In Trumpalinan

 When news broke Thursday that the long-foretold Trump indictment had come down, I suspect I’m far from the only American who had mixed feelings. This, surely, is what we had wanted for years, right?—except… not this way! This was not how we envisioned it. What’s the problem? Why are we disappointed? Mostly because the specific conduct being charged in this case is so far removed from the substance of Trump’s criminality and the reasons that make him dangerous to the public. If we could take our pick, we would have much preferred to see the Georgia indictment move forward first, or the federal investigation into Trump’s broader efforts to undermine the 2020 election. Even the classified documents investigation might have been stronger than resurrecting the old news about Stormy Daniels. 

Of course, we’ll see what Alvin Bragg’s office actually came up with, when the indictment is unsealed on Tuesday. Maybe the Manhattan DA ended up with something stronger than we know about. But based on the public reporting so far, the case seems manifestly weak—perhaps fatally so. The only crime under New York state law that Trump may have committed with regard to the Stormy Daniels hush money payment is a misdemeanor count of falsifying business records; and even that falls outside of the state’s statute of limitations (avoiding this time limit will require some tricky legal footwork regarding Trump’s dates of residence in the state). And the attempts to elevate these actions to a felony seem specious and unpromising. 

That said, I was open to being persuaded. I had to spend eight hours cumulatively on the road this weekend anyway, so I thought I would listen to Mark Pomerantz’s book, People vs. Donald Trump, to see if it could change my mind and convince me there is more substance to this prosecution than at first appears. Pomerantz, after all, was one of the two members of the prosecutor’s investigative team that left the DA’s office when Bragg initially refused to take action to indict Trump. He has waged a media relations campaign ever since—including the publication of this book—to press the case that he was justified in wanting to move forward with the prosecution. If anyone could mount a persuasive case on behalf of this indictment, therefore, it should be Pomerantz.

Yet I’m emerging from the audiobook at the end of my long drive still unconvinced. Pomerantz admits, in the course of his book, that the prosecution’s case is not airtight and not certain to result in conviction. Yet, he maintains that even a failed prosecution would strike a victory for the rule of law (would it, though?), by proving that Trump is not immune to legal scrutiny. Pomerantz also addresses the criticism that the prosecution has been politically-motivated. He gives a persuasive narrative that shows the efforts of Bragg and others to treat Trump fairly, and to ensure they are not pursuing any charges against him that they would not bring against any other individual engaged in the same behavior. 

Yet Pomerantz slightly compromises the plausibility of this latter story by simultaneously arguing that prosecutors should at times seek to prosecute individuals, rather than individual crimes. He cites the inevitable comparison to the Al Capone prosecution for tax evasion, e.g., to argue that sometimes it is necessary to bring a relatively minor prosecution that can stick, even if the real goal is to stop an individual’s larger pattern of criminal conduct that goes far beyond it. In this case, Pomerantz argues, Trump has a career-long pattern of fraudulent and corrupt activity in the business world. A single incident of falsified business records may appear minor and beneath the notice of prosecutors by comparison, but—Pomerantz's point is—it is in fact hardly an isolated incident for Trump, even if it is the only one that prosecutors can prove beyond a reasonable doubt, sufficient to warrant a conviction. 

Whether one accepts this slightly uncomfortable argument or not, one can agree that there is nothing wrong with bringing a misdemeanor charge against someone who committed one, even if they are a former president. There is no reason in principle why Trump should not have to pay a fine or do community service hours for a minor offense, just as any other citizen would have to do for the same behavior. But Pomerantz’s efforts to elevate these incidents to a felony fail to persuade or to create an impression of fair dealing. 

One theory that Pomerantz explores early in the book and subsequently abandons is that the Stormy Daniels hush money payment became a felony because it was not merely a falsification of business records, but a falsification designed to cover up the proceeds of a crime. What was the crime in question? “Extortion” argues Pomerantz. Wait, but who was being extorted? Why, Trump himself, at least according to this theory. 

Pomerantz admits that he had to eventually drop this line of argument, though, because under New York statute, money paid in extortion does not become the proceeds of a crime until the blackmailer receives it. Thus, at the time the money was still in Trump’s possession and he was disguising it, it was not derived from any crime. 

Pomerantz portrays the collapse of this legal argument as a triumph of narrow legal formalism and the precise definitions of a statute over the substantive purpose of the law. He is frustrated by the statute’s wording and implies that this is one of those cases in which “the law is an ass” because it allowed a technicality to defeat justice. 

Yet, I think most people reading his argument would say he has it exactly backward. He is the one trying to win a victory based on a legal technicality, and if his argument prevailed, it would be a triumph of formalism over common sense. After all, the notion that a victim of the crime of extortion is in possession of “criminal proceeds”—in the form of their own money which is being extorted from them—is patently absurd, from the standpoint of the substantive purpose of laws forbidding blackmail. New York’s statute is exactly right to define criminal proceeds the way it does; Pomerantz was wrong. 

Pomerantz is more persuasive on the subject of a different set of financial crimes that also involve falsifying business records—this time, the Trump organization’s systematic inflation of Trump’s assets for purposes of securing loans. The DA's office already found sufficient evidence of such manipulation to secure a criminal conviction of the Trump organization in its corporate personhood, earlier this year. The prosecution Pomerantz was urging would simply have to go a few steps further and prove Trump’s personal involvement and that he had the requisite mens rea, or culpable state of mind, at the time of these events. 

