Barring some major surprise in Tuesday’s expected announcement of the charges against former President Trump —like that he did shoot someone in the middle of Fifth Avenue—the indictment is likely to contain low-level, white-collar felonies. Under New York law, these crimes do not carry any mandatory prison term and the likelihood of Trump being incarcerated, given the years of appeals that lie ahead, is low. So why did District Attorney Alvin Bragg decide to bring these charges? (And yes, he did make the decision to bring them — DAs almost always get the indictments they want from grand juries.)
The Trumpy answer — that Bragg is a ravening racist socialist who wants to stop a second Trump victory—is just silly. Bragg’s trajectory from Harvard Law School to a prestigious federal court clerkship, to Southern District of New York federal prosecutor, to Deputy Assistant Attorney General in New York, and then elective office, is a typical and sought-after path for many of New York’s legal elite. It usually culminates in a federal judgeship or a corner office in a bourgeois white-shoe law firm. It is not a life of left-fist raised chanting “to the barricades.” The guy is even a Sunday School teacher. Bragg was elected on his promise to reform Manhattan’s highly unequal criminal legal system that disproportionally contributed to the mass incarceration of the 1990s and early 2000s. Trump was barely mentioned. And Bragg tends to keep his distance from the cameras and has enjoyed a reputation as a solid, careful lawyer.
But the liberal answer, viz., “this indictment proves no one is above the law,” is not true either. Presidents have always been above the law. Richard Nixon —almost Trump’s equal in vulgarity, racism, and flagrant law-breaking — was pardoned. Ronald Reagan intentionally traded arms for hostages in Iran to finance an illegal war in Nicaragua. George W. Bush, who has the blood of over a million people on his hands for starting a war in Iraq based on lies, sits in his bathtub and paints pictures of his own feet. And the list of other highly placed public officials who have escaped accountability is long.
So why bother trying to hold this particular president accountable?
One useful distinction between prior Presidential crimes and Trump’s alleged misconduct is that the latter all took place in his purely private capacity. While Bush was acting as Commander-in-Chief when he launched his war, Trump stood in the same shoes as any other shady, grifting businessman. The wisdom of invading a sovereign nation and overthrowing its government can be viewed as a policy disagreement, but it is hard to find a policy justification for paying off a porn star and then cooking the company’s books to conceal it from authorities. That President Trump got away with summoning a mob to interfere with the orderly transfer of power is not an argument that Citizen Trump should be able to get away with fraud.
The other thing is that, just as in a buffet, someone has to be first. Federal Special Counsel Jack Smith is conducting a vigorous investigation of Trump’s role in taking, retaining, and failing to return sensitive national defense information when he left the White House. Even Trump’s former lawyer was recently compelled to testify based on a finding that it was more likely than not that the lawyer was being used to facilitate a crime. And Trump faces the very real possibility of felony charges in Georgia for election interference. Again, just like at a buffet, we then all grab our plates and get in line. It may well be that Bragg being first will encourage others with provable cases.
Finally, Trump has gotten away with a lot of grifts, grafts, scams, and fleecing of the faithful for a very, very long time. When I was a young lawyer with a client facing 40 years to life for two small drug sales, I remonstrated with the head of the Bronx Rackets Bureau. I complained that my client was being treated unfairly, that he was being over-criminalized and would be over-punished and the whole thing was just unfair. He looked at me and said: “Kuby, you’re right. But remember this: Bad things happen to bad people.” It actually could be that simple.
Ron Kuby is a New York-based criminal defense and civil rights lawyer with nearly 4 decades of experience (and a shoutout in The Big Lebowski).
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