The “Alvin Bragg” in us all.

April 12, 2023

          Alvin Bragg deserves an “A” for effort. The Manhattan District Attorney made the much-criticized decision to indict Trump for falsifying business records. The seemingly innocuous charges are directed at the cynical “catch-and-kill” scheme designed to protect Trump’s presidential prospects in 2016. Many legal commentators criticized the timing of the charges, which served as the first indictment of a former president. Others have questioned the strength or seriousness of the charges.

          In typical Trump fashion, he has called on his minions to destroy the systems that threaten him. Trump demanded that Jim Jordan investigate the New York justice system that produced the indictment, vilifying Bragg in the process. Jim Jordan complied with Trump’s wish, issuing subpoenas to Bragg and two former prosecutors in his office. The subpoenas called for information that would reveal the strategy and communications at the heart of Bragg’s case against Trump. In short, Jim Jordan allowed a House committee to serve as a member of Trump’s defense team by seeking information beyond the reach of criminal defendants.

          Jordan’s subpoena is an extra-constitutional power grab that violates state sovereignty. Bragg could have simply ignored the subpoena and resisted any effort by the DOJ to enforce it. (Congress has no power to enforce its own subpoenas; it must rely on the DOJ to bring contempt proceedings.) But rather than wait for Jordan to act, Bragg filed a fifty-page complaint and motion for a preliminary injunction that serves as a broadside on Jordan’s constitutional folly.

          The complaint is here: Bragg v Jordan. It is a remarkable document worth reading in the original, at least in part. (I recommend pages 1-7.) Bragg asks a federal district court to issue an injunction to prevent Jordan from using the House Judiciary Committee to interfere in the state's sovereign duty in prosecuting Trump. He also seeks to prevent his two former prosecutors from testifying before the Judiciary Committee.

          The complaint is audacious in its request for relief and stands little chance of success. Enjoining Congress is a heavy lift—especially before a judge appointed by Trump. But Bragg has seized the initiative in challenging an unprecedented attempt to transmogrify Congress into a “national District Attorney” with the power to supervise prosecutions at the state level. Jordan’s gambit will fail, though Bragg’s lawsuit may not be the vehicle that brings it down.

          Still, Bragg has forced Jordan to respond within three weeks to searing allegations that Jordan is actively seeking to interfere in a state criminal prosecution. The complaint alleges, in part,

[Jordan] and his allies have stated they want the District Attorney to come to Capitol Hill to explain himself and to provide a “good argument” to Congress in support of his decision to investigate and prosecute Mr. Trump. And they have threatened that the House of Representatives will hold Alvin Bragg to account for indicting Mr.Trump.

[R]ather than allowing the criminal process to proceed in the ordinary course, Chairman Jordan and the Committee are participating in a campaign of intimidation, retaliation, and obstruction. Mr. Trump in particular, has threatened New York officials with violent and racist vitriol.

Chairman Jordan and the Committee have, in essence, appointed Congress as a super grand jury that can flex its subpoena power to second guess the judgment of New York citizens and interfere with the state criminal justice process.

          Jordan will bellow and howl, pointing to Congress’s rightful power to conduct hearings regarding federal appropriations to states for law enforcement functions. But none of those appropriations include second-guessing Alvin Bragg’s prosecutorial decisions. No longer can Jordan engage in shifting and inconsistent explanations for his effort to rummage through the files of a state prosecution. He must declare his purpose and his goals. In doing so, Jordan and his lawyers will be made to look like the fools they are.

          So, Bragg gets an “A” for effort. He had the courage to indict Trump despite delays in other prosecutions and has now shown the chutzpah to tangle with a powerful House committee. Good for him. We need more of what Bragg’s got, not less.

          I cannot leave this topic without linking to an essay in The Bulwark by Philip Rotner, Sorry Doubters, But Bragg Was Right to Indict Trump. With apologies to several friends who have written on this topic, Rotner’s essay is the best there is. Read it, and you will be convinced not only that Bragg made the right decision but also that he has a strong case.

          Moreover, Rotner makes an unassailable point about those who argue that Bragg should not have indicted Trump on charges that were not “serious enough” to bring against a former president. Rotner responds:

Really?

Anyone who believes that should be honest about it: Just come out and say that certain powerful people are indeed above the law, that the decision on whether or not to indict Trump should have been made based on politics rather than law, and that prosecutorial discretion, in this case, compels turning a blind eye to Trump’s elaborate scheme to cover up blatant violations of election laws by falsifying business records and committing tax fraud.

Count me out.

          Well said. Count me out, too, if you believe Trump should be held to a different standard of justice, or that his case must be “airtight,” or that the prosecutor must “be certain he will not lose.” Those standards appear nowhere in the law and should not apply uniquely to private citizen Trump.