The public reporting on the sealed indictments from Thursday, however, has not focused at all on these financial crimes, making one wonder if they figure in the DA’s current case, or if the latter is confined solely to the less promising Stormy Daniels case. Moreover, even with these more promising claims of financial wrongdoing, the argument that they should be charged as felonies rather than misdemeanors once again requires a logical stretch. 

Once again, the evidence appears strong that Trump and his team falsified business records—in this case, through issuing bogus financial statements, in order to inflate the value of his assets and the extent of his net worth. As with the hush money, however, this is only a misdemeanor, unless these statements were falsified in order to cover up a crime. Pomerantz argues that Donald Trump’s subsequent certifications of the statements amount to a further falsification, which are designed to cover up the original falsification, thus making the misdemeanor into a felony. This argument, though—while certainly stronger than the one above and less vulnerable to failing under a statute—would, I think, still strike many people as forced and essentially circular. 

Maybe that’s okay, though. Maybe, you will say, this is just how prosecutions are done—each and every day—and there’s no reason Trump should not face the full force of this country’s criminal legal system. After all, prosecutors frequently try to find creative ways to make winning legal arguments. They stack felony charges on top of lesser charges, even if they are unlikely to prevail on those theories, in order to compel the defendant to negotiate and potentially enter a plea deal. Perhaps what Pomerantz suggests is genuinely no different from how any DA’s office would treat any offender. Besides, why should history always be perfectly clean? Perhaps my discomfort with this prosecution is a niceness that has no foundation in reality—out there in the real world, one may argue, Trump is dangerous tout court, and some way must be found to stop him. 

I was reminded in this regard of a conversation I had with a friend shortly after the events of January 6. I had just read the classical historian Sallust’s account of the Catiline conspiracy—an event in which a wealthy Roman demagogue sought to overthrow the Roman republic through a coup d’etat. The timing was not merely fortuitous—I was reading Sallust precisely because of the parallels between the events he described and what had happened in our own republic on January 6. 

Yet what stayed with me most from Sallust's narrative was not so much the details of Catiline’s failed coup itself, but rather the debate that Rome’s senators held after his defeat over what to do with him. And it is these passages that seem to have had the most relevance to subsequent events, as our own nation debates how and whether to provide accountability for January 6 and ensure that a similar attempt to overturn an election does not happen again. 

Within the Roman senate at the time, as Sallust describes it, two clear factions emerged. Cicero and Cato the Elder were all for making an example of Catiline. He should receive no mercy, they argued, for he had taken aim at the lifeblood of the republic itself. Julius Caesar, however, favored lenience. Sallust puts a speech into his mouth that argues eloquently for sparing Catiline’s life. “Every bad precedent arose from a good case,” Caesar argues (Batstone trans.). In other words, it may seem appealing in the moment to break with tradition and deal particularly harshly with an attempted insurrectionary. But such a line, once crossed, cannot be easily restored. It is better and wiser, Caesar argued, to show clemency. 

I was entirely on Caesar’s side in this, and quoted his line about “bad precedents” to my friend as proof that the government should go easy on the perpetrators of the January 6 riot (especially on those who were not the ring-leaders of the attack, but merely wandered into the Capitol as part of the crowd). He stopped me mid-sentence, however: “Wait a minute,” he said, “Caesar? As in, the same Caesar who ultimately overthrew the republic himself?” “Oh right…” I said, “good point.” Maybe the guy who ultimately destroyed republican governance is not the most credible source to find the argument that we should deal gently with those who attempt a coup. 

My friend’s broader point is well taken as well: by the same token, he seemed to be saying, perhaps we should just accept that holding Trump and his cronies accountable will not always look as beautiful and clean and pure as we might like it to, but doing so is still necessary to preserve democracy. Maybe a few par-for-the-course prosecutorial tricks, which are used daily in criminal investigations all over the country, are a moral price worth paying for the deterrent effect they may achieve on Trump’s criminality, or on future insurrectionary attempts, even if they rely on overly fine technical points and a few strained legal arguments. Maybe, in short, it is worth dealing harshly with Catiline in order to prevent the next Caesar from coming along, who feels that they are entitled to operate with impunity. 

That, perhaps, is how many people on the left will read Thursday’s indictment (assuming there is no more substantive legal argument that emerges on Tuesday, which we haven’t heard already from the first-hand accounts and the public reporting). In the end, however, I can’t agree with it. I see the force of it, to be sure; but I can’t help but worry about the argument that it sets a bad precedent. And even if this “slippery slope” argument from Caesar is fallacious and untrue, we still should treat everyone—even Trump—fairly for its own sake, regardless of whether it leads to bad consequences down the road. The fact that slightly questionable and forced prosecutorial tactics like this are a frequent occurrence in DA's offices—and are used far more often against socially marginalized people with no political power, rather than former presidents—does not make them more morally pardonable. It’s just another example of why we need prosecutorial reform in this country. 

So, I’m still going to side with Caesar on this one, even knowing the dubious source of the insight. We should favor leniency—unless and until a criminal case emerges that is absolutely airtight, and that does not rely on any tricky legal maneuvers in order to prevail (I hold out hope that the Georgia case and the federal cases, as mentioned above, will prove stronger). That, after all, is what accountability and the rule of law are all about. Neither is served by punishment for its own sake. If the legal grounds for that punishment are not perfectly solid, then we are just repaying arbitrariness for arbitrariness and piling one wrong on top of another.