The Washington PostDemocracy Dies in Darkness

Opinion 3 intersecting truths drive the Trump hush-money case

New York State Court officers stand in front of the entrance to the offices of District Attorney Alvin Bragg (D) in Manhattan on Monday. (Ted Shaffrey/AP)
4 min

As we await the potential indictment of former president Donald Trump, there are three intersecting truths to keep in mind:

  1. The criminal case against Trump for violating New York state law in arranging for hush-money payments to a porn star might well be weak.
  2. There is a proper way to test that weakness: in a court of law, where a judge can determine whether any alleged conduct constitutes a crime, and a jury can decide whether the state has proved its case beyond a reasonable doubt.
  3. The wrong way — the truly un-American way — is by threatening an uprising. Refraining from bringing an otherwise justifiable indictment for fear of sparking dissent and violence would itself represent a danger to the rule of law.

I wrote last week about potential problems with the case that New York District Attorney Alvin Bragg (D) seems poised to pursue against Trump. As a candidate for president, Trump, according to testimony by his former fixer Michael Cohen, engineered violations of federal campaign finance laws in making hush-money payments to porn star Stormy Daniels. But a tougher question is whether those payments, which were disguised as retainers on the Trump Organization’s books, violated New York law as well.

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.

Perhaps the indictment, if and when it comes, will settle my anxieties. For now, though, I worry about the wisdom of proceeding here.

Trump, all too predictably, has seized on reports of Bragg’s plans as a chance to once again summon the mob, warning that he was on the verge of being arrested and exhorting them to take action. “PROTEST,” he urged supporters on his Truth Social network. “TAKE OUR NATION BACK!”

No surprise there — and no surprise either, after all these years of craven capitulation, that his allies are similarly stirring the pot. This is premature and improper. House Speaker Kevin McCarthy (R-Calif.) tried to have it both ways. He accused Bragg of “abusing his office” in an effort to “subvert our democracy” and called for a congressional investigation. Then he insisted not only that he didn’t believe people should protest a Trump indictment but that he didn’t think Trump wanted that either. (Hello, Mr. Speaker? See paragraph above.)

Three Republican House committee chairs duly wrote to Bragg accusing him of “an unprecedented abuse of prosecutorial authority” and demanding that he “testify about what plainly appears to be a politically motivated prosecutorial decision” and turn over confidential investigative documents.

That’s not how we do things, folks. We follow the rule of law and let the system take its course. We respect the federal system and the autonomy of state and local prosecutors. We don’t haul local prosecutors before Congress to explain themselves. Judges and the appellate process are in place to ensure that criminal defendants — if that is what Trump becomes — are treated fairly.

Bragg was right to push back. “We will not be intimidated by attempts to undermine the justice process,” an office spokesperson said.

The trickier question is whether the prosecutors weighing such an indictment should consider the potentially divisive consequences: Is the case — is this case — worth the turmoil it would bring to a nation already torn asunder? This risk has to be taken seriously — and, I think, has to be dismissed.

If Bragg is convinced that a serious crime has been committed and that he can bring a successful prosecution, if he would charge another, less controversial defendant under similar circumstances, then he should go forward. This is the flip side of treating like crimes alike. Appeasement never works.

As every parent learns, failure to impose consequences for bad behavior only unleashes more, and fear of the ensuing tantrum cannot dictate the terms of punishment. The rule of law should protect Trump against an unwarranted prosecution, but it must also hold him accountable for his actions. Trump and his allies cannot be permitted to incite their way out of indictment.