WEDNESDAY, APRIL 5, 2023
Rachel can't say naughty words: How strong does Alvin Bragg's case against Donald J. Trump seem to be?
At this point, we have no idea. If Trump is going to be charged with a crime, we'd like it to be a recognizable, explainable crime. (For the record, we would favor that same approach for anyone charged with a crime.)
We're not sure that that happened yesterday. We'll start with CNN.
Last night, at 8 P.M., CNN gathered the troops to stage an evaluation. Assessments of the indictment were strikingly poor.
Paula Reid went first. She closed by saying this:
REID (4/4/23): Look, I've passed two Bar exams. I'm having a little trouble following Alvin Bragg's argument here. So it's unclear if the average Manhattan juror will be able to follow it as well.
And even if they can, even if they get a conviction, it still has to survive appeals, which is going to be difficult for cases built on novel legal theories.
For Reid, Bragg's argument is hard to follow—and there are still "novel legal theories" there.
We can't assess Reid's level of legal expertise. "Senior legal analyst" Elie Honig went next. He was underwhelmed too:
HONIG: The only way this gets bumped up, each of these counts gets bumped up to a felony, is if you can show that they falsified the records to commit some second crime, and here is where we're going to run into legal problems, because the indictment does not say what that second crime is, which is completely inexplicable to me.
I am a big believer in Alvin Bragg. He is a former colleague of mine, I believe in his capacity and his integrity, but I have real questions about this.
Next up with Jessica Roth, a Cardozo Law School professor. She sounded underwhelmed too:
ROTH: Well, I was disappointed that there wasn't more in the indictment in terms of laying out what the legal theory was with more precision. Today was supposed to be the big reveal, where we would get that information. And to the extent that we have a sense of what the theory of the case is, in terms of what are the crimes that would have been furthered or concealed by the falsification of records, it is not in the indictment.
It may be also that he's trying to leave options open in terms of what the evidence most firmly supports in terms of what that other crime was. But it would have been, I think, helpful if he had committed to a theory of the case, or even if it was in the alternative, to lay out exactly what those crimes were, even if ultimately, the jury would decide, well, at least one of them was furthered by the falsification.
Anderson Cooper also spoke to Andrew McCabe, a senior law enforcement analyst. McCabe is no fan of Donald J. Trump, but he was downbeat too:
COOPER: What I'm hearing now, just to tee you up is, it looks like the District Attorney, Bragg has set up, you know, a very solid case for 34 misdemeanors related to business fraud, but not a huge amount of confidence in the attempt by Mr. Bragg to turn this into 34 felony charges. What are you hearing?
MCCABE: Very, very similar commentary, Jake. So I if I had to characterize it, it's a disappointment. I think everyone was hoping we would see more about the direction that they intend to take this prosecution. What is the legal theory that ties that very solid misdemeanor case, 34 counts of misdemeanors to the intent to conceal another crime, which is what makes it a felony. It simply isn't there.
Now it's possible that the DA has an elaborate and solid theory that's backed up by a lot of evidence and he has just decided to conceal that at this point. That would be, I think it's a strange decision on his part. But nevertheless, I'm giving him the benefit of the doubt.
At the end of the day, if all of our legal friends read this indictment and don't see a way to a felony, it's hard to imagine convincing a jury that that they should get there.
We were surprised by how consistent the negativity was.
Does that mean that something's wrong with the case? We have no idea. That said, it seemed to us that Charlie Savage's more balanced assessment on the front page of this morning's New York Times quickly turned a bit negative too:
SAVAGE (4/5/23): As was widely predicted, [Bragg] is pointing toward alleged violations of both federal and state elections laws. By doing so, he is in part plunging forward with a premise that has given pause to even some of Mr. Trump’s toughest critics.
Indeed, a range of election-law specialists on Tuesday expressed fresh doubt about whether Mr. Bragg could successfully use campaign finance laws alone to elevate the bookkeeping fraud charges to felonies. Among those skeptics were Richard L. Hasen, a University of California at Los Angeles legal scholar, and Benjamin L. Ginsberg, a longtime election lawyer for the Republican Party and a critic of Mr. Trump.
Even with the addition of the claim about intended false statements to tax authorities, Robert Kelner, the chairman of the election and political law practice group at the firm Covington & Burling, remained uncertain that it would show an intent to commit another crime.
“The local prosecutors seem to be relying in part on a bank shot exploiting Michael Cohen’s guilty plea in a federal campaign finance case,” he said. “But there were serious questions about the legal basis for the case against Cohen, making that a dubious foundation for a case against a former president. Prosecutors also allude vaguely to ‘steps’ taken to violate tax laws, but they say little to establish what that might mean.”
In this case, as in all cases, we'd favor indictment on the basis of a recognizable crime. (Like "shooting someone on Fifth Avenue," to cite one possible example.) It sounds like Bragg has a long way to go if he wants to make his charge against Trump explainable to people like us, to the everyday average rubes.
CNN was surprisingly negative. On MSNBC, during that same 8 P.M. hour, general hilarity prevailed.
It all started at 8:09 when it fell to Rachel Maddow to talk about David Pecker., whose name is extremely embarrassing and very hard to say. Almost surely, you know what happened next. Rachel has been playing this card for a great many years at this point.
Ten minutes later, Lawrence said that some Trump supporter outside the courthouse yesterday kept asking him about his vagina [sic].
Just like that, Rachel was in the soup again! Once again, the children laughed and played and mugged and clowned and generally enjoyed their social hour with their high-profile favorites and friends.
Our extremely self-impressed tribe is a childish, embarrassing mess. As a group, we seem to be completely unable to see this.
(You can enjoy the clowning again thanks to the Internet Archive. For reasons which must be perfectly obvious, MSNBC has long since stopped transcribing its primetime "cable news" shows.)