Tuesday Talk*: Bragg Can, But Should He?

The Michelle Dauber of prosecutorial commentators, Andrew Weissmann, has come to New York County District Attorney Alvin Bragg’s defense.

Prosecutors are trained to consider whether a case can be brought — in other words, is there proof beyond a reasonable doubt to support a conviction? They also consider whether a case should be brought — principally, is the crime one that is typically charged by the office in like circumstances? Put another way: Is bringing the charge consistent with the rule of law that requires treating likes alike?

Alvin Bragg, the Manhattan district attorney, would be well within his discretion in determining that the answer to those questions is yes and therefore supports charging Mr. Trump in connection with any crimes arising from an effort to keep Stormy Daniels from disclosing an alleged affair to the electorate before the 2016 election.

The case reflects a novel legal theory, never before tried in New York, whereupon the misdemeanor of falsifying business records is elevated to a felony by attributing its purpose to committing or concealing another crime, in this instance a federal election law violation. That may be the motive, but there are also other plausible motives having nothing to do with the election, such as concealing his infidelity (or, if you believe Trump, there was no infidelity and this was extortion) to protect his own reputation or spare his current wife humiliation.

The case doesn’t bear upon any of the multitude of wrong committed while in office. It’s the sort of crime that’s rarely prosecuted because it rarely comes onto a prosecutor’s radar, and even when it does, it’s more likely a matter for taxing authorities to address, as its only harm relates to expensing out a cost that should be taxable.

Ironically, the prosecution’s star witness in the case, Michael Cohen, may be one of the least credible or likable witnesses to ever get a free donut at One Hogan Place. Would you want to bet your prosecution on the likes of such a witness?

At worst, the crime would be a Class “E” felony, which in the ordinary scheme of things, would be pleaded down to an “A” misdemeanor and a fine or some community service as a first offense. Even if it goes to trial and results in a conviction, the felony would get probation at worst as a first offense. Usually, anyway.

But chances are pretty good that this case will never make it to trial, and will be tossed for one of a variety of reasons along the way.

And if this was anyone, anyone at all, other than Trump, would any prosecutor even be considering this prosecution? If this came after a serious indictment was brought, say in Georgia or by the feds, it would barely make a ripple in the legal puddle surrounding Trump. If it was tossed, or lost, while he was being prosecuted for something serious, it wouldn’t even be mentioned by Rachel Maddow. But if it comes first, a stand-alone indictment among the myriad crimes under investigation, it will become the national focus. Is this really the case that will take Trump down?

If you come at the king, you best not miss.

On the other side, the argument is that district attorneys prosecute “ordinary” people for the most trivial offenses all the time, and they do. They prosecute “ordinary” people for offenses with tenuous evidence, dubious theories and no socially responsible reason. Why, then, should the “ordinary” person be subject to the power of the state, even for lesser crimes, that a former president is not? Is he “above the law”?

Politically, indicting Trump will outrage his supporters and give them a rallying point, similar to what Dobbs did for the Democrats. Even worse, should the case against Trump be dismissed, or Trump be tried and acquitted by a jury, it will validate his claims of a witch hunt. Given all he’s done, is this one the witch hunt?

Is this, as Weissmann argues, required by the “rule of law,” or is this a misbegotten, desperate attempt to bring down the pariah that will be little more than a paper cut if it succeeds, but will more likely fail and serve to make Trump both stronger as well as the pathetic victim he constantly claims to be?

*Tuesday Talk rules apply, within limits.