People gathered outside a Manhattan courthouse on March 21, 2023 in New York City. | Spencer Platt/Getty
A simple theory of when probes can be described as politicized — and whether the Manhattan DA’s case against Trump qualifies.
As someone who’s been covering investigations into leading political figures for the past decade, I’ve thought a lot about the politicization of the rule of law.
On the one hand, politicians shouldn’t be above the law — if they commit crimes, and there’s evidence to show that, they should be charged.
But on the other hand, criminal law shouldn’t be weaponized for political reasons against the opposing party’s enemies. When that happens in other countries, we generally view it as a sign of dysfunction or corruption.
So how do we know whether that’s happening?
Often, it’s harder than it may seem. Avid political partisans are very good at talking themselves into justifications for why their enemies are obviously criminals who deserve to be locked up, while their allies are clearly being unfairly persecuted with weak cases.
But I’ve come to think that prosecutions and investigations that can fairly be characterized as politicized tend to share several of the following traits:
They’re fishing expeditions — starting focused on one topic, and sprawling very far afield, often lasting years.
They focus on obscure or technical matters.
They feature novel legal theories.
They resemble few previous prosecutions.
Investigators are internally divided on the case’s strength.
They involve scrutiny and an investment of resources that would not have been put on anyone else.
Those in charge of them have obvious political motives.
The more politicized an investigation is, the more the end purpose seems to be to “get” a particular political figure, with the exact crimes at issue being a matter of secondary importance.
Many of these traits were evident in the investigations Trump tried to order into his political opponents during his presidency. Many were also present in investigations into Bill Clinton in the 1990s, which started as the “Whitewater” investigation and sprawled outward.
And they also all fit what’s been reported about Manhattan District Attorney Alvin Bragg’s investigation and prosecution of Donald Trump.
This indictment hasn’t yet been unsealed, so perhaps there’s something in it to change this assessment — but what we know so far does not exactly suggest this was an apolitical effort.
Why the Manhattan DA’s probe looks politicized (but other Trump investigations do not)
I’ll start by saying I’m not particularly inclined to defend Donald Trump as a sterling adherent to the rule of law.
The investigations into him — special counsel Jack Smith’s federal probes into Trump’s attempt to overturn Biden’s election win and his classified documents at Mar-a-Lago, as well as the Georgia probe into whether Trump tried to steal the election there — seem well-founded. Guess what? If you try to steal the election, you should be rigorously investigated and charged if the evidence and law merit it. But Alvin Bragg got there first.
Another caveat is that we don’t yet know the details of Bragg’s indictment — perhaps it will be rock-solid, convincing, and put many concerns to rest. But a whole lot has been reported about the background of the investigation itself — and much of it doesn’t look great.
Is it a fishing expedition? Arguably — it’s certainly been a tangled tale. The previous DA, Cyrus Vance Jr., opened the case back in 2019 to focus on hush money payments made to Stormy Daniels. Vance then put that aside and spent years probing the Trump Organization’s business practices, specifically regarding real estate valuation.
To try and make that case, he pressured Trump Organization Chief Financial Officer Allen Weisselberg to flip on Trump by charging him (and the company) with tax fraud related to fringe benefits Weisselberg had received. Then, when Bragg took over as DA last year, he wasn’t impressed by the real estate valuation case and put a hold on it, spurring two prosecutors to resign in protest. Bragg then returned to the hush money payments and indicted Trump based on that.
Does it focus on an obscure or technical matter? The charges reportedly pertain to New York business records law — and specifically about whether the Trump Organization’s repayments to Michael Cohen for $130,000 in hush money he’d paid Stormy Daniels were inappropriately logged as legal expenses. Obviously, a lot of people with opinions about this indictment, including me, have never given New York business records law a second thought before. The more small-scale charges like this after a long investigation seem, the more they suggest prosecutors landed on them because they tried to make a bigger case that didn’t pan out.
Does it feature novel legal theories? It may, in part. The business records law violation appears pretty open and shut. However, Bragg has reportedly wanted to charge it as a felony rather than a misdemeanor, and can only do so if the records were falsified to cover up another crime.
Federal prosecutors investigated the hush money as a violation of federal campaign finance law, but Bragg is a state prosecutor tasked with enforcing state law, and he reportedly explored several possibilities of crimes he could assert to justify the felony charge.
We don’t yet know what Bragg eventually decided. But the New York Times’s assessment a few weeks before the indictment came down was that “the case against the former president hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony.”
Does it resemble previous prosecutions? It’s unclear. Even the assertion that hush money payments violate the law at all — specifically, that they violate federal campaign finance law — is hotly debated. The closest precedent may be that Democratic politician John Edwards was indicted in 2011 with charges of violating campaign finance laws in connection with payments made to Rielle Hunter (whom he’d had an affair and fathered a child with), but he was acquitted on one count and the jury couldn’t reach a verdict on several others.
Are investigators internally divided on the case’s strength? Yes. This has been an unusually leaky investigation, with acrimony between members of the prosecution team frequently spilling into public view.
As mentioned, Bragg wasn’t impressed by the real estate valuation case that lead prosecutor Mark Pomerantz had been building, and Pomerantz resigned and wrote a book complaining about Bragg. This led others on the team to complain about Pomerantz to Ankush Khardori of New York Magazine.
One regular sticking point is Michael Cohen’s usefulness as a witness. Federal prosecutors looked into the hush money too, as recently as early 2021, and according to CNN legal analyst Elie Honig’s recent book Untouchable, they had mixed opinions about the case and ended up taking a pass.
Does it involve scrutiny and an investment of resources that would not have been put on anyone else? It’s hard for me to imagine that this years-long investment of resources into this topic would be brought against anyone other than Trump.
Do those bringing the case have obvious political motives? Bragg is an elected Democrat who, if he runs for another term, would be running in Democratic New York City. When he initially put the brakes on Vance’s investigation, he faced intense backlash from progressives who thought he was letting Trump off the hook. So, yes, he has a motive to get back on progressives’ good side.
Defending democracy and the rule of law?
Now, there is a difference between the politicized cases Trump wanted to bring against his political enemies, and this current situation, which is: Many liberals believe Donald Trump is a grave threat to democracy. (And I think they’re correct.)
The right has long tried to portray Trump as the victim of endless witch hunts from investigators. And of course, Republicans managed to convince themselves Hillary Clinton was tremendously dangerous for American democracy, too (remember the “Flight 93 election?”).
But again, Trump did go to extraordinary lengths to try and steal the 2020 election, which really should end all talk of him as some kind of unfairly persecuted innocent. A second Trump term, should he win, would probably also be quite dangerous for the rule of law.
Many liberals who have been hoping and arguing for Trump’s indictment seem to have this justification in mind, even if few will say it explicitly. In 2021, when it looked like Bragg’s predecessor, Vance, might bring charges, he was profiled in the New Yorker, and the former president’s niece Mary Trump weighed in. “It’s incredibly urgent that Vance prosecutes Donald now,” she said, because the Republican Party certainly wasn’t going to stop him.
Per this mindset, it would be naive to have academic concerns about politicization of the rule of law, when the nation’s continuing existence as a democracy is at stake. Find some crimes, and lock him up!
Maybe it will work — polls show that though most Americans say they think Bragg has political motives, most also think the investigation is significant and should disqualify Trump for office.
Or maybe this prosecution will backfire, spurring Republican voters to rally around him and easing his path to the GOP nomination, and making our country’s divisions even worse. We’ll find out soon enough.