Last week, Donald Trump surrendered to authorities and was arraigned in a Manhattan courtroom on thirty-four felony charges stemming from hush-money payments made during the 2016 Presidential campaign. (The money went to the adult-film star Stormy Daniels, who claims to have had an affair with Trump.) In an indictment that was unsealed after the hearing, Trump is accused of falsifying business records; an accompanying statement of facts alleges that the former President “violated elections laws and made and caused false entries in the business records of various entities in New York.”
A number of legal commentators across the political spectrum have argued that the case against Trump is weak, and that Alvin Bragg, the Manhattan District Attorney, shouldn’t have brought it. One of them, Jed Shugerman—who teaches law at Fordham and Boston University—wrote a piece in the Times with the headline “The Trump Indictment Is a Legal Embarrassment.” Shugerman argues that the case has so little “legal and jurisdictional basis” that it could be dismissed by a state judge. “More likely,” he adds, “the case is headed to federal court for a year, where it could lose on the grounds of federal pre-emption—only federal courts have jurisdiction over campaign finance and filing requirements.” I recently spoke by phone with Shugerman about the case. During our conversation, which has been edited for length and clarity, we discussed whether Bragg has been unfair to Trump, the remaining unanswered questions about the case, and whether this move against Trump sets a “dangerous precedent” for American politics.
You write, “Let’s start with the obvious problem that the payments at issue were made around six years ago. The basic facts have been public for five years.” Why is this an obvious problem?
It’s an obvious problem because there is a long delay. Some of that delay is understandable and explainable by the politics of the Department of Justice, from the Mueller investigation to Bill Barr being in charge. But Barr’s been out of office for plenty of time. Cy Vance, the prior Manhattan D.A., was in office for a full year [after the end of Trump’s term], during which he had a chance to review the case, and he didn’t bring these charges. Merrick Garland has been Attorney General for two years and didn’t bring this case. By law and by tradition, this is the kind of case a federal court would hear with federal prosecutors.
Whether it’s an appearance of a reversal or there was actually a reversal, we don’t know. But, either way, that appearance creates a duty to explain, Why now? It is a matter of fairness to a defendant and to witnesses to bring a case within a certain amount of time, depending upon the case, because a stale case has stale memories, and it gives an advantage to prosecutors. It puts defendants at a disadvantage. The public also has an interest in justice moving quickly. That’s why we have statutes of limitation. I’m not saying that that’s the problem here, but that’s what creates a duty for a prosecutor to explain, especially if there’s an appearance that there’s a reversal from a prior prosecutor’s decisions.
Just to clarify what you meant about Bill Barr and Merrick Garland—you’re saying that these were election-law violations that could have been handled at the federal level by the Department of Justice? It seems like you might also be suggesting that you didn’t have the greatest trust in Barr, but Garland has now been the Attorney General for a while, and it’s telling that the federal government did not do anything with this.
That’s exactly right, and it’s not just that this is about a federal election or a federal candidate. The legal basis for this charge appears to be the Federal Election Campaign Act, and that statute has a preëmption clause, which, to paraphrase, basically says this federal statute takes the place of state statutes in this related area. A case like this is for federal prosecutors on a federal question in federal courts, and it is not for state prosecutors and state courts. That’s not true for every election issue, but that is the meaning of the preëmption clause in that statute.
You write, “Astonishingly, the district attorney’s filings do not make clear the core crime that would turn a filing misdemeanor into a felony. Neither the 16-page indictment nor the accompanying statement of facts specifies, though the statement of facts does drop hints about campaign laws. In a news conference, Mr. Bragg answered that he did not specify because he was not required to by law. His answer was oblivious to how law requires more than doing the minimum to the letter—it demands fairness, giving notice and taking public legitimacy seriously.” What are the legal requirements here? How should these things be done to give both the public and the defendant a fair shake?
New York law allows a prosecutor to do this, and Bragg said this was all that was required. This happens frequently, and the remedy is that a defendant has to go file a motion for what’s called a bill of particulars. If you want the specifics, you have to ask for them. I find this baffling as a general practice, and one of the bright sides here is it shines a spotlight on both the New York law that allows it and the fact that New York prosecutors are perfectly happy to do the minimum, as opposed to do what’s fair.
I think this raises a larger question about prosecutorial ethics in America. I’ve seen lots of prosecutors who have been defending these charges who basically say, “This is what prosecutors do all the time.” It begs the prior question: What is the job of a prosecutor? Is it to just win cases? I’ve seen lots of arguments that this allows Bragg to maximize his chance of winning a conviction. As lawyers and as law professors, is that what we’re supposed to be describing as the prosecutor’s job? There’s this larger conversation about who prosecutors are supposed to be serving—about doing justice, not just winning convictions.
