With Trump Indictment, Making America One Step Closer to Being a Republic – OpEd
by William L. Anderson*
When Rudy Giuliani was pursuing his infamous Wall Street lawsuits in the 1980s, his aides admitted that he was pushing people on “new legal principles” that had not been used before.
A Giuliani lieutenant boasted to a group of law students that prosecutors in his office, “…were guilty of criminalizing technical offences. , .. Many of the accusatory principles we used were novel. Various laws under which we had charged. , , The offenses were not charged as before. , , , We are looking for the next areas of conduct that meet any type of statutory definition of criminal conduct.,
At the time, federal prosecutors were going after people like investment banker Michael Milken, but even they may have stopped short of indicting the former president. However, that day is gone, and today we have Manhattan District Attorney Alvin Bragg following John Cassidy new yorker The Bill of Accomplishments calls for a “novel attempt” to combine both state and federal laws to make it clear to convict Donald Trump of a crime. Even if the courts rule against Trump and allow the charges to stand—and it is certain that Trump and Bragg will litigate all charges themselves in the Supreme Court—that will not change the fact that Bragg has strung together several statutes to create something the US Constitution forbids: a bill of attainder.
Although the indictment is still sealed at this writing, the gist of the allegations is as follows: (a) Donald Trump, who was running for president, authorized a $130,000 payment to a woman known as Stormy Daniels So that he can keep quiet about the relationship between. them, along with paying Trump’s lawyer Michael Cohen; (b) he listed the payment as a campaign finance expense and Cohen pleaded guilty to federal campaign fraud; (c) The Trump Company reimbursed Cohen for the payments and claimed them as legal expenses.
Bragg is alleging that Trump approved these payments in violation of federal campaign law, which makes them a felony (under New York law, falsifying business records is a misdemeanor). the lawyer writes and new York Times Columnist David French:
So how can Trump be prosecuted? If Bragg can prove that, contrary to New York state law, Trump falsified the record when “the intent to defraud includes the intent to commit another crime or to aid or conceal its commission,” He can prove that Trump committed a felony, and a felony not only carries harsher penalties; It has a five-year statute of limitations.
But what other offense can turn a charge of falsification of record into a felony? Most likely, prosecutors will rely on the charge of violating federal campaign finance law, specifically the claim that the money secretly paid to Daniels was an illegal campaign contribution. But it’s also not a simple matter: Prosecutors could claim that state campaign finance laws apply to Trump, and that his payments violated New York law, but remember we’re talking about a presidential election. Are. A federal statute explicitly states that relevant campaign finance laws “suprode and pre-empt any provisions of state law with respect to election to federal office.” The law represents a formidable obstacle to prosecuting Trump under state campaign finance laws, and there’s no clear way around it.
It’s a problem because during the infamous “Russiagate” investigation, special prosecutors looked at the situation and concluded the facts were too few to accuse Trump of breaking federal campaign laws. However, Bragg would call for a State In order for the jury to conclude that Trump had indeed broken a federal law – something no state jury should be able to do. Because Trump was never accused of breaking campaign laws, there is now no legal way to claim that he broke them.
The whole case for Bragg hinges on this point, which is why the French—who clearly despise Trump and would be happy if he were convicted Some– The state advised against bringing criminal charges in the first place. He writes:
It’s no wonder that even Bragg’s aggressive former prosecutor, Mark Pomerantz, worried that Daniels’ case was “too risky under New York law,” as the New York Times reports. A Reuters article described the legal theories supporting prosecution for the Denial payments as “untested”. A January New York Times story also called the theories “largely unproven.”
While Trump may be condemned for the reckless behavior that brought about this situation in the first place, I would argue that Bragg’s behavior excess More reckless, given that he’s cobbling together state and federal laws to target a political figure utterly hated by Democrats. Bragg is using criminal law for political purposes, and while such actions are prohibited by Franklin D. The Roosevelt administration has a sorry history of belittling critics of the New Deal, including former Treasury Secretary Andrew Mellon, who have no place under the rule of law. ,
wall street journal editorial board (as opposed to new York Times The editorial board, which talked about Trump being “not above the law”) recognized the great danger of what it called “Pandora’s box”, which has “political ramifications that are unpredictable and potentially devastating.” This indictment is, unfortunately, politically popular with Democrats (and some ever-Trump Republicans), and the usual brakes that come with political processes have been left in the hope that the Great Orange Whale will look inside a jail cell.
