<\/p>\n

When Rudy Giuliani was pursuing his infamous Wall Street prosecutions in the 1980s, his aides\u00a0admitted<\/a><\/u>\u00a0that they were indicting people on \u201cnovel legal theories\u201d that had not been used before. A Giuliani lieutenant\u00a0bragged<\/a><\/u>\u00a0to a group of law students that prosecutors in his office<\/p>\n

\n\u2026were guilty of criminalizing technical offenses.\u00a0.\u00a0.\u00a0. Many of the prosecution theories we used were novel. Many of the statutes that we charged under.\u00a0.\u00a0. hadn\u2019t been charged as crimes before.\u00a0.\u00a0.\u00a0.We\u2019re looking to find the next areas of conduct that meets any sort of statutory definition of what criminal conduct is.\n<\/p><\/blockquote>\n

At that time, federal prosecutors were going after people like investment banker Michael Milken, but even they would have stopped at indicting a former president. That day is gone, however, and today we have Manhattan district attorney Alvin Bragg following what John Cassidy of the\u00a0New Yorker<\/a><\/em>\u00a0calls a \u201cnovel effort\u201d to combine both state and federal laws to create what clearly is a bill of attainder to convict Donald Trump of a crime. Even if the courts rule against Trump and permit the charges to stand\u2014and it is certain that Trump and Bragg will litigate the charges all the way to the Supreme Court themselves\u2014that does not change the fact that Bragg has cobbled a number of statutes together to create something the US Constitution forbids: a\u00a0bill of attainder<\/a><\/u>.<\/p>\n

The gist of the charges is as follows: (A) Donald Trump, who was running for president, authorized payment of $130,000 to a woman known as Stormy Daniels to keep her quiet about an affair between them, with Trump\u2019s lawyer Michael Cohen making the payments; (B) he listed the payments as a campaign finance expense and Cohen pleaded guilty to federal campaign fraud; (C) the Trump Company reimbursed Cohen for the payments and claimed them as a legal expense.<\/p>\n

Bragg is alleging that Trump approved these payments while breaking federal campaign law, which makes them a felony (under New York law, simply falsifying business records is a misdemeanor).\u00a0Writes<\/a><\/u>\u00a0attorney and\u00a0New York Times<\/em>\u00a0columnist David French:<\/p>\n

\nSo how can Trump be prosecuted?\u00a0If Bragg can prove<\/a><\/u>\u00a0that, contrary to New York State law, Trump falsified records when the \u201cintent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,\u201d he can prove that Trump committed a felony, and a felony not only carries stiffer penalties; it has a five-year statute of limitations.\n<\/p><\/blockquote>\n

He continues:<\/p>\n

\nBut what is the other crime that can convert a charge of records falsification to a felony? Most likely prosecutors will rely on an allegation of violating federal campaign finance law, specifically the claim that the hush money payments to Daniels were illegal campaign contributions. But this is also not a simple case to make: The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we\u2019re talking about a presidential election. A\u00a0federal statute<\/a><\/u>\u00a0expressly states that the relevant campaign finance laws \u201csupersede and pre-empt any provision of state law with respect to election to federal office.\u201d This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.\n<\/p><\/blockquote>\n

This is a problem because during the infamous \u201cRussiagate\u201d investigations, special prosecutors looked at this situation and concluded that the facts were too sketchy to charge Trump with breaking federal campaign laws. However, Bragg will be calling for a\u00a0state<\/em>\u00a0jury to conclude that Trump actually did break federal law\u2014something a state jury should not be doing. Because Trump was never charged with breaking campaign laws, there is now no legal way to claim he broke them.<\/p>\n

Bragg\u2019s entire case hinges upon this point, which is why French\u2014who clearly despises Trump and would rejoice if he were convicted of\u00a0something<\/em>\u2014advised against bringing state criminal charges in the first place. He writes:<\/p>\n

