A former U.S. president was indicted for the first time in history, and they chose to charge him with paying hush money to a porn star?
Yes. Only there is no “they.”
On Thursday, Manhattan District Attorney Alvin Bragg charged former President Donald Trump, apparently for falsifying business records in 2016 to conceal a $130,000 payment to Stormy Daniels, the adult film star who reportedly threatened to go public with allegations that she and Trump had engaged in an extramarital affair. The Wall Street Journal called it “the weakest of charges.” Columnist Peggy Noonan wrote that the indictment was “below us” —“tacky lowlifes doing tacky lowlife things.” Instead of charging Trump in Manhattan, she wrote, ““Save the handcuffs for Georgia.”
But criminal charges are not an either/or proposition. Falsifying business records may pale in comparison with the other crimes for which Trump is under investigation, but defendants don’t get a pass on other crimes just because they committed a more serious one in another jurisdiction. Murderers are not legally immune from being charged with other, less serious crimes. Trump is not, either.
Even more importantly, it is wrong to think of prosecutors as a single entity. Bragg in Manhattan is independent of District Attorney Fani Willis in Fulton County, Ga., and Jack Smith, the special counsel appointed to lead the federal investigations into the January 6 attack on the U.S. Capitol and the highly sensitive government documents found at Trump’s Mar-a-Lago home last summer. Each prosecutor is sworn to investigate crimes and make charging decisions, regardless of whether some other prosecutor in some other jurisdiction is investigating the same person. Certainly, prosecutors exercise discretion. They don’t charge every violation of law that comes across their desk, only those where they believe that prosecution is in the best interests of justice. If, based on his careful review of the facts and law, Bragg believes that falsifying business records is an appropriate charge in this case, then it would be inappropriate to decline seeking an indictment just because Trump might also be charged at some later date with a more serious crime in some other jurisdiction.
Framing prosecutors as a monolith is a divide-and-conquer disinformation tactic. On his Truth Social social media platform, Trump recently posted a photo of Bragg with the words, “the radical left, Biden Democrats seem desperate to derail by any means Donald Trump from becoming president again.” In another, he criticized Bragg for planning to “indict an innocent man,” and suggested that Bragg is part of one unified effort to take down Trump: “They spied on my campaign, Rigged the Election, falsely impeached, cheated and lied. They are HUMAN SCUM!” Bragg, of course, had nothing to do with investigating the Trump campaign’s ties to Russia, the 2020 presidential election or Trump’s two impeachments. But Trump lumps all rivals together into one demonic force. When the world is limited to only two factions, then if Trump can persuade the members of the public that his rivals are so bad as to be an untenable choice, then their only option left is to support him.
While reasonable minds may disagree as to whether the charge in Manhattan was one that should have been brought, there is nothing improper about it. A grand jury found probable cause that the crime was committed, and now Trump will receive all of the due process rights any defendant receives in a criminal case. The strength of the indictment will be tested in court, where Bragg will be required to prove guilt to an unanimous jury of 12 citizens beyond a reasonable doubt. The procedural safeguards afforded to defendants in a criminal case incentivize prosecutors to bring only charges they believe they can prove.
One of the worst harms caused by the hyper-partisanship of recent years is the false notion that prosecutors make charging decisions for political reasons. During my 20 years as a federal prosecutor handling hundreds of cases, politics merited zero consideration. Prosecutors are ethically prohibited from basing charging decisions on political factors. Selective prosecution—charging a person for a discriminatory or otherwise arbitrary reason—can result in a dismissal of the case for violating the Equal Protection Clause of the 14th Amendment. But a selective prosecution claim requires a defendant to show that other people who are similarly situated have not been prosecuted for the similar crimes. Here, Trump will be unable to make that showing. District Attorney’s offices in New York have charged numerous other individuals for falsifying business records in recent years. Trump is not a victim of selective prosecution. What Trump really seems to want is special treatment—a pass, simply because he is a former president. That kind of treatment that would violate the rule of law, the idea that all of us are subject to the same rules.
In the coming weeks or months, we may see other prosecutors file charges against the former president, as well. But none of those decisions will be dependent on the other.