On March 30, 2023, Donald Trump managed to further sully American history by becoming the first President indicted for crimes -- in this first case, as a FORMER President already declared to be running to become the NEXT President for crimes committed PRIOR to his Presidency. It won't be argued here whether Trump is the first President to DESERVE such a fate - other candidates exist -- but it says something about Trump's immoral makeup that he was the first to drag the Presidency across that previously unthinkable line. Specifics of Trump's first indictment -- it seems likely there will be others in other unrelated matters -- are likely to remain hidden until his arraignment in a New York City courtroom expected on April 4. There isn't much value in speculating about the strength of the case or likely defense tactics until details of the charges become public. However, comments from those nominally in favor of this first indictment and those vehemently opposed raise troubling insights into the daily operation of justice in America -- for the privileged and the masses.
Generalities of the Case
Again, the detailed charges of the indictment will likely remain secret until Trump's expected arraignment on April 4, 2023. In general, the case under investigation involved the following events:
- a sexual affair between Trump and an adult film star ("Woman-1" or Karen McDougal) in 2006
- a sexual affair between Trump and an adult film star ("Woman-2" or Stormy Daniels) in 2006
- a $150,000 "capture and kill" deal brokered by Trump Organization lawyer Michael Cohen, Woman-1 and American Media on August 6, 2016 to squelch 1's story
- a secondary deal between American Media and a shell company created by Cohen to assign the "kill and capture" rights to Cohen in exchange for $125,000
- public disclosure on October 7 of audio recordings from 2005 of Trump stating to an Inside Hollywood feature reporter "And when you're a star, they let you do it. You can do anything... Grab them by the pussy. You can do anything."
- contact on October 8, 2016 -- one day after the Inside Hollywood disclosure -- from the lawyer for Woman-2 to American Media offering to sell the story of her sexual affair with Trump
- within a few days of October 8, Cohen negotiated a deal with Woman-2 and American Media for control of her story for $130,000 but actual payment on that deal was held up
- on October 25, Woman-2 still unpaid contacted the lawyer and editor at American Media who contacted Cohen over an encrypted phone application requesting payment urgently, at which point Cohen agreed to complete payment
- on October 26, Cohen used recently completed incorporation papers for a second shell company Essential Consultants, deposited $131,000 of funds from a separately obtained home equity account in his name, then wired $130,000 from that account to the attorney at American Media, fraudulently tagging the transfer on the wire request as a "retainer"
- on November 1, the lawyer for American Media returned a copy of the final signed / executed deal between American Media and Woman-2 for control of her story
- in January of 2017, Cohen submitted reimbursement requests for the $130,000 payment, the $35 wire fee and $50,000 in other technical support expenses to The Trump Organization, which grossed up the $180,035 amount to $360,000, added another $60,000 in "bonus" then set up an arrangement to pay the $420,000 in twelve monthly installments as income to Cohen rather than business expenses or political contributions benefiting the Trump campaign
Cohen was charged and convicted by federal officials on a variety of crimes, some unrelated to Trump the individual or The Trump Organization, but the falsification of expenses tied to Essential Consulting WAS among the criminal charges that earned convictions that sent him to prison. More importantly, Individual-1 referenced in those charges was obviously Donald Trump but he went unindicted at the time because of a long-standing internal Justice Department policy stating federal law enforcement cannot indict a sitting President.
Insight into the Hush Money Case
Once Trump left office, the parlor games began regarding additional prosecutions regarding the Stormy Daniels hush payment and related paperwork. Would the Justice Department now pursue charges against Trump mirroring the same charges applied to Cohen, now a convicted felon from the same events? If a jury understood the charges the first time and reached a guilty verdict, it would seem the only challenge left would be proving Trump's involvement was active enough to serve as direction / agreement of not just the payment but the creation of bogus accounting and masking of a financial contribution obviously benefiting his campaign. Once the Justice Department declined to pursue the case, WHY did they decline? Weakness in the facts supporting an argument Trump was a party to the criminal actions? Reluctance to use such a prurient event to drive a precedent setting case? Bigger fish to fry to drive those same weighty precedents? Or a belief that NO President should be subjected to prosecution, lest we instantly turn America into a banana republic of perpetual persecution between alternating despots?
