Underestimating Alvin Bragg's case against Donald Trump is a historic mistake

Prosecutors are off to a strong start in the Manhattan trial of Donald Trump. Their evidence is aimed at proving that the former president committed crimes by falsifying business records to cover up a pre-election payoff in 2016 meant to keep women who would have otherwise revealed some of his sexual scandals ahead of that presidential election silent. 

Some critics, including some very smart legal minds who have no love for Trump, don’t like the case. Boston University Law School Professor Jed Shugerman — who previously described to Salon “Trump abuses” at the Department of Justice as “using the system of prosecution to reward your political allies and to punish your opponents” — took major issue with the first criminal case against Trump to reach trial in an April 23 New York Times guest essay:

Shugerman went on to publicly accuse prosecutors of engaging in “an embarrassment of prosecutorial ethics and apparent selective prosecution.” But if you are to call the criminal prosecution of Donald Trump for election interference a “historic mistake,” you ought to have arguments that are as close to airtight as humanly possible. The ones in Professor Shugerman’s essay, lamentably, are not even legally persuasive.

Let’s put aside his description of the prosecution’s opening statement as “vague.” That’s not how former Trump impeachment counsel Norm Eisen reported it from the courtroom for CNN, or how reporters for The New York Times and the Washington Post described it.

The core of Shugerman’s faulty argument is that he sees “three red flags raising concerns about selective prosecution upon appeal” because of the “unprecedented” way in which the grand jury used the statute at issue – New York Penal Code §175.10 – to charge Trump with a felony. That offense – falsifying business records – becomes a felony only when committed with an “intent to commit or conceal another crime.”

As former prosecutors and as current defense lawyers, we know that the claim of selective prosecution is notoriously difficult for defendants to prove. Justice Juan Merchan, the seasoned judge presiding over the trial, rejected Trump’s claim, finding that he did not carry his burden of showing that the DA had discriminated against him by not prosecuting any other similarly situated individual. 

The reasoning is not mentioned in Shugerman’s Times essay yet it is a necessary element of proving selective prosecution in New York. Merchan also found that prosecutors had demonstrated that they had brought many other actions charging defendants with “falsifying business records with the intent to commit or conceal the commission of another crime.” 

But, Shugerman writes, there’s “no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime.” That, he says, is a “sign of overreach.”  

Wait! The case is unprecedented? Now there’s an understatement! 

Have we ever had a presidential candidate from New York against whom prosecutors have assembled strong evidence of falsifying information in business records to cover up a scandal on his way to winning election? Have we ever had such a man now seeking the voters’ approval for a return White House run?  

Rather than overreach, a novel use of the statute here is the sign of a prosecutor willing to extend the law to a new fact situation that society has a right and a duty to protect itself against. That is especially so when the case is brought to hold accountable someone whose company a different jury already found guilty of criminal tax fraud and falsifying business records, and who has been found to have committed massive civil fraud against the state.

Shugerman also emphasizes that there’s not even any other New York case that sustains the use of another jurisdiction’s statute – federal law in this case – as the “other crime” in. It’s not enough, he says, that prosecutors have cited multiple parallel New York appellate court decisions – ones sustaining the use of crimes from other jurisdictions to satisfy the “other crime” element in different New York criminal statutes.

Why not? The extension of parallel situations is precisely the kind of reasoning on which the law is built. Whenever new fact patterns arise, the law operates by analogy from contexts where it is established. That’s why Justice Merchan has endorsed it. 

Next, Shugerman says that a jury instruction endorsing the use of federal law violation as the “other crime” in another §175.10 case “doesn’t count” as precedent. Technically correct, but what that instruction shows is that another New York trial judge in a different case reached the same result that Justice Merchan reached here. That sounds like support for his decision and guidance for others in analyzing whether the prosecutors are making “an historic mistake.” 

The Boston University professor also takes issue with the Manhattan DA’s use of federal election law because, he says, the reliance on Trump’s alleged violation of state election law is flawed. He argues that state election law applies only to “public officers,” and “state statutory definitions of “public office” seem to limit those statutes to state and local races.”

But the essay omits the basis on which Justice Merchan rejected this argument. New York election law, he wrote, explicitly states it “shall govern the conduct of all elections at which voters of the state of New York may cast a ballot for the purpose of electing any individual to any party position or nominating or electing any individual to any federal, state, [or local] office . . . ." 

Further, Shugerman attacks the prosecutor’s election interference theory. He argues there is no precedent for satisfying the law’s “intent to defraud” requirement with an allegation that the defendant intended to defraud the general public. Shugerman says that “a conviction based on it may not survive a state appeal.”

Again, one is left to wonder why not. In the universe of threats to democracy, a candidate’s intent to defraud voters, if proven, is perhaps the most serious intent to defraud one can imagine. Trump is accused of seeking to deprive Americans, through deceit, of information most would have wanted to know about a candidate before deciding whether to make him president. The law is wise enough to take account of this element of a crime against democracy.