Manhattan District Attorney Alvin Bragg made history on Thursday, indicting a former U.S. president for the first time. The indictment is under seal. From all indications, however, former president Donald Trump was indicted for falsification of business records (a crime regularly prosecuted under New York law), beginning before the 2016 election. (The hush-money payments continued during his presidency.) If news reports are correct that Trump was indicted for a felony, Bragg will have cited another crime that Trump allegedly furthered through bookkeeping shenanigans.
Former prosecutor Andrew Weissmann, part of special counsel Robert S. Mueller III’s investigation of Trump, told me, “This is the first step in true legal accountability. But it will be important to remember that the rule of law requires us to presume him innocent now that he is a criminal defendant.”
No felony is inconsequential, nor is the likely charge incidental to Trump’s sustained attack on our democracy. The scheme Trump allegedly set up to keep adult-film star Stormy Daniels quiet about an affair was intended to pull the wool over voters’ eyes, the first of other attempts to defraud them, and the coverup scheme extended into his presidency when he lied in denying the affair. Trump’s former attorney Michael Cohen pleaded guilty and served jail time for attempting to conceal these very payments. (Rather than ponder why Bragg prosecuted Trump for the same facts, it’s fair to wonder why the Justice Department did not prosecute Trump immediately after he left office.)
Norman Eisen, co-counsel for the House impeachment managers and author of numerous analyses on the case, told me that facts publicly known suggest this “is a clear violation of the New York books and records statute.” He further argues that if “it was done to benefit the Trump campaign — an alleged illegal contribution — it is also a felony, and because it could have affected the extremely close 2016 election, it is also a serious alleged offense against our democracy.”
Contrary to some commentators’ argument that New York law might be preempted by federal law, a Just Security report makes clear that plenty of state laws are not preempted, including “a limitation on corporate contributions to federal campaigns; a violation of consumer protection laws … and fraudulent transfers of donations from PACs ostensibly founded to support presidential campaigns.” Bragg has a strong case that Trump’s attempt to conceal hush money is precisely the sort of skulduggery that states can pursue.
Fred Wertheimer, head of Democracy 21, told me, “Trump now faces the possibility of criminal accountability for his actions in New York. And this just the beginning.” He predicted: “Before this is over, Trump may be facing four possible prosecutions and accountability in New York, Georgia and at the Justice Department.”
A few aspects of the case are worth underscoring:
1. The hue and cry has gone up that this is a ticky-tacky indictment. The complaint here seems to be that because Trump is under investigation for important federal crimes, the state cannot enforce its own laws when he violates them. But the rule of law does not require that someone under investigation for serious felonies not be arrested for, say, drunken driving or shoplifting. No suspect can avoid consequences for lesser crimes pending indictment for more serious ones.
“It’s a historic breakthrough with a clear message that no one is above the law,” said Ryan Goodman, founding co-editor in chief of Just Security.
2. Trump has already started threatening and demonizing Bragg. He has mused about death and destruction and summoned his shock troops to take back their country, just as he did in the run-up to the Capitol riot of Jan. 6, 2021. After reports of the indictment, Trump posted a diatribe decrying prosecutors as “Thugs and Radical Left Monsters.” It’s noteworthy that his first complaint is that they indicted the 45th president and a 2024 presidential candidate. The rule of law is indifferent to such facts.
Any attempt to thwart our legal system with violence and chaos cannot be tolerated. The assigned New York judge should use the full array of judicial power, including a gag order, to prevent threats to the district attorney, court staff and jurors. (If Trump is trying to lay the groundwork for a defense of “selective prosecution,” he’ll most likely fail. In the criminal prosecution of the Trump Organization, Judge Juan Merchan disallowed this defense.)
Rep. Daniel S. Goldman (D-N.Y.), former counsel in Trump’s first impeachment, tweeted, “Now as a criminal defendant, Donald Trump has numerous rights to defend himself. But that defense should take place in the court of law, not in the halls of Congress or in the political sphere. The rule of law demands it.”
3. This is probably not the last indictment. Trump attorney Evan Corcoran has been compelled to testify in the Mar-a-Lago espionage and obstruction case. And former vice president Mike Pence has been ordered to testify before a grand jury in the Jan. 6 investigation. Other news reports suggest the Georgia state criminal case (focused on the phony electors) is briskly moving along.
Trump is being prosecuted not because he is a former president but because his status as a former president does not shield him from the law. “Whatever one thinks of Trump, it’s a sad day for America when a former president is indicted,” said former New Jersey Democratic representative Tom Malinowski. Also sad, he said, is the prospect that jurors in any Trump trial would need “armed protection from people a former president will be inciting to violence.”
New York state judges, unlike some right-wing, handpicked federal judges, are likely to dismiss any frivolous arguments and attempts to delay from Trump’s attorneys. Trump is about to be treated like any criminal defendant. The rule of law seems finally to have caught up to him.