When Rudy Giuliani was pursuing his infamous Wall Street prosecutions in the 1980s, his aides admitted that they were indicting people on “novel legal theories” that had not been used before. A Giuliani lieutenant bragged to a group of law students that prosecutors in his office
…were guilty of criminalizing technical offenses. . .. Many of the prosecution theories we used were novel. Many of the statutes that we charged under . . . hadn’t been charged as crimes before. . . . We’re looking to find the next areas of conduct that meets any sort of statutory definition of what criminal conduct is.
At that time, federal prosecutors were going after people like investment banker Michael Milken, but even they would have stopped at indicting a former president. That day is gone, however, and today we have Manhattan district attorney Alvin Bragg following what John Cassidy of the New Yorker calls a “novel effort” to combine both state and federal laws to create what clearly is a bill of attainder to convict Donald Trump of a crime. Even if the courts rule against Trump and permit the charges to stand—and it is certain that Trump and Bragg will litigate the charges all the way to the Supreme Court themselves—that does not change the fact that Bragg has cobbled a number of statutes together to create something the US Constitution forbids: a bill of attainder.
Although the indictment is still sealed at this writing, the gist of the charges is as follows: (A) Donald Trump, who was running for president, authorized payment of $130,000 to a woman known as Stormy Daniels to keep her quiet about an affair between them, with Trump’s lawyer Michael Cohen making the payments; (B) he listed the payments as a campaign finance expense and Cohen pleaded guilty to federal campaign fraud; (C) the Trump Company reimbursed Cohen for the payments and claimed them as a legal expense.
Bragg is alleging that Trump approved these payments while breaking federal campaign law, which makes them a felony (under New York law, simply falsifying business records is a misdemeanor). Writes attorney and New York Times columnist David French:
So how can Trump be prosecuted? If Bragg can prove that, contrary to New York State law, Trump falsified records when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,” he can prove that Trump committed a felony, and a felony not only carries stiffer penalties; it has a five-year statute of limitations.
But what is the other crime that can convert a charge of records falsification to a felony? Most likely prosecutors will rely on an allegation of violating federal campaign finance law, specifically the claim that the hush money payments to Daniels were illegal campaign contributions. But this is also not a simple case to make: The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.
This is a problem because during the infamous “Russiagate” investigations, special prosecutors looked at this situation and concluded that the facts were too sketchy to charge Trump with breaking federal campaign laws. However, Bragg will be calling for a state jury to conclude that Trump actually did break federal law—something a state jury should not be doing. Because Trump was never charged with breaking campaign laws, there is now no legal way to claim he broke them.
Bragg’s entire case hinges upon this point, which is why French—who clearly despises Trump and would rejoice if he were convicted of something—advised against bringing state criminal charges in the first place. He writes:
It’s no wonder that even Bragg’s aggressive former prosecutor Mark Pomerantz was concerned that the Daniels case was, as The New York Times reported, “too risky under New York law.” A Reuters article described the legal theories supporting a prosecution for the Daniels payments as “untested.” A January New York Times story also accurately called the theories “largely untested.”
While one can condemn Trump for the reckless behavior that brought about this situation in the first place, I would argue that Bragg’s behavior is much more reckless, given that he is cobbling state and federal statutes together to target a political figure roundly hated by the Democrats. Bragg is using criminal law for political purposes, and while such actions have a sorry history going back to the Franklin D. Roosevelt administration’s hounding of critics of the New Deal, including former Treasury Secretary Andrew Mellon, they have no place under the rule of law.
The Wall Street Journal editorial board (unlike the New York Times editorial board, which prattled on about Trump “not being above the law”) recognized the greater danger of unleashing what it called a “Pandora’s box” that has “political ramifications that are unpredictable and probably destructive.” This indictment, unfortunately, is politically popular with Democrats (and some never-Trump Republicans), and the usual brakes that accompany political processes have been discarded in the hopes that the Great Orange Whale will see the inside of a prison cell.
While Trump and his supporters will rightly argue that Bragg is manipulating the law in a special way to go after one person, this case highlights greater abuses of the law attributable to what Candice E. Jackson and I labeled almost twenty years ago as “derivative crimes.” Under a “derivative crime” regime, which makes up the bulk of federal criminal statutes, a “crime” such as “racketeering” is not defined as a specific act, but rather is derived from other actions that may either be actual crimes or acts that someone might call criminal but do not break any laws.
For example, Jackson and I described the RICO statutes in our 2004 Independent Review paper:
The “crimes” under the RICO statute are essentially fictitious, created to enable federal authorities to avoid the state courts in which accused “mobsters” traditionally had been prosecuted. Because reputed “mob” figures were being acquitted in state courts—often in the face of overwhelming evidence of guilt—the government created a new set of “derivative crimes,” a class of offenses that by definition are derived from other criminal acts.
One does not “racketeer” anyone. Instead, the government permits federal prosecutors to present evidence of lawbreaking elsewhere, but the defendants are not charged with those crimes (such as extortion, murder, and robbery). Instead, they are charged with racketeering, which is derived from those other alleged actions. With derivative crimes, federal prosecutors were able to win cases against alleged organized crime figures such as John Gotti, who was convicted in federal court of . . . racketeering.
While the US Constitution forbids passage of bills of attainder, clever prosecutors find other ways of implementing them by piecing together various statutes to form criminal charges that are specifically aimed at one person. The conviction of Charles Keating, whose savings and loan business failed in the late 1980s, is a case in point. In a courtroom where the infamous Judge Lance Ito (of O.J. Simpson fame) was presiding, California prosecutors managed to get Keating convicted on yet another “novel” legal theory, as noted by Forbes:
The results, as laid out by Roberts, are certainly disturbing. Savings and loan financier Charles H. Keating Jr. was convicted of the crime of employing fraudulent bond salesmen, even though there was no evidence he knew of their activities, and the crime was not on the books when he supposedly committed it. His conviction was overturned on constitutional grounds after he served 4 1/2 years in jail.
One unique aspect of Trump’s case is that state prosecutors are deriving their charges from federal criminal statutes instead of the other way around, but the particulars of this case are especially troubling, given the politics involved and the fact that Trump was never charged with breaking federal campaign law, much less convicted of it. In order for Bragg to gain a conviction, jurors will have to conclude that Trump broke federal law, something that they are not legally entitled to do, given that lawbreaking never was demonstrated in federal court. To put it another way, New York jurors are being asked to declare Trump guilty of a crime for which he never was charged.
There is no doubt that Trump will litigate the charges himself, making many of the same legal arguments that have appeared in this article. Note that these charges are also unique in New York legal history. That alone should give pause.
As the Wall Street Journal editors noted, this opens a true “Pandora’s box” that is going to have major ramifications for generations. If the Democrats manage to convict and imprison Trump, the rush to bring criminal charges for political reasons will not stop with him. Future Republican administrations, not to mention state prosecutors, will extract their revenge by going after Democratic politicians.
This is a recipe for a banana republic. If Donald Trump has committed a real crime, then the authorities should charge him for it. Instead, the Democrats have decided that they want Trump in prison, and they don’t care if they have to bend the legal system out of shape to get what they want. As I recently wrote, our political elites are unleashing an evil legal and political genie that once out cannot be put back into the lamp. They are sowing the wind, but all of us will reap the whirlwind.