Former President Donald Trump on April 4 made his case to the American people that we no longer have equal justice in this country, warning his supporters that Democrats “want to interfere with our elections by using law enforcement” after he was arrested and arraigned in New York City, pleading not guilty to 34 counts of covering up some crime.
Which crime did he cover up? The indictment almost unbelievably did not say, stating that Trump had falsified business records with the “intent to defraud and intent to commit another crime and aid and conceal the commission thereof…”
It just says “another crime.” So, New York City actually told Trump, “You covered up a crime. We’ll tell you later which one it was.” This is a clear violation of the Sixth Amendment’s protection of the right to a notice of accusation, which states “In all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation…”
For that you have to go to New York City District Attorney Alvin Bragg’s press conference on April 4, but even then no particular statute is cited in terms of which where he described a plan to “buy and suppress negative information to help Mr. Trump’s chances of winning the election” via non-disclosure agreements. Which election? The 2016 federal election.
You know, the one that New York City has no jurisdiction to enforce under the nation’s federal system. A potential federal campaign violation would be handled, not by New York City, but by the Federal Election Commission, which already turned down the case because it was unable to find a violation, voting predictably along partisan lines, where the Republicans on the commission voted no, and the Democrats on the commission voted yes.
It boils down to “You lied publicly about your alleged affair with Stormy Daniels” and then paid her for a non-disclosure agreement, which Democrats circumstantially wish to say was a campaign donation by Michael Cohen in excess of legal limits, the case Bragg is apparently bringing, but we cannot say with certainty because the charging document didn’t say.
But having an affair, even if true, is not a crime. And signing a non-disclosure agreement for a non-crime is similarly not a crime. Being a personal matter, it appears to be neither a campaign donation nor expenditure per se. And yet that is New York City’s case. If Trump bought a nice suit, it might make him look good, but it wouldn’t be a campaign expenditure either.
In a similar vein, “Pay attention to this, not that,” is First Amendment protected speech. Agenda setting and issue priming are functions news media perform every day. New York City is criminalizing damage control and spin by individuals. Would removing erroneous search results from Google or offering a clarifying statement be an expenditure, too?
In this case, Bragg is pushing for falsifying business records in the first degree under New York State law, which requires that it with the intent to cover up another crime a class E felony, punishable up to five years in prison. If he had gone with falsifying records in the second degree, it would be a class A misdemeanor, punishable by up to one year in prison. So, Bragg is going for the more serious charge, and if unable to prove it, could go for the less serious charge, with the trial or trials likely extended through the duration of the 2024 election and beyond.
So, Trump is right. Democrats “want to interfere with our elections by using law enforcement…”
And he added, “We can’t let that happen.”
But how? In this case, it was an appeal to his supporters for the Republican nomination, in which is he is the clear frontrunner, leading his closest rival by an average of 26 points according to the latest RealClearPolitics.com average of national polls, that he is not being treated fairly by our legal system, but it begs the question: How to fix this, and more critically, to preserve the Union?
Americans overwhelmingly believe that the Trump indictment was politically motivated rather than motivated by a desire to enforce the law, according to a Quinnipiac University poll, 62 percent to 32 percent.
That predictably includes 93 percent of Republicans, but also 70 percent of independents who believe that the prosecution was politically motivated. Predictably, the only group that thinks this has to do with enforcing the law are partisan Democrats, 66 percent to 29 percent. So, the only constituency in favor of prosecuting their political opponents are themselves partisans.
Political independents oppose this banana republic behavior at every turn, because they fear what it will lead to. It’s why they are independents.
So, to restore equal justice, should Republican Attorneys General and District Attorneys start prosecuting Democratic candidates and officials, an eye for an eye? Would that be a deterrent—or an escalation?
How would independents respond? Would they like it, or similarly reject it on identical grounds?
Clearly, Americans are still overwhelmingly opposed to imprisoning one’s opponents (or worse) when one party does it. But the real problem will come when both parties are doing it. Suddenly, then, a clear majority of Americans would support using the law to imprison their political opponents, a vicious cycle that would be almost impossible to break and invariably could lead to political violence as both sides seek revenge and reprisals.
Trump, besides noting the various attempts to, through legal means, prevent him from ever taking office in 2017 and thereafter to remove him from office, including by falsely accusing him of being a Russian agent, carrying on top secret investigations by the Justice Department for years only to turn up nothing — the true precedent of this breach of our legal system into a Hammurabi style system — also outlined a series of potential crimes that may have been committed by his opponents including President Joe Biden and 2016 Democratic nominee Hillary Clinton that are not and likely never will be prosecuted.
That does demonstrate an unequal application of justice, for certain, but the worry is that the GOP now sees red. Do they want revenge or do they want to see the civil society restored? We might not be able to have both. I recently spoke to my wife about this. She wants to see Trump to rise above this political strife to somehow unite the country. She wants the civil society back. I do, too.
When the civil society and liberty were lost in the Roman Republic, popular forms of government would not return for more than 1,000 years. Once lost, we might not get it back.
That is why once started, the cycle of violence involved in a civil war is so hard to break. Once you see red, you cannot see justice. Punish my opponents is not a platform, it’s a pitfall. And only after great cost and tragedy can it be overcome, and even then it could take a generation or more to move on, assuming there is still a Constitution afterward.
In 2016 at the Republican National Convention, Trump initially rejected the convention’s chants of “lock her up” referring to Clinton’s keeping classified documents on her private server at home and instead implored “Let’s defeat her in November.”
Now, the true act of defiance against this corrupt system by the American people might be to vote for Trump in 2024, but that remains to be seen. And yet that alone would not on its own restore the civil society, which Alexis de Tocqueville noted comes with the necessary prerequisite that we respect our “reciprocal influence” upon one another to, as James Madison noted, “cur[e] the mischiefs of faction”.
Republicans cannot do it alone merely by turning the other cheek, it would take Democrats, too, to agree with one another to not drag each other into the state of nature by abusing the law to imprison political opponents as if it were the French Revolution.
Under the Constitution, the President has no authority to take America into a war on his own authority under Article II. It takes a vote of Congress to declare war. The Declaration of Independence in 1776 was signed “In Congress” by the Second Continental Congress in legislature. Nor does any individual have a natural right to start their own personal war, or retain some personal right to revolution.
That is because nobody, including District Attorney Bragg, who campaigned on imprisoning Trump, has the right to drag us back into the state of nature, which is where we’re headed if our nation’s leaders cannot find a way to interdict what could become an endless cycle of political revenge, political violence and ultimately, civil war.
Therefore, it will take great care and a strategy to restore confidence in our system. We are not a banana republic that prosecutes political opponents without end. Justice starts at the top, but Trump or any president needs a mandate. It is up to the American people to ultimately deliver a verdict in favor of restoring our civil society — before it is too late.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.