Trump Trial Day Two: The mysterious 'other crime' that is not
"Everything old is new again." Whether it was Mark Twain or Winston Churchill or Jonathan Swift who popularized the adage, it’s a pithy truth that is lost on Manhattan District Attorney Alvin Bragg and his merry band of prosecutors.
On day two of their farcical case against Donald Trump, they seemed ecstatic to elicit from their first witness that an old political ploy was utilized by the former president’s surrogates in the 2016 campaign. Brace yourselves.
David Pecker, the ex-publisher of the National Enquirer, testified that his tabloid would promote positive stories about Trump and negative stories about his opponents. His scandal sheet even paid money to bury damaging tales of Trump.
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Assistant DA Joshua Steinglass clearly regarded that tidbit of information as an earth-shattering revelation of political turpitude and venality, as if no one in the history of American presidential elections had ever ventured there.
Except, you know, Thomas Jefferson, John Adams, and Alexander Hamilton, to name just a few.
Oh…and Hillary Clinton.
Consider the 1800 presidential campaign in which Hamilton penned scurrilous lies about Adams that were intended to benefit Jefferson. Our then-President Adams was fine with slander, and his acolytes returned the favor by accusing Jefferson of adultery, prostitution, and incest. The partisan pamphleteers of the day happily published the mudslinging courtesy of some campaign cash.
The public display of bitterness and covert skullduggery evolved from there and infected presidential campaigns over the next two centuries and beyond, culminating in the dirtiest trick of all perpetrated by former Secretary of State Hillary Clinton in the 2016 election. Her campaign secretly funded a phony dossier designed to smear Trump in what became known as The Russia Hoax.
Much like the current Trump case in New York, Clinton used a lawyer to funnel the money and booked it as "legal expenses." Although fined by the Federal Election Commission, she was never prosecuted. Of course not.
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Juxtapose Trump, who is now on trial for falsifying business records under an expired statute of limitations that was resuscitated somehow by attaching it to a heretofore unidentified election violation that was never charged because it doesn’t actually exist.
Confused? You should be. And so is Bragg who brought a politically motivated case by contorting the law beyond all recognition.
Bereft of authority to pursue a federal statute as the underlying crime, Assistant DA Steinglass announced Tuesday that the "other crime" was a violation of state law. To wit, a conspiracy to unlawfully promote Trump’s candidacy. Which also happens to be a mere misdemeanor that’s expired.
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So, there you have it. A lapsed misdemeanor bootstrapped to another dead misdemeanor that magically elevates it to a felony, even though it does not. Don’t forget, we’re not talking about a single charge, but 34 of them in what can only be described as a shameful display of "count stacking" that no half-decent prosecutor would ever do.
There are just a couple of teeny-weeny problems with this novel legal theory.
First, in all matters concerning campaign donations, federal law preempts state election laws. This is why Bragg’s predecessor declined to file charges against Trump, among many reasons. The 2016 contest with Clinton was, after all, a federal election. She violated election laws, but Trump did not. But he’s on trial, for reasons that have nothing to do with criminality.
Second, as a local prosecutor, Bragg is foreclosed from charging under a federal statute, even as an underlying crime. Only the feds can do that. They chose not to, principally because Trump’s payments to adult film star Stormy Daniels did not qualify as campaign expenditures under the law. In other words, there was no crime committed, regardless of the bookkeeping that occurred ex post facto.
Even the liberal New York Times has published several articles casting doubt on Bragg’s daffy legal theories. On Tuesday, it ran a blistering column written by Jed Handelsman Shugerman, a distinguished law professor at Boston University entitled, "I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake."
I couldn’t agree more.