None of those questions were answered. Merrick Garland and team essentially said NOTHING. In the meantime, state officials were investigating years of tax fraud by Trump and his operating companies involving arbitrary inflation / deflation of asset prices to INFLATE collateral for bank loan applications (bank fraud, wire fraud) while at the same time fraudulently LOWERING evaluations for tax bills (tax fraud). On September 21, 2022, New York State Attorney General Latitia James filed a civil fraud case against Trump family members and The Trump Organization itself seeking $250 million in financial penalties, ongoing state audit supervision of the firm's books and a ban on any of the Trump family operating any company in the State of New York. The investigation went back at least ten years and identified over 200 instances of fraudulent asset valuations. Obviously, many of the instances were beyond criminal statute of limitations bounds (hence the civil action) but presumably James and team saw patterns that extended to current practices and shared that information with federal prosecutors and (presumably) Manhattan District Attorney prosecutors as well throughout their multi-year investigation.
Until December 31, 2021, the Manhattan District Attorney was Cyrus Vance, Jr. Vance was leaving office on 12/31/2021 so the entire world waited for him to emerge with a decision on charging Trump in the Stormy Daniels case like Puxatawny Phil's spring forecast. After Vance left with no public decision, his elected successor Alvin Bragg met with investigators and prosecutors reviewing the material. On February 23, 2022, two of his prosecutors publicly quit in frustration, a day after an internal meeting in which Bragg had said he was not ready to proceed with a case. Bragg did not subsequently provide public clarifications regarding his thinking but reporting at the time claimed he was concerned about dependencies upon testimony from Michael Cohen in prosecuting a case requiring proof of intent in Trump's mind when Cohen's conviction would obviously allow the defense to claim Cohen was seeking retribution against his former boss.
So what has Alvin Bragg learned since February 23, 2022 that led him to indict Trump? Again, the indictment most likely will not be shared until the arraignment on April 4 so frankly, speculation really isn't productive without those details. It seems likely that Bragg's team has benefited from some of the information shared by Latitia James' team that might have identified a more consistent pattern of fraud regarding shell companies, legal fees and misstated accounting records that confirm a pattern of involvement, direction and intent directly on the part of Trump that were also used in the Stormy Daniels actions. It also seems likely that additional documents, recordings or testimony have provided confirmation not dependent upon Michael Cohen that Trump approved or even requested the actual payment explicitly to defuse a POLITICAL issue DAYS before election day (making it a campaign contribution, not just a family effort to avoid the wrath of a wife) and approved or even requested the paper shuffle to pay for the campaign contribution out of Trump Organization funds and mis-characterize the reason rather than paying out of Donald J Trump's personal checking account. As of late March 31, multiple sources are mentioning the first indictment involves "about 30" criminal charges. This quantity of charges, if accurate, would confirm investigators established a strong pattern of wrongdoing over time and different parties of which the hush money case may only be one facet.
Trump's current lawyer has essentially argued "the Edwards Defense", a reference to Democratic Presidential candidate who escaped conviction for hush payments under the guise of the payments being made to avoid personal embarrassment of his wife, rather than assisting his presidential campaign. The sequence of events above would seem to easily refute such a claim since negotiations with the second woman began ONE DAY after the Access Hollywood campaign that had temporarily paralyzed Trump's campaign and spending -- he could NOT survive a second moral blowup prior to Election Day.
Insights into American Justice
It is pointless to play fantasy courtroom for either the prosecution or defense given the incomplete picture of this first indictment but analyzing the reactions of elected officials, media and the public provides insights into more important concerns - the widening inequities in the American system of justice. One of the most curious reactions came from the editorial board of The Washington Post. On March 31, they published an opinion stating the hush money case was a "poor test case for prosecuting a former president." This argument seems focused not on the merits of the case as they stand (because no one knows those merits until charges are disclosed at arraignment) but the timing of this case versus other alternatives pending. Is the WaPo for some reason anxious about a potential history-making case being tied to something as salacious as a porn star payoff? Are they worried the complexities of this case might result in an acquittal which might make prosecutors even MORE reluctant to attempt prosecution in future cases of deserving Presidents?
