Even in an era producing more and more ridiculous media commentary, this is too much
By Brian E. Frydenborg (Twitter @bfry1981, LinkedIn, Facebook) April 13, 2023
SILVER SPRING—After disgraced former President Donald Trump’s first (and hardly rushed) indictment, this one at the hands of Manhattan District Attorney Alvin Bragg (I posted the full indictment here, read for yourself), there have been and are many—oh, so many—takes being offered on television, in print, and on social media.
A few are pretty solid.
But many takes—oh, so many—are hyperbolically dramatic, breathlessly stupid, and/or wildly inaccurate. Most of the worst takes are coming from the right: wild, irresponsible, and nonsensical accusations of political persecution and miscarriages of justice (some are comparing to the tale of the persecution of, wait for it… Jesus) or literally painting the picture with the exact opposite of what is true.
But there is some criticism that is more measured and nuanced, even partly coming from figures or outlets on the mainstream left or conservatives who have consistently opposed Trump, that “the Democrats” are bungling the timing and/or order of Trump’s prosecutions and this indictment may undermine the other cases arrayed against him, that this case is problematic and “the least significant” and “weakest” of the potential charges and prosecutions should not even be pursued (from The Washington Post Editorial Board!), that prosecutions should be withheld because of how Trump’s cultists might react (Bill Maher), that if this indictment is successful it will fool the left into prematurely thinking Trumpism has been defeated, that this opens a Pandora’s box and sets bad precedents as to how other former presidents and officials could be treated down the road.
Yet many these criticisms are incredibly dangerous and seriously undermine the rule of law and democracy in general, empowering illiberal fascist tendencies in our country that are already out of control and that mean that any major election could be our last free and fair election.
Unreasonable from the Right
The first type of commentary, coming from the right, is exceedingly easy to toss aside.
Firstly, pretty much that entire crowd was saying the same stuff before the indictment was unsealed; they had no ability before that to definitively assess the quality of evidence and charges and most are clearly making their mind up (or lying) based on personal partisan political allegiances, not the law or the facts of the case of which they are in large part ignorant, but there are already indications the evidence will be strong: two people very close to Trump at the time of his crimes in question—Trump personal “fixer” lawyer Michael Cohen (who blocked me years ago on Twitter when he was still on Trump’s side in response to my investigative pieces on his shady history operating in Trump’s orbit) and Trump Organization CFO Allen Weisselberg—have already been convicted in directly related successful prosecutions, with Cohen even robustly cooperating with Bragg’s office in its current case against Trump. Furthermore, key figures deep inside Trumpworld besides Cohen, including Kellyanne Conway and Hope Hicks, have been providing the testimony on which the Manhattan grand jury proceeded with its recommendations and Bragg decided to prosecute.
Secondly, events in question were late in the game in the 2016 presidential campaign but with extramarital affairs that happened years before the 2016 election (all the way back in 2006 and 2007!): that means there is a an overwhelming logical burden that would take extraordinary evidence to overcome to prove that paying off pornstar Stormy Daniels and with whom Donald Trump had an extramarital affair and taking other methods to quash another story about Playboy Playmate of the Year Karen McDougal with whom Trump also had an extramarital affair was not in large part done to prevent new stories of negative media coverage of Trump circulating in the months, days, and weeks before the incredibly close 2016 presidential election, one which Trump only narrowly won and with decisive outside interference from Putin’s Kremlin (which I have explained in detail before), so any idea that keeping these stories secret and using illegal accounting methods to keep this from having to be reported to federal election oversight authorities is patently absurd, full stop: there is no rational way to view any payments or efforts to bury these stories in 2016 a decade or nearly a decade after their occurrence not in large part as substantive efforts to aid the Trump presidential campaign to defeat Hillary Clinton. Keeping such truthful scandalous stories about a candidate from appearing while voters are making up their minds and actually voting during early and absentee voting—regardless of any other reasons involved—is a massive boost to any campaign in any similar position, including Trump’s, and thus it is impossible to argue that the crimes of misreporting and concealing these financial moves are not directly related to clear violations of federal election law.
