GUEST
ESSAY
I
Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think
It’s a Historic Mistake.
April 23, 2024
By Jed Handelsman Shugerman a law professor at Boston University.
About
a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former
President Donald Trump, I was critical of the case and called it an
embarrassment. I thought an array of legal problems would and should lead to
long delays in federal courts.
After
listening to Monday’s opening statement by prosecutors, I still think
the Manhattan D.A. has made a historic mistake. Their vague allegation about “a
criminal scheme to corrupt the 2016 presidential election” has me more
concerned than ever about their unprecedented use of state law and their
persistent avoidance of specifying an election crime or a valid theory of
fraud.
To
recap: Mr. Trump is accused in the case of falsifying business records. Those
are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg and his
team have pointed to potential violations of federal election law and state tax
fraud. They also cite state election law, but state statutory definitions of
“public office” seem to limit those
statutes to state and local races.
Both the misdemeanor and felony
charges require that the defendant made the false record with “intent to
defraud.” A year ago, I wondered how entirely internal business records (the
daily ledger, pay stubs and invoices) could be the basis of any fraud if they
are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s
filing an (allegedly) false report to the Federal Election Commission, and only
federal prosecutors had jurisdiction over that filing.
A
recent conversation with
Jeffrey Cohen, a friend, Boston College law professor and former prosecutor,
made me think that the case could turn out to be more legitimate than I had
originally thought. The reason has to do with those allegedly falsified
business records: Most of them were entered in early 2017, generally before Mr.
Trump filed his Federal Election Commission report that summer. Mr. Trump may
have foreseen an investigation into his campaign, leading to its financial
records. Mr. Trump may have falsely recorded these internal records before the
F.E.C. filing as consciously part of the same fraud: to create a consistent
paper trail and to hide intent to violate federal election laws, or defraud the
F.E.C.
In
short: It’s not the crime; it’s the cover-up.
Looking
at the case in this way might address concerns about state jurisdiction. In
this scenario, Mr. Trump arguably intended to deceive state investigators, too.
State investigators could find these inconsistencies and alert federal
agencies. Prosecutors could argue that New York State agencies have an interest
in detecting conspiracies to defraud federal entities; they might also have a
plausible answer to significant questions about whether New York State has
jurisdiction or whether this stretch of a state business filing law is
pre-empted by federal law.
However,
this explanation is a novel interpretation with many significant legal
problems. And none of the Manhattan D.A.’s filings or today’s opening statement
even hint at this approach.
Instead
of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory
of “election interference,” and Justice Juan Merchan described the case,
in his summary of it during jury selection, as an allegation of falsifying
business records “to conceal an agreement with others to unlawfully influence
the 2016 election.”
As a reality check, it is legal for
a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but
it is legal. The election law scholar Richard Hasen rightly observed,
“Calling it election interference actually cheapens the term and undermines the
deadly serious charges in the real election interference cases.”
In
Monday’s opening argument, the prosecutor Matthew Colangelo still evaded
specifics about what was illegal about influencing an election, but then
he claimed, “It was
election fraud, pure and simple.” None of the relevant state or federal
statutes refer to filing violations as fraud. Calling it “election fraud” is a
legal and strategic mistake, exaggerating the case and setting up the jury with
high expectations that the prosecutors cannot meet.
The
most accurate description of this criminal case is a federal campaign finance
filing violation. Without a federal violation (which the state election statute
is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies.
Moreover, it is unclear how this case would even fulfill the misdemeanor
requirement of “intent to defraud” without the federal crime.
In
stretching jurisdiction and trying a federal crime in state court, the
Manhattan D.A. is now pushing untested legal interpretations and applications.
I see three red flags raising concerns about selective prosecution upon appeal.
First,
I could find no previous case of any state prosecutor relying on the Federal
Election Campaign Act either as a direct crime or a predicate crime. Whether
state prosecutors have avoided doing so as a matter of law, norms or lack of
expertise, this novel attempt is a sign of overreach.
Second, Mr. Trump’s lawyers argued that the New York statute requires that the
predicate (underlying) crime must also be a New York crime, not a crime in
another jurisdiction. The Manhattan D.A. responded with
judicial precedents only about other criminal statutes, not the statute in this
case. In the end, they could not cite a single judicial interpretation of this
particular statute supporting their use of the statute (a plea deal and a
single jury instruction do not count).
Third,
no New York precedent has allowed an interpretation of defrauding the general
public. Legal experts have noted that such a broad “election interference” theory is
unprecedented, and a conviction based on it may not survive a state appeal.
Mr.
Trump’s legal team also undercut itself for its decisions in the past year: His
lawyers essentially put all of their eggs in the meritless basket of seeking to
move the trial to federal court, instead of seeking a federal injunction to
stop the trial entirely. If they had raised the issues of selective or
vindictive prosecution and a mix of jurisdictional, pre-emption and
constitutional claims, they could have delayed the trial past Election Day,
even if they lost at each federal stage.
Another
reason a federal crime has wound up in state court is that President Biden’s
Justice Department bent over backward not to reopen this valid case or appoint
a special counsel. Mr. Trump has tried to blame Mr. Biden for this prosecution
as the real “election interference.” The
Biden administration’s extra restraint belies this allegation and deserves more
credit.
Eight
years after the alleged crime itself, it is reasonable to ask if this is more
about Manhattan politics than New York law. This case should serve as a
cautionary tale about broader prosecutorial abuses in America — and promote
bipartisan reforms of our partisan prosecutorial system.
Nevertheless, prosecutors should
have some latitude to develop their case during trial, and maybe they will be
more careful and precise about the underlying crime, fraud and the
jurisdictional questions. Mr. Trump has received sufficient notice of the
charges, and he can raise his arguments on appeal. One important principle of “our Federalism,” in the Supreme Court’s terms, is abstention, that federal courts should generally allow
state trials to proceed first and wait to hear challenges later.
This case is still an embarrassment of prosecutorial ethics and apparent selective prosecution. Nevertheless, each side should have its day in court. If convicted, Mr. Trump can fight many other days — and perhaps win — in appellate courts. But if Monday’s opening is a preview of exaggerated allegations, imprecise legal theories and persistently unaddressed problems, the prosecutors might not win a conviction at all.
