OPINION:
After processing what he heard on cable television, former President Donald Trump publicly announced two weeks ago that on Tuesday, March 21, he would be arrested by the New York Police Department. That day came and went with no arrest.
Mr. Trump is the subject of four criminal investigations: one by the Manhattan district attorney for campaign finance fraud; one by the Fulton County, Georgia, district attorney for conspiracy to subvert an election; and two by the feds, one for conspiracy to subvert a congressional function on Jan. 6, 2021, and the other for retention of national defense secrets at his Florida home and obstruction of justice by hiding the secrets.
The case currently getting media attention is the one in Manhattan. It is also getting Mr. Trump’s attention, as he has threatened and predicted “death and destruction” if he is indicted. Along with that prediction, he posted photos that depicted himself about to strike Alvin Bragg, the New York district attorney, with a baseball bat.
The photo juxtaposition was appalling and ought to strike terror in his Manhattan lawyers, as it will form a credible basis for the New York prosecutor, at the time of arraignment, to ask for Mr. Trump’s immediate incarceration. It is standard to ask for no bail when the defendant has threatened the prosecution with bodily harm and has the present apparent ability to carry out the threat.
While Mr. Trump is protected 24/7 by the Secret Service from harm, the agents do not protect others from harm by him. If he is indicted in Manhattan, his lawyers will unhappily confront all this. They may also confront an indictment for threatening a public official with violence.
The Manhattan case is an odd duck. The indictment will apparently charge Mr. Trump with a state misdemeanor perpetrated to hide a federal felony. The misdemeanor is intentionally recording corporate financial records so as to mask a campaign contribution as a corporate expenditure. The federal felony is the dicey charge. It is the use of corporate funds to pay a campaign debt.
Thus, Mr. Bragg will charge that when Michael Cohen, then Mr. Trump’s lawyer, used his own money to pay a woman to remain silent about a sexual liaison she claims she had with Mr. Trump, one that he denies, that payment was made to protect Mr. Trump’s presidential campaign against Hillary Clinton in October 2016.
If Mr. Trump had reimbursed Cohen out of his own funds on which he paid income taxes, and recorded that reimbursement as a personal campaign contribution, there would have been no crime. But by using corporate funds to reimburse Cohen and falsely recording the payments to Cohen as legal fees — ordinary corporate expenses, on which no income taxes were paid — Mr. Trump ran afoul of New York law and federal law. Then, the misdemeanor becomes a felony.
The linchpin to this case is Michael Cohen, who pleaded guilty to conspiracy to violate the federal prohibition on using corporate funds to pay Mr. Trump’s campaign debt. At the time of this plea, Mr. Trump was president and thus could not be indicted for this conspiracy. Yet at Cohen’s sentencing, the federal judge who sentenced Cohen referred to Mr. Trump as an unindicted co-conspirator.
When Mr. Trump left office and Cohen left prison, the same feds who prosecuted Cohen interviewed him as a witness in a potential federal prosecution of Mr. Trump on the campaign finance violation. The same federal prosecutors who found Cohen credible enough to testify against himself at his own guilty plea found him insufficiently credible to testify against Mr. Trump before a federal grand jury or at a criminal trial of the former president.
Enter New York District Attorney Alvin Bragg.
Mr. Bragg looked at the evidence and research amassed against Mr. Trump by his predecessor and, for reasons not made public, decided to put the criminal investigation of Mr. Trump on the back burner. Then, after he interrogated Cohen, he and his team — the Manhattan DA is a former federal prosecutor in the same office that prosecuted Cohen and declined to prosecute Mr. Trump — concluded that Cohen is sufficiently credible, particularly when buttressed by Cohen’s files and the records of the Trump Organization, to testify against Mr. Trump.
So, how can two teams of professional prosecutors examine the same witness on the same subject matter and one team find him only partially credible (enough to inculpate himself but not enough to inculpate Trump) and the other team find him fully credible? Just as two people observing the same event may see it, hear it, process it, recall it and recount it differently, so, too, can professional prosecutors see and hear and evaluate a witness differently.
This area of the law — “Do we have a case or don’t we? Should we prosecute or shouldn’t we?” — is called prosecutorial discretion. It involves a sophisticated examination of the credible evidence and the relevant law, the public policy behind the law, the harm caused by a violation of the law, the needs of the public to be protected, the resources available, the legal value versus the legal harm of the prosecution, and the constitutional rights of the defendant. While the decision to prosecute can be challenged, the decision not to prosecute is essentially unexplained and unchallengeable.
Should Mr. Bragg take into account Mr. Trump’s status as a former president and the political fallout that will likely accompany his indictment? In a word, no. The rule of law is blind to the defendant’s status.
While most of the thousands of federal and state criminal laws have no moral place in America, as they either criminalize harmless behavior or intrude upon the exercise of natural rights, so long as these laws are enforced against others — and they are — they should be enforced wherever the evidence sufficiently points to guilt, without fear or favor.
Should Mr. Trump get a pass? Only if the district attorney thinks the case is weak, not because Mr. Trump is a former president.
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.
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