WEDNESDAY, MARCH 22, 2023
CNN tries and fails: In a thoroughly sensible column, the Washington Post's Ruth Marcus has given voice to some doubts.
In no way is Marcus any kind of Trump supporter. But in this new column, she says she's getting a slightly bad feeling about certain events in New York:
MARCUS (3/21/23): It’s an axiom of criminal law that prosecutors should go after the crime, not the individual, and there is an unnerving air, in the New York district attorney’s pursuit of Trump, of a desire to find some crime, any crime, with which to charge him.
That might feel gratifying for those who have watched for years as Trump escaped legal consequences for his actions. The temptation, with Trump above all, is almost irresistible: Surely there must be some consequences, for some actions.
But this is not the way the criminal justice system is supposed to proceed—its aim is to treat like crimes alike. That means that no one, not even Trump, is above the law, yet also that no one, not even Trump, is treated worse because of who he is, what other things he has done and how much some of us loathe him.
Seemingly like everyone else in the world, Marcus is a graduate of Harvard Law School. She reports the occasional feeling that Alvin Bragg—he's a Harvard Law School graduate too—may be trying "to find some crime, any crime, with which to charge" Jean Valjean.
It isn't especially hard to see why Marcus has that occasional feeling. The unfortunate appearance she describes dates back years in the chase after Trump. This is especially true with respect to the ongoing desire to transform a mere misdemeanor offense into a felony charge.
At the highest levels of the mainstream press, journalists write about this desire to turn lead into gold as if it's the world's most normal pursuit. For example, on the front page of today's New York Times, a news report starts as shown:
PROTESS ET AL (3/22/23): It is the kind of case that emboldens prosecutors and mesmerizes juries: a celebrity defendant authorizing a secret payoff to cover up a tryst with a porn star.
As the Manhattan district attorney’s office appears poised to seek an indictment of Donald J. Trump in just such a case, the former president is facing a daunting set of facts. His onetime fixer, Michael D. Cohen, will testify that Mr. Trump directed him to pay off the porn star, Stormy Daniels, and that the former president reimbursed Mr. Cohen and helped cover the whole thing up.
But salacious details alone do not make a case. Prosecutors must also work within the law. And the district attorney, Alvin L. Bragg, may have to pull off a difficult maneuver, connecting the hush-money cover-up—a potential violation of state law—to a federal election.
The details of any indictment that may be handed up as soon as this week are not yet known, and Mr. Bragg could charge any number of crimes. But there is a possibility that the case will rely on a legal theory that has never been evaluated by a judge.
So cool! The current case involves a tryst with a porn star!
That is just amazingly cool! But according to four high-end journalists, "salacious details" aren't enough to sustain a criminal charge!
In this instance, the scribes report, the prosecutor may end up "rely[ing] on a legal theory that has never been evaluated by a judge." Out of all this thrashing there has emerged the occasional sense that a modern Javert has perhaps and possibly found his man and is hunting about for his charge.
In fairness, no one knows what kind of charge Bragg might be able to conjure. It may turn out that he will present a reasonably straightforward criminal charge.
Luckily, a trio of blue tribe legal lights have come forward to set the minds of people like Marcus at ease. They have produced a laboriously detailed report at the Just Security site, a report which carries this title:
Survey of Past New York Felony Prosecutions for Falsifying Business Records
In their extremely detailed report, the legal lights are assuring the doubters that plenty of people have been prosecuted in cases like Donald J. Trump's.
Weirdly, only one of the three went to Harvard Law School. In fairness, Siven Watt is a Brit—and Ryan Goodman went to law school at Yale.
It was Goodman who was paraded out by CNN last night. For reasons only the gods can explain, the channel had decided to try to conduct a discussion of the basis on which Donald J. Trump could possibly be charged in the salacious porn star case.
Presumably due to his relative lack of status, it was Goodman who was forced to go on the air to explain the detailed findings of the reassuring new site. For unknown reasons, CNN had decided to try to stage the discussion on its 7 P.M. program, Erin Burnett Outfront.
The chances of success were poor. At the start of the hour, Burnett previewed her opening segment:
BURNETT (3/21/23): And OUTFRONT, legal analyst Ryan Goodman, the former Defense Department special counsel, the editor of the legal blog Just Security, says that, if Bragg is following precedent, then he must indict.
So, Goodman's going to explain all of this to you in just a moment.
If the facts are right, he must indict! Goodman would explain the whole thing!
Such was CNN's promise.
After a background report, Burnett fell to the task. As if to guarantee that no clear discussion could ever possibly occur, CNN had decided to staff the discussion like this:
BURNETT: All right. Well, let's get straight now to Ryan Goodman. He's OUTFRONT, along with our senior legal analyst Laura Coates and Gordon Heddell, former assistant director of the Secret Service.
So thanks very much to all of you. Ryan, let me start with you.
Question: What could the former assistant director of the Secret Service possibly add to this purported discussion?
Soon enough, the answer was obvious—nothing at all! But so it may go when CNN's suits try to stage a discussion.
