Almost four years ago, anticipating the flood of legal troubles that would await Donald Trump after he left office, I wrote a feature story for the magazine that wrestled with the dilemma of prosecuting a former president.
In assessing the merits of the criminal cases against Trump, I never thought the Manhattan prosecution cleared the bar. The case isn’t illegitimate; it is simply, in my opinion, too marginal a violation to be balanced against the social and political costs it raises.
That position obviously puts me out of step with the bulk of liberal opinion on the case. I think it’s worth stepping back and explaining how I arrived at this conclusion.
At no point did I argue the case was so weak it would result in an acquittal, so, contra the argument made by my colleague Errol Louis, the conviction hardly puts my concerns to rest. My reservations about this case were political, not legal.
Healthy democracies show forbearance — allowing ruling parties to relinquish power without facing persecution — as well as upholding the rule of law.
The trouble is that when the former president is a career criminal, one of the two values will have to give way. While I concluded it is necessary to hold Trump legally accountable for his flagrant disregard for the law, a practice that has defined his career in business and politics alike, I acknowledged the tension between them. Trump cannot be permitted to engage in wanton lawbreaking, but neither can he be subjected to prosecution that risks even the appearance of retaliation.
In an April column, I joked that Bragg’s case was “like getting Al Capone for paying off his mistress.” A screenshot of this line went viral on Bluesky — a febrile breeding ground for progressive bias confirmation — where it transmuted into the claim that I had argued against Al Capone’s conviction for tax evasion. Ryan Cooper, taking this misapprehension at face value, earnestly argues in the American Prospect that I am wrong to oppose locking up Capone for tax evasion. (To be clear, Capone was not prosecuted for paying off a mistress, and I agree that his conviction for tax evasion was just and never wrote otherwise.)
There is another political precedent that has informed my thinking about this case. Just over a quarter-century ago, right-wing prosecutor Ken Starr led a legal jihad against Bill Clinton for perjuring himself. That case differs from the Bragg case in important ways, most notably in that the punishment was impeachment rather than ordinary criminal prosecution. Nonetheless, the principles involved in that episode are relevant enough that I am surprised how little it has figured into public discussion of the Bragg prosecution.
Clinton was impeached for committing what even his allies recognized was an undeniable crime: perjury. Yet those of us who opposed his impeachment believed the context of the crime mitigated it significantly. Clinton was lying in order to cover up a sexual affair. The affair itself was morally wrong and sleazy, of course. But extramarital affairs are not criminal. More to the point, lying about a sexual dalliance is almost definitionally part of the act. If you don’t conceal your affair, then it’s not an affair, it’s an open marriage.
What made Starr’s behavior so troubling is not that he invented a crime to wrap around Clinton’s neck but that he chose to use perjury to criminalize an act that was noncriminal in its origins and basic nature. There are good reasons perjury is illegal, but lying to avoid embarrassment (either personal or political) is fundamentally different than the kinds of reasons that usually make perjury a serious offense.
If Starr had brought been able to bring his perjury case against Clinton in a court of law, he probably would have gotten a conviction. That wouldn’t vindicate the choice to bring it, though.
Bragg’s case against Trump, like Starr’s, concerns the cover-up of an extra-marital affair. I wouldn’t go so far as to say Trump has an unlimited right to privacy — if a reporter managed to prove he cheated on his wife, then too bad for Trump — but the motive to keep it hidden is not an inherently criminal one. Bragg tripped him up on the clumsy method he used to disguise his hush money to cover up the dalliance.
Twenty-five years ago, Republicans piously insisted the rule of law required punishment for Clinton’s crime. There is an echo of that belief in the liberal argument today that Bragg simply had to prosecute the law to its full extent. I am not saying that logical consistency requires anybody who opposed Clinton’s impeachment to oppose the Manhattan prosecution of Trump.
I am arguing that the beliefs I formed about Clinton’s impeachment at the time have led to my position on the Trump case, and I’m surprised more impeachment skeptics haven’t joined me. That the right turned around from demanding Clinton’s impeachment for covering up an affair to decrying Trump’s prosecution for covering up an affair surprises me not at all — lack of principle is a defining trait of the Republican Party.
It’s hard to feel bad that a longtime crook like Trump was finally nabbed. There are clear-cut violations that don’t create any reasonable grounds to question the choice of his prosecution. My skepticism of the indictment persists.
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