Think of it this way: imagine any candidate running for office engaging in illegal financial reporting to hide paying someone with whom that candidate has had an extramarital affair a decade ago and that this payment came at the height of that candidate’s political campaign, then consider the idea that the candidate would have done so at that time only for either or some combination of personal financial gain or to prevent personal damage to the candidate’s family to the exclusion of any political considerations… that second thought is simply nonsensical. An attempt to argue it was not designed at least in part to benefit the candidate politically is an impossible sell, then, given that even the most inexperienced consultants or students of politics would be well-aware of the political benefits of such an act and would have to know engaging in such behavior would bring about considerable political benefits to any American political campaign. Unlike other cases, here the intent-as-a-basis-for-arguing-innocence argument falls short in the realm of believability (as oppose to, say, considering Hillary Clinton’s e-mail/server woes under the Espionage Act). And, all things being equal, again, the 2016 election was so razor-thin-close that any significant alteration of its equation against Trump would have seen Clinton triumphant; thus, it is far from unreasonable to argue that one or more of these stories about Trump’s extramarital affairs breaking late in the 2016 election cycle could have swung the election to his opponent and thus spared the nation the insanity of Trump’s four years as president.
Less Hysterical, Still Wrong
The other type of commentary generally critiques the strategy or risks of the indictment, but these arguments are also logically well into absurdist territory.
We have one case now unfolding from the Manhattan DA Alvin Bragg, an elected Democrat, and another that has yet to drop an indictment from Fulton County, Georgia, from its elected Democratic District Attorney Fani Willis, one concerning efforts to overturn Georgia’s election results. A third investigation into Trump personally for his crimes related to Trump’s (ongoing!) insurrection campaign, his willful theft of classified materials, and his obstruction of justice in relation to returning them and to the relevant investigations is being handled by an apolitical Department of Justice appointee, Special Counsel Jack Smith, who has experience prosecuting war criminals at The Hague. A fourth $250 million civil case is targeting the Trump Organization, Donald Trump, Ivanka Trump, Donald Trump Jr., and Eric Trump, one conducted by elected Democratic New York State Attorney General Laetitia James (and for which even just today, Trump had to sit for some seven hours of deposition). There is also a civil rape case in New York involving Trump that is set to go to trial and a related defamation case, both brought by his accuser E. Jean Carroll.
While three of the four government officials leading the government cases are elected as Democrats and the fourth is appointed by the Democratic Biden Administration’s appointed and U.S.-Senate-confirmed U.S. Attorney General Merrick Garland, it is horribly misleading to portray their investigations somehow as being carried out by or at the behest of Democratic Party, including the Democratic National Committee (DNC), elected Democratic legislators in Congress, or any political wing of the Democratic Party, let alone liberal media or political organizations. These are four separate investigations being carried out by two top local law enforcement officials (from Manhattan, a borough of New York City, and Fulton County in Georgia), one top state official for New York State, and one federal Special Counsel appointed by the U.S. Attorney General, and they are making their own separate decisions. While there may be some areas where there is overlap between the Manhattan and New York State probes into Trump Organization finances and between the Fulton County and Special Counsel probes as far as Trump’s efforts to overturn the election, the idea that they are coordinating between themselves or with Democratic Party organizations for political framing or advantage as to what, how, when, and if they will prosecute is not only entirely speculative and wholly without evidence, it goes contrary to how these things have worked over recent decades in the American justice system. While, as noted, there are certain overlapping areas of focus where different government prosecutorial offices might exchange notes or potential conflicts, anything beyond that, especially the idea that these prosecutors are working with Democratic Party leaders in Congress, with the White House, with state legislatures, with left-leaning or leftist media outlets and figures, or with national, state, or local Democratic Party organizations at all, let alone in concert for some sort of political strategy for the coming elections, goes contrary to how these investigations have operated by and large for decades.