That concern in fact seems to reflect a simple belief that any change in precedent regarding treatment of Presidents better involve REALLY REALLY important matters, rather than simple / stupid / tawdry stuff. But such concerns in fact would conflict with the goal of equal protection under the law. If a candidate for House or Senate had an affair, paid off the other party for silence amidst a campaign, and failed to record it as a campaign contribution and falsified other records to cover the expense, THEY would be prosecuted. If charges would be filed in some cases but not when a President is involved, then we are not providing equal protection to all citizens and we are not subjecting all citizens equally to the law for wrongdoing. THAT is the issue. Not hush money, not campaign finance and not accounting fraud.
Curiously, The Washington Post also ran another editorial on March 31, 2023 expressing frustration that this hush money case is now a state level case rather than a federal criminal case. The concern stems first from the fact that, within New York State, nearly all prosecutors and judges involved are partisan, elected officials which means a long case can result in charges being dropped or prior rulings being reversed in response to elections if participants are targeted for prior actions in a case. While making the justice system responsive to voters, it also makes justice decisions potentially more volatile in ways which cloud the clarity of precedents and create the perception of selective treatment which again is antithetical to the rule of law. A point not mentioned in that second WaPo editorial is why federal prosecutors did not essentially take the prior federal prosecution of Cohen, globally substitute "Donald J Trump" for "Michael Cohen" then hit the play button immediately after Trump left office. One would assume the exact same set of facts involving the same four parties (Trump, Cohen, Daniels, American Media) that resulted in a prior conviction would simplify prosecuting Trump as a co-conspirator already referenced in evidence that won a conviction. While the prior prosecution wasted no breath in the trial cementing the idea that Trump not only approved of the crime but directed it (since they were acting under the premise he was un-indictable as a sitting President), the actual FACTS presented did seem to make that case and they were sufficient to convict Cohen.
The reactions of the far right (Trump fans and wannabes alike) to the indictment are far more concerning. Within five minutes of the breaking news, America's despot-in-waiting, Ron DeSantis, posted a comment blasting Bragg's indictment as "un-American" and a weaponization of the legal system to advance a political agenda. More tellingly, he stated Florida officials would not comply with any request for extradition of Trump from Florida to New York if it came to that. DeSantis' comment was clearly pre-crafted for political consumption and has little likelihood of becoming an issue since Trump appears to be planning on surrendering in New York voluntarily. Besides, federal law requires every state to honor extradition requests from any other state. However, DeSantis' comment exposes his sole criteria for virtually any action he performs in office ("what's in it for Ron?") and reflects his willingness -- even EAGERNESS -- to use his powers (actual legal powers or perceived, threatened powers) for HIS political gain at the drop of a hat.
Consider DeSantis' reaction from this perspective. His vow to violate federal law by refusing to direct state officials to comply with a valid (but hypothetical) extradition request isn't an off-the-cuff social media REACTION of an idiot to bad news for a fellow fear-monger. It was a PRE-PLANNED reaction, carefully crafted to stroke the desired fears and biases of a carefully curated base. In essence, Republicans are not playing mere checkers in creating chaos, they are planning chess moves of chaos and have additional incendiary ammunition staged and ready to fire no matter where the chaos crops up next.
This game of incendiary chess is being played at every level -- federal, state and local. On March 29, US House Representative Lauren Boebert (R-CO) attended a committee hearing regarding criminal codes in effect in Washington, DC after recent battles in which CHANGES to those codes were REJECTED by the House and Senate. Boebert arrived armed with a series of questions for a witness who led a team formulating the proposed changes WHICH WERE REJECTED BY CONGRESS, aiming to get him to admit that he pushed for changes that allowed public urination. Only NO CHANGES were made and HE DIDN'T DRAFT any proposal to eliminate public urination as an offense and voted FOR an altered list of changes that omitted the change she was citing. Only Boebert wouldn't hear it. She badgered the witness with false facts, repeatedly interrupted him as he tried to answer her questions while making it sound like he was rudely interrupting her (a classic tactic in obfuscation and non-communication -- pick an argument with the person you're questioning and never let them complete an answer…), and kept fixating on public urination. (Aside #1, best online coverage of this fiasco was an article in The Guardian entitled Wee the people. Aside #2, there could be a reason for Boebert's fixation on public urination since her husband was charged in 2004 with public indecency and lewd exposure at a bowling alley.) Whatever purpose the committee had in originally calling this meeting on congressional oversight of DC's finances and local law enforcement was completely destroyed by the time Boebert ended her sideshow. Mission accomplished.
