Prof. Gerard Bradley on Prosecutorial Discretion and Judgment in the Trump Case

My friend and colleague, Prof. Gerard Bradley -- a former Manhattan prosecutor, as it happens -- shared with me a short essay on the recent indictment in New York of Donald Trump.  Here it is:

Abuse of Discretion: The Trump Indictment

• • Gerard V. Bradley*

It’s now official: Donald Trump is the first ex-President to face criminal charges.  The People of New York, by a majority vote of twenty-three residents randomly summoned for grand jury duty, lodged a thirty-four count indictment against him.  The misconduct alleged consists of falsified records of ten or so payments, made throughout 2017 by Trump entities to Michael Cohen.  All of them were apparently reimbursements to Cohen for “hush money” he gave Stormy Daniels to keep her quiet about a sexual tryst that Mr. Trump says never happened.  Paying the money is no crime.  Entering the payment on the Trump company’s books as a business or legal expense, could be.  The grand jurors accused Mr. Trump of doing just that, “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof”.

Many politicians and pundits denounce the charges as “politically motivated”.

My worry is that the denunciations are “politically motivated”. Although there is a circumstantial case suggesting that the Manhattan District Attorney Alvin Bragg might have a political agenda, the simple fact is that there is no evidence of what his motivations actually are.  Denunciations of him are meant to fan political conflict. They do. They also further divide, and more bitterly, an already rent body politic.

The politicized criticism is not only mischievous.  It is unnecessary. The Trump indictment is a grave abuse of a prosecutor’s discretion. It should be denounced for that reason. The partisan gamesmanship can stop.

Now, one plausible motive for charging Trump could be that Mr. Bragg believes that Trump’s willingness to falsify records to cover-up an adulterous affair renders him unfit to serve (again) as this nation’s chief law enforcement officer.  Let’s suppose for a moment that this judgment is sound. It still should play no role in Bragg’s decision to prosecute Trump. Bragg’s overall opinion about Trump’s fitness to be the nation’s top cop is entitled to no more authority or amplification than anyone else’s opinion.  Bragg should never use the powers of his office to handicap the next Presidential election.    

One could ask whether Mr. Bragg would seek to indict any other businessman who falsified records for the same amount or any amount for the same tawdry reason, that Trump allegedly did. One could ask as well whether the Manhattan District Attorney’s Office does typically prosecute cases similar to Trump’s.

The problem with this thought experiment is that there are no true comparators.  Donald Trump is not singularly rich or famous, though he is both. But no grand jury target could be more prominent than he is.  None has a more vociferous constituency.  And Trump is, well, Trump: he has relentlessly tried to intimidate the District Attorney and to discredit his investigation – in colorful and often crass terms. 

This mix of factors rightly makes Trump a priority target of law enforcement.  The prominence of any individual should be considered when a prosecutor decides who to charge. It is imperative that prosecutors not only believe that no one is above the law.  They must try to make that truth evident to all. The central ethical justification for prosecuting Trump is the same as for prosecuting anyone: to vindicate the rule of law by imposing just punishment. But the main practical effects are two. One is to hold this powerful man accountable, so that rest of us do not conclude that we are suckers for following the law, to show that playing by the rules is not just for chumps. This is especially true for crimes like those for which Trump was indicted, matters involving the integrity of business records.  Many are tempted to play fast-and-loose with those laws from time to time. The other effect is deterrence; when the rest of us see that the rich get their deserved comeuppance, we are more likely to fall in line too.

Even so: the Trump indictment is a gross abuse of the DA’s awesome but necessary power of prosecutorial discretion.

First, the alleged criminal behavior at the heart of the Trump indictment – falsified invoices and vouchers and checks issued to make good on them – amounts to a misdemeanor in New York, punishable at the same level of severity as shoplifting.  Considered in itself, even someone exemplary (like Trump) would not be prosecuted for falsifying these records.  And Trump was not: the statute of limitations ran out years ago on the misdemeanor charge because the DA did not pursue it. The business records at stake are, moreover, those of a privately held, family company. No one within the company made money off the scheme either; there was no skimming or side-payments to insiders. The public interest in prosecuting this false business entry is slight, at most.

Second. Trump is charged with thirty-four felonies.  The enhancement from misdemeanor is based on a novel legal theory that evades the statutory limitations bar.  That theory is not only untested.  It is unsound. To date, New York prosecutors have upgraded misdemeanor business records frauds into felonies by linking them to acts which are crimes under New York law.  The indictment ties each of the thirty-four specific misdeeds to Trump’s (alleged) attempts to aid in the commission or conceal the commission, of another crime. Nowhere does the indictment say what those further crimes are. But it is almost certain that the proof at trial will reveal them to be federal offenses.