But, if the underlying issue is about election laws, and Bragg is not pretending otherwise, why does it matter that he didn’t cite the specific statutes? And what’s the value to the prosecutor in not saying any of this?
I find it baffling. There are all of these weird hints, and I really do mean weird hints, in the statement of facts. Bragg was never willing to write “tax fraud.” But there are these three little hints about tax problems that are just enough to get ongoing speculation in the media and among legal commentators about it. That may benefit Bragg and benefit his chance of winning. I think it’s deceptive, or misleading, or there is something strategic here about dropping these hints about taxes, and yet it doesn’t seem like there are any allegations of actual tax fraud.
Let me ask you about that, because you write, “What, in practice, is the meaning of ‘intent to defraud’? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it.” But, if your argument is right, why do anything shady with a business record if no one’s ever going to see it? I didn’t understand.
It’s a good question. It may just be about consistency, arguably, and I’m not trying to carry water here for Donald Trump. I’m just saying that a prosecutor has to game this out as a problem—that the target of the fraud was the Federal Election Commission. Each of the thirty-four counts relates to a particular check stub, a Cohen invoice, or a business-ledger entry. The prosecution needs to prove that the false entry was made with “intent to defraud.” It seems more likely that any “intent to defraud” would have been in an actual or possible filing to the F.E.C. (or maybe to tax entities). The F.E.C. document and/or the tax filing would have been the defrauding false entry. That doesn’t mean it’s obvious that Trump had an intent to defraud anyone in these thirty-four internal documents. The business could have been making one big filing decision for the F.E.C. or tax departments—which they may or may not have done after these documents were created. Each new entry may have been an effect of that misfiling or plan to misfile, but it’s not clear why such downstream, internal copy-paste jobs would rise to the level of intent to defraud.
Can’t banks or tax authorities look at internal business records?
Yeah. In some cases, the accounts relate to checks that were sent to banks. So, just to be more precise, the language I used in my essay was—
“If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it.”
That’s right, so the reliance is a different question. It’s the question of someone relying on it and then being defrauded. So, the banks looking at Trump’s checks, or at his former attorney Michael Cohen’s checks, they look at them, but they just process them. It doesn’t relate to whether they’re good checks or not. There’s no defrauding of the bank. There’s no part of their business interest that is implicated by the way that that’s filed. The question is what other entity would be defrauded by this?
I just wanted to establish that it’s possible that these internal documents could still be used to confuse or deceive people. It seems like we don’t know exactly what was done or wasn’t done—
That’s exactly right. There is this puzzle and a mix of cases on what it means to have intent to defraud. Some New York courts are more open-ended about that phrase, about what it means to defraud, and some New York courts are narrower. If the Manhattan D.A. is going to bring a case based upon this statute, you’ve got to price in the uncertainty of New York law on what intent to defraud requires.
But, regardless of what the legal standard is, it is very hard to find examples in New York where prosecutors brought cases and courts validated using internal documents as proof of intent to defraud, which may relate to how hard it is to establish intent to defraud. You really, in practice, need a scheme with a target, and so that’s one concern I have about bending the law or bending the practice to go after this particular case. This also appears to be the first time in American history, at least as recorded by courts, where a state prosecutor has brought a case in which either the direct crime or what’s called the predicate crime is from the Federal Election Campaign Act, which was passed in 1971. That’s a really big problem.
Can Trump’s campaign request a bill of particulars to find out more about the charges against him? And would that presumably deal with some of the issues you’re talking about?
Oh, yes. I’m making a different point. The Sixth Amendment says there’s a right for a defendant to hear the allegations and hear the basis for the charges. But the stakes were higher here, if only for the delay. There was a duty of legitimacy, and a legal system is based upon legitimacy, both the consistency—the appearance of consistency—and explanations for why public officials are doing what they’re doing. This is maybe partly because it’s a former President who’s also running for office. It may be partly because of the partisan balance of New York, but I think it’s just implicated by the appearance that the D.A.’s office seems to have had access to the information in the case and there’s an appearance of a reversal. That created a duty of legitimacy to explain to both the defendant and the public. And so the bill of particulars is, I think, secondary.
In the piece you say this case has now “established a dangerous precedent.” What does that mean?
Can you specify what bothers you about that?
In several years, a Republican prosecutor could end up charging Joe Biden and his family, regardless of what happens with this case, which should be criticized on its merits as good or bad. I don’t actually know what “established a dangerous precedent” means in practice.
Fair question, and really good question. One bigger-picture point is that legal logic, the way the Anglo-American legal logic works, and the way we teach it, is to think about precedent and analogies. The way we think about fairness is, Well, has this happened before? That was part of my argument to you: this thing hasn’t happened before.
