The Washington Post editorial board is very worried about the indictment of Donald Trump by New York District Attorney Alvin Bragg. Their concern isn't that a rather lame indictment would be an injustice. No. Their real cause of concern is that the grounds for the first ever indictment of a former American president is so weak that it could end up helping Trump.
You can see their grave concern which was presented just about an hour after the announcement of the indictment on Thursday in the title of their editorial, "The Trump indictment is a poor test case for prosecuting a former president."
It appeared at top of Friday's editorial page. The headline in the paper was "A word of caution on Mr. Trump's indictment."
Now let us watch the Washington Post editorial board rub their worry beads over the weakness of the indictment:
Donald Trump deserves the legal scrutiny he’s getting — which has come from many corners on many counts. Yet of the long list of alleged violations, the likely charges on which a grand jury in New York state voted to indict him are perhaps the least compelling. There’s cause for concern, and caution, ahead.
Thursday’s events are the result of Manhattan District Attorney Alvin Bragg’s decision early in his tenure to abandon a probe centered on the former president’s business practices in favor of what had come to be known as the “zombie” case: the matter of a $130,000 payment made to adult-film star Stormy Daniels in exchange for her silence about an affair she claims she had with Mr. Trump about a decade earlier. (Mr. Trump denies the affair.) Check-writer Michael Cohen, Mr. Trump’s longtime lawyer and fixer, pleaded guilty to crimes related to the payment in 2018. Though the precise charges are not yet known, it’s expected that prosecutors are now going after his boss for supposedly covering up his reimbursements for the favor. Falsifying records in this way is usually a misdemeanor in New York, but if it was done to cover up another crime, it can turn into a felony. The idea here is that the hush-money payment constituted an improper political donation because it benefited Mr. Trump so close to the election.
The irony here is that the liberal thirst for vengeance via an indictment, any indictment, might ultimately undermine their goal by pushing forward via Bragg an indictment so obviously weak that even the Washington Post recognizes its liability.
Pyramiding two transgressions of state rules to go after a federal candidate is legally plausible. But the strategy is also novel, and courts may regard it with skepticism. What’s more, the potential campaign finance charge itself is shaky.
Too late now. You are stuck with a "shaky" indictment. And the Washington Post's big nightmare is that the weak tea indictment might undermine the other possible indictments that the editorial board believes are on much more solid ground.
Other investigations underway include Justice Department examinations of the Jan. 6, 2021, insurrection and classified documents discovered at Mar-a-Lago, where the possibility of obstruction of justice is particularly grave. These are straightforward cases compared with the one proceeding in Manhattan. A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of “witch hunt” — in light of which House Speaker Kevin McCarthy (R-Calif.) was right to urge supporters to refrain from protesting.
Public perception and political strategy shouldn’t dissuade a district attorney from bringing a solid case, but neither should they persuade him to bring a shaky one. This prosecution needs to be airtight. Otherwise, it’s not worth continuing.
PS: On Friday's Post op-ed page is an article pushing the opposite case. Dennis Aftergut of Lawyers Defending American Democracy argues the indictment "demonstrated that one state could indeed serve as a laboratory -- here, to establish a precent of accountability for the powerful. And second, that an undaunted local prosecutor from that state planted the flag of justice firmly on the side of the rule of law."
