French: Is it wise to indict and prosecute a former president?

David French writing in The New York Times:

For the first time in American history, a hotly anticipated indictment of a former American president may actually be handed up. Manhattan’s district attorney, Alvin L. Bragg, seems set to bring charges related to Donald Trump’s allegedly paying off a porn star named Stormy Daniels to cover up their affair. There are, however, significant problems with the case.

Proving that Trump paid hush money to Daniels and unlawfully falsified records of the payments shouldn’t be difficult. In 2018, Michael Cohen, Trump’s former attorney and fixer, pleaded guilty to criminal campaign finance violations and admitted to paying a woman identifiable as Daniels $130,000 in exchange for her silence about her relationship with Trump. According to the Department of Justice, Cohen wasn’t merely reimbursed for this payment. He also received substantial additional sums to cover any tax liabilities connected with the reimbursement. These payments were allegedly falsely claimed as legal expenses by the company paying Cohen.

This basic narrative is the strongest part of the prosecution’s case. But not only is the underlying crime of falsifying business records a mere misdemeanor; the two-year statute of limitations expired long ago.

So how can Trump be prosecuted? If Bragg can prove that, contrary to New York State law, Trump falsified records when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,” he can prove that Trump committed a felony, and a felony not only carries stiffer penalties; it has a five-year statute of limitations.

Still following? Good, because there’s more: New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.” A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.” Under that reading, that statute of limitations clock stopped ticking when Trump was away.

But what is the other crime that can convert a charge of records falsification to a felony? Most likely prosecutors will rely on an allegation of violating federal campaign finance law, specifically the claim that the hush money payments to Daniels were illegal campaign contributions. But this is also not a simple case to make: The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.

Setting that aside, the claim that Trump violated federal law isn’t frivolous. The core question is whether the payments constituted campaign expenditures or mere personal expenditures, defined by Federal Election Commission rules as funds used “to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign.”

Trump’s likely defense to any federal charge is simple, that the hush-money payments had nothing to do with his campaign and everything to do with trying to spare his family the embarrassment of Daniels’s allegations. He’d make that payment anytime, regardless of whether he was running for president.

That’s a facially compelling argument, but in a 2018 National Review piece I argued that the weight of evidence indicates that it’s wrong. Daniels claims her affair with Trump started in 2006 and continued sporadically thereafter, yet the payments weren’t made until the heat of the final moments of a closely contested presidential campaign.

Even though I believe Cohen committed a campaign finance violation (and even though the Department of Justice mounted an unsuccessful prosecution of the 2004 Democratic vice-presidential nominee John Edwards on a similar legal theory), I’m still skeptical of Bragg’s Manhattan case. Ryan Goodman and Andrew Weissmann recently argued in these pages that “it would be anathema to the rule of law not to prosecute the principal for the crime when a lower-level conspirator”— meaning Cohen — “has been prosecuted.” Yet that’s exactly the choice the Department of Justice made. Neither the Trump nor the Biden Justice Departments brought federal charges against Trump. In addition, Cyrus Vance Jr., a previous Manhattan district attorney, investigated the same case and did not bring charges.

Add these factors, and Bragg’s case against Trump starts to look, well, unique. We’re talking about the first-ever indictment of a former president brought by a state district attorney — one that his predecessor didn’t choose to seek and that relies on federal criminal claims that the Department of Justice declined to prosecute.

It’s no wonder that even Bragg’s aggressive former prosecutor Mark Pomerantz was concerned that the Daniels case was, as The New York Times reported, “too risky under New York law.” A Reuters article described the legal theories supporting a prosecution for the Daniels payments as “untested.” A January New York Times story also accurately called the theories “largely untested.”

None of this justifies Trumpist attacks on the rule of law. Incitements to violence or Senator Rand Paul’s inflammatory declaration that Bragg should be “put in jail” demonstrate the extent to which the Trump movement thinks its leader should be exempt from conventional legal process. Trump — like any American defendant — has an opportunity to oppose criminal charges, in court, before a judge and a jury.

I believe very strongly that the president is not above the law. I also believe, as I wrote in a previous piece, that the rule of lenity should apply to all criminal defendants, including Trump. The rule of lenity, according to Cornell Law School’s Legal Information Institute, is a principle of statutory construction that states “when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant.” The government simply shouldn’t stretch the law to mount a criminal prosecution.

The best place to bring a Trump case related to the Daniels payoffs was in federal court, in the Southern District of New York. That’s where Cohen was prosecuted. That’s where Cohen pleaded guilty. That’s where criminal complaints about the relevant federal campaign violations should have been heard. But should state officials bring a state claim that depends on an accusation of having violated federal law when federal charges were never filed?

My conclusion is no and not because I believe that the Manhattan district attorney should grant a former president any degree of special deference. Nor is it because I necessarily think Trump’s conduct was legal. Trump is a citizen of the United States and should enjoy no more — and no less — legal protection than any of us. But no one should face the potential loss of liberty on a case that requires so much acrobatics to make, not even a man as corrupt as Donald Trump.

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