This specific verdict rests on what this inevitably contrives. The weaponization of a Justice system to interfere in a free and fair election will not stand alone. Pictured: Manhattan District Attorney Alvin Bragg. Photo Credit: Alvin Bragg/X.
There will be much ink spilled analyzing and assessing the verdict handed down in New York finding Donald Trump, former president of the United States, guilty on all 34 counts. What to make of it?
As a conservative, the genesis of these charges and the subsequent trial leave me suspicious. I do not delude myself about Trump’s moral failings. This trial undoubtedly revealed his lecherous character and habits. His treatment of women and his disregard for his wife and family deserve no defence. As a Christian, I have no interest in justifying his behaviour. But these were not what this trial was about. The charges and the trial are hard to explain. I have read and re-read explanations about how District Attorney Alvin Bragg put together his case, but I still find the matter confusing and confounding. With help from a former Justice Department official and journalist for National Review, Andrew McCarthy, let me try to help the reader understand this astounding piece of judicial work.
Bragg is a Democrat who campaigned on the promise of using his office to hound Trump. New Yorkers elected him and twice elected Letitia James (New York State Attorney General) who assured voters she would also dedicate herself and her resources to pursuing Trump. As McCarthy points out, the decay here is not only legal, but also cultural.
Bragg dropped the case in 2022 because it lacked credibility. But with Trump’s re-entry into the 2024 election cycle, Bragg revived the matter and knew that if he could get the case indicted in 2023 he could interfere with Trump’s campaign in 2024. To borrow McCarthy’s take: “Bragg indicted based on a business-records statute that, as applied in this case, is unconstitutionally vague under New York’s constitution. He resorted to this penal provision because he was bereft of what any prosecutor even thinking about indicting a former president and de facto presidential nominee should have: a serious crime that would be charged against anyone, supported by clear, convincing evidence. Ergo, Bragg had to rely on caprice — which is page one in the selective-prosecution playbook.”
In simple terms, Bragg found a way to indict Trump with little proof because it was politically advantageous, not legally sound. McCarthy points out further, that Bragg ran into several snags during this Stormy Daniels revival. Making Trump’s Non-Disclosure Agreement (NDA) with Stephanie Clifford (Stormy’s legal name) a campaign finance infraction meant it was a federal violation. As a state prosecutor, Bragg had no enforcement over federal law. Digging deeper, McCarthy found that the two bodies charged with enforcing violations of the Federal Election Campaign Act (FECA) were the Justice Department (DOJ) and the Federal Election Commission (FEC). Both had thoroughly investigated Trump and decided to take no action. NDAs are not understood to be campaign expenditures. Finally, the prosecutor left the alleged charges about what Trump had done foggy. Judge Merchan, as McCarthy states, “abetted the DA — it being no more proper for Merchan to entertain an action in enforcement of federal law than for Bragg to bring such an action in the first place.” In summary, the charges brought would normally not be pursued, but for political reasons, Bragg decided to do so because the catch was irresistible and career-altering.
With Judge Merchan’s aid, he used a federal statute camouflaged with state law to develop his case. The matter gets complicated and irregular at this point, but the struggle is worth the find. The state law that Bragg leaned on – “conspiracy to influence an election by unlawful means” – is a misdemeanour. As McCarthy correctly asserts, “Bragg couldn’t charge this offence, just as he couldn’t charge the business-records-falsification misdemeanour, because the two-year statute had lapsed by 2019.” This duo did not allow these facts to impede their hunt. To them, as McCarthy further calculates, “these two time-barred misdemeanours somehow added up to a felony with a six-year statute of limitations and a potential prison term of four years, which Bragg multiplied into 34 counts (136 years — though capped at 20 years under New York sentencing law).” Federal law would not have allowed the carving up of these nonviolent offences into multiple counts, but this is New York City, in Manhattan (Trump received 14.5 per cent of the vote there in 2020) and the former president’s request to change the venue was denied.
McCarthy calls attention to an obvious fact that received little notice in the press coverage in the days after the verdict. The Biden Justice Department chose to look the other way when Bragg and Merchan teamed up. As McCarthy writes, “If a state prosecutor had tried to enforce FECA against any defendant other than Trump — in particular, if a red-state DA tried invoking the Bragg rationale in order to indict a prominent Democrat — the Biden Justice Department would have gone on the warpath. Attorney General Merrick Garland’s prosecutors would have demanded that the federal courts shut the state enforcement effort down, just like they do when states try to enforce federal immigration law because Biden won’t. But in this case? Crickets.”
Beyond this, McCarthy enumerates the irregularities. First, Merchan denied Trump’s team from calling FEC commissioner, Bradley Smith who could have cleared up facts about NDAs as campaign expenses and that they do not have to be claimed until after the election if they were. Second, Merchan knew evidence coming from Michael Cohen, Trump’s former attorney, and David Pecker, the man who worked to purchase stories about Trump and prevent them from being published, was inadmissible because Cohen had pled guilty to FECA crimes and Pecker had struck a non-prosecution deal with the Justice Department. Third, Merchan happily avoided instructing the jury about willfulness, allowing Bragg and his prosecutors to repeatedly refer to Cohen’s conviction and Pecker’s deal, creating the effect that Trump intended to commit FECA crimes.
In addition, McCarthy could only conclude that, “As a whole, moreover, the jury instructions were a road map to conviction. En route, the jurors were told that they needn’t agree on what unlawful conduct Trump had engaged in to conspire to corrupt the election (which, remember, was not charged in the indictment). Rather, Merchan served up a menu of three Bragg theories — FECA, tax irregularities, and more business-records shenanigans — and told the jurors to pick any one they liked. As long as each juror found one, it wouldn’t matter if they all found the same one.”
The aim and project of this trial was to convict Trump of whatever crime could be cobbled together and applied in court. Democrats and progressives are convinced that nailing Trump will save the Republic and democracy. Regardless of President Joe Biden’s health, personal ethics, or his family’s willingness to trade on his name, this all must be shelved to protect Americans from voting for the end of freedom, the establishment of an authoritarian Trump Dynasty, and the return of slavery, Jim Crow Laws, female servitude or whatever other dystopian practice can be attributed to the very bad Orange Man.
What I fear more than this specific verdict rests on what this inevitably contrives. The weaponization of a Justice system to interfere in a free and fair election will not stand alone. There will be more of these prosecutions and what Hell has unleashed the Democrats will one day lament. In a not-too-far-distant day, a former Democratic president may stand in a court and wonder what happened to Donald Trump rather than ending a vexation began a dreadfulness from which the nation will never recover.
Dave Redekop is a retired elementary resource teacher who now works part-time at the St. Catharines Courthouse as a Registrar. He has worked on political campaigns since high school and attended university in South Carolina for five years, where he earned a Master’s in American History with a specialization in Civil Rights. Dave loves reading biographies.
