They’re Coming for the Prosecutors
The newest attack is, predictably, upon Manhattan D.A. Alvin Bragg.
When they’ve got little else, they come for the prosecutors.
We’re all familiar by now with the defendants’ allegations in the Georgia RICO case against District Attorney Fani Willis. They claim she should be disqualified on grounds of “conflict of interest” because she had a romantic relationship with one of the lead prosecutors on her team. And while she admittedly showed poor judgment by opening herself up to something that might sully her reputation during such a big, public case, we need to keep in mind that the allegations have little to no bearing on the case. As she reminded defendants when she took the witness stand, this case is about them trying to steal an election.
Republicans have also been coming for Manhattan D.A. Alvin Bragg, who begins a trial against Donald Trump next month on 34 felony counts of falsifying business records.
Trump doesn’t have the same tools to try and knock this case out or delay it past the election. So Trump’s allies have been attacking Bragg for being soft on crime, which is ironic given that he’s actively prosecuting a dangerous criminal.
Their latest attack is, somewhat improbably, out of Arizona, led by Maricopa County Attorney Rachel Mitchell. She is also attacking Bragg for being too soft on crime, but doing it in a very troubling, cynical way that I’ll explain later.
In today’s piece I’ll walk through some high level reasons why the Manhattan case is dangerous and why Republicans may be starting to panic about it, given that it starts just over four weeks from now. Then I’ll walk through some of the ways Trump and his allies have attacked Bragg, including the most recent and frankly outrageous move by Mitchell.
Why the Manhattan case matters
While most of the press and the public remain fixated on Trump’s election-related cases in D.C. and Georgia, and while Judge Aileen Cannon continues to slow walk Trump’s charges under the Espionage Act and for obstruction in federal court in Miami, the case against Trump in Manhattan has barely produced a whisper in the news.
In part that’s because it understandably feels rather tawdry and inconsequential to consider and discuss Trump’s hush money payments to an adult film actress nearly eight years ago. Most people find the thought of Trump sleeping with another woman and then paying six figures for her silence to be distasteful and unpleasant.
And that’s precisely the point.
As Bragg has noted, the reason Trump broke the law by trying to cover up all his hush money payments to Stormy Daniels and pass them off as legal bills was clear: It was distasteful and unpleasant enough of an affair that, had the voters known about it, it might have cost Trump the election.
That makes this case really about a cover up of a more serious crime, in this case election interference. But for that illegally doctored paper trail, Trump might not have ever won in 2016. We know that Trump feared the fallout from this story precisely because he went through such pains to hide it from the public by creating those false business records.
Why the case is dangerous to Trump
As Shan Wu, a former federal prosecutor, noted in his OpEd in The Daily Beast, critics of the case have focused on two main areas: legal issues around preemption and removal of the case, and weak evidence due to credibility issues with Bragg’s chief witness, Michael Cohen, who is Trump’s former fixer.
While Trump has filed appeals and requests for a stay resulting in the D.C. case’s start date being taken off calendar for now, he has had zero success with the same in Bragg’s Manhattan case. In fact, when he filed a request for removal to federal court, it was quickly smacked down by a federal district court, which granted Bragg’s motion to remand the case to Manhattan.
Then, on the eve of his deadline to file an appeal of that ruling, Trump withdrew his appeal, meaning the case will stay in New York. He never had a good argument for why his alleged actions of falsifying business records to cover up his hush money payments had anything to do with his official duties as president, which is the standard for removal to federal court.
His arguments that federal law “preempts” state law here also failed, and rightly so. Trump had argued that because the crime of falsifying false business records only becomes a felony when done to cover up a crime, and the crime allegedly covered up here was a violation of federal election law, somehow federal election law controls over state law in this case. But that doesn’t follow logically at all. The state law violations are about falsifying business records, and federal election law says nothing about that crime sufficient to preempt it.
That leaves the main defense centered around discrediting Michael Cohen as a witness. While Cohen has lied to prosecutors in the past and is himself a convicted felon, he was lying back then to protect Donald Trump. Now that he’s come clean, he’s telling the truth in this case, and juries will understand that. And more importantly, everything Cohen will say is backed up by a strong written record of the false business records, which Trump told him to create.
Given all this, a jury comprised of Manhattanites, who have no love for Trump to begin with, might readily be convinced beyond a reasonable doubt that Trump falsified business records in order to cheat in the election. That means potentially 34 felony convictions in short order. Trump would be running for president as a convicted felon, even without the D.C. verdict, and that could and should be a bridge too far for many swing voters.
Attacks on D.A. Bragg
I have written earlier about how Trump’s allies in Congress, such as House Judiciary Chair Jim Jordan (R-OH), responded to the initial indictment by Bragg with threats of subpoenas and disruptions to his work. Rep. Jordan even held a hearing a year ago specifically about crime in New York City solely designed to smear Bragg.
Meanwhile, Trump was busy maligning Bragg as someone backed by George Soros and controlled by the Democrats in D.C., fueling his unfounded conspiracy claims about a national witch hunt against him as the former president and chief political rival to Biden. At one point, Trump even shared an image of himself holding a baseball bat and standing menacingly behind Bragg’s head, signaling he might bash it in if he had the chance, like Al Capone did in the movie The Untouchables.
The most recent attack against Bragg comes from Arizona and a somewhat unlikely source: Maricopa County Attorney Rachel Mitchell.
You may remember Mitchell. Republican senators once trotted her out to question Christine Blasey Ford, who had credibly accused Justice Brett Kavanaugh of sexual assault during his Senate confirmation hearing.
Mitchell is now hoping to earn points by refusing to extradite a murder suspect to New York, where the homicide occurred. She claims Bragg is too lenient on criminals and that she fears the accused would be set free. This of course ignores the actual data showing that New York has a far lower per capita murder rate than Phoenix, where Mitchell is based.
Mitchell is running for a second term and is hoping to tarnish Bragg to prove her MAGA bona fides. The Manhattan DA’s office shot back, noting the political nature of the refusal to extradite:
“It is deeply disturbing that D.A. Mitchell is playing political games in a murder investigation,” said Manhattan DA’s office spokesperson Emily Tuttle in a statement. Tuttle also noted that killings and shootings had dropped since Bragg took office.
“New York’s murder rate is less than half that of Phoenix, Ariz., because of the hard work of the N.Y.P.D. and all of our law enforcement partners,” Tuttle said. “It is a slap in the face to them and to the victim in our case to refuse to allow us to seek justice and full accountability for a New Yorker’s death.”
Mitchell’s move is a familiar attack in a national political game. And it signals just how worried Republicans are about the Trump trial next month. We can expect, and should mentally prepare for, the drumbeat of criticism of Bragg to grow louder and more urgent as the trial date approaches.
In Michael Cohen's trial in federal court, where he earned a 2-1/2 yr prison term, tRump was continually referred to as "Individual-1", an unindicted - or shall I say, an "unindicated - co-conspirator, and under whose orders Cohen did his criming. tRump definitely is under threat of a criminal conviction, and he and his allies - from all quarters - are trying vainly to sink the pending trial.
Folks, despite what the Supremes or Aileen Cannon may attempt or are attempting to bollix his two principal federal indictments, DA Bragg is carrying forth, secure in the knowledge that no federal court can interrupt the trial and prosecution of this life-long criminal, full stop.
The name of the movie with the baseball scene is The Untouchables, not Good Fellas. This has been corrected.