\nIt\u2019s no wonder that even Bragg\u2019s aggressive former prosecutor Mark Pomerantz was concerned that the Daniels case was,\u00a0as the New York Times <\/em>reported<\/a>, \u201ctoo risky under New York law.\u201d\u00a0A Reuters article<\/a><\/u>\u00a0described the legal theories supporting a prosecution for the Daniels payments as \u201cuntested.\u201d\u00a0A January New York Times <\/em>story<\/a>\u00a0also accurately called the theories \u201clargely untested.\u201d\n<\/p><\/blockquote>\n

Bragg\u2019s behavior is\u00a0much\u00a0<\/em>more reckless, given that he is cobbling state and federal statutes together to target a political figure roundly hated by the Democrats.<\/p>\n

While one can condemn Trump for the reckless behavior that brought about this situation in the first place, I would argue that Bragg\u2019s behavior is\u00a0much\u00a0<\/em>more reckless, given that he is cobbling state and federal statutes together to target a political figure roundly hated by the Democrats. Bragg is using criminal law for political purposes, and while such actions have a sorry history going back to the Franklin D. Roosevelt administration\u2019s hounding of critics of the New Deal, including former Treasury Secretary Andrew\u00a0Mellon<\/a><\/u>, they have no place under the rule of law.<\/p>\n

The\u00a0Wall Street Journal<\/em>\u00a0editorial board (unlike the\u00a0New York Times<\/em>\u00a0editorial board, which\u00a0prattled on<\/a><\/u>\u00a0about Trump \u201cnot being above the law\u201d)\u00a0recognized<\/a><\/u>\u00a0the greater danger of unleashing what it called a \u201cPandora\u2019s box\u201d that has \u201cpolitical ramifications that are unpredictable and probably destructive.\u201d This indictment, unfortunately, is politically\u00a0popular<\/a><\/u>\u00a0with Democrats (and some never-Trump Republicans), and the usual brakes that accompany political processes have been discarded in the hopes that the Great Orange Whale will see the inside of a prison cell.<\/p>\n

While Trump and his supporters will rightly argue that Bragg is manipulating the law in a special way to go after\u00a0one<\/em>\u00a0person, this case highlights greater abuses of the law attributable to what Candice E. Jackson and I\u00a0labeled<\/a><\/u>\u00a0almost twenty years ago as \u201cderivative crimes<\/a><\/u>.\u201d Under a \u201cderivative crime\u201d regime, which makes up the bulk of federal criminal statutes, a \u201ccrime\u201d such as \u201cracketeering\u201d is not defined as a specific act, but rather is\u00a0derived<\/em>\u00a0from other actions that may either be actual crimes or acts that someone might call criminal but do not break any laws.<\/p>\n

For example, Jackson and I described the RICO statutes in our 2004\u00a0Independent Review<\/a><\/em>\u00a0paper:<\/p>\n

\nThe \u201ccrimes\u201d under the RICO statute are essentially fictitious, created to enable federal authorities to avoid the state courts in which accused \u201cmobsters\u201d traditionally had been prosecuted. Because reputed \u201cmob\u201d figures were being acquitted in state courts\u2014often in the face of overwhelming evidence of guilt\u2014the government created a new set of \u201cderivative crimes,\u201d a class of offenses that by definition are derived from other criminal acts.\n<\/p><\/blockquote>\n

One does not \u201cracketeer\u201d anyone. Instead, the government permits federal prosecutors to present evidence of lawbreaking elsewhere, but the defendants are not charged with those crimes (such as extortion, murder, and robbery). Instead, they are charged with\u00a0racketeering<\/em>, which is derived from those other alleged actions. With derivative crimes, federal prosecutors were able to win cases against alleged organized crime figures such as\u00a0John Gotti,<\/a><\/u>\u00a0who was convicted in federal court of .\u00a0.\u00a0. racketeering.<\/p>\n

