NYT Op-Ed: ‘I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake’…
If you glanced at the New York Times today, you might be shocked at the “real news” they featured. In a rare burst of honesty and clarity, the Old Gray Hag actually let a well-respected legal professor from Boston University publish an opinion piece. This piece didn’t just poke holes in Alvin Bragg’s sham “hush money” case—it blasted it into a pile of dust. The professor called it not only a legal embarrassment but a historic mistake. Ouch.
His name is Professor Shugerman, and while he was never onboard with Biden’s show trial, led by Fat Alvin Bragg, after what he’s seen unfold, he’s gone from being embarrassed for the entire US injustice system, to now believing this trial is a historic misstep that hinges on Monday’s opening arguments. Professor Shugerman had to pick his jaw up from the floor after listening to prosecutors lay out their case.
About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.
After listening to Monday’s opening statement by prosecutors, I still think the Manhattan D.A. has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.
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Trump is accused of falsifying business records, which are typically misdemeanor charges. To ramp this up to a criminal case, Mr. Bragg and his team are throwing around potential violations of federal election law and state tax fraud. They’re even pulling in state election law, but here’s the kicker: state definitions of “public office” will usually limit those rules to state and local races. What on earth is Bragg doing? This trial is a circus, and a desperate one at that.
Playing “Devil’s Advocate,” the professor attempted to sketch out a scenario that would make legal sense and give Alvin Bragg the benefit of the doubt, but in the end, he just wasn’t able to do it. The New York Times piece goes on:
A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. Mr. Trump may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.
In short: It’s not the crime; it’s the cover-up.
Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.
However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan D.A.’s filings or today’s opening statement even hint at this approach.
He explains that by framing this case as some grand “election fraud” conspiracy, which the prosecution will likely struggle to support, they’re setting the jury up for big expectations that will never be met. The discussion continues in the New York Times piece:
Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”
As a reality check, it is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”
In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.
The professor points out three major red flags in this case and explains that Alvin Bragg is navigating uncharted, stormy legal waters. The New York Times piece continues:
The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.
In stretching jurisdiction and trying a federal crime in state court, the Manhattan D.A. is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.
Red flag 1:
First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime.
Red flag 2:
Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The Manhattan D.A. responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, they could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).
Red flag 3:
…no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.
If you’d like to read the entire article, you can find it by clicking here.
The truth is, Professor Shugerman isn’t the only one hanging his head in shame. As a matter of fact, all credible legal experts seem to agree that this case is a joke. One of those legal eagles is Professor Jonathan Turley, who also calls this sham case an “embarrassment.”
Fox News legal analyst Jonathan Turley said Monday on Fox News Channel’s “America Reports” that former President Donald Trump’s New York trial for allegedly falsifying business records is an “embarrassment.”
Turley said, “What is clear is in this case, Trump is right this is an embarrassment. The fact that we are actually talking about this case being presented in a New York court room leaves me in utter disbelief.”
He continued, “The arguments today did in fact capture all the problems here. You had this misdemeanor under state law that had run out. This is going back related to the 2016 election. They zapped it back into life by alleging that there was a campaign finance violations under the federal laws that doesn’t exist. The Department of Justice doesn’t view it this way.”
Esteemed election law expert Richard Hasen, a hardcore Democrat, also thinks the case is a sham.
“As a reality check, it is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal,” Handelsman Shugerman wrote. “The election law scholar Richard Hasen rightly observed, ‘Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.'”
That is a reference to an April 14 opinion article in the Los Angeles Times by Richard Hasen, a University of California Los Angeles law professor, who wrote that the case demeans true election interference cases.
“Although the New York case gets packaged as election interference, failing to report a campaign payment is a small potatoes campaign-finance crime,” Hasen wrote. “Any voters who look beneath the surface are sure to be underwhelmed. Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”
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This is the result when activist judges and juries take the stage. Embarrassing cases and historic mistakes end up in our courts and dominate the news cycle. It’s all part of the uniparty’s scheme to cling to power and block an outsider from returning to the White House. They’re willing to make a complete mockery of our systems and even risk destroying our country, all to maintain their grip on power. This case has become such a sideshow that even legal experts, many of whom likely aren’t fans of President Trump, are anxious to call this trial out for what it is. They want to go on record to distance themselves from what amounts to a kangaroo court, in hopes of preserving some shred of their reputations as our judicial system circles the drain.
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