Sham Bragg, Smith Efforts Could Still Win Against Trump

Donald Trump collects criminal indictments the way some people collect rare stamps or expensive sports memorabilia.

Unfortunately, waging a courtroom war against the government is extraordinarily expensive as Trump and his supporters have spent up to $60 million to date hiring lawyers to battle both the New York State Attorney General’s office and the United States Department of Justice — the two antagonists responsible for this blizzard of criminal charges that has put more people (lawyers, at least) to work than a Fortune 1000 company.

Given the widespread media attention lavished on these cases, some observers might believe that these indictments were truly brilliant examples of legal scholarship that could be displayed in museums to be enjoyed by future generations.

Unfortunately, closer examination offered by some of the nation’s most preeminent legal scholars suggests that these documents are little more than sludgy “lawfare” salvos being fired by Trump’s enemies to wound him in the eyes of the voting public.

The first indictment filed on April 4 by Manhattan District Attorney Alvin Bragg is a mind-numbingly repetitive 16-page 34-count slog that alleges over and over again that Trump in his various corporate and personal personas committed the crime of “falsifying business records in the first degree, in violation of Penal Law Section 175.10.”

This indictment stemmed from alleged “hush money” payments made by Trump through his former “fix it” lawyer, Michael Cohen, to a stripper to conceal an alleged extramarital affair.

Professor Alan Dershowitz characterized Bragg’s indictment as “scandalously inept” adding that “the legal contortions Bragg performed to criminalize a possibly immoral, yet perfectly legal, payoff are too convoluted to recount here.” 

Indeed, Bragg’s strategy seems to be more about damaging Trump’s public standing (and, coincidentally, his electoral prospects) with an absurdly bloated number of charges. After all, Bragg ran for office on a platform that promised to hold Donald Trump “accountable,” which is arguably a dog whistle to pursue Trump in court to the ends of the earth.

Not to be outdone in the charge stacking department, U.S. Department of Justice Special Counsel Attorney Jack Smith unveiled a 38-count indictment on June 8, which charged that Trump had unlawfully transferred classified documents to his Mar-a-Lago residence in Palm Beach, Florida, after leaving the White House.

Each of the first 31 counts describes a single separate classified document that was purportedly retained by Trump whereas the final 7 counts made various allegations regarding Trump and, in one count, his valet, having obstructed justice by concealing and withholding classified documents from government investigators.

Although Dershowitz conceded that there may be a factual basis for finding liability due to Trump’s allegedly improper storage and retention of documents, he stated that “the supposed crime itself is rather technical and relatively minor.” There is also the unresolved question as to whether Trump had declassified the documents prior to transporting them to his Florida home..

Trump and his supporters view this indictment as another example of selective prosecution because several other individuals who were never president of the United States arguably committed similar offenses but escaped the wrath of the U.S. Department of Justice.

For example, 2016 presidential candidate Hillary Clinton’s “inadvertent” deletion of thousands of emails from her private server which was apparently assisted by the “accidental” bleaching of the server by her software engineers did not result in criminal charges. Similarly, then-Vice President Joe Biden’s storage of boxes of official documents in his garage at his Delaware residence was not deemed to be sufficiently egregious to warrant further inquiry by government prosecutors — perhaps because Biden’s garage was viewed as more secure than Trump’s seaside mansion.

Smith’s most recent, comparatively svelte 4-count indictment was filed on August 1, and focuses on Trump’s alleged efforts to overturn the 2020 presidential elections. It alleges that Trump sought to defraud the United States by repeatedly claiming that the election was rigged.

It also charged Trump with impeding the certification process of the electoral vote. Finally, it accused Trump of conspiring to prevent individuals from exercising their right to vote or to have their votes counted.

This indictment was criticized by Professor Jonathan Turley for its chilling effect on free speech because it arguably criminalizes Trump’s derogatory statements about the 2020 election. Turley points out that Trump’s comments would be protected by the First Amendment even if Trump knew that the election had been lost but nevertheless continued to assert falsely that the results were fixed.

The obvious danger is that a losing candidate could be prosecuted for attempting to challenge the outcome of an election. After all, the ability of a candidate to exercise his or her legal right of grievance to contest the result of a disputed election is a cornerstone of democratic society.

If there is no right of redress, then the elections themselves become meaningless.

Smith’s indictment also charged that Trump had interfered with the certification process of the electors by assembling an alternate set of electors to go to Congress. However, there are historical precedents for Trump’s actions such as the Hayes-Tilden election of 1876 which saw two sets of electors representing the two candidates appear before Congress on behalf of their respective candidates.

Finally, there is the claim that Trump daring to contest the election outcome somehow prevented voters from casting their ballots or having their votes counted. As there were no reports of Trump surrogates throwing ballots in the trash or barring voters from the polls, this final count seems so farfetched as to be laughable.

In short, all three indictments constitute an ongoing battle with the former president that seem to lack sufficient gravitas to merit a criminal conviction. The real prize for Bragg and Smith may be to exhaust Trump’s campaign war chest and cause the public to conclude that he must be guilty of something and as such unfit to be president again.