Sometimes even Donald Trump has a point. This time, it’s his claim that he has been singled out by the Manhattan District Attorney’s office for conduct that would probably not have been charged as a crime against anyone else.
The indictment of the former president in New York is an undeniably historic event — the first ever criminal prosecution of a former U.S. president — but it has also defied many people’s expectations that he would be arrested for a crime related to his time as president. The case, after all, is not about Trump’s efforts to overturn the 2020 election or his retention of classified documents at Mar-a-Lago, which are both under investigation by the Justice Department. The investigation by the Fulton County district attorney concerning Trump and his allies’ effort to manipulate the 2020 election results in Georgia also still remains underway, and people have been eagerly awaiting the results ever since a special grand jury completed its investigative work in February.
The case brought by Manhattan DA Alvin Bragg, a Democrat, instead reportedly charges Trump for events that took place before he was president and uses a highly unusual legal theory based on a highly unusual set of facts — Trump’s payment of hush money to the adult film star Stormy Daniels in the final weeks of the 2016 election to cover up an alleged affair that the two had while he was married. At the time of this writing, the charge(s) in the indictment against Trump have not been publicly confirmed, but for weeks, media outlets have reported that the alleged crime at issue would be Trump’s participation in falsifying his company’s business records to obscure the reason for the payment, which was characterized within the company as a legal retainer for Michael Cohen — Trump’s onetime lawyer turned mortal enemy following his stint in prison.
The unusual charge from the Manhattan DA’s office that is apparently at issue has already prompted a broad consensus among conservative politicians and commentators that Trump is the victim of a political prosecution — a “witch hunt,” to use Trump’s preferred phrase. A Trump campaign email sent recently to supporters last week claimed that prosecutors in New York “chose their target first and have been hunting for a crime ever since.” Before the indictment came down, conservative legal commentator Andrew McCarthy, who is no fan of Trump as a political figure, argued that “it’s undeniable that no one who wasn’t Donald Trump would ever be charged for this.” Law professor Alan Dershowitz likewise said on Megyn Kelly’s show that “Nobody in their right mind would believe that Bragg would be going after John Smith or even John Edwards on a case like this. It’s obviously an example of ‘Get Trump’” — the name of Dershowitz’s latest book, in case you missed the promotional tie-in — “and it’s so, so dangerous.”
The claim is likely to be a central part of Trump’s defense, both in the public and legal arenas, and it is not likely to go away anytime soon — particularly since there is good reason to believe that it’s true.
The investigation by the DA’s office was reportedly spurred by news of the payment to Daniels all the way back in 2018 under Bragg’s predecessor, Cy Vance. According to a Supreme Court filing during the office’s fight to get Trump’s tax returns, the office put its investigation on hold at the request of the Justice Department around the time of Cohen’s guilty plea to a variety of federal charges, including campaign finance violations related to the payment to Daniels. Prosecutors in Manhattan picked the investigation back up in the summer of 2019 after they learned that the federal investigation had been closed without further charges.
In the intervening years, the office obtained Trump’s tax returns, charged and convicted both Trump Organization CFO Allen Weisselberg and the Trump Organization on narrow tax-related fraud charges, and pursued a broader criminal case against the former president based on the alleged manipulation of the value of his assets in submissions to lenders, insurers and government authorities. Last year, Bragg declined to approve an indictment on those grounds, concluding that the proposed case was not strong enough. That led the two prosecutors leading the effort at the time to resign, and one of them, a lawyer named Mark Pomerantz, proceeded to launch a highly unusual media campaign — one that resulted in a book and an appearance on 60 Minutes last month — assailing Bragg for refusing to charge Trump.
That book provided a very incomplete and misleading account of the strength of Pomerantz’s proposed case, but setting that aside, pretty much everything about it seemed designed to shore up Trump’s claim that he was the victim of a legal vendetta by the office. Pomerantz, who was tasked with leading the investigation, comes off as singularly obsessed with charging Trump with anything that he can come up with — no matter how obscure or bizarre the legal theory — and heavily motivated by his belief that Trump is a uniquely dangerous political figure who has done tremendous damage to the country. It is no surprise that Trump’s lawyers and congressional Republicans have become fond of citing the book in his defense.
