Don’t blame Alvin Bragg.

March 23, 2023

          Although we don’t know what crimes Alvin Bragg will charge against Trump (if any), there is plenty of commentary about the weaknesses of Bragg’s hypothetical case against Trump. See, e.g., New York Times:

Even if Mr. Trump is indicted, convicting him or sending him to prison will be challenging. The case against the former president hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony. If Mr. Trump were ultimately convicted, he would face a maximum sentence of four years, though prison time would not be mandatory.

          The Times’ commentary presumes that Bragg will attempt to charge Trump with a felony based on the “interplay” of state and federal law. Maybe, maybe not. Bragg might charge Trump with a misdemeanor for falsifying a business record and leave it at that. Such a case would be straightforward and simple, at which point Bragg would be criticized for having gone to the bother of indicting Trump on a misdemeanor charge.

          Other commentators have bemoaned that Bragg’s case will proceed before more serious charges relating to insurrection, obstruction of justice, interference in Georgia’s election, and wrongful retention of defense secret documents. See Real Clear Politics, Van Jones: Manhattan DA Should Wait For Georgia To Indict Trump First, Start With The Coup Instead Of The Porn Star.

          And Republicans have shamefully dragged Bragg through the mud to impugn his motivations. See Dennis Aftergut in The Bulwark, Expecting a Trump Indictment, Republicans Attack the Prosecutor.

          None of this is Alvin Bragg’s fault. Because of the inaction and delay of other federal and state prosecutors, Bragg is the point person on the least consequential, most sordid crime committed by Trump. To be clear, the underlying crime of violating FEC campaign finance regulations is monumentally important—but it is not Bragg’s crime to prosecute. The DOJ should have charged the FEC violation within weeks of Merrick Garland being sworn in as Attorney General. For inexplicable reasons, the DOJ has not pursued the charge.

          Bragg has picked through the detritus of dereliction of duty left behind by other prosecutors and resolved to do what none of them have had the courage to do (yet)—indict Trump. Jack Smith née Merrick Garland and Fani Willis may one day decide to indict Trump, but their delay has been prejudicial. The 2024 presidential campaign has begun, and there is no excuse for having delayed until this point. Every indictment during a presidential campaign is inherently, unavoidably, political. It could have been otherwise.

          Most Americans will welcome indictments relating to the insurrection, election interference, and wrongful retention of defense documents if and when they are issued. But until they come, it is no fault of Alvin Bragg that his prosecution will commence before prosecutions for more serious crimes. There are plenty of reasons to criticize Alvin Bragg, but “being first” in charging a “bookkeeping” crime relating to the cover-up of an extramarital affair is not one of them. The fault relating to the disjointed order of prosecution lies with others, not Bragg.

          We cannot leave this topic without stating the obvious: Bragg (or the grand jury) may conclude that it is not appropriate to charge Trump with falsifying business records to conceal an extramarital affair. If so, commentators will undoubtedly criticize Bragg for that outcome, as well. They should instead focus their time and attention on the question of why other prosecutors have delayed more than two years to indict Trump on far more serious crimes.

Trump loses appeal regarding “crime-fraud” exception in the Mar-a-Lago case.

          As noted in yesterday’s newsletter, a federal district court judge ordered Trump's attorney, Evan Corcoran, to testify regarding conversations with Trump about a declaration provided to the FBI in the Mar-a-Lago documents case. The declaration falsely stated that Trump had returned all classified documents “after a diligent search.” The district court judge concluded that Trump was using the attorney-client privilege to conceal a crime and ordered Corcoran to turn over notes and transcripts of personal audio recordings to Jack Smith. Corcoran is reportedly scheduled to appear before a federal grand jury on Friday.

          On Tuesday, Trump appealed the district court’s order to the DC Circuit Court of Appeals.

          On Wednesday, the DC Circuit Court of appeals upheld the district court’s order. Accordingly, Evan Corcoran must turn over copies of notes and transcripts of personal audio recordings to Jack Smith. See ABC News, Appeals court rules that Trump attorney Evan Corcoran must testify in special counsel's documents probe.

          As explained yesterday, based on reporting from ABC News, it appears that Trump lied to his attorney about Trump's continued possession of classified documents. If true, that fact would establish Trump's personal knowledge and criminal intent to deceive the FBI and DOJ about his possession of national defense documents. Other possible charges include obstruction of justice and making a false statement to the FBI and DOJ.

          The national defense documents case against Trump is straightforward. The prosecutor need only prove that Trump

• Had initial lawful possession of documents relating to national defense;

• Believed that information in the documents could be used to the injury of the United States or to the advantage of any foreign nation; and

• Willfully retained the documents after a demand for their return by an employee of the United States entitled to receive the documents. 

See 18 U.S. Code § 793(d).

          The above elements can be easily proven even without the testimony and documents from Evan Corcoran, but the addition of that evidence will make for a powerful case. And if Trump lied to his attorney, knowing that those lies would be repeated to the FBI and DOJ, there is every reason to expect that Trump will be charged with obstruction of justice. 18 USC § 793 provides that a defendant convicted of violating the section d“shall be imprisoned not more than ten years.”

