JUDGE ANDREW P. NAPOLITANO: Trump Can Be His Own Worst Enemy

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After processing what he heard on cable television, former President Donald Trump publicly announced two weeks ago that on Tuesday, March 21, he would be arrested by the New York Police Department. That day came and went, with no arrest.

Trump is currently the subject of four criminal investigations: one by the Manhattan district attorney for campaign finance fraud; one by the Fulton County, Georgia, district attorney for conspiracy to subvert an election; and two by the feds, one for conspiracy to subvert a congressional function on Jan. 6, 2021, and the other for retention of national defense secrets at his Florida home and obstruction of justice by hiding the secrets.

The case currently getting media attention is the one in Manhattan. It is also getting Trump’s attention, as he has threatened and predicted “death and destruction” if he is indicted. Along with that prediction, he posted photos that depicted himself about to strike Alvin Bragg, the Manhattan district attorney, with a baseball bat.

The photo juxtaposition was appalling and ought to strike terror in his Manhattan lawyers, as it will form a very credible basis for the Manhattan DA, at the time of arraignment, to ask for Trump’s immediate incarceration. It is standard to ask for no bail when the defendant has threatened the prosecution with bodily harm and has the present apparent ability to carry out the threat.

While Trump is protected 24/7 by Secret Service from harm to him, the agents do not protect others from harm by him. If he is indicted in Manhattan, his lawyers will unhappily confront all this. They may also confront an indictment for threatening a public official with violence.

The Manhattan case is an odd duck. The indictment will apparently charge Trump with a state misdemeanor perpetrated to hide a federal felony. The misdemeanor is intentionally recording corporate financial records so as to mask a campaign contribution as a corporate expenditure. The federal felony is the dicey charge. It is the use of corporate funds to pay a campaign debt.

Thus, the DA will charge that when Michael Cohen, then Trump’s lawyer, used his own money to pay a porn star to remain silent about a sexual liaison she claims she had with Trump, and he denies, that payment was made to protect Trump’s presidential campaign against Hillary Clinton in October 2016.

If Trump had reimbursed Cohen out of his personal funds on which he paid income taxes, and recorded that reimbursement as a personal campaign contribution, there would have been no crime. But, by using corporate funds to reimburse Cohen and falsely recording the payments to Cohen as legal fees — ordinary corporate expenses, on which no income taxes were paid — Trump ran afoul of New York law and federal law. Then, the misdemeanor becomes a felony.

The linchpin to this case is Michael Cohen. Cohen pleaded guilty to conspiracy to violate the federal prohibition on using corporate funds to pay Trump’s campaign debt. At the time of Cohen’s plea, Trump was the president and thus could not be indicted for this conspiracy. Yet, at Cohen’s sentencing, the federal judge who sentenced Cohen referred to Trump as an unindicted co-conspirator.

When Trump left office and Cohen left prison, the same feds who prosecuted Cohen interviewed him as a witness in a potential federal prosecution of Trump on the campaign finance violation. The same federal prosecutors who found Cohen credible enough to testify against himself at his own guilty plea found him insufficiently credible to testify against Trump before a federal grand jury or at a criminal trial of the former president.

Enter the Manhattan DA.

He looked at the evidence and research amassed against Trump by his predecessor and, for reasons not made public, decided to put the criminal investigation of Trump on a back burner. Then, after he interrogated Cohen, he and his team — the Manhattan DA is a former federal prosecutor in the same office that prosecuted Cohen and declined to prosecute Trump — concluded that Cohen is sufficiently credible, particularly when buttressed by Cohen’s files and the records of the Trump Organization, to testify against Trump.

So, how can two teams of professional prosecutors examine the same witness on the same subject matter and one team find him only partially credible (enough to inculpate himself but not enough to inculpate Trump) and the other team find him fully credible? Just as two people observing the same event may see it, hear it, process it, recall it and recount it differently, so, too, can professional prosecutors see and hear and evaluate a witness differently.

This area of the law — “Do we have a case or don’t we? Should we prosecute or shouldn’t we?” — is called prosecutorial discretion. It involves a sophisticated examination of the credible evidence and the relevant law, the public policy behind the law, the harm caused by a violation of the law, the needs of the public to be protected, the resources available, the legal value versus the legal harm of the prosecution, and the constitutional rights of the defendant. While the decision to prosecute can be challenged, the decision not to prosecute is essentially unexplained and unchallengeable.

Should the Manhattan DA take into account Trump’s status as a former president and the political fallout that will likely accompany his indictment? In a word: NO. The rule of law is blind to the defendant’s status.

While most of the thousands of federal and state criminal laws have no moral place in America, as they either criminalize harmless behavior or intrude upon the exercise of natural rights, so long as these laws are enforced against others — and they are — they should be enforced wherever the evidence sufficiently points to guilt, without fear or favor.

Should Trump get a pass? Only if the DA thinks the case is weak; not because Trump is a former president.

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