The Case Against Donald Trump. Political Crime Or Political Persecution?

To say that the corporate media is having a field day with the run-up to Donald Trump’s likely arraignment on Tuesday in a Manhattan courtroom, where charges are being preferred by the Manhattan District Attorney Alvin Bragg, is an understatement.

Former President Donald Trump is facing multiple charges of falsifying business records, including at least one felony offense, in the indictment handed down by a Manhattan grand jury, two people familiar with the matter told The Associated Press on Friday.

He will be formally arrested and arraigned Tuesday in his hush money case, setting the scene for the historic, shocking moment when a former president is forced to stand before a judge to hear the criminal charges against him.

No President while in office or after having left office, has ever been brought up on criminal charges before now. That fact alone makes this situation unprecedented in US history.

Somewhat less unprecedented is that this legal fracas stems from alleged sexual encounters between Trump and two women—Stephanie Clifford, aka Stormy Daniels, an adult film actor, and Playboy model Karen McDougal.

The New York grand jury spent weeks meeting in secret to probe Trump’s involvement in a $130,000 payment made in 2016 to the porn actor Stormy Daniels to keep her from going public about a sexual encounter she said she had with him years earlier. Trump lawyer Michael Cohen paid Daniels, whose real name is Stephanie Clifford, through a shell company before being reimbursed by Trump, whose company, the Trump Organization, logged the reimbursements as legal expenses.

Earlier in 2016, Cohen also arranged for former Playboy model Karen McDougal to be paid $150,000 by the publisher of the supermarket tabloid The National Enquirer, which then squelched her story in a journalistically dubious practice known as “catch and kill.”

Everyone would do well to remember that Trump has thus far denied ever having had sexual encounters with either woman, although readers may be forgiven for having a somewhat cynical view of such denials in the wake of Bill Clinton’s infamous “I did not have sexual relations with that woman, Ms Lewinsky” lie some 25 years ago.

However, regardless of whether Donald Trump did or did not have affairs with either woman, the question still remains as to what the actual criminal conduct is. Certainly Bill Clinton never faced criminal prosecution for his affair with Ms Lewinsky, so on what basis is Trump’s sexual peccadilloes the stuff of criminal prosecution?

Strictly speaking, based on what has been reported thus far, at issue is not the sexual affairs themselves, but payments made to both women when Donald Trump was preparing his 2016 Presidential run—or, more precisely, how the payments were made, and how they were recorded by the Trump Organization.

The investigation centers on hush-money payments made in 2016 to two women who alleged that they had extramarital encounters with Trump, who has denied their accounts of his infidelity.

Specifically, District Attorney Alvin Bragg’s team appears to be looking at whether Trump or anyone committed crimes in arranging the payments, or in the way they accounted for them internally at the Trump Organization.

Here the legal situation becomes murky, for two reasons: 1) Donald Trump did not render the payments personally—his former attorney and “fixer” Michael Cohen did, and was later reimbursed by the Trump Organization; and 2) Michael Cohen already pleaded guilty to federal charges stemming from the payments, and Federal prosecutors declined then and since to bring any charges against Donald Trump in connection with that case.

Cohen paid porn actress Stormy Daniels $130,000 through a shell company Cohen set up. He was then reimbursed by Trump, whose company logged the reimbursements as legal expenses.

Earlier in 2016, Cohen also arranged for former Playboy model Karen McDougal to be paid $150,000 by the publisher of the supermarket tabloid the National Enquirer, which squelched her story in a journalistically dubious practice known as “catch-and-kill.”

Trump’s company, the Trump Organization, “grossed up” Cohen’s reimbursement for the Daniels payment for “tax purposes,” according to federal prosecutors who filed criminal charges against the lawyer in connection with the payments in 2018.

Cohen got $360,000 plus a $60,000 bonus, for a total of $420,000.

Cohen pleaded guilty to violating federal campaign finance law in connection with the payments. Federal prosecutors say the payments amounted to illegal, unreported assistance to Trump’s campaign. But they declined to file charges against Trump himself.

