Washington Post Editorial Board: Trump Indictment a Poor ‘Test Case’ for Prosecuting a Former President

Trump - Manhattan DA Alvin Bragg on Tuesday, Feb. 7, 2023. (Barry Williams/New York Daily
Barry Williams/New York Daily News/Tribune News Service via Getty Images

The Washington Post’s editorial board on Friday called the District Attorney of New York Alvin Bragg’s case against former President Donald Trump “shaky” and a “poor test case” for indicting a former president.

“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,” the editorial board wrote on Friday.

On Thursday evening, news broke that the grand jury in Bragg’s case had voted to indict Trump. While the indictment has not yet been unsealed, it is widely expected that Bragg will bring state criminal charges against Trump for allegedly falsifying business records in 2016 to hide an alleged federal campaign finance violation.

Specifically, Bragg is expected to argue that Trump falsified business records by mislabeling a reimbursement to his then-lawyer Michael Cohen, who paid hush-money to porn actress Stormy Daniels, as legal expenses. Bragg is then expected to argue that Trump’s campaign did not report the payment to Daniels as a campaign expense, in violation of federal campaign rules.

Legal scholars on the right and left have also cast doubt over whether Bragg’s gambit will work, since it has never been proven there was any campaign finance violation, and there is doubt he can use a state criminal charge that is normally a misdemeanor and upgrade it to a felony by claiming it was done to hide another crime — in this case, the alleged campaign finance violation.

Michael Cohen, former personal attorney to President Donald Trump, exits federal court, November 29, 2018 in New York City. At the court hearing, Cohen pleaded guilty to making false statements to Congress about a Moscow real estate project Trump pursued during the months he was running for president. (Photo by Drew Angerer/Getty Images)

Michael Cohen, former personal attorney to President Donald Trump, exits federal court, November 29, 2018 in New York City. (Photo by Drew Angerer/Getty Images)

The Post‘s editorial board joined those scholars with its recent piece.

“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,” it wrote.

The editorial board noted that when federal prosecutors tried to charge former Sen. John Edwards (D-NC) with a campaign finance violation for paying hush-money to a woman he had an affair with, Edwards successfully argued he was trying to prevent his wife from finding out rather than trying to benefit his campaign. The trial ended in an acquittal, and the Justice Department dropped the case.

The Post’s editorial board argued that although campaign finance violations should be taken seriously, there were potential downsides of indicting Trump. They argued that there were better cases to bring against Trump, and this case could put those in jeopardy:

This prosecution is now bound to be the test case for any future former president, as well as, of course, proceedings against this former president in particular — of which there are plenty. 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.

It concluded: “This prosecution needs to be airtight. Otherwise, it’s not worth continuing.”

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