House Republicans Condemn Lawfare Persecution Of Donald Trump
The House Judiciary Report Is A Political Document And A Legal Landmine
Manhattan District Attorney Alvin Bragg has a problem.
Scratch that, Alvin Bragg has an unfolding legal scandal on his hands. We can even say that Alvin Bragg is an unfolding legal scandal.
We can say that because the United States House of Representatives Committee on the Judiciary has said that, in a damning report on Bragg’s “hush money” persecution prosecution of Donald Trump.
President Trump never had a real shot at a fair trial in Manhattan. In a more neutral jurisdiction, where a politically ambitious prosecutor was not motivated by partisanship and a trial judge with perceived biases did not refuse to enforce a fair proceeding, President Trump would have never been found guilty. But Manhattan is anything but a neutral jurisdiction. President Trump promised to appeal, stating, “We will fight for our constitution. This is far from over.” But the Democrats’ use of lawfare accomplished its short-term goal—it removed President Trump from the campaign trail and diverted attention away from President Biden’s missteps and failing policies.
It is remarkable and perhaps even unprecedented for the US Congress to weigh in on a state criminal prosecution, let alone issue such a sweeping condemnation. Yet the House Judiciary Committee has done exactly that.
The House Judiciary report stands in stark contrast to the mixed and muddled messaging emanating from Congressional Democrats on the other political drama of the summer, the aftermath of Joe Biden’s June 27th debate debacle and its confirmation that Biden is in an advanced stage of dementia. Politically, the Republicans on the Judiciary Committee will have helped galvanize the GOP rank-and-file voters around Donald Trump’s candidacy, simply by coming out and taking a stand on the prosecution.
Politically, the House Republicans are showing political leadership and the House Democrats are not.
Legally, the House Republicans are doing something far more explosive. As the reporting from Gateway Pundit succinctly summarizes, they are challenging the legitimacy of Alvin Bragg’s case as well as the trial itself.
This interim staff report, a result of extensive investigations by the Committee and the Select Subcommittee on the Weaponization of the Federal Government, exposes the egregious violations of President Trump’s rights by Manhattan District Attorney Alvin Bragg and Judge Juan Merchan.
Just on those words alone, this report has the potential to become a legal landmine under Alvin Bragg.
Yet the report goes quite a bit further in its accusations, arguing that the case is a prime example of “lawfare”, the political weaponization of the criminal justice system by government officials against their political opponents.
On May 15, 2024, the Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government held a hearing highlighting the weaponization of the rule of law. through the use of lawfare tactics and exposing the two-tiered justice system that extends from the highest offices in the Department of Justice to the offices of politically ambitious state and local prosecutors. The Committee heard testimony from former federal prosecutor James Trusty, who testified about the dangers of lawfare, or, as Trusty put it, “an end-justify-the-means mentality” that is the “antithesis of justice.” The Committee also heard from Gene Hamilton, a former Department of Justice official, who highlighted the unprecedented use of lawfare against President Biden’s political opponents. Finally, the Committee also heard from Robert Costello, Michael Cohen’s former attorney, who testified about Cohen’s credibility and highlighted the deficiencies in Cohen’s testimony.
We do well to note the original meaning1 of the term:
lawfare (ˈlɔːˌfɛə)
n
1. (Government, Politics & Diplomacy) the use of the law by a country against its enemies, esp by challenging the legality of military or foreign policy
The Judiciary Committee is asserting that Alvin Bragg as well as the United States Department of Justice and the Biden Administration are taking the legal stance that Donald Trump is an enemy of the United States.
Obviously, this is no small accusation. This accusation is an explicit claim not only Alvin Bragg and his prosecution team but also virtually the entire leadership of the Department of Justice have completely abandoned their Constitutional oaths of office. This accusation is saying that Alvin Bragg, the Manhattan District Attorney’s Office, and the United States Department of Justice are guilty of not merely violating Donald Trump’s Constitutional rights, but of violating clear Constitutional mandates binding government at all levels. This accusation is saying that multiple level of government in the United States are, in effect, waging war against Donald Trump.
Given that criminal prosecutions necessarily invoke the government’s use of its police power—”force” after at fashion at least—one can begin to make the case that such blatant lawfare potentially constitutes a seditious conspiracy against the Constitution of the United States2.
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
The House Judiciary’s report leads to an interesting inference: Alvin Bragg and the Democrats in Washington stand more credibly accused of being “insurrectionists” than Donald Trump has been since the chaotic aftermath of the 2020 election.
