As someone who has covered investigations of high-profile political figures over the past decade, I’ve given myself a lot of thought Politicization of the rule of law.
On the other hand, politicians should not be above the law – if they commit crimes, and there is evidence to prove it, they should be charged.
But on the other hand, criminal law should not be weaponized for political reasons against the enemies of the opposing side. When it happens in other countries, we generally view it as a sign of dysfunction or corruption.
So how do we know if this is happening?
Often times, it is more difficult than it might seem. Overzealous political partisans are very adept at articulating justifications for their enemies being clear criminals deserving of incarceration, while their allies are clearly unfairly persecuted in weak cases.
But I have come to believe that prosecutions and investigations that can be described as somewhat politicized tend to share many of the following traits:
- They are hunting trips—starting with a focus on a single subject, spreading over very far, and often lasting for years.
- They focus on mysterious or artistic matters.
- They contain new legal theories.
- It’s similar to a few of the earlier prosecutions.
- Investigators are internally divided on the strength of the case.
- It involves scrutiny and investing resources that would not be spent on anyone else.
- Those responsible for them have clear political motives.
The more politicized the investigation, the more the ultimate goal seems to be to “get” a particular political figure, with the specific crimes at issue being of secondary importance.
Many of these features were evident in The investigations that Trump tried to issue in his political opponents during his presidency. Many were also present at the investigations into Bill Clinton in the 1990s, which began as “Whitewater” investigation and extended outward.
It also all fits with what has been reported about Manhattan District Attorney Alvin Bragg’s investigation and prosecution against Donald Trump.
This indictment hasn’t been released yet, so there may be something in it to change that assessment — but what we know so far doesn’t exactly indicate that this was a non-political effort.
Why the Manhattan DA Investigation Seems Political (But Other Trump Investigations Don’t)
I will start by saying that I am not particularly inclined to defend Donald Trump as a sterling adherent to the rule of law.
the investigations with him – Federal investigations by special counsel Jack Smith into Trump’s attempt to overturn Biden’s election victory and his classified documents at Mar-a-Lago, as well as Georgia probe Whether Trump tried to steal the election there seems justified. guess what? If you attempt to steal an election, you should be rigorously investigated and charged if the evidence and the law deserve it. But Alvin Bragg got there first.
Another caveat is that we don’t yet know the details of Bragg’s indictment – perhaps it will be solid and convincing and raise many concerns. But the Much has been reported About the background to the investigation itself — and a lot of it doesn’t sound great.
Is it a fishing trip? Arguably – it was definitely a Tangled tale. The former DA, Cyrus Vance Jr., opened up. , the case again in 2019 to focus on the hush money payments made to Stormy Daniels. Vance then put that aside and spent years investigating the Trump Organization’s business practices, specifically in relation to real estate valuations.
To try to make the case, he pressured The Trump Organization’s CFO Allen Weisselberg to beat Trump accuse him (and the company) with tax fraud related to the fringe benefits Weisselberg received. Then, when Bragg took over as DA last year, he wasn’t impressed with the real estate appraisal case and put it on hold, prompting two prosecutors. to resign in protest. Bragg then returned to the quiet money payments and charged Trump accordingly.
Is it focused on something mysterious or technical? The charges reportedly relate to New York business records law — specifically whether the Trump Organization’s payment to Michael Cohen for $130,000 in hush money he paid Stormy Daniels was improperly recorded as a legal expense. Obviously, many people who have opinions on this indictment, myself included, have never given New York Business Records Law a second thought before. the The more small charges such as these appear after a long investigation, the more they will suggest that the plaintiffs fell upon them as they attempted to mount a larger unsolved case.
Is it characterized by new legal theories? It may be, in part. It seems like violating the Business Records Act is very open and closed. However, Bragg has it It said He wanted to be charged as a felony rather than a misdemeanour, and could only do so if the records were falsified to cover up another crime.
Federal prosecutors investigated the hush money as a violation of a federal campaign finance law, but Bragg is the state attorney general charged with enforcing the state law, which is It said Explore the many possibilities of crimes he can assert to justify a felony charge.
We don’t yet know what Bragg ultimately decided on. But the New York Times evaluation A few weeks before the indictment, “the case against the former president hinged on an untested and therefore precarious legal theory involving a complex interplay of laws, all amounting to a low-level felony.”
Is it similar to previous pursuits? unclear. Even the assertion that hush money payments violate the law at all — specifically, that they violate federal campaign finance law — is hotly debated. The earliest precedent may be Democratic politician John Edwards He was charged in 2011 on charges of violating campaign finance laws in connection with payments made to Riel Hunter (with whom he had an affair and fathered a child), but acquitted on the one hand, and the jury was unable to reach a verdict on several others.
Are the investigators internally divided over the strength of the case? Yes. This was an unusually leaky investigation, with the intensity of disagreement among members of the prosecution team often spilling over into public view.
As previously mentioned, Bragg was not impressed with the real estate valuation case that lead prosecutor Mark Pomerantz was building, and Pomerantz resigned and wrote a book complaining about Bragg. This led others on the team to file a complaint about Pomerantz with the Ankush Kharduri from New York Magazine.
One of the usual points of contention is the usefulness of Michael Cohen as a witness. Federal prosecutors have looked into hush money as well, as recently as early 2021, and according to a recent book by CNN legal analyst Eli Honig untouchableThey had mixed opinions on the issue and ended up getting a pass.
Does it include auditing and investing resources that would not have gone to anyone else? It is hard for me to imagine that these many years of investment of resources in this matter would be directed against anyone other than Trump.
Do those who raised the case have clear political motives? Bragg is an elected Democrat, and if he runs for another term, he will run in Democratic New York City. When initially putting the brakes on the Vance probe, He faced severe backlash Progressives who thought he was moving away from Trump. So yeah, he’s motivated to get back on the Progressives’ good side.
Defending democracy and the rule of law?
Now, there is a difference between the politicized cases that Trump wanted to bring against his political enemies, and the current situation, which is: Many liberals believe that Donald Trump is a serious threat to democracy. (And I think they are right).
The right has long tried to portray Trump as the victim of endless witch hunts from investigators. And, of course, Republicans managed to convince themselves that Hillary Clinton was too dangerous for American democracy, too (remember Flight 93 election? “).
But then again, Trump has gone to extraordinary lengths to try to steal the 2020 election, which should really end all talk of him as some kind of unjustly persecuted innocent. Trump’s second term, if he wins, It might be Too dangerous for the rule of law.
Many liberals who have been hoping and arguing about Trump’s indictment seem to have this justification in mind, even if few say so outright. In 2021, when it looked like Bragg’s predecessor, Vance, might press charges, he was Profile of the New Yorker, and took into account the former president’s niece, Mary Trump. “It’s very urgent that Vance sue Donald now,” she said, because the GOP certainly won’t stop him.
According to this mindset, it would be naïve to have academic concerns about the politicization of the rule of law, when the continued existence of the nation as a democracy is at stake. Find some crimes and lock him up!
Maybe you will succeed – Polls Displays Although most Americans say they believe Bragg is politically motivated, most also believe the investigation is important and should disqualify Trump from taking office.
Or perhaps this pursuit backfires, incentivizing Republican voters to rally around him and smoothing his way to the GOP nomination, and worsening the divisions in our country. We’ll find out soon enough.