Michael Cohen’s previous trial and guilty plea on federal charges also raises procedural questions—if the matter were a federal offense, or even a series of federal offenses, on what basis does a Manhattan District Attorney claim jurisdiction over a case that falls under federal jurisdiction, and that federal prosecutors declined to pursue in 2018?

This is no small question. In order for the Manhattan District Attorney to prosecute the case, the New York State courts have to be of competent jurisdiction—they have to be the courts authorized by law to hear the case. If the statutes in question are federal criminal statutes, the only way this can happen is if the statutes provide for or fall into the category of laws for which concurrent jurisdiction applies, meaning they can be heard by both state and federal courts.

Still, the general rule is that state courts hear cases involving state laws, and federal courts hear cases involving federal laws. As attorney Brian Joslyn puts it:

Generally, a state cannot prosecute a federal crime. The federal government prosecutes federal crimes.

Criminal cases can fall under either state, federal, or concurrent jurisdiction. When a case falls under concurrent jurisdiction, both the state and the federal government can prosecute the crime based on their own laws. However, the state charge and the federal charge are usually slightly different.

This division of jurisdiction has been a staple of the US legal system since its creation, in the Judiciary Act of 1789¹. Indeed, the text of the Act itself would seem to argue against concurrent jurisdiction.

And be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas;

This passage would appear to preclude state courts from hearing federal cases. However, the Judiciary Act also gives concurrent jurisdiction to both state and federal courts over civil matters.

And be it further enacted, That the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.

This is relevant, as the mere fact that Trump is being indicted means this matter is of a criminal rather than civil nature. An indictment is, quite simply, the formal statement of the criminal charges being brought against an individual. If the charges involve federal statutes, the competency of the New York state courts—and thus the ability of the Manhattan District Attorney’s office to prosecute those charges—is fundamental to the case.

For this reason alone, Congress’ inquiry into Alvin Bragg’s investigation and the grand jury proceedings is not without a certain merit. By the same token, Alvin Bragg’s rebuke of that investigation as “meritless” is simply absurd, as are intimations that neither Donald Trump nor the Congress may challenge the legitimacy of the District Attorney’s prosecutorial efforts.

What neither Mr. Trump nor Congress may do is interfere with the ordinary course
of proceedings in New York State. Your first letter made an unprecedented request to the District Attorney for confidential information about the status of the state grand jury investigation—now indictment— of Mr. Trump. Your second letter asserts that, by failing to provide it, the District Attorney somehow failed to dispute your baseless and inflammatory allegations that our investigation is politically motivated. That conclusion is misleading and meritless.

The question of jurisdiction alone proves Alvin Bragg’s assertions here to be factually false.

Donald Trump has every right as the defendant to question the proceedings against him, as that is part and parcel of his rights under the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Similarly, Congress may legitimately inquire as to whether Alvin Bragg is exceeding the competency of New York’s jurisdiction, as Article III Section 2 outlines the jurisdictions of the federal courts under the Constitution.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Donald Trump is a resident of the state of Florida, and has been since 2019. As the judicial power of the United States—that is, the jurisdiction of the federal courts—explicitly extends to cases involving a state and a citizen of another state, questions of jurisdiction are absolutely appropriate here, and thus questions regarding the propriety and legitimacy of the prosecution. Alvin Bragg’s blanket rejection of such matters does not speak well of either the legitimacy or the propriety of this prosecution.

It is intuitively obvious that Alvin Bragg is convinced the states have concurrent jurisdiction in legal matters surrounding the payments made to Stormy Daniels and Karen McDougal. Bragg is convinced that he has every right to charge Donald Trump, indict Donald Trump, prosecute Donald Trump, and, if a conviction is secured, to incarcerate Donald Trump.

But does he?

Remember, the matter of the payments to Stormy Daniels and Karen McDougal were the subject of a federal criminal investigation into former Trump attorney Michael Cohen, and Michael Cohen’s subsequent guilty plea. Specifically, Cohen pleaded guilty to violating the Federal Election Campaign Act of 1971.

