Bragg campaigned in 2021 promising to continue trying to hold Trump “accountable,” noting that in the New York attorney general’s office he had sued Trump “more than a hundred times.” In 2023, seven years after a particular Trump misbehavior, but just in time to influence this year’s election, Bragg indicted Trump for “34” felonies. One dead misdemeanor (falsifying business records; the statute of limitations has long since expired) was resuscitated and carved into 34 slices. These were inflated into felonies by claiming they were done to facilitate a crime. (Bragg often has a progressive’s penchant for reducing felonies to misdemeanors — e.g., some first-degree robberies are now charged as petty larcenies.) Bragg says:
Trump used bookkeeping dishonesty in 2017 (about paying hush money, which is not illegal) to influence the 2016 presidential election. (A puzzling understanding of causation.) He was a candidate in the 2016 election he is accused of somehow illegitimately trying to influence. This violated a federal campaign finance law. (Enforcement of which Congress assigned to the Federal Election Commission, not to local district attorneys.)
The 12 jurors might give 12 different answers concerning what Trump is guilty of. But what sentence might Bragg advocate next month?
He is an elected prosecutor (a terrible thing; read on), with constituents to mollify — constituents mostly hostile to his defendant. (Manhattan’s vote went about 86 percent for Hillary Clinton in 2016 and for Biden in 2020.) He likely has higher political aspirations. He demonstrably seeks the limelight. So, he might be tempted to recommend incarceration.
This, even though it is obvious that no one other than Trump would have been prosecuted under Bragg’s rickety scaffolding of quasi-legal theories. And even though no first-time offender not named Trump would be imprisoned for committing a felony that, even were it plausibly concocted, ranks among the least serious (Class E) felonies. Now, note Jackson’s 1940 warning, before he became a Supreme Court justice and chief U.S. prosecutor at the Nuremberg war crimes trials.
“The prosecutor,” he said, “has more control over life, liberty, and reputation than any other person in America,” and “his discretion is tremendous.” He can have people investigated, perhaps with “veiled or unveiled” public intimations. He can order arrests, present cases to grand juries in secret sessions and secure indictments “on the basis of his one-sided presentation of the facts.” If his targets are convicted in trials, he can recommend sentences.
“While the prosecutor at his best,” Jackson said, “is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” This is why federal district attorneys have been presidential appointees, requiring Senate confirmation. This process is designed to produce executive and legislative branch expressions of confidence in prosecutors’ characters — “the spirit of fair play and decency.”
Jackson noted that federal prosecutors have “now been prohibited from engaging in political activities.” A prosecutor should have “a detached and impartial” view of those in his community because law enforcement “isn’t blind.” The prosecutor has discretion to pick their cases; therein lies their “most dangerous power.” The prosecutor should select cases “in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”
The law books, however, contain such a vast assortment of crimes, a prosecutor can pick a man “he dislikes or desires to embarrass,” Jackson wrote, and ransack the law books for a crime to pin on him. “It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”
“Reputation,” Jackson said in 1940, “has been called ‘the shadow cast by one’s daily life.’” Bragg has chosen a flamboyant life in electoral politics. He probably is impervious to Jackson’s wisdom, for a reason Jackson understood: “The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.”
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