Alvin Bragg’s chutzpah

On the day after District Attorney, Alvin Bragg confirmed that a grand jury had indicted former president, Donald Trump, his office’s general counsel made a bizarre request of three House Republican committee chairmen. In a letter to Representatives Jim Jordan, Bryan Steil and James Comer, Leslie Dubeck asked the lawmakers to denounce Trump’s “harsh invective” against Bragg.

Trump had warned that his indictment or arrest might unleash “death and destruction.” On social media, Trump’s supporters have vilified Bragg. “As committee chairmen,” Dubeck suggests, “you could use the stature of your office to denounce these attacks and urge respect for the fairness of our justice system and for the work of the impartial grand jury.”

Dubeck’s request is a remarkable bit of chutzpah, the Yiddish word that roughly translates as extreme temerity. Because if Bragg’s indictment of Trump is what has been reported by the New York Times and others, then Bragg himself has undermined the credibility of the justice system his office is now asking these Republicans to help restore.

According to the Times, Bragg has revived a “zombie investigation” into Trump’s hush money payments to adult entertainer Stormy Daniels on the eve of the 2016 election. Hush money payments are not illegal. New York state law however prohibits falsifying business records. Normally this is a misdemeanor offense unless the fraud was done to cover up another crime. Bragg is reportedly going to argue that the hush money to Daniels was an in-kind donation to Trump’s presidential campaign, and therefore the Trump Organization business records were falsified to conceal this violation of federal election law.

If all of this sounds like a stretch, it’s because it is. With the exception of a few fanatic partisans, almost no one familiar with election law believes this prosecution has any merit. Former Federal Elections Commission chairman Bradley Smith wrote in the Wall Street Journal that Bragg’s prosecution is a perversion of the statute he is seeking to enforce.

After all, there are non-election reasons — such as sparing his family from embarrassment — for paying Daniels hush money. Indeed, President Joe Biden’s own Justice Department has declined to pursue an indictment of Trump for the hush money payments to Daniels.

What makes the prosecution even worse is that failing to properly report campaign expenditures is almost always treated with a slap on the wrist. A year ago, for example, the Federal Election Commission fined the Democratic National Committee and Hillary Clinton’s 2016 campaign for obscuring payments for a dossier that falsely alleged Trump’s campaign had colluded with Russia. The money for this dossier was reported as “legal services,” and “legal and compliance consulting.” Neither Clinton nor her party were indicted for felonies for that bit of campaign obfuscation.  

Finally, there is the matter of Bragg himself. When he ran in the election for his current job, he never pledged directly to indict Trump. But he came very close. He would say on the stump and in interviews that he had more experience suing the Trump administration and the Trump Organization than any of his rivals in the Democratic primary.

Initially, Bragg reviewed the ongoing cases against Trump and decided not to seek indictments. These cases investigated how Trump had overvalued his assets in a scheme to obtain more loans from banks. This prompted another attorney in his office, Mark Pomerantz, to resign his post, and publish a book that skewered Bragg for not trying the case.  

Bragg instead decided to review the hush money case involving Daniels. This is the same case that the Justice Department and Bragg’s predecessor declined to pursue. Perhaps Bragg has found evidence of real crimes and the reporting on the indictment, likely to be unsealed on Tuesday, is wrong. But if the first criminal indictment of a former president is as weak as what has been reported, then it looks like Bragg has simply caved to the political pressure created by the resignation of Pomerantz.

None of that condones threats of violence against Bragg or anyone else involved in the prosecution. But it does make one wonder if Bragg, Dubeck or anyone else really care about the integrity of the justice system if they are willing to cross such a significant rubicon on the thinnest of pretexts.