If reports are accurate, he may attempt to “bootstrap” the misdemeanor into a felony (and longer statute of limitations) by alleging an effort to evade federal election charges.
While Trump will be the first former president indicted, he will not be the last if that is the standard for prosecution.
It is still hard to believe that
Bragg would primarily proceed on such a basis. There have been no other crimes discussed over months, but we will have to wait to read the indictment to confirm the grounds.
What we do know is the checkered history leading to this moment.
The
Justice Department itself declined to prosecute the federal election claim against Trump. There was ample reason to decline.
The Justice Department went down this road before and it did not go well. They tried to prosecute former Democratic presidential candidate John Edwards on stronger grounds (
which I also criticized) and failed. In that case, campaign officials and donors were directly involved in covering up an affair that produced a child.
At the time, Edwards’ wife was suffering from cancer. The prosecution still collapsed. The reason is that you need to show the sole purpose for paying hush money in such a scandal. For any married man, let alone a celebrity, there are various reasons to want to bury a sexual scandal.
For Trump, there was an upcoming election but he was also a married man allegedly involved in an affair with a porn star. He was also a television celebrity who is subject to the standard “morals clause” that’s triggered by criminal conduct or conduct that brings “public disrepute, scandal, or embarrassment.” These clauses are written broadly to protect the news organizations and their “brand.”
Various presidents from Warren Harding to
Bill Clinton have been involved in efforts to hush up affairs. They also had different reasons for burying such scandals, including politics. However, scandals are messy matters with a complex set of motivations. Showing that Trump only acted with the future election in mind — rather than his current marriage or television contracts — is implausible. That was likely the same calculus made by the Justice Department.
That is also why the use of the “bootstrapping” theory as the primary charge would be an indictment of the prosecution and its own conduct. The office has already been tarnished by the conduct of the prosecutors who pushed this theory.