(As an aside, let’s contrast this against zealous Independent Counsel Kenneth Starr’s 1990s investigations of the Clintons when they were in the White House. It is because of Starr the that special counsel regulations were crafted to replace the independent counsel statute to avoid overreaching politicized witch-hunts like Starr’s, which proved none of the original alleged crimes for which it had begun but did uncover a salacious extramarital affair between then-President Bill Clinton and then-White House intern Monica Lewinsky, catching Clinton perjuring himself to cover up the affair, for which Clinton was impeached, a far lesser matter than the two Trump impeachments, in which some Republicans who were in office for Clinton’s impeachment had voted as representatives to impeach in 1998 or as senators to remove Clinton in 1999 but, tellingly, declined to vote to remove Trump from office as senators during his two far more serious Senate impeachment trials in 2020 and 2021; to add to the extreme irony, Starr himself was part of Trump’s defense team during his first Senate trial in 2020, further cementing who he really was to the public before he died in late 2022).
As opposed to Starr, we have nothing at all to suggest anything other than that Alvin Bragg simply finished his investigation and preparation first and, therefore, filed his indictment first: anyone suggesting otherwise, the burden of proof is on them and no proof has emerged.
So when people suggest that “the Democrats” are not putting their best foot forward by going with these charges first, they are grossly mischaracterizing how these things work in this country. This is not some coordinated political campaign, and language suggesting that is deeply corrosive to the public’s trust in our institutions of justice, indeed, this destruction of faith in institutions is a lesser side of the coin that Republicans are explicitly screaming and that is one of the key hallmarks of its Trumpism as well as being a disturbing rising trend on the Bernie Sanders-left. Just assuming bad faith and corruption without strong evidence to support that supposition—in such an unwarranted manner from the beginning before the processes even plays out—is dangerous, and can culminate in even far worse than what we saw on January 6 with the failed insurrection-coup attempt.
What people on the left and other principled Trump critics need to understand, then, is that when they criticize “the Democrats” for supposedly overplaying a political hand in reference to these separate investigations, they are adding fuel to the same fire of cynicism about our institutions that fuels Trumpism’s fascist populism. The other officials will file their indictments if and when they are ready, but each case will rise of fall based on its own evidence and its own merits, regardless to what any of the other cases lead. One or more cases may ultimately inform one or more of the others, but they are still their own cases and suggesting otherwise is detrimental to “the rule of law and not of men.”
And the issues surrounding Trump’s first indictment are “serious.” Especially considering that all this is related to essentially cheating in the 2016 election, no one should view these charges as “weak” or “minor;” as I argued above, the political dimension is not “alleged” or a supposition: it is central to the financial crimes committed just before the 2016 election to suppress decade-old infidelities with a pornstar and a Playmate in a way that substantially politically benefitted the campaign of a candidate in Trump whose most loyal voters were Evangelical Christians (even more so than for George W. Bush, who was himself an Evangelical).
Republicans know this, so does Trump, and they are worried regardless of their gaslighting claiming the opposite. Why else would drama-queen (this is objective, as he seems to have as his default tone “yell”) Trump devotee and powerful Republican Jim Jordan, preposterously the Chairman of the House Judiciary Committee, be trying to run unconstitutional interference from Congress already on Bragg’s case, for which Bragg has just sued Jordan, making it clear his Manhattan District Attorney’s office will not tolerate such brazen challenges to the rule of law (see the detailed 50-page filing submitted by Bragg: he brought receipts!)? If it is no big deal, why not let a free airing of the evidence in the case prove Trump’s innocence, as a failure to convict would surely help Trump? The answer is fear that the case may actually turn out to be strong.