Irony abounds.
The Judiciary’s report pulls no punches, charging from the very outset that the New York County District Attorney’s Office engaged in a political vendetta against Donald Trump.
The New York County District Attorney’s Office’s (DANY) multi-year investigation into former President Donald J. Trump—and subsequent indictment and prosecution—is unprecedented. Since at least 2018, the DANY has weaponized the New York criminal justice system, combing through every aspect of President Trump’s personal life and business affairs in an effort to indict and convict him of a crime, no matter how ill-conceived, contrived, or unlawful the theory of criminal liability.
Perhaps most damningly for Alvin Bragg, the report suggests that the impetus behind the prosecution was not Bragg, but rather former Manhattan Special Assistant District Attorney Mark Pomerantz (emphasis mine):
A fundamental principle of the American system of justice is that no individual is above the law. But just as important is the precept that prosecutors prosecute conduct, not individuals. Manhattan District Attorney Alvin Bragg, however, ran for office on a platform of investigating and prosecuting President Trump, bragging about his extensive experience suing President Trump. Although Bragg was initially hesitant to bring charges once he became district attorney, he faced intense political pressure to do so, including a leaked resignation letter from a special assistant district attorney who attacked Bragg for being too timid. That same prosecutor, Mark Pomerantz, later authored a tell-all book in which he took Bragg to task for failing to prosecute President Trump. Unsurprisingly, just months after Pomerantz’s book premiered—and after President Trump declared his candidacy for the 2024 Republican presidential nomination—Bragg succumbed to this political pressure and filed charges relying on Pomerantz’s theory of the case.
It’s bad enough for Bragg that his case looks like a political witch hunt against Donald Trump, but it’s a really bad look for any district attorney for a case to look like someone else’s witch hunt. As a rule, district attorneys want to be seen as the ones working the levers of power, not the ones being worked by those same levers.
The portrayal of Bragg as merely a pawn in a larger game is further reinforced when we read of Bragg hiring Principal Deputy Associate Attorney General Michael B. Colangelo so “jump-start” an investigation into Donald Trump.
In December 2022, Bragg “beefed up [his] office” by hiring senior U.S. Department of Justice official Michael B. Colangelo to fill the void left by the abrupt departure of Pomerantz and Dunne. Bragg hired Colangelo to “jump-start” his office’s investigation of President Trump, reportedly due to Colangelo’s “history of taking on Donald J. Trump and his family business.”
Colangelo’s employment history demonstrated the obsession that he shared with Bragg and Pomerantz to investigate a person—Donald Trump—rather than prosecute a crime. At the New York Attorney General’s Office, Colangelo—who, for some time, held the title of Chief Counsel for Federal Initiatives—ran investigations into President Trump, leading “a wave of state litigation against Trump administration policies.” On January 20, 2021, the first day of the Biden Administration, Colangelo began serving as the Acting Associate Attorney General—the number three official at the Justice Department. Upon the confirmation of Associate Attorney General Vanita Gupta, Colangelo began serving as the Principal Deputy Associate Attorney General.68 However, in December 2022, Colangelo seemingly stepped down from his senior Justice Department position to become a line prosecutor at a local prosecutor’s office and to lead its investigation of President Trump.
That a high-ranking DoJ official would step down just to help Bragg prosecute Trump offers us also a teasing inference that the Federal government was involved in how Bragg’s office handled the case. This is immediately troubling because, as the report goes on to establish, the Federal government declined to pursue a case against Donald Trump covering largely the same grounds as Alvin Bragg’s case. For the Federal government to use a state court to pursue a case surreptitiously once it has declined not to pursue it openly is the epitome of government corruption.
Thus not only do we have the Department of Justice improperly involving itself in a state-level prosecution, we have the Department of Justice facilitating a case at the state level on matters it did not feel warranted a case at the federal level.
There is no reading of that which looks good either for Alvin Bragg or for the Department of Justice.
The Judiciary report also savages Bragg for relying on Michael Cohen as a star witness.
Cohen, remember, was Donald Trump’s “fixer” who had previously pled guilty to numerous federal counts of fraud and tax evasion and was sentenced to three years in prison as a result.
As the report also lays out in detail, Michael Cohen admitted to lying multiple times to Congress during its prior investigations of then-President Trump.
On February 28, 2019, Republicans on the House Committee on Oversight and Reform referred Cohen to the Justice Department for perjury and knowingly making false statements during his testimony before the Committee on February 27, 2019.