More on the climate crisis.

          As a follow-up to discussions regarding messaging about the climate crisis, a reader recommended an interview on NPR with David Wallace-Wells, a journalist who wrote an influential and widely read article on climate change in 2017 entitled, "The Uninhabitable Earth". His article was alternatively described as “alarmist” and “prescient.”

          Wallace-Wells appeared on NPR’s Fresh Air in late 2022 to explain why some of his views have moderate—a bit. The interview is here: Our New Climate Reality : Fresh Air : NPR. Per the NPR description,

New York Times science writer David Wallace-Wells brings us some new thinking on global warming — and it isn't all bad. He's been called an alarmist in the past for his warnings about the consequences of dumping carbon into the atmosphere. But in a new article, Wallace-Wells writes that the cost of solar and wind energy has fallen dramatically, and scientists now say the pace of global warming in coming decades will be slower than previously forecast.

The Christian resistance to MAGA extremism.

          I frequently receive emails from newsletter readers who are Christians and are distressed by my criticisms of “white Christian evangelicals” or “Christian nationalists.” They point out that not all Christians share the views of the MAGA-supporting Christian nationalists and urge me to qualify my criticisms accordingly. While that is a fair point, it is cumbersome to qualify every reference to Christian evangelicals to make clear that not every Christian evangelical supports Trump or his policies.

          In the interest of balance and clarity, I note an organization that some readers support called Faithful America. The group describes itself as follows:

We are the largest online community of Christians putting faith into action for social justice. Our members -- Catholic, Protestant, and more -- are sick of sitting by quietly while Jesus' message of good news is hijacked by the religious right to serve a hateful political agenda.

          The group’s most recent press releases include the following:

• Ron DeSantis’s attacks on Black Studies are Wrong;

• Christians Reject Trump's New Campaign, and

• Tell NYC Mayor Adams to Apologize for Denying the Separation of Church and State.

          The group also has a FAQ titled “Resisting Christian nationalism.” One of the questions in the FAQ is, “Is Christian nationalism Christian?” Faithful America’s answer to that question includes the following:

No, Christian nationalism is a political ideology and a form of nationalism, not a religion or a form of Christianity. It directly contradicts the Gospel in multiple ways, and is therefore considered by many Christian leaders to be a heresy.

While Jesus taught love, peace, and truth, Christian nationalism leads to hatred, political violence, and QAnon misinformation

Pro-democracy, pro-love Christians must speak out together to show the country that Christian nationalism does not represent Jesus or our faith.

          I am not endorsing Faithful America, but the group’s message is exactly the type of push-back that Christians should embrace if they do not want their religion forever tarnished by MAGA extremism. Although I can’t tell for certain, it appears that Faithful America has tens of thousands of members. It would be stronger and more effective if it had tens of millions of members. If you are a Christian who is “sick of sitting by quietly while Jesus' message of good news is hijacked by the religious right,” check out Faithful America’s website.

Appeal for volunteers by PostCardsToVoters for Wisconsin Supreme Court.

I received this note from PostCardsToVoters:

          Only six days left to write and mail postcards to Wisconsin to remind Democrats to vote for Judge Janet Protasiewicz for Wisconsin Supreme Court in what is sure to be a very close election. The outcome on April 4th will have a huge impact on Wisconsin immediately and very possibly the whole country in the 2024 presidential election.

          Every postcard, phone call, text, and knock could be a vote. To join PostcardsToVoters.org, just text “join” to 484-275-2229 or email "Hello" to join@tonythedemocrat.org, and a bot will quickly walk you through the process. If you are already a member, just text “hello” to Abby the bot at same phone number. If you prefer phone banking, sign up here and/or here and/or here and/or here. HELP WANTED any way that works for you!!

Concluding Thoughts.

          As the prospects for indictment seem to draw near, even small delays can lead to outsized frustration and anger—emotions expressed in notes from readers in today’s mail. I get it. It’s been a long wait, and additional unexplained delay compounds two years of frustration. I have several thoughts to help keep us glued to our seats as we wait for indictments to issue.

          First, there are at least four grand juries investigating Trump. Prospects are good that two or three of them will issue indictments. Although none is likely to result in a trial and conviction before November 2024, the fact of the indictment and the pre-trial proceedings will re-focus the attention of the American people on Trump's crimes. That will serve as a powerful incentive for rational voters to abandon Trump.

          Second, we should recognize that the legal proceedings will be filled with surprises—devastating revelations against Trump and legal rulings that may make it more difficult for the prosecution to prove its case. It will be impossible not to follow the legal proceedings closely, but we can’t get caught up in every twist and turn of the case. In the end, dramatic developments recede from memory, and jurors focus on the evidentiary narrative. In these cases, the narratives against Trump are powerful and consistent. We should trust that jurors will get it right.

          We can’t exhaust ourselves with the details of Trump's indictments and trials. When the prosecutors finally indict Trump, they will have teams of lawyers and assistants who will worry about those details. While it will be impossible to look away, the most important task we face is to register more Democrats and convince them to show up at the polls in 2024. In the end, achieving those tasks will be more impactful than anything that might happen in a trial of Trump.

          Talk to you tomorrow!