The Federal Election Campaign Act of 1971, as amended, Title 52, United States Code, Section 30101, et seq., (the “Election Act”), regulates the influence of money on politics.  At all relevant times, the Election Act set certain limitations and prohibitions, among them: (a) individual contributions to any presidential candidate, including expenditures coordinated with a candidate or his political committee, were limited to $2,700 per election, and presidential candidates and their committees were prohibited from accepting contributions from individuals in excess of this limit; and (b) Corporations were prohibited from making contributions directly to presidential candidates, including expenditures coordinated with candidates or their committees, and candidates were prohibited from accepting corporate contributions.

The penalty² for each of the violations to which Michael Cohen pleaded guilty includes a term of imprisonment for up to five years.

(d) Penalties; defenses; mitigation of offenses

(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure—

(i) aggregating $25,000 or more during a calendar year shall be fined under title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

The statute unambiguously establishes violations of the Federal Election Campaign Act to be federal crimes, and not state crimes. Recalling the general observations made by an attorney cited earlier, the competency of the New York courts to hear a case regarding violations of the Election Campaign Act, must be questioned. For over 200 years the Supreme Court has articulated a standard which would seem to preclude a presumption of concurrent jurisdiction. In Sturgis v Crowninshield³, Chief Justice John Marshall explicitly affirmed the supremacy of federal law over state law, and federal courts over state courts by extension.

Whenever the terms in which a power is granted by the Constitution to Congress, or whenever the nature of the power itself, require that it should be exercised exclusively by Congress, the subject is as completely taken away from the state legislatures as if they had been expressly forbidden to act on it.

Sturgis would be foundational to Prigg v Pennsylvania⁴, which specifically weighed in on the power of state courts to hear cases touching upon matters covered by federal law, reiterating verbatim the finding in Sturgis that

it has never been supposed that the concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited; the confusion of such a practice would be endless.

While the Supreme Court would later relent in Claflin v. Houseman⁵ regarding concurrent jurisdiction, concurrency seems largely limited to civil matters.

Thus, by the Judiciary Act, exclusive cognizance was given to the circuit and district courts of the United States of all crimes and offenses cognizable under the authority of the United States, and the same to the district courts, of all civil causes of admiralty and maritime jurisdiction, of all seizures on water under the laws of impost, navigation, or trade of the United States, and of all seizures on land for penalties and forfeitures incurred under said laws. Concurrent jurisdiction with the state courts was given to the district and circuit courts of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States, and of all writs at common law where the United States are plaintiffs; the same to the circuit courts, where the suit is between a citizen of the state where the suit is brought and a citizen of another state, where an alien is a party, &c. Here, no distinction is made between those branches of jurisdiction in respect to which the Constitution uses the expression "all cases," and those in respect to which the term "all" is omitted. Some have supposed that wherever the Constitution declares that the judicial power shall extend to "all cases" -- as all cases in law and equity arising under the Constitution, laws, and treaties of the United States; all cases affecting ambassadors, &c. -- the jurisdiction of the federal courts is necessarily exclusive; but that where the power is simply extended "to controversies" of a certain class -- as, "controversies to which the United States is a party," &c. -- the jurisdiction of the federal courts is not necessarily exclusive.

Thus we can see that Bragg’s presumption of concurrent jurisdiction over violations of the Federal Election Campaign Act is by no means a certainty. Nothing within the Act itself establishes concurrent jurisdiction, and it is incumbent upon Bragg to show that concurrent jurisdiction is not prohibited in election law cases.

Yet there is another concern touching upon the Federal Election Campaign Act: The latest date for the timing of the election law violations, per the government’s recitation of Cohen’s plea agreement, is the end of 2017. The statute of limitations⁶ on federal election law violations is five years.

(a) No person shall be prosecuted, tried, or punished for any violation of subchapter I of this chapter, unless the indictment is found or the information is instituted within 5 years after the date of the violation.

If Bragg means to prosecute an election law violation, then he will have to show that the violation extended into 2018 at the very least, otherwise the clock ran out on such matters at the end of 2022.