In 2023, Cohen admitted to lying to Congress during a separate proceeding before Congress in 2019. At a hearing in the politicized lawsuit brought by the New York Attorney General against President Trump, Cohen admitted to lying under oath during a 2019 deposition before the House Permanent Select Committee on Intelligence (HPSCI). President Trump’s attorney asked Cohen if he lied during the deposition when testifying about whether he was directed to inflate certain financial numbers, to which Cohen responded, “Yes.” This revelation in court prompted HPSCI to refer Cohen again to the Justice Department for perjury and knowingly making false statements to Congress.
The Judiciary report also cites Cohen’s former attorney Robert Costello, who claimed that the US Attorney’s Office for the Southern District of New York (SDNY) declined to prosecute Trump on charges similar to the ones brought by Alvin Bragg precisely because of Cohen’s lack of credibility.
During a May 15, 2024, hearing before the Select Subcommittee, Robert Costello, Cohen’s former attorney, testified about Cohen’s credibility. Costello testified that the SDNY previously “turned down” the exact case Bragg brought against President Trump because “they assessed that Michael Cohen . . . was totally unworthy of belief.”
Cohen’s credibility issues are a matter of public record, as his prior legal troubles were the stuff of corporate media headlines at the time. That Cohen specifically admitted to lying to the House Permanent Select Committee on Intelligence (HPSCI) puts Bragg in the position of basing his case on an admitted perjurer. The quality of the evidence presented to the jury is thus immediately suspect.
The Judiciary report does not stop at challenging the quality of Bragg’s evidence, but goes on to dismantle the legal theories behind Bragg’s case. Most notably, the report incorporates commentary from several legal commentators and legal scholars that Bragg’s prosecution violated Donald Trump’s rights of due process under the Fourteenth Amendement.
The Fourteenth Amendment’s Due Process Clause prohibits the deprivation of any individual’s life, liberty, or property without due process of law. Due process embodies the idea that “criminal prosecutions must comport with prevailing notions of fundamental fairness.” The U.S. Supreme Court has made clear that due process requires “notice of the specific charge” levied against the accused and a meaningful opportunity to be heard “on the issue raised by that charge.” Several legal scholars, including former federal prosecutor Andrew McCarthy, have explained how Bragg’s prosecution of President Trump violated his due process rights. As McCarthy wrote, this is because the indictment against President Trump took:
[A] single transaction—Trump’s reimbursement to Michael Cohen of the $130,000 Cohen paid to [Stephanie Clifford] to stay mum about an alleged 2006 fling [pursuant to an agreed-upon non-disclosure agreement (NDA)]—and ludicrously slic[ed] it into 34 transactions, each of which [it] brands as felony falsification of business records.
In the words of law professor Elizabeth Price Foley, the procedural and substantive defects of this theory of liability amount to an unlawful “Russian-nesting doll theory of criminality” that offends notions of due process.
The report also presents the argument that Trump’s due process rights were again violated by Judge Merchan’s jury instructions, which arguably violated the requirement that the jury be in unanimous agreement on the crimes Donald Trump presumably committed.
The violation of President Trump’s due process rights did not end with the nesting-doll theory of criminality. It was compounded by the defective jury instructions that Judge Juan Merchan read to the jurors after the close of evidence. The instructions were comprised of 55 pages of confusing and seemingly unlawful charges. Specifically, Judge Merchan told the jury that they had to agree unanimously on whether to convict President Trump on each of the 34 counts of falsifying business records with the intent to conceal damaging information before the 2016 election. This required them, unanimously, to determine that President Trump used “unlawful means” to conceal this information. However, Judge Merchan instructed the jurors that they “did not have to agree on a singular unlawful act” to convict. He instructed the jurors “that they would have to find only that Mr. Trump committed bookkeeping infractions to conceal [1] a campaign finance violation, [2] tax law infraction or [3] falsification of business records,” but they “didn’t have to agree on the underlying crime to find the former president guilty.”
That juries be unanimous on all particulars is a foundation of due process within American jurisprudence, and the Supreme Court made that absolutely clear in Ramos v Louisiana3 in 2020.
There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is “fundamental to the American scheme of justice” and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government. So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.
At a minimum, Merchan’s jury instructions are grounds for a Trump appeal (one of many). The House Judiciary Committee has, in this report, taken the official stance that those jury instructions are a clear violation of Donald Trump’s due process rights and are therefore unquestionably reversible error.
