Five things to remember about a ‘zombie’ Trump indictment
Byron York
FIVE THINGS TO REMEMBER ABOUT A ‘ZOMBIE’ TRUMP INDICTMENT. Some say it will be today, some say tomorrow or Thursday or next week, but whatever the case, it appears an indictment of former President Donald Trump is imminent. It won’t come from a local prosecutor in Georgia and focus on Trump’s efforts to overturn the results of the 2020 election, as many had expected. It won’t come from the Justice Department and concern the classified documents matter or Jan. 6. Instead, it will come from another local prosecutor, New York County District Attorney Alvin Bragg.
It will be complicated because there is, apparently, no simple way Bragg could find to charge Trump with a felony. Bragg, who was once co-director of the Racial Justice Project at New York Law School, was elected on a pledge to prosecute fewer crimes in New York and to reduce charges against offenders who commit serious crimes such as robbery and assault. He has famously downgraded more than half of the felony charges in Manhattan to misdemeanors. But in the Trump case, Bragg, an elected Democrat, has struggled to upgrade a basic misdemeanor charge into a felony worthy of prosecuting an ex-president.
The allegation is that in 2016, when Trump paid porn star Stormy Daniels $130,000 to stay silent about their sexual encounter, he did not properly report the payments. Trump arranged for lawyer/fixer Michael Cohen to give Daniels the money, and then Trump reimbursed Cohen. At the Trump Organization, the reimbursement payments to Cohen, all made in 2017, were categorized as “legal expenses.” Therefore, Bragg wants to charge Trump with the falsification of business records.
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The problem is, even if Trump were guilty, that is a misdemeanor, which has a two-year statute of limitations in New York — 2017 was five years ago, so you can see the problem. Now Bragg wants to use a feature of the falsification law, which says that falsification of business records can be charged as a felony if the falsification was done to conceal a crime. Then the statute of limitations would be five years.
But what crime was Trump allegedly trying to conceal? Bragg has apparently decided to charge Trump with violating campaign finance laws because Trump did not report the payoff to Daniels as a campaign expense. That raises the question: Does one normally report hush money, which sounds illicit but is in fact legal under the loftier name of a “nondisclosure agreement,” on a campaign finance report? It’s a stretch to see that as a crime. Even the New York Times has characterized Bragg’s theory as “a low-level felony charge that would be based on a largely untested legal theory.”
There are other complicating factors, as well. The campaign finance charge would be an alleged violation of federal election law, while Bragg enforces the laws of New York. (Federal prosecutors have already considered and rejected charging Trump in this matter.) Then, even if the case has a five-year statute of limitations, there are still questions about the timing. The final reimbursement payment to Cohen was made in December 2017, more than five years ago. Bragg will apparently try to argue that the accounting and bookkeeping took longer, stretching into 2018, and thus the case, if charges are filed this month, can be squeezed in at the last minute to fit the five-year limit.
Several experts have pronounced the prosecution a weak and convoluted affair. “This is a really dumb case,” wrote former federal prosecutor Andrew McCarthy. “I don’t like this case,” said Michael Zeldin, another former federal prosecutor. “I don’t think it is, from what we know in the public domain … the type of case that should go forward criminally.” “Legally pathetic,” added George Washington University law professor Jonathan Turley.
But now it appears that Bragg is determined to “go forward criminally.” With that in mind, here are five things to keep in mind as the case progresses:
1) The novelty of the charges. It’s not just that no prosecutor has ever indicted a former president before, although that is true. It’s also that no prosecutor has tried to combine these particular charges in this way, either. Bragg has twisted himself, and the law, into a pretzel to come up with a felony case against Trump.
2) The prosecutor’s politics. Bragg is not an apolitical, appointed official. He earlier served in the New York State Attorney General’s Office, where he pursued lawsuit after lawsuit against Trump, the Trump Organization, and the now-shuttered Trump Foundation. Then he ran for New York County district attorney and defeated several fellow Democrats in a party primary. Then, being a Democrat in New York, he easily defeated a Republican opponent in the general election. In the campaign, he never failed to mention that “I’ve done significant cases, like holding Trump accountable for his misconduct with the Trump Foundation.”
3) The “zombie” timing. Bragg’s indictment, if it comes, is often referred to as a “zombie” case because federal officials earlier declined to prosecute Trump on these grounds, and then Bragg himself considered and rejected a prosecution on the same grounds. Now, with time running out on the statute of limitations and to charge Trump before the 2024 presidential campaign is fully underway, Bragg has flip-flopped. The “zombie” case has been revived and is apparently going full speed ahead.
4) The media coverage. A lot of the coverage of the Trump case has focused on side issues. The historic nature of a former president being charged. Whether Trump will be arrested and handcuffed. Fears that Trump supporters will riot. There has been less coverage of the actual charges Trump faces. That is for a reason — the case is so weak that even the people who most want to see Trump indicted would rather it be on other charges.
5) Trump’s political fortunes. There has been much discussion about how an indictment would affect Trump’s 2024 presidential campaign. Here’s the bottom line. It’s not a good thing to be indicted, and Trump’s opponents will be giddy with glee to have a mug shot of their most hated figure in politics. At the same time, though, an indictment would undoubtedly energize Trump’s core supporters. They believe, with good reason, that the justice system did not treat Trump fairly during his presidency, especially with the various Russia investigations, and they will fit a Bragg indictment into a long pattern of unfair treatment Trump has received at the hands of investigators.
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