Is there anything worse these days than being a progressive prosecutor? Last June, San Francisco voted overwhelmingly to recall progressive prosecutor Chesa Boudin. Boudin sought to reform the city’s criminal justice system.
Boudin had promised to hold police accountable and end harsh sentencing that fueled mass incarceration. Instead, when street crime, drugs and hate crimes against Asian-
Americans spiked, liberal San Francisco voted Boudin out of office.
Then there is Alvin Bragg, the newly elected district attorney in Manhattan. New York has no recall procedure, as exists in California, but Bragg has been taking it on the chin.
No sooner had he taken office than he issued a “day one” memorandum. In the memo, he instructed his prosecutors to stop prosecuting low-level crimes and ask judges for jail or prison time only for the most serious offenses – including murder, sexual assault and economic crimes involving vast sums of money – unless the law required them to do otherwise.
The Bragg memo, until it was quickly withdrawn, evoked a firestorm of criticism from the already demoralized New York City Police Department (NYPD), the mayor and the governor seeking reelection. It appeared that the document had lacked internal vetting and had disregarded the political realities of rising crime in New York.
In his recent statewide gubernatorial campaign, Republican Lee Zeldin had his own day one memorandum. He vowed, if elected, to remove Bragg for refusing to enforce the law. Zeldin attracted attention in the state but didn’t win.
The outlook continued to be bleak for Bragg. Following the rubbishing of his grotesque memo, he suspended last February further investigation of possible financial fraud and tax evasion charges against former President Trump. Bragg’s predecessor, Cyrus Vance, had kicked over the hot potato without obtaining an indictment. With Bragg’s demurrer, the possibility that Trump would elude the state criminal dragnet in New York County triggered resignation of the two prominent assistant district attorneys who were working the case.
Bragg did indict the Trump Organization (but not Trump) for financial and tax fraud from which Trump benefited, and that trial is in its final stages. The star witness in the case is Trump’s numbers guy, Allen Weisselberg, who pleaded guilty to 15 counts of tax fraud. Weisselberg may hold the key to the safe. His plea deal fixed his term of imprisonment at five months, but he has exposure to new charges, such as insurance fraud. If charged anew, Weisselberg could again accomplish a plea deal, and turn state’s evidence against Trump in a new case.
The potential new criminal charges against Trump in New York County are straightforward. Remember porn actress Stormy Daniels? Trump’s fixer lawyer Michael Cohen went to jail for a secret $130,000 hush money payment he made to Daniels in 2016. The payment was papered up as a legal fee and not reported on filed federal election forms as a campaign contribution.
The payment, Daniels said, was to buy her silence about an alleged affair she graphically described with Trump. She claimed the affair had taken place in 2006.
Is an under-the-table payment to a candidate’s mistress in 2016 over an alleged sexual liaison in 2006 too much of a stale and ancient claim to be barred by the five-year statute of limitations in New York? Not a problem. Periods not included are any period following the commission of an offense during which the defendant was continuously outside the state of New York. Last I checked, Trump was largely in Washington and elsewhere for the period 2017 to 2021, and at Mar-a-Lago most of the time from 2021 on, and no one is above the law.
Now, there is nothing illegal about having a meretricious affair, and there is nothing illegal about paying one’s sexual partner to keep things quiet. But no one, particularly a candidate for the highest office in the land, wants talk of an affair to be bruited about.
The presidential election of 1884 centered on the issue of corruption. The Democrats assailed the Republican candidate, James G. Blaine, charging that he had wrongfully profited while in Congress from railroad-road interests with the ditty: “Blaine! Blaine!
James G. Blaine! Continental liar from the State of Maine!”
In response, the Republicans unveiled the accusation that Democrat Grover Cleveland was said to have sired a child out of wedlock. The Republican counter slogan was: “Ma, ma where’s my pa?” When Cleveland defeated Blaine, the Democrats added: Gone to the White House, ha, ha ha!”
But morality aside, the payment to Daniels may be criminal. Under New York law, prosecutors need to prove that the falsity of the business records was intended to cover up another crime. Vance had concluded that the payment only covered up a federal election crime not a New York state crime.
But, under New York law, the federal felony need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must have “essential similarity.”
The cover up of the federal crime has an “essential similarity” to a criminal violation of the New York penal law, and this is the precise question Bragg is reportedly pondering.
Offering a false instrument for filing with a public office is a crime in New York. Trump married Melania in 2005. And adultery is still a crime in New York. But it is not a crime in California. Daniels claimed that she had sex with Trump in the Beverly Hills Hotel.
Fulton County District Attorney Fami Ellis may be slow to charge Trump with election crimes in Georgia. Attorney General Merrick Garland may be too tentative to charge Trump with a seditious conspiracy arising from the events of Jan. 6 or a violation of the Espionage Act for mishandling the Mar-a-Lago documents — at least not without the fig leaf of a special counsel.
Last month, Bloomberg reported that Justice Department prosecutors believed they had amassed sufficient evidence to charge the former president with obstruction of justice arising from the Mar-a-Lago documents. However, they had yet to recommend as much to Garland. The New York Times reported that a security camera caught a long-serving Trump staffer moving boxes after the subpoena demanding the return of all classified documents. The Washington Post piled on with the statement that a Trump employee told investigators that documents were moved at Trump’s explicit direction post-subpoena. But with the goal line in sight, Garland appointed a special counsel anyway.
Alvin Bragg can redeem himself and go down in history as a prosecutor for the ages, leaving Garland and Ellis trailing in the dust. He may be the first to charge Donald Trump, a former President of the United States, with a criminal violation, the falsely characterized payment of $130,000 to a porn actress named Stormy Daniels.
James D. Zirin is a former federal prosecutor in the Southern District of New York.