The Patriot Post® · In Brief: Bragg's 'Indictment' Even Fails as an Indictment
Donald Trump was arraigned Tuesday after his indictment by Manhattan DA Alvin Bragg. Mark Alexander thoroughly covered the latest here. As you may imagine, former federal prosecutor Andrew McCarthy has thoughts about the absurdity of it all.
Bragg’s indictment fails to state a crime. Not once … but 34 times. On that ground alone, the case should be dismissed — before one ever gets to the facts that the statute of limitations has lapsed and that Bragg has no jurisdiction to enforce federal law (if that’s what he’s trying to do, which remains murky).
Bragg’s indictment charges 34 counts, just as we said it would, based on media reporting that clearly came from illegal leaks of grand-jury information — a crime, you can be sure, that goes in the overflowing bucket of serious offenses that Bragg refuses to prosecute.
The 34 counts are arrived at by taking what is a single course of conduct and absurdly slicing it into parts, each one of which is charged as a separate felony carrying its own potential four-year prison term.
Trump reimbursed Michael Cohen in monthly installments during 2017 for the $130,000 paid to porn star Stormy Daniels right before the 2016 election for her silence about an alleged affair. That, in reality, is a single transaction: Trump paying back a debt to Cohen. Yet, because Trump paid in installments and each installment includes an invoice from Cohen, a bookkeeping entry by the Trump Organization, and a payment to Cohen by check, Bragg not only charges each monthly installment separately; he subdivides the installments into installments (as if the invoice, book entry, and check were independent criminal events). Voilà, one transaction becomes 34 felonies!
This is something “the Justice Department admonishes federal prosecutors to avoid,” but it’s how Bragg played the game, and he explains why:
The tactics only further demonstrate the shoddiness of the case. A prosecutor holding a weak hand tries to hoodwink the jury into believing the defendant must be an incorrigible criminal, despite the lack of evidence; hence the dozens of counts. A prosecutor holding a weak hand also hedges his bets in this way: The jury may flush most of the indictment down the drain, but the unscrupulous prosecutor knows if he can secure a single guilty verdict, even with 33 acquittals, he has achieved his objective of branding his target a felon.
McCarthy continues:
The worst due-process abuse of Bragg’s indictment, however, is that … it’s not an indictment. The Constitution’s Fifth Amendment guarantees that Americans may not be accused of a serious crime — essentially, a felony — absent an indictment approved by a grand jury. The indictment has two purposes. First, it must put the defendant on notice of exactly what crime has been charged so that he may prepare his defense. Second, the indictment sets the parameters for the defendant’s closely related right to double-jeopardy protection, also set forth in the Fifth Amendment. That is, by stating the crime charged, the indictment enables the defendant to claim a double-jeopardy violation if the prosecutor attempts to try him a second time on the same offense.
Here, the indictment fails to say what the crime is.
Yes, there are 34 supposed felonies, but as McCarthy explains at length, those can only be felonies if they were committed with the intent to conceal an underlying crime. Bragg never says what that crime is. In fact, he says: “Bragg’s problem is that it is not a crime to pay people for their silence: Nondisclosure arrangements are not just legal, they are a staple of the civil-justice system.”
He concludes:
Put aside, though, that Bragg does not have the nerve to actually charge the federal crimes he is coyly intimating. To show how moronic this is, let’s pretend that these hush-money deals were in-kind campaign expenditures, that Trump decided to regard them as such, and that Trump’s campaign disclosed them to the Federal Election Commission as Bragg’s fantasy version of the law mandated. Even if all that were true, the law would not have required the Trump campaign to disclose the expenditures until the next reporting period after they occurred, sometime months into 2017. That is, such disclosures would not possibly have influenced the 2016 election.
What a disgrace.