Of course, the intimations of the nature of the indictment reported in the media suggests that, in addition to—or perhaps in lieu of—federal election law violations, Bragg is charging Trump with violations exclusively of New York State law. If the report of the Associated Press is correct, Trump is being charged with falsification of business records. This may be an effort by Bragg to sidestep the limitations of a case predicated on election law violations.

However, per the corporate media, the case revolves entirely around the payments made to Stormy Daniels and Karen McDougal—the legality of which was challenged during the prosecution of Michael Cohen with specific reference to the Federal Election Campaign Act of 1971. That seems to make the case a federal matter, and to my layman’s view of the law naturally invites a challenge by Trump’s defense attorneys on the topic of jurisdiction.

Certainly Trump’s lead attorney, Joe Tacopina, has openly stated he anticipates filing a motion to dismiss the charges.

“We will take the indictment. We will dissect it. The team will look at every, every potential issue that we will be able to challenge and we will challenge, and of course I very much anticipate a motion to dismiss coming because there’s no law that fits this,” Tacopina said on CNN’s “State of the Union.” 

The jurisdictional challenges that arise over Bragg’s seeming assertion of concurrent jurisdiction into federal election crimes would appear to support Tacopina’s assertion that there is no law on the books which sustains the indictment.

Beyond the multiple challenges of legal substance to the case, there are also significant problems of equity. One needs look no further than the decision of the Department of Justice and the FBI not to prosecute Hillary Clinton for mishandling classified materials while Secretary of State, despite significant evidence that relevant violations of federal statute did occur. We must recall how then FBI-Director James Comey framed the matter publicly.

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

We must further recall that Hillary Clinton became a resident of the State of New York in January of 2000, even before Bill Clinton’s second term as President had ended, in order to qualify for New York’s Senatorial election in that year.

Depending on the particulars of Bragg’s logic regarding the alleged offenses of Donald Trump, it is a fair question to ponder why similar investigations and charges have not been not preferred against Hillary Clinton over her demonstrable likely violations of federal law. Certainly the record of the FBI investigation into Hillary Clinton’s email server would, per James Comey’s own assessment, substantiate multiple violations of federal law regarding the handling of classified material. If Bragg’s office has concurrent jurisdiction to prosecute Donald Trump for a federal election crime, how does his office not have jurisdiction to prosecute Hillary Clinton for a crime regarding the mishandling of classified materials?

The Fourteenth Amendment to the Constitution guarantees to everyone the “equal protection of the laws”.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Prosecuting Donald Trump for not having his business records in good order over payments to Stormy Daniels and Karen McDougal while declining prosecution of Hillary Clinton for clear mishandling of classified information while Secretary of State can hardly be said to measure up to the Constitutional requirement of “equal protection of the laws.”

Texas Representative John Ratcliffe’s rebuke of Robert Mueller’s investigation into charges Donald Trump “colluded” with Russia to win the 2016 election is still the best summation of how the law should approach Donald Trump:

I agree with the chairman this morning when he said Donald Trump is not above the law. He’s not. But he damn sure shouldn’t be below the law, which is where Volume II of this report put him.

Now, just as then, Donald Trump should not be above the law. If he has violated the law then it is fitting that he be charged under the law, tried under the law, and, if found guilty, punished under the law.

Yet neither should Donald Trump be deemed below the law. If the law would not prosecute Hillary Clinton, then arguably it should not prosecute Donald Trump either.

Will Alvin Bragg’s prosecution of Donald Trump rise to the moment and demonstrate clear fidelity not just to the letter of the law but to the spirit of justice which must inform the law? We shall soon see.

Frankly, I have my doubts.

1. United States Congress. "An Act to establish the Judicial Courts of the United States”, National Archives. (PL 1-19, 1 Stat 73), 1789.

2. 52 USC §30109(d)

3. Sturges v. Crowninshield, 17 U.S. 122 (1819)

4. Prigg v. Pennsylvania, 41 U.S. 539 (1842)

5. Claflin v. Houseman, 93 U.S. 130 (1876)

6. 52 USC §30145(a)