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Opinion It should be outrageous that Trump’s indictment is not a federal case

Police officers stand outside Manhattan Criminal Court on Tuesday. (Andrew Kelly/Reuters)

Anyone who cares about fairness in our criminal justice system should be queasy that Donald Trump will be prosecuted in one of the country’s most liberal jurisdictions. By all accounts, this should be a federal case.

On Thursday, a Manhattan grand jury voted to indict the former president for his hush-money payments to adult-film star Stormy Daniels during his 2016 campaign. Trump has repeatedly denied all wrongdoing and dismissed the investigation as politically motivated.

Regardless of what people think about Trump or the facts of the case, it’s not hard to see the problem. New York state’s entire judicial process is controlled by Democrats who could lose their positions in party primaries. Alvin Bragg, the district attorney overseeing the case, boasted during his campaign that he had sued Trump or his administration more than 100 times during his tenure in the state attorney general’s office, something he probably did to curry favor with primary voters who loathe Trump. Every New York state judge who would either try the case or hear an appeal is elected on a partisan basis, too. It would take a lot of courage for a judge to apply the law fairly and potentially ignore their voters’ desire for vengeance.

Imagine if Joe Biden were prosecuted after his presidency in an overwhelmingly Republican jurisdiction. Democrats would rightly howl if an ambitious GOP district attorney did to Biden what Bragg is doing to Trump.

Had the case been filed in federal court, the trial and any appeals would be conducted or heard by federal judges who are appointed by presidents from both parties and have life tenure. That means they are far more insulated from partisan pressures and can rule on any issue according to the law, not their own personal futures. And those who might contend that Republican-appointed judges or justices will simply rule politically to let their party’s leader go, note that not one did so during Trump’s contesting of the 2020 election.

While the indictment remains under seal, the case will likely have as much to do with federal statutes as it does New York law. Legal pundits expect charges that Trump falsified business records when he reimbursed his then-lawyer Michael Cohen for payments Cohen made to Daniels to keep quiet about her allegation that she had an affair with Trump (which Trump has denied). Normally, such falsification would be a misdemeanor under state law; it rises to felony level if the mischaracterization is made to conceal the activity to commit another crime. Bragg intends to meet that criterion by arguing that Trump intended to violate federal campaign finance law by directing the payments in this manner, presumably to avoid having to disclose them on campaign finance reports.

One might hope that Trump could get a fair trial by removing the case to federal court. But this doesn’t necessarily apply to Trump’s case. The relevant provision allows removals in situations in which federal officers or agents are charged with criminal acts they performed in the course of their official duties. But Trump isn’t a current federal officer, and his actions took place when he was campaigning for federal office, not when he was in office.

Editorial Board: The Trump indictment is a poor test case for prosecuting a former president

Republicans could try to amend the law to allow removals in Trump’s case, but Democrats in the Senate would almost certainly refuse to take it up.

That might be shortsighted. There are plenty of counties and states that are as thoroughly dominated by Republicans as New York is by Democrats. Texas also elects its judges on a partisan basis, and there are plenty of rural counties where Trump won with 90 percent or more. It’s not hard to see how ambitious Republican prosecutors could imitate Bragg if Trump’s criminal trial proceeds in state court as expected.

Trump was rightly criticized for agreeing with his crowds’ cheers of “lock her up” directed against Hillary Clinton. The fact that Democrats are now the ones shouting “lock him up” should not mute that criticism. Democracy is harmed when the law is used for political purposes. Trying Trump in federal court would mean the law, not partisan passions, would decide his fate.