The Trump indictment is a poor test case for prosecuting a former president
Donald Trump deserves the legal scrutiny he’s getting — which has come from many corners on many counts. Yet of the long list of alleged violations, the likely charges on which a grand jury in New York state voted to indict him are perhaps the least compelling. There’s cause for concern, and caution, ahead.
Thursday’s events are the result of Manhattan District Attorney Alvin Bragg’s decision early in his tenure to abandon a probe centered on the former president’s business practices in favor of what had come to be known as the “zombie” case: the matter of a $130,000 payment made to adult-film star Stormy Daniels in exchange for her silence about an affair she claims she had with Mr. Trump about a decade earlier. (Mr. Trump denies the affair.) Check-writer Michael Cohen, Mr. Trump’s longtime lawyer and fixer, pleaded guilty to crimes related to the payment in 2018. Though the precise charges are not yet known, it’s expected that prosecutors are now going after his boss for supposedly covering up his reimbursements for the favor. Falsifying records in this way is usually a misdemeanor in New York, but if it was done to cover up another crime, it can turn into a felony. The idea here is that the hush-money payment constituted an improper political donation because it benefited Mr. Trump so close to the election.
Pyramiding two transgressions of state rules to go after a federal candidate is legally plausible. But the strategy is also novel, and courts may regard it with skepticism. What’s more, the potential campaign finance charge itself is shaky. When federal prosecutors charged former senator John Edwards (D-N.C.) with a similar crime following his 2008 presidential run, he rebutted the accusation by arguing he was trying to disguise his faithlessness from his wife rather than from the voting public. The trial ended in acquittal on one count and a hung jury on others — at which point the Justice Department dropped the charges.
Breaches of campaign finance law undermine democracy and deserve to be taken seriously. Yet the potential downsides of indicting Mr. Trump ought to be taken seriously, too. This prosecution is now bound to be the test case for any future former president, as well as, of course, proceedings against this former president in particular — of which there are plenty. Other investigations underway include Justice Department examinations of the Jan. 6, 2021, insurrection and classified documents discovered at Mar-a-Lago, where the possibility of obstruction of justice is particularly grave. These are straightforward cases compared with the one proceeding in Manhattan. A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of “witch hunt” — in light of which House Speaker Kevin McCarthy (R-Calif.) was right to urge supporters to refrain from protesting.
Public perception and political strategy shouldn’t dissuade a district attorney from bringing a solid case, but neither should they persuade him to bring a shaky one. This prosecution needs to be airtight. Otherwise, it’s not worth continuing.
