In Brief: Bragg’s Unconstitutional Prosecution
A crucial due-process provision is meant to prevent exactly what the DA has done: force a defendant to go to trial without being put on notice of the charge.
Alvin Bragg’s persecution of Donald Trump continues apace, day in and day out, in a Manhattan courtroom. It’s a big part of the Democrats’ lawfare scheme to secure Trump the GOP nomination and then defeat him in November. Will it work? Time will tell, but former federal prosecutor Andrew McCarthy makes a big observation: Bragg’s case violates the U.S. and New York Constitutions.
I have argued that former president Donald Trump’s prosecution in the so-called hush-money case brought by Manhattan’s elected progressive Democratic district attorney Alvin Bragg is offensive in various ways.
Bragg, an election denier, is trying to convict Trump of a crime that is not charged in the indictment — to wit, conspiracy to steal the 2016 election by suppressing negative information in violation of federal campaign law. This violates the Fifth Amendment to the United States Constitution, which requires a felony charge to be spelled out in an indictment whose criminal elements have been established by probable cause to the satisfaction of a grand jury. Here, the problem is not just that there is no indication the grand jury was presented with an election-theft conspiracy offense; there is no such conspiracy crime in New York penal law. As a state prosecutor, moreover, Bragg has no jurisdiction to enforce federal law — as to which Congress vested “exclusive” criminal- and civil-enforcement authority, respectively, in the Justice Department and the Federal Election Commission. …
Once one clears away the election-theft and federal-law underbrush, Trump is actually charged not with a conspiracy but with 34 substantive felony violations of a New York statute that makes it a crime to falsify business records with the fraudulent intent to conceal “another crime.”
What other crime? The penal statute in question doesn’t say. That’s a fatal problem because New York State’s constitution mandates that a statute must spell out any statutory terms it is incorporating. Under Article III, §16, of the state constitution, incorporation by reference is not permitted.
Put another way, Trump is charged with 34 felonies that, at worst, should be misdemeanors, and yet Bragg elevated them based on the nonsensical notion that Trump committed another deeper crime — for which he’s not even charged. McCarthy makes his case in sufficient detail before concluding:
This is a profound state-constitutional issue, however, casting doubt on the legitimacy of a prosecution: The legislature has failed to put an accused on notice of what conduct has been proscribed. Defense attorneys should raise it if they haven’t already.
Bragg’s prosecution violates the U.S. Constitution because he is trying Trump on a crime — conspiracy to steal an election by violating federal campaign law — that is not charged in the indictment and is not even a New York crime. Bragg’s prosecution also violates the New York constitution because the felony business-records-falsification statute he invokes fails to spell out, expressly and with specificity, the “other crimes” that trigger it — and, in the instance of this prosecution against Trump, fails to spell out whether the state legislature intended to empower state prosecutors to enforce federal campaign law.