Another problem with Judge Kacsmaryk’s ruling is.

          I have been chipping away at the various aspects of Judge Kacsmaryk’s ruling that make it so wrong. But it is difficult to know where to begin when an opinion is a judicial confection based on theology rather than law. Two authors have noted a serious (and potentially fatal) flaw in the ruling: the lack of “standing” of the plaintiffs. See Dennis Aftergut and Erwin Chemerinsky, The Hill, Abortion pill issue will show us what this Supreme Court is really made of.

          “Standing” is a constitutional requirement that only injured persons can sue for relief in federal court. The requirement ensures that ideologues do not abuse the federal courts by seeking advisory opinions in cases where no litigant is actually injured. And yet, it appears that Judge Kacsmaryk granted relief to parties that do not have standing.

          As explained by Chemerinsky and Aftergut, a conservative organization of doctors organized itself in Judge Kacsmaryk’s district in order to bring their lawsuit before him. The conservative organization members did not claim they suffered direct injury from the FDA’s approval of mifepristone. Instead, they invoked a generalized, speculative “stress” on doctors everywhere who must deal with complications from mifepristone:

The judge said that the conservative organization could sue on behalf of doctors because “adverse events from chemical abortion drugs can overwhelm the medical system and place’ enormous pressure and stress’ on doctors during emergencies and complications.”

          The plaintiffs presented no evidence to support their fanciful argument of a medical system overwhelmed by a drug that is statistically safer than Tylenol. If the US Supreme Court applies the law to the facts, it should order Kacsmaryk to dismiss the lawsuit for lack of standing. More to come!

A thought experiment about gun deaths.

          Charlie Sykes penned a powerful essay about the numbness that overwhelms us as we hear about a seemingly endless stream of mass shootings. See Charlies Sykes, Morning Shots Newsletter, Numbed America.

          Sykes writes,  

But we have gotten to the point where coverage of one slaughter is interrupted by breaking news of yet another. And our doom loop of thoughts, prayers, debate, and inertia has become numbingly familiar.

Legislators across the country have rushed to protect children from being exposed to books like “My Two Mommies,” and the story of Anne Frank, but not from being blown apart by killers with weapons of war and high-capacity magazines.

          Sykes notes that the typical response of politicians like Senator Rick Scott and Ted Cruz is to offer “thoughts and prayers.” Sykes then invites us to engage in a thought experiment:

Instead of talking about the routine slaughter of children and our fellow citizens in schools, banks, nightclubs, and grocery stores, imagine we were talking about terrorist attacks.

Imagine that there had been 145 attacks from members of the Sinaloa Cartel, or that dozens of airplanes had been hijacked and hundreds of passengers killed.

Would Rick Scott merely offer thoughts and prayers? Would Ted Cruz suggest that we need more locked doors? Armored backpacks? More armed guards? More bans on drag queen story hours?

          The point of the thought experiment is that if the deaths of innocent school children and coworkers were from a different source than Americans wielding assault rifles, Congress would surely find the will to act. They would not throw their hands in the air and claim the problem cannot be fixed.

          Remember that fact next time you hear a cowardly politician claim, “We can’t legislate against evil.” We can. It’s called banning assault rifles and taking guns away from people who are a threat to themselves or others.

To prove that point, Washington state has taken the first step by banning the manufacture or sale of assault rifles: The Hill, Washington state Senate passes assault-style weapons ban. And Tennessee Governor Bill Lee signed an executive order permitting the removal of guns from people who present a danger to themselves or others. See Politico, Tennessee governor calls for law removing guns from dangerous people. (Lee, of course, suffered the loss of a close friend in the Tallahassee shooting last week.)

          Let’s hope these steps portend the beginning of a national trend.

Concluding Thoughts.

          I highlighted Alvin Bragg’s lawsuit because it shows a willingness to engage on the field of battle that seems missing from the Democratic Party’s usual response to outrageous behavior by MAGA extremists. Engaging our adversaries is important, even if we do not always win.

          Dominion Voting Systems and E. Jean Carroll will commence trials against Fox News and Donald Trump for defamation this week. They may win, they may not. But Fox News and Trump will think twice the next time they utter false and defamatory statements. Trump and Rupert Murdoch will be forced to appear in court and endure public scrutiny in a forum where they are not in control.

          There are lots of “Alvin Braggs” out there, fighting the good fight every day. Most days, they do so in relative obscurity until it turns out that their “behind-the-scenes” labor has saved us from catastrophe. So, tonight, a tip of the hat to all of you who work every day, in ways large and small, to fortify our democracy. The sum of your efforts is the vital force that sustains democracy on a daily basis! Thank you!

          Talk to you tomorrow!