The famous Roman philosopher and orator Marcus Tullius Cicero once said, “The more laws, the less justice.”
This week, New York judges and lawyers appear eager to prove that the same is true for cases against Donald Trump.
After an absurd $450 million decision courtesy of Attorney General Letitia James, Manhattan District Attorney Alvin Bragg will bring his equally controversial criminal prosecution over hush money paid to a former porn star Stormy Daniels before the 2016 election.
Lawyers have been scouring the civil and criminal codes for any basis to sue or prosecute Trump before the upcoming 2024 election. This week will highlight the damage done to New York’s legal system because of this unhinged crusade. They’ve charged him with everything short of ripping a label off a mattress.
Just a few weeks ago, another judge imposed a roughly half trillion dollar penalty in a case without a single victim who lost a single cent on loans with Trump. (Indeed, bank officials testified they wanted more business with the Trump organization).
Now Bragg is bringing a case that has taken years to develop and millions of dollars in litigation cost for all parties. That is all over a crime from before the 2016 election that is a misdemeanor under state law that had already expired under the statute of limitations.
Like his predecessor, Bragg previously scoffed at the case. However, two prosecutors, Carey R. Dunne and Mark F. Pomerantz, then resigned and started a public pressure campaign to get New Yorkers to demand prosecution.
Pomerantz shocked many of us by publishing a book on the case against Trump — who was still under investigation and not charged, let alone convicted, of any crime. He did so despite objections from his former colleague that such a book was grossly improper.
Nevertheless, it worked. Bragg brought a Rube Goldberg case that is so convoluted and counterintuitive that even liberal legal analysts criticized it.
Trump paid Daniels to avoid any publicity over their brief alleged affair. As a celebrity, there was ample reason to want to keep the affair quiet, and that does not even include the fact that he is a married man.
It also occurred before the 2016 election and there was clearly a benefit to quash the scandal as a candidate. That political motivation is at the heart of this long-delayed case.
It is a repeat of the case involving former Democratic presidential candidate John Edwards. In 2012, the Justice Department used the same theory to charge the former Democratic presidential candidate after a disclosure that he not only had an affair with filmmaker Rielle Hunter but also hid the fact that he had a child by her. Edwards denied the affair, and money from donors was passed to Hunter to keep the matter quiet.
The Justice Department spent a huge amount on the case to show that the third-party payments were a circumvention of campaign finance laws. However, Edwards was ultimately found not guilty on one count while the jury deadlocked on the other five.
With Trump, the Justice Department declined a repeat of the Edwards debacle and did not bring any federal charge.
But Bragg then used the alleged federal crime to bootstrap a defunct misdemeanor charge into a felony in the current case. He is arguing that Trump intentionally lied when his former lawyer Michael Cohen listed the payments as retainer costs rather than a payment — to avoid reporting it as a campaign contribution to himself.
Thus, if he had simply had Cohen report the payment as “hush money,” there would be no crime.
Once again, the contrast to other controversies is telling. Before the 2016 election, Hillary Clinton’s campaign denied that it had funded the infamous Steele dossier behind the debunked Russian collusion claims.
The funding was hidden as legal expenses by then-Clinton campaign general counsel Marc Elias. (The FEC later sanctioned by the campaign over its hiding of the funding.). When a reporter tried to report the story, he said Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
Likewise, John Podesta, Clinton’s campaign chairman, was called before congressional investigators and denied categorically any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the misleading information given to Congress.
Yet, there were no charges stemming from the hiding of the funding, though it was all part of the campaign budget.
Making this assorted business even more repellent will be the appearance of Cohen himself on the stand. Cohen recently was denounced by a judge as a serial perjurer who is continuing to game the system.
Cohen has a long record as a legal thug who has repeatedly lied when it served his interests. He has a knack for selling his curious skill set to powerful figures like Trump and now Bragg.
For those of us who have been critics of Cohen from when he was still working for Trump, it is mystifying that anyone would call him to the stand to attest to anything short of the time of day . . . and even then most of us would check our watches.
Fortunately witnesses are no longer required to put their hand on the bible in swearing to testify truthfully in court. Otherwise, the court would need the New York Fire Department standing by in case the book burst into flames.
So this is the case: A serial perjurer used to convert a dead state misdemeanor into a felony based on an alleged federal election crime that was rejected by the Justice Department.
They could well succeed in a city where nine out of ten potential jurors despise Trump. Trying Trump in Manhattan is about as difficult as the New York Yankees going to bat using beach balls rather than baseballs. It is hard to miss.
However, this is a Pyrrhic victory for the New York legal system. Whatever the outcome, it may prove a greater indictment for the New York court system than the defendant.
Jonathan Turley is an attorney and professor at George Washington University Law School.
