Friday Round Up! 5/31/24

There's a reason that Trump's convictions are unprecedented. And it's not because of selective prosecution.

Of all of the lies and spin going around following the verdict, the ones making me the angriest are the ones coming from people who really should be educating and informing the public about how the law works. After all, we expect Trump and his surrogates to debase and denigrate the justice system — that’s a part of their strategy, and the hollowness of these claims are increasingly exposed as more independent and diverse actors in our system (like 12 random jurors) all come to the same conclusion of Trump’s guilt.

But there are other people who know better. I’m not going to name any names, but a particular narrative that has gained a lot of traction in the last 24 hours is one that suggests that Bragg engaged in selective prosecution by bringing this case. In particular, Bragg has been criticized for supposedly twisting the law in ways it was not meant to apply, using as evidence for this claim that the D.A.’s office has never used conspiracy to influence an election (NY PL 17-152) as the predicate crime to bump up a charge of falsification of business records to a felony. In other words, the claim is that the novelty of this legal theory ipso facto demonstrates that the case is illegitimate or somehow politically motivated. This is a logical fallacy.

If you are making a claim of selective prosecution, the burden is on you to point to other cases of people similarly situated, and who were given a pass. So let’s take a look at the universe of people in New York who:

• Were running for a federal office

• Slept with a porn star

• Entered into an agreement with the owner of a national publication to make sure this and other similar stories never came to light before their election

• Paid or caused others to pay money in furtherance of this agreement

• Arranged for the payee to submit false invoices for reimbursement disguised as payment for legal services

• Had those false invoices paid from their business and recorded in its ledgers

How many people fit this fact pattern? That’s right — ZERO. There’s a simple reason that no one else has ever been charged with this crime in this specific way, and it’s because — and stay with me here — NO ONE ELSE RUNNING FOR PRESIDENT (or any federal office) HAS EVER DONE THIS. In fact, the closest analog to these facts, John Edwards, who accepted money from others to care for his pregnant mistress during his campaign was indicted!

That comparison highlights a secondary argument made here — that this is a case that would ordinarily be brought be the feds, as in the Edwards case. But the Southern District of New York passed, which shows that the case was not meritorious…once again making the state case suspect. But the logic here is also strained. The Southern District did prosecute one of the parties for campaign finance violations under the set of facts described above — a person who served significant jail time — and entered into a non-prosecution agreement with another. I think the real question is, why did the Southern District pass on this case when it came to Trump? It seems to me that if there is any evidence of “selective prosecution,” it lies with the feds here, not with the Manhattan D.A.

It’s not uncommon for federal prosecutors to look down on state prosecutors and in particular, as somehow being out of their lane if they bring a case that the feds declined to bring. No comment. In my opinion, the only relevant questions with regard to the Manhattan D.A. are the following:

1. Were the people of New York harmed by Trump’s actions?

   1. Yes: New York, as the country’s financial capital, has an interest in protecting the integrity of business records

   2. Yes: New York voters were entitled to know what Trump was spending money on to advance his campaign, as per the FEC

2. Is what Trump did a crime in New York?

   1. Yes: New York makes it a crime to falsify business records

   2. Yes: New York makes it a crime to falsify records to conceal another crime

   3. Yes: New York makes it a crime to conspire to influence an election using unlawful means

Look, I think there can be reasonable disagreement over the strength and weight of the case (that’s why we have juries!) or on the legal, policy, or federalism issues raised by either prosecuting a former president or this theory (that’s why we have legislatures, judges, and appeals!). But discrediting and delegitimizing the work of public servants, simply based on the fact that it has never happened before, is either willfully ignorant of how extraordinary Trump’s actions are in the context of our presidential history or, quite simply, an effort at being gratuitously contrarian.

In other news, my and Renato’s podcast from last week is a bit OBE as a result of the Trump verdict (we recorded it on Wednesday night), but our analysis of the defense and prosecution’s closing do shed light on why the jury was able to find him guilty on all counts:

Articles worth reading:

• This New York Times piece about a sheriff’s deputy in Florida who fled the country for Moscow before he was indicted and now helps the Kremlin run disinformation ops (no I am not making this up!). Those who have just joined my course might enjoy this earlier post I wrote, which offers some background on Putin’s troll farm

Upcoming events:

• Zoom Office Hours, Tuesday, June 18, 2-3 p.m. EDT. We’ll discuss the latest (which may include the Supreme Court’s decision, if one ever comes, on Trump’s immunity argument). Zoom link will be sent to paid subscribers at 11 a.m. Zoom office hours are not recorded.

• Freedom Academy Book Club, Date/Time TBA (likely June/July). I’m very excited that my former CNN colleague, Jim Sciutto, will be joining us to discuss The Return of Great Powers: Russia, China, and the Next World War. I love Jim’s work and insights into national security issues and this is a discussion you won’t want to miss!

Have a great weekend!