While the US Constitution forbids passage of bills of attainder, clever prosecutors find other ways of implementing them by piecing together various statutes to form criminal charges that are specifically aimed at one person. The conviction of Charles Keating, whose savings and loan business failed in the late 1980s, is a\u00a0case in point<\/a><\/u>. In a courtroom where the infamous Judge Lance Ito (of O.J. Simpson fame) was presiding, California prosecutors managed to get Keating convicted on yet another \u201cnovel\u201d legal theory, as noted by\u00a0Forbes<\/em>:<\/p>\n

\nThe results, as laid out by Roberts, are certainly disturbing. Savings and loan financier Charles H. Keating Jr. was convicted of the crime of employing fraudulent bond salesmen, even though there was no evidence he knew of their activities, and the crime was not on the books when he supposedly committed it. His conviction was overturned on constitutional grounds after he served 4 \u00bd years in jail.\n<\/p><\/blockquote>\n

One unique aspect of Trump\u2019s case is that state prosecutors are deriving their charges from federal criminal statutes instead of the other way around, but the particulars of this case are especially troubling, given the politics involved and the fact that Trump was never charged with breaking federal campaign law, much less convicted of it. In order for Bragg to gain a conviction, jurors will have to conclude that Trump\u00a0broke<\/em>\u00a0federal law, something that they are not legally entitled to do, given that lawbreaking never was demonstrated in\u00a0federal<\/em>\u00a0court. To put it another way, New York jurors are being asked to declare Trump guilty of a crime for which he never was charged.<\/p>\n

Trump will litigate the charges himself, making many of the same legal arguments that have appeared in this article. Note that these charges are also unique in New York legal history. That alone should give pause.<\/p>\n

There is no doubt that Trump will litigate the charges himself, making many of the same legal arguments that have appeared in this article. Note that these charges are also unique in New York legal history. That alone should give pause.<\/p>\n

As the\u00a0Wall Street Journal<\/em>\u00a0editors noted, this opens a true \u201cPandora\u2019s box\u201d that is going to have major ramifications for generations. If the Democrats manage to convict and imprison Trump, the rush to bring criminal charges for political reasons will not stop with him. Future Republican administrations, not to mention state prosecutors, will extract their revenge by going after Democratic politicians.<\/p>\n

This is a recipe for a banana republic. If Donald Trump has committed a real crime, then the authorities should charge him for it. Instead, the Democrats have decided that they want Trump in prison, and they don\u2019t care if they have to bend the legal system out of shape to get what they want. As I recently\u00a0wrote<\/a><\/u>, our political elites are unleashing an evil legal and political genie that once out cannot be put back into the lamp. They are sowing the wind, but all of us will reap the whirlwind.<\/p>\n

 <\/p>\n

\u00a0<\/em><\/p>\n

This was originally published by Mises Wire on April 1, 2023, under the title \u201c<\/em>With the Trump Indictment, America Is a Step Closer to Being a Banana Republic\u201d and is reprinted with permission.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Extreme misuse of law to target politicians sets up a horrifying precedent.<\/p>\n","protected":false},"author":56,"featured_media":9000,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_bbp_topic_count":0,"_bbp_reply_count":0,"_bbp_total_topic_count":0,"_bbp_total_reply_count":0,"_bbp_voice_count":0,"_bbp_anonymous_reply_count":0,"_bbp_topic_count_hidden":0,"_bbp_reply_count_hidden":0,"_bbp_forum_subforum_count":0,"footnotes":""},"categories":[5,9,31],"tags":[739,278,567,738],"class_list":["post-8998","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-art-of-living","category-politics","category-slider","tag-demo","tag-gop","tag-law","tag-republic"],"acf":[],"_links":{"self":[{"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/posts\/8998","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/users\/56"}],"replies":[{"embeddable":true,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/comments?post=8998"}],"version-history":[{"count":5,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/posts\/8998\/revisions"}],"predecessor-version":[{"id":9007,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/posts\/8998\/revisions\/9007"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/media\/9000"}],"wp:attachment":[{"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/media?parent=8998"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/categories?post=8998"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thesavvystreet.com\/wp-json\/wp\/v2\/tags?post=8998"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}