“The moment that we are waiting for, we made it to the finale together” — those familiar words from “America’s Got Talent” — could well be the opening line for Manhattan District Attorney Alvin Bragg next week, when he is expected to unveil an indictment of former President Trump. With Trump’s reported announcement that he expects to be arrested on Tuesday, it would be a fitting curtain raiser for a case that has developed more like a television production than a criminal prosecution. Indeed, this indictment was repeatedly rejected only to be brought back by popular demand.
Trump faces serious legal threats in the ongoing Mar-a-Lago investigation. But the New York case would be easily dismissed outside of a jurisdiction like New York, where Bragg can count on highly motivated judges and jurors.
Although it may be politically popular, the case is legally pathetic. Bragg is struggling to twist state laws to effectively prosecute a federal case long ago rejected by the Justice Department against Trump over his payment of “hush money” to former stripper Stormy Daniels. In 2018 (yes, that is how long this theory has been around), I wrote how difficult such a federal case would be under existing election laws. Now, six years later, the same theory may be shoehorned into a state claim.
It is extremely difficult to show that paying money to cover up an embarrassing affair was done for election purposes as opposed to an array of obvious other reasons, from protecting a celebrity’s reputation to preserving a marriage. That was demonstrated by the failed federal prosecution of former presidential candidate John Edwards on a much stronger charge of using campaign funds to cover up an affair.
In this case, Trump reportedly paid Daniels $130,000 in the fall of 2016 to cut off or at least reduce any public scandal. The Southern District of New York’s U.S. Attorney’s office had no love lost for Trump, pursuing him and his associates in myriad investigations, but it ultimately rejected a prosecution based on the election law violations. It was not alone: The Federal Election Commission chair also expressed doubts about the theory.
Prosecutors working under Bragg’s predecessor, Cyrus Vance Jr., also reportedly rejected the viability of using a New York law to effectively charge a federal offense.
More importantly, Bragg himself previously expressed doubts about the case, effectively shutting it down soon after he took office. The two lead prosecutors, Carey R. Dunne and Mark F. Pomerantz, resigned in protest. Pomerantz launched a very public campaign against Bragg’s decision, including commenting on a still-pending investigation. He made it clear that Trump was guilty in his mind, even though his former office was still undecided and the grand jury investigation was ongoing.
Pomerantz then did something that shocked many of us as highly unprofessional and improper: Over Bragg’s objection that he was undermining any possible prosecution, Pomerantz published a book detailing the case against an individual who was not charged, let alone convicted.
He was, of course, an instant success in the media that have spent years highlighting a dozen different criminal theories that were never charged against Trump. Pomerantz followed the time-tested combination for success — link Trump to any alleged crime and convey absolute certainty of guilt. For cable TV shows, it was like a heroin hit for an audience in a long agonizing withdrawal.
And the campaign worked. Bragg caved, and “America’s Got Trump” apparently will air after all.
However, before 12 jurors can vote, Bragg still has to get beyond a series of glaring problems which could raise serious appellate challenges later.
While we still do not know the specific state charges in the anticipated indictment, the most-discussed would fall under Section 175 for falsifying business records, based on the claim that Trump used legal expenses to conceal the alleged hush-payments that were supposedly used to violate federal election laws. While some legal experts have insisted such concealment is clearly a criminal matter that must be charged, they were conspicuously silent when Hillary Clinton faced a not-dissimilar campaign-finance allegation.
Last year, the Federal Election Commission fined the Clinton campaign for funding the Steele dossier as a legal expense. The campaign had previously denied funding the dossier, which was used to push false Russia collusion claims against Trump in 2016, and it buried the funding in the campaign’s legal budget. Yet, there was no hue and cry for this type of prosecution in Washington or New York.
A Section 175 charge would normally be a misdemeanor. The only way to convert it into a Class E felony requires a showing that the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” That other crime would appear to be the federal election violations which the Justice Department previously declined to charge.
The linkage to a federal offense is critical for another reason: Bragg’s office ran out of time to prosecute this as a misdemeanor years ago; the statute of limitations is two years. Even if he shows this is a viable felony charge, the longer five-year limitation could be hard to establish.
Of course, none of these legalistic problems will be relevant in the coming frenzy. It will be a case that is nothing if not entertaining, one to which you can bring your popcorn — so long as you leave your principles behind.
Indeed, some will view it as poetic justice for this former reality-TV host to be tried like a televised talent show. However, the damage to the legal system is immense whenever political pressure overwhelms prosecutorial judgment. The criminal justice system can be a terrible weapon when used for political purposes, an all-too-familiar spectacle in countries where political foes can be targeted by the party in power.
None of this means Trump is blameless or should not be charged in other cases. However, we seem to be on the verge of watching a prosecution by plebiscite in this case. The season opener of “America’s Got Trump” might be a guaranteed hit with its New York audience — but it should be a flop as a prosecution.
Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.