HILLARY CLINTON, DOWN THE RABBIT HOLE. One of the great moments in lack of self-awareness occurred last week when former presidential candidate Hillary Clinton appeared on a podcast produced by a Democratic group called Defending Democracy on Democracy Docket. Clinton was interviewed by the Democratic lawfare warrior Marc Elias, more on that later, and spent much of the 45-minute session complaining about former President Donald Trump, the man who defeated her in the 2016 election. At one point, Clinton said Trump deeply admires Vladimir Putin because “Putin does what Trump would like to do.” Among the things Clinton said Trump would like to do is “imprison his opposition.”
At that very moment, Trump was sitting in a Manhattan courtroom, facing a maximum of 136 years in prison on charges of falsifying bookkeeping records of an entirely legal nondisclosure agreement he reached with a porn actress, Stormy Daniels, during the 2016 campaign. Trump, the de facto 2024 Republican presidential nominee, is being prosecuted by elected Democratic Manhattan District Attorney Alvin Bragg, with opening arguments against Trump handled by a former high-ranking Biden Justice Department official who joined Bragg’s office to assist in prosecuting the man running against President Joe Biden this year.
The juxtaposition of Clinton’s words and Trump’s situation led to the question: Just who is trying to imprison his opposition?
The Trump trial is becoming more surreal each day. The only criminal charge against Trump is that he allegedly kept false records of the Daniels payment, classifying them as “legal expenses” when in fact they were for the nondisclosure agreement. Because that payment was made in installments, involving an invoice and a check and a ledger record, Bragg was able to charge Trump with one felony count for each piece of paper, resulting in 34 felony counts, each carrying a maximum sentence of four years, from what was essentially one transaction.
But how did Bragg manage to charge Trump with any felonies at all? Falsifying records is a misdemeanor in New York, and in this case, the statute of limitations has long since expired. To be able to charge Trump with a felony for a long-ago misdemeanor, Bragg had to theorize that Trump falsified the records as part of committing another crime.
That has always been the Achilles heel of the case: What is that other crime? What was the wrongdoing Trump was involved in that justifies turning an old misdemeanor into a new 34-count felony indictment?
Bragg’s office has always been vague about it. When Bragg first indicted Trump, he did not name the other crime on the grounds that he was not legally required to do so. But on Tuesday, prosecutor Joshua Steinglass said the other crime was a violation of New York law 17-152, which makes it a crime to engage in a “conspiracy … to promote or prevent the election of any person to a public office by unlawful means.”
That created more questions than it answered. Did Trump engage in a conspiracy? Why wasn’t he charged with conspiracy? And what were the “unlawful means” he allegedly used to conspire to promote his election as president? Bragg’s prosecutors are still being squirrelly about that.
Meanwhile, prosecutors are telling the jury that, bookkeeping aside, the real concern in the trial is that Trump conspired to interfere with the 2016 election. “This case is about a criminal conspiracy,” Matthew Colangelo, the former top Biden administration official, told the jury. “The defendant, Donald Trump, orchestrated a criminal scheme to corrupt the 2016 presidential election.” Remember, Trump hasn’t been charged with any of that — he’s been charged with an old paperwork violation. But that’s not terribly sexy. So the prosecutors say that Trump engaged in some deep, dark conspiracy to influence the election. It must have been illegal somehow, right? Perhaps someday they will reveal how that is so.
And by the way, that “other crime” that the prosecutors mentioned — New York law 17-152? It’s a misdemeanor offense, too. So Bragg has created 34 felony charges by alleging that Trump committed an old misdemeanor with the intention of committing another misdemeanor, both of which are long past the statute of limitations.
Former federal prosecutor Andrew McCarthy called it a farce. Others might call it an obscenity. Someone appears to be trying to imprison his opposition, and it’s not Trump.
Finally, the promised note about Marc Elias, the man to whom Clinton spoke. Elias is the Democratic lawyer who, along with the Clinton 2016 campaign, played a key role in commissioning what became the Steele dossier, which was the collection of false allegations that turbocharged accusations about Trump and Russia in the 2016 election and during the first years of Trump’s presidency. In its report to the Federal Election Commission, the Clinton campaign categorized the payments for false opposition research as “legal services.” That was itself false — falsifying records! — and the campaign and the Democratic National Committee eventually agreed to pay $113,000 in fines. No one was indicted.