As to the order of the charges, why not begin with the earliest of Trump’s crimes? Yale professor, lawyer, and former FBI counterintelligence agent Asha Rangappa adroitly points out that Trump’s crimes for which he has been indicted by the Manhattan DA are the first in a series of major crimes all related to skewing or overturning the outcomes of his elections, followed by accepting Russian malign assistance during the campaign, by his attempts to get Ukraine’s President Volodymyr Zelensky to damage Joe Biden politically with a false pretense of an “investigation” in exchange for military aid that had already been approved by Congress (including the Javelin anti-tank missiles that have been so crucial for Ukraine in defeating Russia’s current military onslaught), and the whole series of efforts to overturn the 2020 election through actions such as attempting to pressure Georgia’s Secretary of State Brad Raffensperger to “find” Trump votes (see my interview with Sec. Raffensperger conducted just a few days before that “perfect phone call”) and fostering a violent coup-insurrection attempt against Congress, the peaceful transfer of power, and our constitutional order. In pointing out the linked nature of these offenses and cases, Professor Rangappa obliterates both the argument against the timing of Bragg’s indictment and the idea that the crimes laid out by the indictment are minor, exaggerated, or not worth pursuing.
Rangappa also did an excellent job putting out the structure and merit of Bragg’s case in visual form, whether involving federal election violations or not:
In terms of thinking we should not pursue justice and uphold the law against a man who is wholly unrepentant, still pursuing his crimes, and is obviously still a clear and present danger to our democracy (as in, not behaving at all the way Richard Nixon did after he resigned), well, there is a word for using the threat of violence to affect a political outcome in this way, and that word is terrorism.
When it comes to the idea that choosing to prosecute Trump is opening a Pandora’s Box, I do not take this lightly at all and I have done my own detailed research on how political witch-hunt prosecutions in the ancient Roman Republic (including threatened against Julius Caesar himself) helped to launch a spiral of extreme partisanship that destroyed the Republic’s democracy and brought about the autocratic Roman Empire. But it is not the choosing to prosecute Trump that is the problem: it is that Trump, unlike any predecessor, has committed such criminal activity outside the bounds of misguided policy and very much about his own personal self-centered conduct, that he is so unrepentant and continues to advertise he will further his crimes, that he makes not prosecuting him worse than prosecuting him as far as the consequences for our nation.
And the idea that Republicans might politically persecute Democrats mainly because of what Bragg and other prosecutors do now is farcical: since Bill Clinton’s first presidential campaign, Republicans have been abusing their power in pursuit of political witch-hunts for decades regardless of what investigations or prosecutions are being pursued now against Trump and are obviously already ready to abuse their power with enough numbers on their side in the way people strangely consider hypothetical or dependent on the Trump prosecutions…
Republicans Are the Actual Witch-Hunters
And let’s be honest and more detailed about the track record here:
- Republicans tried going after Bill Clinton for nearly purely partisan political reasons while he was in office and, again, found nothing related to the serious allegations against him.
- They “investigated” Hillary Clinton more intensely than Watergate for “Benghazi” (but really about her e-mails and server), but the nine Republican-driven/led investigations concerning her role in Benghazi were unable to uncover any serious wrongdoing by or fault with Clinton on Benghazi, while James Comey’s FBI correctly determined that Clinton’s issues around her e-mails and server did not warrant a criminal prosecution, however much Comey erred in other ways.
- Trump’s partisan attorney general, Bill Barr—as part of his interference and smearing of the Mueller probe and other legitimate probes into Trump—authorized another partisan in eventual Special Counsel John Durham to investigate the investigators of Trump, an investigation endlessly hyped by right-wing Trumpist media but that failed miserably: of three cases Durham brought, two went to trail with indictments accusing the defendants of lying to the FBI—one filed against Igor Danchenko, a source for the Steele dossier, and another filed against Michael Sussmann, a cybersecurity lawyer who had been working for Hillary Clinton’s presidential campaign—both embarrassingly ending in unanimous acquittals by the juries and not convictions. A third case resulted in a plea deal for an FBI lawyer at the time of the matters in question in which the lawyer, Kevin Clinesmith, pleaded guilty to altering a single email related to the FISA court actions towards the Trump campaign staffer Carter Page (whose incredible sketchiness I have previously outlined); the federal judge overseeing the plea deal agreed with an earlier Justice Department Inspector General conclusion there was no political bias behind the actions of Clinesmith and believed Clinesmith’s assertion that he believed at the time that the information he inserted into the email was accurate and that he did not know it was erroneous, with the judge only sentencing Clinesmith to probation and no prison time. Thus, over three cases involving one judge sentencing and two juries, the claims of a “deep state” bias against Trump and Republicans turned out to be nonexistent, yet Durham’s whimper of a probe lasted for close to four years and cost taxpayers $6.5 million by at least late December 2022; if there was such a conspiracy, Durham would have found it with that much time and effort and he most certainly did not.
