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“A prosecutor should not use improper considerations, such as partisan or political … considerations, in exercising discretion.” – The American Bar Association
There are 1,221 miles between Mar-a-Lago in Palm Beach, Florida, and Manhattan. There is also a world of difference in their crime rates.
New York City, of which Manhattan is a borough, is on track for well over 300 murders this year, over 1,200 rapes and over 14,000 robberies (defined as taking someone else’s property through violence). In an article last month, the New York Post pointed out that NYC had its most felonies in 15 years in 2022, 172,852 in total, up by 20% from 2021.
Palm Beach, a town with a permanent population of 9,000 (it increases during the winter months) is so safe that it is difficult to even find crime statistics for it. According to the best available data, it appears to have had zero murders in 2020, zero rapes and one robbery.
Yet, as you’re reading this, Alvin Bragg, chief prosecutor of NYC’s most densely populated borough, is trying his best to charge Trump with what everyone except Bragg thinks is, at worst, a misdemeanor.
For the non-lawyers out there, most states break crimes down into two main categories: misdemeanors and felonies. Felonies are serious crimes and run the gamut from murder (a class A felony in New York) to multiple DUIs (driving under the influence). Misdemeanors are less serious and involve things like drug possession (a class A misdemeanor) to protesting without a permit (class B).
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It’s extremely rare to see a first-time offender (as Trump would be if convicted) sentenced to even a day in jail over a misdemeanor, let alone one that doesn’t involve violence (no one is absolutely certain, but it appears Bragg is trying to charge Trump with falsifying business records to conceal a payment to a woman so that she wouldn’t talk about their sex life – she has since denied any relationship with Trump, and Trump’s former lawyer testified that he, not Trump, made the payment).
As a criminal defense attorney, I can tell you that very few people even get convicted of what they are charged with. I practice in Pennsylvania and, here, a case like this typically results in either the charges being dropped or the defendant pleading to a lower-level misdemeanor or summary offense (the equivalent of a traffic ticket) that doesn’t carry jail time.
What’s more, charging Trump with misdemeanor falsifying records violates the New York statute of limitations, which states that charges on that crime must be brought within two years of the crime’s commission. Statutes of limitations are important; they prevent an unscrupulous prosecutor from going after someone after evidence has long since disappeared, witness’ memories have faded and alibis have gone up in smoke.
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The time limit leaves Bragg with (likely) only one avenue forward – charging Trump with felony falsification of business records. Felony falsification falls into the lowest category of felony in New York (class E), and most first-time offenders would still avoid jail if charged with it – but it does carry a five-year limitation instead of two.
However, it also carries a high burden of proof. In order to show that Trump committed that felony, Bragg would have to show that Trump personally falsified records and did so in order to aid in the commission of another crime. Whether Bragg likes it or not, paying someone to shut up about an alleged affair isn’t a crime.
Some have speculated that the additional crime Bragg will allege is a federal campaign finance violation, i.e. that Trump was really using the money on behalf of his presidential campaign – but that’s absurd.
First, Bragg is a state prosecutor and can’t bring federal charges against Trump, nor can he show that Trump violated federal law unless Trump has been convicted of violating federal law. The U.S. Department of Justice looked into charging Trump with a campaign finance violation and didn’t bother because they thought the charges lacked merit.
Second, such a charge does lack merit. Proving that Trump only paid someone off in order to avoid embarrassment to his campaign (and not out of a desire to avoid personal embarrassment to himself and his family) is a steep legal hill to climb.
There is no way that Alvin Bragg, a Democrat in a crime-heavy city, would waste significant time or resources on prosecuting anyone else for what is, at worst, a nonviolent misdemeanor. No lawyer working in criminal law bats an eye over a client being charged with something like this. Barack Obama, had he lived in New York as a young man, could have been charged with the exact same level of misdemeanor for (by his own admission) getting high on drugs, but I don’t hear anyone whining about Obama getting off.
Bragg is targeting Trump. It’s called prosecutorial misconduct.
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