In Missouri, Republicans in the legislature introduced bills in January 2023 to further restrict the ability of Missouri voters to make changes to the state constitution. Under current law, voter initiatives for constitutional amendments must collect signatures from eight percent of registered voters in the state. Under a new proposal, that percentage would go UP and that percentage would have to be reached in EACH district within the state. The state is split about 50/50 between liberal and conservative with the metro areas of St. Louis and Kansas City being "blue" and everything else being "red" but due to gerrymandering, enough of the liberal votes in St. Louis and Kansas City are bled off into red districts, creating a super-majority for Republicans in the House and Senate, despite actual voter totals being much closer. Assuming a proposal collects enough signatures, current law only requires a 50% majority to pass but bills have also been proposed to raise that majority to 60% or even 67%.
In Arizona, Republican state lawmakers have adopted the "majority majority" rule (commonly called the Hastert Rule) already adopted by US House Republicans to require any proposal to obtain a majority vote of support within the Republican caucus in order to progress pass committees for a full vote. That means in a 50/50 split, a bill proposed by 100 percent of Democrats and 20 percent of Republicans (total support of 60 percent) will still be blocked from progressing. Only bills gaining at least 50% support from the Republicans will reach a vote, essentially eliminating any legislation from passing even if a technical majority of all elected officials are in favor of a bill. Arizona Republicans claim this rule has been in place for years but interviews of prior Republican Arizona House speakers reflected no use of such a rule to gate bills reaching a vote.
Efforts are in flight in many states to impose more control on the discretion of local prosecutors via special oversight panels which can enforce desired emphasis on "favorite crimes". Again, in Missouri, state officials are attempting to use oversight rules to remove St. Louis Circuit Attorney Kim Gardner from office after a teenager visiting the city lost both of her legs in a horrific accident caused by a multiple offender who was out on bail awaiting trial due to delays in part due to Gardner's incompetence in operating her office. A perfect use of such measures. Unfortunately, the information cited by Missouri's current Republican Attorney General for justifying Gardner's removal dates back to 2017 when she entered office. The same information was readily available to Missouri's PRIOR Attorney General, Republican Eric Schmitt, who did nothing with the statistics on delays, lost paperwork, charges left unprosecuted, etc. and instead spent his time suing the Biden Administration about immigration issues in Texas and student loan forgiveness.
In Georgia, Republicans are proposing a bill that would establish a state oversight board to monitor prosecutor performance across the state and allow this board to jettison any prosecutor not meeting the board's desired standards. Of course, this proposal isn't aimed at any incumbent "Kim Gardner" type prosecutor who is failing at the basic mechanics of prosecuting crimes.. It's aimed at eliminating highly competent prosecutors such as Fani Willis who is investigating the attempts of a US President to conspire with elected state officials and administrators to alter the legitimate results of the 2020 election. The oversight board being proposed would have a Republican majority controlling it, reflecting the gerrymandering of the entire state. This would allow Republicans to thwart the legitimate work pusued by prosecutors elected in Democratic dominated areas from pursuing cases related to voting rights, civil rights, labor rights, etc. that might not be popular with outstate Republicans.
Tactics like these in Missouri, Arizona and Georgia reflect a fixation on the insulation of existing power from future majority blocs of voters. The same tendencies of Republican legislators at all levels to insulate themselves from accountability to their voters will continue spilling over to measures that will attempt to control the judiciary to protect special interests and persecute enemies. There is no concept of right and wrong or innocent and guilty driving these measures. Only winning versus losing and the preservation of power at any cost.
WTH
