment sets the parameters for the defendant's closely related right to double-jeopardy protection, also set forth in the Fifth Amendment. That is, by stating the crime charged, the indictment enables the defendant to claim a double-jeopardy violation if the prosecutor attempts to try him a second time on the same offense.

Here, the indictment fails to say what the crime is. Bragg says he is charging Trump with felony falsification of records, under Section 175.10 of New York's penal code. To establish that offense, Bragg must prove beyond a reasonable doubt that Trump caused a false entry to be made in his business records, and did so with an intent to defraud that specifically included 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. If any prosecutor were ever daft enough in the future to accuse Trump of falsifying records to conceal, say, a federal campaign-finance crime, Bragg's indictment would be useless for double-jeopardy purposes because it doesn't specify what criminal jeopardy Trump is in.

We needn't speculate why Bragg is being so coy about this. He doesn't have another crime. At his press conference, be blathered about federal campaign-finance law, but he knows he lacks jurisdiction to enforce federal law. He further mumbled something about state election laws, but those -- as you might imagine -- apply to elections for state office, not the presidency. And the DA's stream of consciousness about Trump's intent to defraud tax authorities is belied by the fact that he does not accuse Trump of evading taxes -- despite having already prosecuted the Trump organization for tax evasion, a case that neither named Trump as a defendant nor cited the hush-money scheme as a source of tax crimes.

In any conspiracy case, you are required to state what crime the conspirators conspired to perform. The law is just called "conspiracy," but it always requires the prosecutor to specify what crime is being conspired. You can't have a conspiracy to commit a legal act -- that's not a conspiracy, that's just an agreement. Or a business partnership.

But Alvin Bragg, who sent out Day One memo instructing all prosecutors to no longer bring felony charges except for a handful of the crimes that make the covers of newspapers, but instead to charge them as mere misdemeanors (and plead down from there!), is now treating a misdemeanor (which Trump isn't even guilty of) as a felony by invoking a conspiracy to further a felony -- and then refusing to say what felony he's claiming was so furthered.

Soviet criminal enforcement chief Lavrenty Beria infamously said, "Show me the man and I'll show you the crime." But Alvin Bragg is going his Communist Tyrant role-model one better: "Show me the man, and I won't show you the crime -- but I'll prosecute and persecute him anyway."

The judge in this case knows this case needs to be dismissed. But he wants to inflict maximum damage on Trump and cause maximum turmoil in the party, so he scheduled the next hearing for December -- just a month before people start voting in the primaries in January.

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posted by Ace at 12:12 PM

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