Alvin Bragg’s Nakedly Political Indictment of Donald Trump Andrew C. McCarthy
Progressive prosecutor Alvin Bragg’s impending criminal prosecution of Donald Trump is a disgrace, as a matter of due process and good governance. Rich is right that it’s good for Trump’s political fortunes, at least in the short term. We shouldn’t lose sight, though, that it is good for Democratic political fortunes in the long term.
Obviously, Trump does not merit immunity from prosecution just because he is a former president, a current presidential candidate, and an influential political figure with a devoted base of millions. Yet no former president and substantial candidate should be the target of a criminal prosecution, especially by the opposition party, unless the matter is truly serious — unless it would be treated as felony conduct if it were committed by anyone.
Besides Bragg’s investigation, we have carefully covered the pending probes of the former president in connection with his efforts to overturn the 2020 election and his illegal possession of classified documents. Those are extraordinarily serious matters. We can agree or disagree about the legal theories that prosecutors may pursue; and we should watch carefully whether, on the classified documents, Trump is afforded equal protection of the law given that President Biden and former secretary of state Hillary Clinton, among others, have engaged in similar conduct with (so far) impunity. Nevertheless, if Trump were indicted for, say, obstructing Congress on January 6, 2021, or obstructing the grand-jury investigation of his hoarding of secret intelligence at Mar-a-Lago, no one could credibly claim that these were (pardon the pun) trumped-up cases, even if the decision to charge them is politically fraught.
Not so with the Stormy Daniels caper.
Bragg is engaged in bare-naked politics. The case is not merely unworthy as a prosecution of Trump (which is why federal prosecutors walked away from it years ago, as did Bragg before he was pressured by progressive Democrats into reviving it); it is also a case that everyone knows Bragg would never bring against anyone other than Trump. Crime is rampant in New York, in part because Bragg’s default position is leniency and often non-prosecution when it comes to hardened criminals. Here, the case of falsifying business records against Trump (which we’ve analyzed, for example, here, here, here, here, and here) is, at best, a nonviolent misdemeanor that is stale and that could be inflated into a felony only by theories that are legally and factually dubious. This is a classic, invidious selective prosecution. It is being launched strictly for political purposes.
We should understand those political purposes, though.
Rich and I have been discussing the ramifications of potential Trump prosecutions on our podcast for many weeks. I couldn’t agree more with him that the immediate consequence of Trump’s indictment by the Manhattan DA in a ludicrous case will be a Trump bounce in the polls.
Still, let’s remember that there are two relevant sets of polls, the Republican primary and the national election.
Democrats want to run against Trump in 2024. Their dream scenario is that Trump becomes a GOP juggernaut as he did in 2016, rolls over Florida governor Ron DeSantis (whom Democrats most certainly do not want to run against) and the rest of the field, storms to the Republican nomination, and then is soundly thrashed by the Democratic candidate (probably President Biden). Democrats know Trump cannot win a national election. Not after the Stop the Steal debacle that led to the Capitol riot and that has persisted without a whiff of contrition with bravado and in false denial of reality. Nothing in life is certain, but I believe that, if they manage to help him get nominated, Democrats and the media will deploy their arsenal against Trump (who was unpopular nationally even before January 6) and beat him by more than 10 points in November 2024, with Republicans almost certainly losing the House and the Senate to boot.
Remember, Alvin Bragg is not an appointed law-enforcement official entrusted with upholding the Constitution, like a prosecutor or attorney general in the federal system. He is an elected Democrat. In state systems, prosecutors and state attorneys general are enmeshed in partisan politics. That is how they get their jobs.
Indicting Donald Trump on a nonsense case in a blatantly partisan exercise of raw power against the Democrats’ arch nemesis is good politics. It is hard to think of anything that will more rile up Trump’s base and anger other Republicans who, regardless of their distaste for Trump, will find this maneuver despicable. Such an indictment materially increases the chance that Republicans will nominate Trump — exactly the outcome that Democrats and the media crave.
My disagreement with Rich, about which I could end up being very wrong, involves the cumulative effect of all the coming Trump prosecutions — and now that the Rubicon has been crossed, I’d bet on more, from both the Biden administration–appointed special counsel Jack Smith (on the Mar-a-Lago documents and January 6) and Fulton County, Ga., DA Fani Willis (on Stop the Steal), who are probably miffed that Bragg is beating them to the punch.
I believe that when more indictments follow, and the charges become more credible than the ones in Bragg’s imminent indictment, the initial surge in Trump’s GOP support will ebb. Republicans will sense that Trump’s jeopardy is broad, largely self-inflicted, and unpredictable; that he can’t win the presidency and that, even if he could, he’d be a lame duck from Day One, presiding over a dysfunctional administration whose main objective would be payback. Finally realizing that, Republicans will move on to someone who has a good chance of winning the presidency, which will give the party its best opportunity to win control of both congressional chambers.
For now, though, Bragg’s unabashedly partisan prosecution is a coup for Trump in the GOP nomination contest. I suspect that, much more than a criminal conviction, is exactly what the DA and his fellow Democrats are aiming for.
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