The key Big Stuff, to me, in the Manhattan indictment are these:
1) Indeed, while voting to acquit Mr. Trump at his second impeachment trial — the one charging him with inciting the Jan. 6, 2021, attack on the Capitol — Senator Mitch McConnell, the Republican leader from Kentucky, said he did so because Mr. Trump was no longer in office but added that he was still subject to criminal prosecution.
Jan. 6 was Big Stuff; the election interference in Georgia was Big Stuff--both worthy of precedent setting--hush money to Stormy Daniels is not, to me, Big Stuff, not worth setting precedent. I agree with Peggy Noonan on this point.
2)“My view is that so long as the case that is brought is
a) for a crime that is not unusual to charge, and
b) the proof is also as strong as one would normally have — i.e. that one wards against the problem of selective prosecution — then it is imperative that we hold politicians to account regardless of what position they hold or held,” said Andrew Weissmann, a deputy to Robert S. Mueller III, the special counsel who investigated the Trump campaign’s ties to Russia.
Those are in the conjunctive, that is, both conditions precedent must be met in this charging standard. Now, we do not know exactly what charges the indictment makes but we have a damn good idea and the informed reading of tea leaves by legal eagles is that these charges are unusual, they go back years, to before Trump was illegitimately president; if they are felonies the only way to make them felonies is to tie them to the federal crime of illegal campaign contributions, which federal crime the federal authorities in the Southern District of New York did not charge. Under Weissmann's standard that ends the analysis: no charges.
The proof is informedly speculated to be less than "one would normally have"; without knowing the charging history of the Manhattan D.A.'s office in sex hush money cases it sounds plausible to me that this would be rarely done, that is, that it does raise "the problem of selective prosecution". Once again, since Weissmann's standard is conjunctive that ends the analysis with no charges.
There does seem to be additionally a statute of limitations issue that Elie Mystal in The Nation raised. That's not a proof problem but a legal hurdle, perhaps fatal.
…others worry about the long-term consequences for the presidency, not least because this indictment is being brought by a local prosecutor rather than the Justice Department, opening the door to prosecutors around the country taking it upon themselves to go after a president.
In 2008, voters in two small towns in liberal Vermont approved resolutions accusing Mr. Bush and Vice President Dick Cheney of “crimes against the Constitution” and instructing their town attorneys to draft indictments. Nothing ever came of it, but it is not hard to imagine a conservative local prosecutor trying to charge President Biden with, say, failing to adequately guard the border.
Finally, this to me is ominous politically, our Republic is, after all, a political structure. Prosecutors always say political considerations have no bearing on their decisions, that it's the law and evidence uber alles. And in this Manhattan case Alvin Bragg can say that with complete credibility: He is not indicting a sitting president or a former president for crimes committed in his official capacity or while he held office; he is indicting a man, then only a candidate, for crimes committed when he was a private citizen in Bragg's local jurisdiction. For analytical purposes if we make this not a small potatoes case but a big enchilada of a case how would our analysis change? Let's say Donald Trump did, as he said in Iowa he could do, "shoot a man on Fifth Avenue" with political impunity would any of us say that Trump could not be prosecuted for that shooting? Similarly, Bragg's statute of limitations argument would be: "I did not charge him for the shooting while he was president in deference to principles of federalism but I am now that he is out of office." I don't know if that is a winning legal argument or one merely consistent with Department of Justice guidelines in federal prosecutions of presidents but it is a very compelling equitable argument.
In our division-of-power political system there are a zillion prosecuting authorities: local "district" prosecutors offices, statewide prosecution authority, and federal United States Attorney's office who are under control of the Justice Department. One entity does not control all of them. In the overwhelming majority of local prosecutions the Justice Department has no say. It can try to control federal inquiries to protect political allies as the Trump Justice Department did but its writ simply does not run to the Cambria County Pennsylvania D.A.'s office or the rural Alabama or Texas office. Federal charging guidelines do not apply at the state and local level. There is nothing to prevent a local D.A. from charging Joe Biden, even in complete bad faith, without evidence or law, for any crime the local D.A.'s conscience can sustain. All to state the obvious: a prosecution of a politician is by definition a political prosecution. Political considerations have to be taken into account and political consequences can be expected. Both considerations and consequences rise exponentially with the height of the office the defendant-politician attains. That's just keeping it real.
Therefore, legally, I adopt the Weissmann Test and hold that these charges should not have been brought. Similarly, politically, I agree with Peggy Noonan, Bill Kristol, et al that the charges should not have been brought.
