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| Bragg -- NYPost |
Former President Donald Trump has been indicted, a Hartford paper has told us in a front page, top of the fold banner headline.
To quote Winston Churchill in a far different context: “Now,
this is not the end. It is not even the beginning of the end. But it is,
perhaps, the end of the beginning.”
Having secured from a Grand Jury an indictment, Manhattan
District Attorney Alvin Bragg must now prosecute Trump on
the charges considered by the Grand Jury. As yet, we do not know what the
charges might be. Grand juries are secretive affairs, not unlike Star Chamber
proceedings. They are prosecutorial instruments, somewhat like impeachments in
the U.S. House of Representatives.
Long ago, this writer, hoping to provoke a chuckle, wrote
that a Grand Jury properly primed by an ardent prosecutor, in the absence of
defense attorneys, might be able to return an indictment charging a watermelon
with jaywalking.
Neither impeachments in the House nor indictments by Grand
Juries are verdict findings of guilt or innocence. Generally, an impeachment in
the House – an indictment, really – is followed by a trial in the U.S. Senate
that -- weighing charges brought by partisan House Democrats in Trump’s two
impeachments -- votes for conviction or acquittal on the charges.
Trump’s two impeachments were not followed in the Senate by conviction
on House charges, and so, in a judicial system in which a trial before one’s
peers is necessary to determine the veracity of charges, Trump more or less
slipped the noose, disappointing Trump hunters, among them Alvin Bragg, who
bragged at a December, 2020 campaign forum, “I have
investigated Trump and his children and held them accountable for
their misconduct with the Trump Foundation. I know how to follow the facts and
hold people in power accountable.”
The reader will be blinking a long while before a definitive
judgment is rendered on Bragg’s charges, which first must be put to a jury,
after which there will doubtless be appeals and possibly a review by the United
States Supreme Court. Justice in the United States moves exceedingly slowly, as
does coverage by the U.S. media of the various judicial proceedings.
Trump may not be above the law, but he most certainly will
be below banner headlines for, some think, months preceeding the 2024
presidential elections – proof, some court watchers may believe, of a Democrat
conspiracy to deny Trump a fair chance at election.
The elapsed misdemeanor charge under which Trump ought to
have been prosecuted is no longer operative. But Bragg has made a federal
mountain out of an expired misdemeanor molehill by alleging that Trump violated
campaign laws that federal prosecutors had earlier declined to prosecute. Bragg’s
novel accusation and a finding of guilty as charged by a real jury is doubtful.
“At trial,” The Daily Beast remarks, “Bragg will
need Michael Cohen—Trump’s former lawyer and ‘fixer,’ who previously pleaded
guilty to charges related to his paying Stormy Daniels for her silence—to be
seen as credible by the jury, especially after the fully expected attacks on
his character and reliability from Trump’s lawyers.”
Trump’s accuser, porn star Stormy Daniels, had previously
accepted payment from Cohen as part of a contractual agreement among adults –
both Trump and Daniels are over 21 years of age -- according to which Daniels
would not divulge the alleged affair upon payment from Cohen. Trump has argued
that the alleged affair was a figment of Daniel’s imagination, Cohen’s payment
to her, not drawn from campaign funds, was simply nuisance insurance. This
erotic and entertaining mare’s next is not a simple “he said, she said”
dispute.
If Bragg is successful in his novel prosecution, politicians
throughout the United States would be trembling daily at the prospect of
politically ambitious state attorneys who could, at the drop of a hat, revive
an expired misdemeanor charge by grafting it onto a felony charge that federal
prosecutors had declined to pursue. This is unmapped prosecutorial territory
that would in in the future produce an abundance of titillating headlines --
and havoc within a judicial system occasionally at the service of powerful
politicians.
Judges tend to wrinkle their noses at novel precedents.
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