In fairness to Burnett, she sensibly started with Goodman. Referring to some of the tape she'd just played, she tasked the gent as shown:
BURNETT (continuing directly): You heard three top lawyers say what other lawyers have been saying, that they don't believe Trump should be indicted here.
But you have gone through history. You have gone through precedent. You have come to a different conclusion.
Three lawyers had said that Trump shouldn't be charged—but Goodman had "gone through history."
It fell to Goodman to show his work—to prove that those lawyers were wrong. He started off like this:
GOODMAN (continuing directly): That's right. I think it's actually an empirical question.
So what we did is, we surveyed the last 15 years of all the district attorney offices across New York and saw how many times they brought this particular charge, "falsifying business records."
And the conclusion is, essentially, if the person's last name was not Trump, he would be charged.
Just to give you a few examples...
Finally! Finally, we were going to get example of instances where people were charged with "falsifying business records," presumably for conduct resembling Trump's!
That said, here was the first example:
GOODMAN (continuing directly): Just to give you a few examples. These are different district attorneys' offices:
In 2010, a woman goes into the Lord & Taylor store. She applies for a false store credit by returning merchandise that she did not purchase and then uses that store credit to walk out of the store with additional merchandise. She's convicted.
Already, the analysts were puzzled. In what way did that woman's (overtly larcenous) behavior seem to resemble Trump's?
Frankly, we were puzzled too. That said, Goodman had three more examples to offer. He continued as shown:
GOODMAN (continuing directly): 2015, another district attorney, just as examples:
A married couple has a fire, and they claimed that one of their sofas cost $5000, when actually they paid in cash under $2000. They're convicted of falsifying business records.
That too seemed something like a case of something like "theft by deception." Presumably, this couple had scammed their insurance company out of something like $3000.
But in what way did their conduct resemble Trump's?
By now, some of the analysts were audibly sighing. Others had begun to exhibit a familiar "thousand-yard stare."
They'd been through this many times when CNN tried to create a discussion. As Goodman gave his last two examples, the keening and wailing began:
GOODMAN (continuing directly): Another example, 2022. An individual teacher is indicted because she sent a false COVID card that she made out to the Department of Education.
Another 2022 one is: A repair owner in the Bronx files false income tax and then claims $60,000. He should've paid $60,000 that he did not pay in taxes. He is indicted.
All four of Goodman's examples involved obvious misconduct. But in what way did those examples resemble the conduct ascribed to Trump?
We didn't have the slightest idea. But Goodman, a high-end legal expert, closed with this:
GOODMAN (continuing directly): It just happens time and again. It's commonplace to charge this kind of a crime. If the evidence is there, it's very compelling.
How does a prosecutor turn away from that? Treating everybody equally under the law would mean you bring an indictment if you have the evidence.
"It's commonplace to charge this kind of a crime," the legal scholar now said. But on our campus, confusion reigned.
What "kind of a crime" was Goodman talking about? None of these cases seemed to resemble the salacious Trump incident in any obvious way at all!
There followed the standard confusion. Burnett instantly threw to Coates, who offered a rambling statement whose meaning we can't explain.
It had something to do with the way "the cops" decide who to pull over when a whole lot of people are speeding. Looking at the CNN transcript, you can decipher her remarks as you will.
At this point, Burnett threw to the former assistant director of the Secret Service. He offered a perfectly sensible point about a totally separate matter.
Our question: Did Professor Goodman's presentation make any sense at all?
We'd have to say the answer is no. Also, and needless to say, Burnett and Coates didn't quite seem to notice.
Who knows? It's possible that Goodman could have clarified his point had he been sensibly challenged.
Eventually, he offered the following statement. Inevitably, this instant bit of script is now being widely recited all over our blue tribe's platforms:
GOODMAN: We do need to be concerned that the legal system is not used as a weapon. And if somebody is the former president, that raises the concern that we don't want to see prosecutors going after what might look like the leader of the political opposition.
So I do think that the prosecutors might have to satisfy themselves [that they] have overwhelming evidence. And all the cases that I gave as examples, this is more egregious than even the average case.
And I do think that this is more egregious. We're not just talking about a few thousand dollars.
We're talking about hush money payments in an election, and that also leads to state tax crimes potentially with Michael Cohen. That's bigger than a lot of the other cases that have been prosecuted.
"That also leads to state tax crimes potentially with Michael Cohen?" Was Goodman suggesting the route by which a misdemeanor could be turned into a felony?
Needless to say, nobody noticed or asked. Goodman's predominant point was this:
"Everybody's supposed to be treated the same," Goodman had stirringly said. And the current case is more egregious because it involves much more money!
The Trump case does involve a lot more money than Goodman's examples did. That married couple had only defrauded their insurance company to the tune of $3000. By way of contrast, Trump paid $130,000 to someone by whom he was being blackmailed.
The current sum is much larger, but in what way are these cases alike? Indeed, in what way had Trump even done anything wrong?
As this "discussion" reached its merciful end, we had no earthly idea.
The woods are lovely, dark and deep, but our "cable news" TV stars are often extremely limited.
Their producers may be even worse! Through the endless silence of our blue tribe's lambs, this is the culture we've chosen.
Tomorrow: Was Stormy blackmailing Donald? What Mark Pomerantz said.