People v. Donald J. Trump: A Calculated Bet To Put Donald Trump Away
I walked into my office this week to find a fellow attorney and the receptionists raptly watching the coverage of former President Donald Trump’s indictment by a New York grand jury for hush money payments made to a pornographic actress and another woman during his 2016 presidential campaign. What did I think of the charges? Would they stick? Their questions came with bated breath like I had some special insight by virtue of being a criminal defense lawyer.
Don’t get me wrong. I love the attention, and the questions were fair. I candidly laughed at the interest in the substantive charges against Trump, which have serious procedural issues, but I sounded a note of caution. There are reportedly 34 charges against him in the indictment, which has yet to be unsealed. Unlike many commentators, I am not persuaded that all of those charges are substantively related to the payments themselves.
Trump’s greatest strength and his greatest danger have always been synonymous. He controls, or tries to at least, the public narrative around most things that he’s involved in. His ability to connect with people on a mass level in the social media age is extraordinary. Politically speaking, he is the most dangerous and toughest opponent you could encounter because rivalling his ability to connect with people is nigh impossible and he strikes unorthodox blows. Legally speaking, he is a major liability. His inability to not comment on his legal matters may lead him to incriminate himself in some fashion in front of the whole world. His view that he can always fix something by cutting a deal poses a legal nightmare for Joe Tacopina and the all-star team that he is reportedly lining up to defend himself in New York.
New York District Attorney Alvin Bragg is no idiot. He might be waging a politically motivated prosecution against Trump, but I have a gut feeling that he has intentionally slow-walked this indictment for years. Why? The devil lies in that answer, folks.
Trump is the definition of a choleric personality. He simply cannot sit still and wait for something to happen when it concerns him. He has an uncontrollable desire to get out in front of it and control it. To this point in his life, he has largely been successful at it. What works in business does not always work well in the sinister world of criminal prosecutions though.
Bragg knows that, and he appears to have intentionally exploited Trump’s personality and will likely continue to do so. Over the past year, it is my belief that his office has systematically leaked details about its investigation, who it was talking to, and what it was likely to do to bait Trump into trying to fix the problem. Did Trump take the bait and try to fix the problem? Who has he talked to? Has he plausibly threatened or attempted to persuade potential witnesses? Has he tampered with evidence?
If Trump did take the bait and try to fix the problem, he exposed himself to process crimes such as tampering with a witness, tampering with physical evidence, and the like. In many cases, charges such as those are felonies that carry substantial jail time and mandatory minimum jail sentences. If Trump indeed crossed the line on these process charges, the merits of the underlying substantive charges matter little in the ultimate outcome. It is a very likely scenario that all of the substantive charges against him are dismissed on legal technicalities or he is acquitted of them, but he is convicted on the process crimes.
We will find out – likely in the first week of April 2023 – whether Bragg has secured an indictment against Trump for process crimes. If he did, Trump will face a tall task in walking away from this prosecution unscathed despite its many flaws and political motivations. If he didn’t, the next year or so will be a perilous one for Trump as Bragg will constantly be looking to provoke him and pounce on any whiff of a process crime.
Omar Little of the Wire once said: “When you come at the king, you best not miss.” Bragg knows that. He’ll move heaven and earth to score a conviction on Trump. It matters little whether it is one that he provokes and manufactures through the pressure of a politically motivated prosecution or it is one of actual substantive merit. What matters is that he gets it.
Welcome to the American “criminal justice” system. The same story plays out against the despised in every courtroom in America on a daily basis. It will now be on display for the entire world to see.
P.S. I agree with the lawyers and commentators who have already predicted that the most interesting aspect of Trump’s prosecution will be the gag order that Bragg’s office will likely seek against him. The First Amendment implications of such an order if it affects his 2024 presidential campaign would be huge. Whether Bragg seeks such an order though will depend on whether he has already secured the process crimes that he’ll likely need to score a conviction on Trump.