The animating public harms in the indictment are thus not peculiar to New York.  They have to do with the federal election of 2016 and campaign finance laws. Those laws and the common goods they protect are serious matters.  Federal prosecutors should and do enforce those laws. In Trump’s case, Bragg is prosecuting a misdemeanor as a felony when the actor intended (by hypothesis) to conceal the commission of an act that New York does not regard as a crime.  

A case of this magnitude and political consequence is not the occasion to field-test creative interpretations of the criminal law.

Third.  The experimental legal theory coupled with the cratered credibility of the state’s chief witness – Trump “fixer” Michael Cohen – calls into question whether he could properly be convicted on the constitutional standard – proof beyond a reasonable doubt.   This is not mainly a question about whether Manhattan jurors will in fact convict Trump.  Many potential jurors would probably convict hm on no evidence at all.  It is instead a question of honest professional judgment about the quality and quantity of the People’s proof.  It is a question to be answered in one’s best professional judgment ex ante; that is, before proceeding to the grand jury or at least before asking the grand jurors to vote for an indictment. 

As a matter of ethics, a conscientious prosecutor must seriously consider, even in the case of a repulsive defendant, the risk that a jury will convict on less than the quantum of evidence that the Constitution requires.  Persuading a majority of twenty-three grand jurors on the basis of a non-adversarial presentation that there is reasonable cause to accuse someone of a crime is easy. Getting a conviction by the unanimous vote of a jury after a contested trial where the burden of proof is “beyond a reasonable doubt” is hard.

It is almost unfathomable that Bragg’s prosecutors could be sure of their proof.  Combining the second and third factors makes for an especially adventurous prosecution, one that has succeeded in obtaining an indictment without the requisite professional confidence that a conviction is warranted.

Here the titanic political repercussions of indicting an ex-President running to regain the office come into play.  Any prosecutor charging Donald Trump should be all the more confident about the proof and that the legal theory being used are beyond reproach.  Alvin Bragg appears to think it works the other way around: take your best shot at the big game when you get it, even if your best shot is not professionally a sound one.

Fourth. Bragg’s is not the only game in town. There are several other potential Trump prosecutions in the pipeline. They all concern acts which more directly reflect Trump’s fitness to be President. Georgia authorities are investigating whether President Trump criminally interfered in that state’s electoral college returns in 2020.  Specially appointed federal prosecutor Jack Smith (who, coincidentally, began his career as a Manhattan ADA), is looking at possible criminal wrongdoing in Trump’s retention of presidential papers at Mar-a-Lago and, more importantly, in his involvement in the January 6 riot.  The simultaneous pursuit of criminal charges in other jurisdictions is a sound, everyday consideration for prosecutors deliberating about pursuing an investigation and indictment. Usually, local prosecutors like Alvin Bragg stand down when the federal government is so seriously pursuing more serious charges against someone the local DA is targeting.

 “Politically motivated” turns out to be a red herring.  If the Manhattan DA had solid proof that Donald Trump had committed almost any other felony – say, possession of child pornography or selling drugs or defrauding investors of millions – few would criticize his politics, even though he would be the same progressive Democrat that he is today.   The “politically motivated” charge arises precisely because so many people sense that this prosecution of Donald Trump is dubious. It is dubious, an abuse of discretion that ought to be redressed.  That criticism stands on its ground.  It does not need incendiary ballast, which boils our already hot politics.

What then is to be done?

If Trump’s were a more typical defendant and his case an ordinary one of gross unprofessional judgement, the answer might conclude right here: criticism. One would make the case that the prosecutor made a serious error and that the indictment should be dismissed -- and move on. But Trump’s case is not typical.  This abuse of discretion has ignited a political firestorm, one which threatens to seriously damage our country’s common good.  For that reason, in this extraordinary case, all lawful avenues of correction should be considered.

Trump has been indicted in the name of the People of New York.  In reality, the charges are the production of one man, the District Attorney of one county – Alvin Bragg.  One remedial avenue is set out in New York’s Executive Law, section 63(2).  It introduces the entire population if New York into the picture.  This law authorizes Governor Kathy Hochul is to “supersede” Alvin Bragg, to take the Trump case away from him and to assign it to the office of the state Attorney General.  Both Hochul and the Attorney General (Letitia James) are Democrats, of course.  But we should not indulge without evidence the temptation to conclude that their actions in taking over Trump’s case, would be “politically motivated”.