After Pomerantz and his colleague’s resignation early last year, Bragg was assailed by many Democrats and legal commentators. He insisted that the investigation would continue, which it evidently did, but apparently the only viable case that the office felt comfortable bringing after all that was based on the payment to Daniels.
We are likely to hear a lot of clichés from the legal commentariat in the coming days — about how Bragg and his prosecutors are simply following the facts and the law, about how no one is above the law, and so on. That is all well and good, but the reality is that this particular criminal case probably never would have been brought for anyone but Trump. In fact, the investigation probably would not have begun in the first place for anyone else, but at the time, Trump was still in office, and given the Justice Department’s policy against indicting a sitting president, the Manhattan DA’s office was a convenient outlet and prosecutorial avenue for people who wanted to see Trump criminally prosecuted.
There is also no indication at the moment that the case against Trump has any real precedent in New York or elsewhere. Perhaps prosecutors will demonstrate that that is wrong as they defend the case in court, but thus far, no one seems to be able to identify a comparable case brought by a local prosecutor’s office.
Trump, of course, is not the first president or presidential candidate to engage in an extramarital affair. Democrat John Edwards was indicted by federal prosecutors in connection with a scheme to obtain nearly $1 million in funds from donors to conceal a mistress and child while he ran for president in 2008, but the Justice Department was unable to convict him. Former president Bill Clinton famously had an affair while in the White House, but as a matter of realpolitik, it is hard to believe that he would be criminally charged by a local prosecutor for that conduct even if he were to have done it recently.
It is worth being honest about all this — particularly as the public begins to grapple with the momentous development of Trump’s indictment — even though it does not mean that the case against Trump should be thrown out or is somehow invalid. It is possible that Bragg’s team closely scrutinized all of the evidence that had been gathered along with the available charges against Trump and concluded that they had just one viable case, albeit a sufficiently compelling one as a matter of law, based on the payments to Daniels.
There is nothing inherently wrong about that. Luck, both good and bad, plays an undeniable role in who gets the attention of prosecutors and who gets charged in the criminal justice system. I once had a foreign national who was a subject in one of my fraud investigations arrested because she happened to travel to the U.S. for a birthday party, and she was eventually indicted, convicted and sentenced to prison.
Sometimes an unusual case emerges out of nowhere for reasons that prosecutors could not have anticipated, and they have to deal with it the best way they can, even if the result is relatively modest and not as explosive a charge as the defendant’s detractors would want to see. Likewise, sometimes prosecutors conduct expansive, wide-ranging investigations, but when all is said and done, they are not able to establish the most damning allegations and instead are left with a relatively small case.
It is not particularly surprising that something like this would happen to Trump of all people — a man who has spent much of his adult life flirting with the line between lawful and unlawful conduct in ways that would be inconceivable to pretty much anyone else. He also does awful things fairly regularly, so he hardly deserved the benefit of the doubt when news of the payment to Daniels first became public, which also happened to come in the context of a swarm of allegations concerning Trump’s mistreatment of other women.
Trump and his defenders may claim that the indictment should be dismissed because he is the victim of selective or malicious prosecution, but at the moment, a legal argument along those lines appears likely to fail. The reason is that the law generally requires robust evidence that the defendant has been singled out for an improper reason and that other, similarly situated people have not been criminally charged for similar conduct. Perhaps we will come to find out that plenty of other New Yorkers have allegedly paid off women they slept with to keep quiet, and that they did so in the middle of a federal election, but that seems unlikely — and that, in turn, is likely to doom any effort by Trump to get the case tossed on those grounds.
Finally, it is worth bearing in mind that although Trump is an undoubtedly high-profile defendant, this is a relatively modest prosecution as a legal matter, exposing Trump — if the reporting to date has been accurate — to a maximum four-year term of imprisonment and, perhaps, no time at all even if he is convicted. That would be up to the sentencing judge, and we are a long way off from that scenario.
In the meantime, Trump is likely to try to make this process as inflammatory and painful as possible for the country, but there is no need for us to indulge his endless grievance-mongering or his self-serving account of the case against him.