We look to precedent as an indicator of consistency, fairness, and legitimacy. That’s the rule of law. One way that American lawyers and American judges evaluate fairness is analogies and comparisons and precedents. I think it’s fair. I don’t think those are the only indicators, but that is how our legal system is designed.
There may be no precedent for a charge like this, which I agree may be a good critique of the case. My concern about the use of “dangerous precedent” is the idea that this will lead other people to engage in nefarious behavior. Those are two different things.
That’s fair. But I do think it’s remarkable. You said nothing would stop Republicans from charging Biden with a crime if they wanted to. At a time of increasing polarization and demonization of Bill and Hillary Clinton, and of Barack and Michelle Obama, it’s pretty remarkable that we haven’t had that yet. There were plenty of opportunities. One explanation is that the Obamas steered clear of any of these allegations, but the Clintons had plenty. There were lots of opportunities for state prosecutors to have been just as weaponized as Ken Starr was, and yet that didn’t happen. I do take seriously that slippery slopes are fallacies, but slippery slopes are also the structure of American politics.
That’s the question. Are they?
I think they are. There is this metaphor about constitutional hardball that some academics have written about. In our time, constitutional debates have increasingly been about pushing the envelope by making more and more aggressive arguments to move, let’s say, the Overton window, as opposed to happening via something like evenhanded deliberation.
My counter is that we live in an era of Democrats playing hardball while Republicans play bean ball. Democrats are bringing a knife to a gunfight. The idea of bean ball is to throw high and tight to hit someone in the head—it’s to injure the opponent, and in baseball you get kicked out of a game for that. We have gotten to a point where the asymmetry has become not just a difference of degree but a difference of kind. There are some norms that have still not been broken, but now we’re getting to a point in this indictment, I think, that reflects one of these turning points where there is a new degree of escalation of criminalizing American politics. Don’t get me wrong, I think Donald Trump should get indicted for other crimes, but this crime, or this allegation, is such a stretch of both state law and federal jurisdiction that I think it is part of this escalation story.
You write in your piece, “This legal embarrassment reveals new layers of Trumpian damage to the legal foundations of the United States: Mr. Trump’s opponents react to his provocations and norms violations by escalating and accelerating the erosion of legal norms.” That could be true. But does it also assume that Bragg is doing this for some partisan reason? Or that he knows it’s a bad case but feels like Trump is such a threat that he needs to be prosecuted for something? This would obviously be problematic in the extreme—but aren’t you assuming that you know why he’s making the decision?
I’m saying something else. I don’t know what’s in Bragg’s head. I do have a sense of how this appeared. I’m just trying to get a sense of what happened here. My concern is that this gave ammunition to those who want to continue the big lie of Trump as victim. And, in this case, it creates the appearance of a reversal from one D.A. to the next. It creates the appearance that the D.A. is bending state law and bringing an unprecedented kind of case when the D.O.J. wouldn’t.
You wrote, “Mr. Trump’s opponents react to his provocations and norms violations by escalating and accelerating the erosion of legal norms.”
Yeah.
“React” seems to imply something about the way Bragg is thinking this through.
Trump posted on social media an image of himself holding a baseball bat, next to an image of Bragg’s head. That was disgusting—a horrible act by Trump. But the reaction among many legal commentators was, if Alvin Bragg was uncertain about bringing charges, he should bring them now because that has to go answered. Is that right? I mean, isn’t that playing into Trump’s hands that for his base he will do things that are provocative and norm-breaking?
He already tried to launch a coup, so, yes, the Alvin Bragg baseball thing is bad, but I just mean it may be possible that the Rubicon was crossed when we elected him, and these things are mere details.
I don’t know. This is a very dangerous situation. I have gotten a lot of pushback and criticism for using the words “embarrassment” and “disaster” in this Op-Ed. I take those very seriously. I’ve spent the days of Passover thinking about whether it was fair to use those terms. And I think I’ve concluded that they were, because here’s the embarrassment. The embarrassment is how the indictment reflected a pushing the envelope of state and federal law that suggested a prosecution in search of a crime because of partisan politics. Trump is dangerous. Have we made him more dangerous?
I think this does create a dangerous precedent that Republican state prosecutors—or Trump or [Ron] DeSantis or Josh Hawley—could use, and these are all very dangerous actors. I don’t know exactly how authoritarianism happens, but it’s when each side thinks the rule of law is a naïve, romantic fantasy. This is an embarrassment to the rule of law that becomes a disaster when it validates Trump’s narrative of being a victim. I think the way that Bragg handled the indictment and the lack of information and specificity in it may have sealed the 2024 G.O.P. nomination for Trump. And I think the rule of law has taken a hit. ♦