- In contrast, Special Counsel Robert Mueller found a lot of damning evidence of collusion and achieved successful convictions or plea deals against thirty-four individuals and three companies with sentences including prison time for multiple targets of these cases; a referred case ended in an additional guilty plea deal for a thirty-fifth individual.
- Trump eventually pardoned three of the more high-profile individuals against whom Mueller earned convictions—Michael Flynn, Roger Stone, and Paul Manafort—as well as two less- prominent individuals Mueller had convicted—George Papadopoulos and Alex van der Zwaan—a clear assault on the rule of law in encouraging others to commit crimes on Trump’s behalf in exchange for presidential pardons.
- It needs to also be noted here also that throughout his time as would-be president, candidate, and would-be president again, Trump has repeatedly threatened or tried to use the government to persecute his political enemies beyond his and his people’s efforts to pressure Zelensky to “investigate” Biden, leading to Trump’s first impeachment. Even now, he is atrociously calling for Alvin Bragg to be prosecuted for daring to indict him and is calling to “defund” the FBI and U.S. Department of Justice alongside other Republican allies of his.
Conclusion: Do Better, Media
One recent New York Times article proclaimed in its headline “Biden Has the Oval Office. But Trump Has Center Stage,” seemingly blithely unaware of its own leading role in creating a self-fulfilling prophecy of any kind of news coverage environment resembling its own proclamation. Much of the mainstream press seems blithely unaware of the damage these narratives they are parroting may inflict (as it is wont to do), while Trump and his allies know how damaging these narratives can be and seek to inflict that damage to further their ends, regardless of the costs to our democracy.
The simple facts are these: before the indictment was unsealed, there was far too much mindless speculation about what would or would not be in it when we would clearly eventually know once it was unsealed and, before that, time could have been far-better spent on other topics; now, with the indictment released, there is far too much mindless speculation about the quality of the case and the evidence that has yet to be presented to the jury. No one would sanely ask the jury to make a decision before seeing the full presentation of the prosecution and the defense, so no one should ask audiences to that now, just as they should not have speculated ad nauseum about an indictment before it became unsealed. The press can and must do better, and it can start by not giving any more than just a little bit of airtime to these ludicrous and dangerous “hot takes,” if only to swat them down rather than to give them credence. Then again, the press is already back to covering Trump’s plane on tarmacs and his motorcade, and, for much of 2022, the press was speculating about the 2024 presidential race, so expectations should not be high.
In the end, Bragg’s case may not be the strongest of all the cases arrayed against Trump, but that is not terribly important and Bragg has yet to fully play his hand. When it does finally get presented, the evidence may very well still be damning and more than enough to erase any “reasonable doubt” as to the illegality of Trump’s financial shenanigans surrounding his hush money payments and their clear link to Trump’s political efforts to attain the presidency in 2016, and commentary that is prematurely dismissive of these realities or of the case’s potential should not be aired or taken seriously by anyone. If somehow the case fails, that will not because of anything Trump partisans can know yet before the trial and presentation of evidence takes place, and that should be noted any time such partisan blind utterances are spewed. Ultimately, given what we know so far and the arguments and context I have endorsed herein, when the wheels of justice are finally done turning in this case, it will likely not be a good result for Trump.
What is certain besides the premature nature of the bad arguments criticized herein is that interfering with and attacking valid legal proceedings undermine our democracy, the rule of law, and the principle of equality before the law, all consequences Trump and his Republican Party overall sadly find more than acceptable as part of their pursuit of power and furthering of their illiberal, fascist agenda.
© 2023 Brian E. Frydenborg all rights reserved, permission required for republication, attributed quotations welcome
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