Now that Manhattan prosecutors unsealed their 34-count indictment against former President Donald Trump, criticism about the foundation of the case has been spilling out from corners far removed from MAGA world.
Professor Rick Hasen, an election law expert at the University of California, Irvine, was one of Trump’s sharpest and most esteemed critics when it came to the former president’s efforts to erode confidence in U.S. elections — and not only in the 2020 race.
When Trump claimed that the 2016 election would be rigged, Hasen called the then-candidate’s remarks a danger to democracy. Hasen chronicled and repeatedly denounced Trump’s extended efforts to overturn the 2020 election. He raised the loudest alarm when Republicans proposed a so-called independent state legislature theory, arguing that the theory — in its most radical form — would hand state governments virtually unrestrained power to overturn election results they dislike.
“I’m scared s—less,” Hasen said live on air on CNN, which didn’t bleep the profanity.
Just hours after the world learned details of the charges against Trump, Hasen wrote a Slate editorial with an almost rueful verdict: “Donald Trump Probably Should Not Have Been Charged With (This) Felony.”
“It is said that if you go after the king, you should not miss,” Hasen said. “In this vein, it is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks.”
Hasen’s hardly alone among legal experts — right, left and center — questioning the core theory of Manhattan District Attorney Alvin Bragg’s case.
Every charge of Trump’s 34-count indictment is related to the falsification of business records, a class E felony that usually doesn’t come with heavy prison time for a first-time offender. But it’s only bumped up to a felony if an alleged violator acts “with intent to defraud” in the commission of another crime.
Bragg intentionally left that underlying second crime a mystery at a press conference, telling a reporter who asked him about it: “The indictment doesn’t specify because the law does not so require.”
That remark troubled Jed Shugerman, a Fordham Law School professor who called the indictment a “Legal Embarrassment” in a blistering New York Times editorial. Shugerman elaborated on his thinking in an interview.
“No one should have to go into court — the president of the United States or former president of Bowling Green — shouldn’t have to go into court and not know what they’re being charged with,” Shugerman said.
The other element of the crime isn’t completely a mystery. Bragg alluded to federal and New York state election law, a theory that didn’t sit well with Hasen, a specialist in that field. The DA also hinted at possible tax violations, a theory outlined only vaguely in the prosecution’s statement about the case. Shugerman isn’t persuaded about Bragg’s bare-bones allegation that Trump “mischaracterized” the reimbursement payments “for tax purposes.”
Until those theories are specified, Shugerman said: “These are not crimes.”
“These are half-crimes,” he added.
Sen. Mitt Romney, R-Utah, who voted to remove Trump from office twice, joined the chorus in criticizing prosecutors, all while taking another swipe toward Trump.
“I believe President Trump’s character and conduct make him unfit for office,” Romney wrote in a statement. “Even so, I believe the New York prosecutor has stretched to reach felony criminal charges in order to fit a political agenda.”
For Shugerman, what he believes to be the weaknesses of the case lends itself to that appearance, if not its actuality. He believes multiple flaws could hand Trump opportunities to dismiss the case on underlying legal controversies, such as the hybrid application of state and federal law and whether prosecutors will be able to establish that internal business records — unseen outside the Trump Organization — proves intent to defraud.
Over the rollercoaster course of the investigation, two of Bragg’s former top prosecutors quit over concerns that the DA wouldn’t charge Trump. Bragg’s predecessor Cyrus Vance didn’t, though he recently told reporters that was because the Department of Justice instructed him to stand down. Ultimately, the DOJ didn’t charge Trump either, even after the 45th president left office.
Especially in light of the case’s history, Shugerman believes, Bragg owes a clearer explanation of the case to Trump and the American public.
“The delay and the apparent reversal creates a duty on this prosecutor to, in a public document, have a speaking indictment that speaks to the public to address a massive legitimacy problem,” he said.
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