ELECTION: We're not on Fifth Avenue any more!

THURSDAY, APRIL 25, 2024

With what is Donald Trump charged? The future president made the statement back in the early days.

Joe and Mika were in the process of flipping on the candidate—a candidate over whom they had fawned all through the previous year. 

It was January 2016. NPR gave this account of what the hopeful had said:

Donald Trump: 'I Could ... Shoot Somebody, And I Wouldn't Lose Any Voters'

With less than two weeks to go until the Iowa caucus, Donald Trump remains characteristically confident about his chances. In fact, the Republican front-runner is so confident, he says his supporters would stay loyal even if he happened to commit a capital offense.

"I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?" Trump remarked at a campaign stop at Dordt College in Sioux Center, Iowa. "It's, like, incredible."

It remains a famous statement. If he shot someone right there on Fifth Avenue, he wouldn't lose any votes.

Depending on the circumstances, the statement might even be true. On the other hand, let the word go forth to the nations:

The candidate was picturing a recognizable type of behavior. The average voter could easily picture what he was talking about.

Shooting someone is a crime, depending on the circumstances. Mainly though, it's a type of behavior which is widely seen on TV and in the movies.

Everyone has seen a million fictional characters as they stand in the street and shoot someone. For that reason, there was no great confusion concerning what the hopeful was talking about.

Eight years after that famous boast, we come to the crime with which the former president now stands charged in a New York City courtroom.

The gentleman stands accused of 34 felonies—but can anyone clearly describe or define the crimes with which he stands charged? In Monday morning's New York Times, Protess and Bromwich seemed to say that the case against Trump was very strong—but right at the start of their report, they offered those three disclaimers:

Will a Mountain of Evidence Be Enough to Convict Trump?

 In the official record, the case is known as the People of the State of New York v. Donald J. Trump, and, for now, the people have the stronger hand: They have insider witnesses, a favorable jury pool and a lurid set of facts about a presidential candidate, a payoff and a porn star.

On Monday, the prosecutors will formally introduce the case to 12 all-important jurors, embarking on the first prosecution of an American president. The trial, which could brand Mr. Trump a felon as he mounts another White House run, will reverberate throughout the nation and test the durability of the justice system that Mr. Trump is attacking in a way that no other defendant would be allowed to do.

Though the district attorney, Alvin L. Bragg, has assembled a mountain of evidence, a conviction is hardly assured. Over the next six weeks, Mr. Trump’s lawyers will seize on three apparent weak points: a key witness’s credibility, a president’s culpability and the case’s legal complexity.

Prosecutors will seek to maneuver around those vulnerabilities, dazzling the jury with a tale that mixes politics and sex...

The prosecutors have a mountain of evidence, plus a favorable jury pool and a lurid set of facts! But even as they dazzled readers with their own lurid language, the reporters cited three "apparent weak points" in the D.A.'s case:

We'll focus on the third. According to Protess and Bromwich, the case is compromised by its "legal complexity." The prosecutors' case is weakened because it's so complex.

It's hard to argue with that statement. Indeed, as Judy Garland might have said, misquoting herself, We're a long way from Fifth Avenue now! 

In the current case, Donald J. Trump isn't charged with shooting someone on the street. Nor did the pair of Times reporters attempt in any serious way to describe or define the nature of the felony with which he does stand charged.

The reporters cited the "legal complexity," then pretty much let it go. It was a good example of lousy journalism, but we can't say we totally blame them.

In best tabloid style, they quoted one (1) former federal prosecutor who said the case against Trump is very strong. They quoted no other legal observers. More specifically, they quoted no legal observer who had an alternate view concerning the strength of the D.A.'s charges.

That was comically awful journalism. Here's why:

Right from the day the indictment was revealed, waves of legal observers have questioned—rightly or wrongly—the structure of the D.A.'s legal case.  Everybody knows that's true, unless they read Monday's Times. 

The case has been questioned right from the start. Just to offer a quick example, here's a report from Politico in April 2023, when the charging documents in the case were released:

Bragg’s case against Trump hits a wall of skepticism—even from Trump’s critics

[...]

Legal experts who had awaited Bragg’s charging documents to resolve some of the lingering mysteries about the case remained confounded by some aspects of the prosecution.

“It is said that if you go after the king, you should not miss,” wrote Richard Hasen, a campaign finance law expert at UCLA. “In this vein, it is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks.”

Even Ian Millhiser, the liberal legal commentator for Vox, called the legal theory on which Bragg’s case is built “dubious.”

Millhiser and Hasen aren't Trump supporters. But they joined a chorus of legal observers who expressed concern about the complicated structure of the D.A.'s legal case. 

On Monday morning, Protess and Bromwich—and their editors—blew past this extensive history. Their one lone source said the case was strong. They quoted no other observer.

One day later, a bit of pushback appeared. The editorial wing of their own New York Times published a guest essay by a legal observer beneath this punishing headline:

I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake.

Professor Shugerman isn't a Trump supporter either. In his essay, he struggled to explain why he thinks the complicated legal case against Trump turns out to be an "historic mistake."

We're a long way from Fifth Avenue now! With no disrespect to Shugerman intended, good luck trying to decipher what the professor says:

Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan D.A.’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check, it is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

[...]

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

In stretching jurisdiction and trying a federal crime in state court, the Manhattan D.A. is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

And so on and so on from there! 

Trump isn't charged with shooting someone—but with what does he stand charged? Quickly, let's state the obvious:

Professor Shugerman seems to think the legal case is a mess. Needless to say, that doesn't mean that his view is correct, or that his view should prevail. 

That said, a riotous comedy has ensued as the heading lights of American legal journalism have attempted to explain the crime with which Trump is charged. Or, perhaps more accurately, as they have fled from any attempt to undertake some such explication of this complexificated case.

So far, Trump hasn't shot anyone on Fifth Avenue, or even on Dylan's Positively 4th Street. Everyone agrees that there is a legal complexity to the case, but does that mean the case is unfounded or weak? 

Does that mean the case is unfounded? Mainly, though, with what felonies does this fellow stand charged?

That news report by Protess and Bromwich came straight from the old yellow press. With their lurid language and their single sourcing, they aped the kind of work which has spilled from entities like the National Enquirer over into the failing world of American "cable news."

Speaking of that segregated medium, consider what happened this past Tuesday night.

At 8 p.m., Andrew Weissmann and Melissa Murray—a pair of MSNBC legal analysts—appeared as guests on CNN. Pure conceptual chaos ensued as Professor Murray tried to explain the nature of the D.A.'s charges against defendant Trump.

Professor Murray crashed and burned in truly remarkable fashion. Shortly thereafter, in the 9 o'clock hour, two law professors appeared on Alex Wagner Tonight—and they at least were able to quote the New York statute on which D.A. Bragg's team has apparently decided to rely.

That said, the conceptual chaos was general as that second conversation unspooled. 

Tomorrow, we'll show you what Professor Murray initially said. We'll also show you what she said when her first strange remark was challenged.

From there, we'll move ahead to the Wagner program. At that point, we'll be able to show you the actual language of the actual statute (apparently) in question.

Everyone knows that D.A. Bragg has to find a way to turn misdemeanors into felonies. Given the way our human minds work, good night and good luck as you wait for some descendant of Godot to wander by and do that.

Meanwhile, this is the way our presidential elections now work. Given the limits of our species' basic skills, perhaps we should return to the ways the elect were chosen during the late Bronze Age!

Tomorrow: When humans (try to) explain