OPINION: This article may contain commentary which reflects the author's opinion.
Constitutional expert and Georgetown University law professor Jonathan Turley noted in a column published on Saturday that the alleged coming indictment of former President Donald Trump by Manhattan District Attorney Alvin Bragg will be a “made-for-TV” event that, in reality, is “legally pathetic.”
“‘The moment that we are waiting for, we made it to the finale together’ — those familiar words from ‘America’s Got Talent’ — could well be the opening line for Manhattan District Attorney Alvin Bragg next week, when he is expected to unveil an indictment of former President Trump,” Turley begins.
“With Trump’s reported announcement that he expects to be arrested on Tuesday, it would be a fitting curtain raiser for a case that has developed more like a television production than a criminal prosecution. Indeed, this indictment was repeatedly rejected only to be brought back by popular demand,” he added.
“Trump faces serious legal threats in the ongoing Mar-a-Lago investigation. But the New York case would be easily dismissed outside of a jurisdiction like New York, where Bragg can count on highly motivated judges and jurors,” Turley noted, adding: “Although it may be politically popular, the case is legally pathetic.”
Bragg is facing difficulties in interpreting state laws in a manner that would enable him to successfully prosecute a federal case that the Justice Department had already dismissed against Trump concerning his payment of “hush money” to adult film star Stormy Daniels. As far back as 2018, Turley said he had written about the challenges of pursuing such a federal case under existing election laws. Presently, six years later, the same theory may be forced to fit into a state claim, he noted.
Proving that paying money to conceal an embarrassing affair was done for election-related reasons rather than other obvious motives, such as safeguarding a celebrity’s image or keeping a marriage intact, is exceedingly challenging.
This was demonstrated by the unsuccessful federal prosecution of former presidential candidate John Edwards on a significantly more substantial charge of using campaign funds to conceal an affair, Turley pointed out.
In this case, Trump reportedly paid Daniels $130,000 in the fall of 2016 to cut off or at least reduce any public scandal. The Southern District of New York’s U.S. Attorney’s office had no love lost for Trump, pursuing him and his associates in myriad investigations, but it ultimately rejected a prosecution based on the election law violations. It was not alone: The Federal Election Commission (FEC) chair also expressed doubts about the theory.
Prosecutors working under Bragg’s predecessor, Cyrus Vance Jr., also reportedly rejected the viability of using a New York law to effectively charge a federal offense.
Turley noted further that what’s more significant is that Bragg himself had previously voiced uncertainty about the case and essentially ended it shortly after assuming office. That led to the resignation of the two lead prosecutors, Carey R. Dunne and Mark F. Pomerantz, who protested against Bragg’s decision.
Pomerantz even launched a highly visible campaign against Bragg’s stance, including commenting on an investigation that was still unresolved. He was explicit about his conviction that Trump was culpable, even though his former office had not yet reached a decision and the grand jury investigation was still ongoing, the constitutional expert explained.
“Pomerantz then did something that shocked many of us as highly unprofessional and improper: Over Bragg’s objection that he was undermining any possible prosecution, Pomerantz published a book detailing the case against an individual who was not charged, let alone convicted,” leading to instant success in the left-leaning mainstream media, Turley wrote.
“Pomerantz followed the time-tested combination for success — link Donald Trump to any alleged crime and convey absolute certainty of guilt. For cable TV shows, it was like a heroin hit for an audience in a long agonizing withdrawal,” said Turley. “And the campaign worked. Bragg caved, and ‘America’s Got Trump’ apparently will air after all.
Turley went on to cite the legal specifics of how Trump could be charged but added that last year after the Federal Election Commission fined the 2016 Clinton campaign for funding the Steele dossier as a legal expense — which the campaign initially denied doing — “there was no hue and cry for” the same “type of prosecution in Washington or New York” of Hillary Clinton.
“None of this means Trump is blameless or should not be charged in other cases. However, we seem to be on the verge of watching a prosecution by plebiscite in this case,” Turley argued in conclusion. “The season opener of ‘America’s Got Trump’ might be a guaranteed hit with its New York audience — but it should be a flop as a prosecution.”