Indeed, the Judiciary Committee is taking an official position that the entire prosecution is a violation of Donald Trump’s due process rights.
Bragg’s case has another procedural defect: even though there is evidence the Department of Justice cooperated behind the scenes (“colluded”, perhaps?), that the case revolved around a Presidential election and questions of campaign finance meant that it could only be prosecuted at a Federal rather than a state level, according to FEC Commissioner Trey Trainer:
During his testimony on June 13, 2024, Commissioner Trainor explained that Bragg’s usurpation of federal prerogative should have compelled “Attorney General Garland and the DOJ” to “intervene in the prosecution of Donald Trump.”
Mind you, the DoJ had already declined to pursue this very prosecution against Donald Trump. However, that does not pass jurisdiction down to state courts. The position the Judiciary committee is taking on the particulars of the Federal Election Campaign Act is that such matters are the exclusive jurisdiction of the federal courts. There is no concurrent jurisdiction to be had between federal and state courts regarding matters of campaign finance.
In all respects, the Judiciary Committee’s report in large measure restates and amplifies the same defects that have been obvious in Bragg’s case against Trump from the very beginning. This was not a serious case when it was first brought.
Donald Trump’s conviction notwithstanding, this is still not a serious case.
Lack of seriousness and lack of substance have been the hallmarks of virtually all the cases and allegations made against Donald Trump extending back to his term as President. There was no more seriousness to the “Russia Collusion” charges than there has been on the “hush money” charges.
We must remember that Robert Mueller’s Special Counsel report on the “Russia Collusion” narrative established all of its hysteria as nothing more than left-wing conspiracy theory and corporate media propaganda.
Across all of the persecutions prosecutions arrayed against Donald Trump, lack of true factual and legal foundation have always been the essential characteristic.
In this regard, very little of what the House Judiciary Committee had to say about Alvin Bragg’s case is new terrain.
What is new is that Congress, or at least a particular House Committee, is taking an official stance calling out these legal abuses.
The Judiciary Committee’s report is unquivocal: prosecuting Donald Trump is an act of politics, not the pursuit of justice.
While the Judiciary report is not the same as a court ruling, neither is it an ordinary document. The evidences it has gathered together are the product of sworn testimony. Its statements of fact are presented under penalty of perjury, just as if they were given as evidence in a criminal proceeding.
Moreover, the Judiciary report contains the legal commentary and opinions of known legal commentators and law professors. While their opinion does not carry the legal weight of a court ruling, we must consider carefully their established expertise on the law, and on the particulars of the law.
What the Judiciary report asserts, as both a matter of fact and as a matter of law, is that Alvin Bragg’s prosecution of Donald Trump is hot mess of questionable evidence and even more questionable legal theories. What the Judiciary report asserts, as both a matter of fact and as a matter of law, is that Alvin Bragg’s prosecution of Donald Trump was a blatant political hit job targeting the principal political opponent of the Biden Administration, and the person Joe Biden is slated to face off against during this falls election.
Unsurprisingly, the Judiciary Committee’s report concludes with a call for the New York appellate courts to overturn Trump’s conviction forthwith.
Yet this is no mere case of a botched or overzealous prosecution. The Judiciary Committee’s report is making a succinct but savage case that Alvin Bragg and others—including former high-ranking officials within the Department of Justice—conspired to deprive Donald Trump of his civil liberties and rights of due process.
While the report stops short of accusing Alvin Bragg or anyone else of a crime, any intentional effort to deprive anyone of their civil liberties—and in particular their rights under the Sixth and Fourteenth Amendments—is a crime.
The report makes it clear that Alvin Bragg’s political motivations in pursuing this case were clear and intentional. The report thus establishes both malice and forethought.
If we follow the Judiciary Committee’s report through to its ultimate conclusion, we arrive at the most perverse of ironies: Alvin Bragg, the man who convicted Donald Trump, is the man who committed an actual crime.
"Lawfare." Collins English Dictionary – Complete and Unabridged, 12th Edition 2014. 1991, 1994, 1998, 2000, 2003, 2006, 2007, 2009, 2011, 2014. HarperCollins Publishers 10 Jul. 2024 https://www.thefreedictionary.com/lawfare
Ramos v. Louisiana, 590 U.S. ___ (2020)
Excellent discussion! Both of Lawfare and the denial of basic constitutional rights.
DOUBE BRAVO
Best news of the day.
And high time the Judiciary Committee stood a stand against these show trials in kangaroo courts! This kind of lawfare should NEVER happen to anyone in the United States of America!