WaPo editorial board: This Trump indictment looks pretty dodgy to us

AP Photo/Seth Wenig, File

Welcome to the party, pals.

The entire effort by Alvin Bragg to resurrect what the Washington Post editorial board rightly calls a “zombie” case has looked dodgy from the beginning. Even Bragg found it dodgy — after all, he shut down an investigation into the payoffs to Stormy Daniels and Karen McDougal shortly after taking office. And unless Bragg has a much different case than the one his office has been pursuing for the last couple of years, the editorial board echoed Van Jones in their reaction last night.


Is this the case, the editors ask, on which Bragg wants to risk prosecutorial credibility in taking the unprecedented step of indicting a former president?

Pyramiding two transgressions of state rules to go after a federal candidate is legally plausible. But the strategy is also novel, and courts may regard it with skepticism. What’s more, the potential campaign finance charge itself is shaky. …

Breaches of campaign finance law undermine democracy and deserve to be taken seriously. Yet the potential downsides of indicting Mr. Trump ought to be taken seriously, too. This prosecution is now bound to be the test case for any future former president, as well as, of course, proceedings against this former president in particular — of which there are plenty. Other investigations underway include Justice Department examinations of the Jan. 6, 2021, insurrection and classified documents discovered at Mar-a-Lago, where the possibility of obstruction of justice is particularly grave. These are straightforward cases compared with the one proceeding in Manhattan. A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of “witch hunt” — in light of which House Speaker Kevin McCarthy (R-Calif.) was right to urge supporters to refrain from protesting.


If anything, this undersells the dodginess. Bragg will essentially charge Trump with a felony by stacking a misdemeanor whose statute of limitations ran out five years ago on top of a speculative felony charge of fraud over — wait for it — paying Daniels and McDougal with money from Trump’s own business rather than from campaign funds. And at least as the charges relate to Daniels — if they do — Bragg will have to rely on convicted perjurer Michael Cohen to connect those dots.

The Post editors offer some sage advice:

This prosecution needs to be airtight. Otherwise, it’s not worth continuing.

Any prosecution that relies on a convicted perjurer is not “airtight,” almost definitionally. Any prosecution that uses “novel” theories to get around statutes of limitation are also definitionally not “airtight.” This would be a reach in any other circumstance; moving forward with this kind of case over NDA payments as the very first indictment against a former US president in history isn’t airtight, either.  It’s insane, and it’s blatantly political.

Jonathan Turley doesn’t think it’s airtight either, at least not as described by two of Bragg’s former prosecutors in the book they wrote after resigning in protest over Bragg’s initial decision not to charge Trump. Rumors of a 34-count indictment may just be Bragg stacking a bunch of highly questionably suppositions rather than just a couple of them. As Turley says, that doesn’t make the indictment 34 times stronger, except in political arguments:


When Bragg initially balked at this theory and stopped the investigation, two prosecutors, Carey R. Dunne and Mark F. Pomerantz, then resigned from the Manhattan DA’s office. Pomerantz then did something that some of us view as a highly unprofessional and improper act. He published a book on the case against Trump — a person who was still under investigation and not charged, let alone convicted, of any crime.

It worked. Bragg ran on his pledge to bag Trump and Pomerantz ramped up the political base to demand an indictment for a crime. It really did not matter what that crime might be.

While other crimes have not been discussed in leaks or coverage for months, it is always possible that Bragg charged Trump on something other than the state/federal hybrid issue in his indictment. There could be other business or tax record charges linked to banks or taxes. Ironically, the bank and tax fraud issues were also a focus of the Justice Department, which again did not charge on those theories. Moreover, Bragg could face the same statute of limitation concerns on some of the issues previously investigated by the Justice Department.

Finally, Bragg could stack multiple falsification claims to ramp up the indictment. There are reports of 34 counts of business record falsification. But multiplying a flawed theory 34 times does not make it 34 times stronger. Serial repetition is no substitute for viable criminal charges.


In other words, if it looks political and smells political and the people involved are engaging politically more than legally, it’s almost certainly political. Matt Taibbi put it well:

Sounds as though the Washington Post editorial board feels the same way. And they should.

Join the conversation as a VIP Member

Trending on HotAir Videos