While Trump and his supporters will rightly argue that Bragg is manipulating the law in a particular way in order to go after One Individuals, this case Candice E. Jackson and I shed light on the overuse of what was labeled as “derivative crimes” nearly twenty years ago. Under a “derivative offense” regime, which makes up the bulk of federal criminal statutes, a “crime” such as “fraud” is not defined as a specific act, but is derivativeOther actions that may be either actual crimes or actions that one might call criminal but do not break any laws.
For example, Jackson and I describe the RICO methods in our 2004 independent review paper:
The “crimes” under the RICO statute are essentially fictitious, designed to enable federal authorities to avoid the state courts in which accused “bandits” were traditionally tried. Because iconic “mob” figures were being acquitted in state courts—often in the face of overwhelming evidence of guilt—the government created a new set of “derivative crimes”, a class of crimes that by definition are not related to other criminal acts. Was taken from.
No one “racketeer” anyone. Instead, the government allows federal prosecutors to introduce evidence of law breaking elsewhere, but defendants are not charged with those crimes (such as extortion, murder, and robbery). on the contrary they are being accused To ask by threatening, which is derived from those other alleged functions. With derivative crimes, federal prosecutors were able to win cases against alleged organized crime figures such as John Gotti, who were convicted in federal court. , , cleverness.
While the US Constitution forbids the passing of a Bill of Attainder, clever prosecutors find other ways to enforce them by stringing together various statutes to create criminal charges that are specifically targeted at one person. The conviction of Charles Keating, whose savings and loan business failed in the late 1980s, is a case in point. In a courtroom where the infamous Judge Lance Ito (of OJ Simpson fame) presided, California prosecutors managed to convict Keating on another “novel” legal theory, as noted by forbes,
The results laid out by Roberts are certainly troubling. Savings and loan financier Charles H. Keating Jr. was convicted of the crime of employing fraudulent bond salesmen, even though there was no evidence he knew of their activities, and the crime was not on the books when he committed the crime. allegedly did it. After spending 4 1/2 years in prison, his conviction was overturned on constitutional grounds.
One unique aspect of Trump’s case is that state prosecutors are deriving their charges from federal criminal statutes rather than the other way around, but the details of this case are particularly troubling, given the politics involved and the fact that Trump was never accused of breaking federal campaign laws, much less convicted of it. For Bragg to receive a conviction, jurors must conclude that Trump broke federal law, something they are not legally entitled to do, given that a violation of the law was never demonstrated federal court. To put it another way, New York jurors are being asked to declare Trump guilty of a crime he was never charged with.
No doubt Trump will litigate the allegations himself, making many of the legal arguments seen in this article. Note that these charges are also unique in New York’s legal history. He should be given a break.
In form of wall street journal As the editors note, this opens a true “Pandora’s box” that is going to have major implications for generations. If Democrats succeed in convicting and imprisoning Trump, the spree to bring criminal charges for political reasons will not stop with them. Future Republican administrations, not to mention state prosecutors, would seek their revenge by turning against Democratic politicians.
This is a recipe for a banana republic. If Donald Trump committed an actual crime, the authorities should charge him for it. Instead, Democrats have decided they want Trump in jail, and they don’t care if they have to bend the legal system out of shape to get what they want. As I wrote recently, our political elites are exorciseing an evil legal and political genie that, once cast out, cannot be put back in the lamp. They sow the wind, but we all reap the whirlwind.
*About the author: William L. Anderson is Professor Emeritus of Economics at Frostburg State University in Frostburg, Maryland. He currently serves as editor of the Mises Institute.
Source: This article was published by MISES Institute