Trump Indicted

Breaking down the former president's indictment.

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Reuters

Indictment

Well, it happened. Donald Trump was indicted by a Manhattan grand jury on Thursday, becoming the first former President to be indicted. This was widely reported, and those following the situation have been just waiting for when the indictment would drop.

I purposely haven’t talked about it because a) it hadn’t happened yet and b) because I am so sick of talking/thinking about Donald Trump that I was hoping the indictment would not come and I could continue to write about substantive stuff. But, I guess this is how I’ll be spending my free time this week (yes, free time because in spite of the high-quality nature of these newsletters, they don’t pay the bills, so become a paid subscriber and maybe they will one day).

Let’s start with the basics. What is an indictment? When a prosecutor gets wind that a crime has been committed, that prosecutor will start to investigate said crime by collecting evidence. After collecting evidence, the prosecutor presents that evidence to a grand jury (group of 16-23 fellow citizens). The grand jury will weigh the evidence (sometimes investigating themselves to discover more potential evidence) and then decide whether there is enough evidence to charge the suspect with a crime.

If the grand jury determines that there is enough evidence, it will issue an indictment, which is a formal accusation or charge of a crime. It is a legal document that typically includes the name of the accused, a description of the alleged offense, and the laws or statutes that were violated.

It is important to note that an indictment does not mean the person alleged to have committed a crime is guilty. There is a saying that prosecutors could indict a ham sandwich if they wanted to because prosecutors have immense power to persuade a group of regular citizens that do not have legal expertise. In order to convict someone (find them guilty) of a crime, the prosecutor must prove beyond a reasonable doubt that the person being charged with the crime did, in fact, commit it.

With this indictment, Donald Trump will now have to turn himself in (or refuse and be arrested), get fingerprinted, and take a mugshot before going on trial or striking a plea deal.

What is the Allegation?

So, what crime is Donald Trump being accused of committing? The indictment is sealed right now, so the public doesn’t know what exactly the charges are, but there has been a lot of reporting about what the Manhattan DA was investigating and what the charges likely are.

And this is where things get a little more complicated. During the 2016 election campaign, Michael Cohen, a Trump ally, paid Stormy Daniels, a pornstar, $130,000 to keep quiet about an affair she had with Donald Trump back in 2006. Cohen was charged in 2018 for this, as it was deemed an illegal campaign contribution. Cohen claimed that the $130,000 payment was coordinated and directed by Donald Trump.

It is then alleged that Donald Trump paid Cohen $420,000 in various installments to pay Cohen back and provide him with a bonus for his work. The Manhattan District Attorney is alleging that these payments were “falsely accounted,” a form of business fraud, by labeling them “legal expenses” when their primary purpose was to influence the 2016 election. Falsifying business records is a state crime and misdemeanor in New York.

However, falsifying business records could become a felony if it was done in order to cover up another crime. In this case, the other crime would be a violation of campaign finance laws. So, the Manhattan DA would have to prove that Trump falsified business records with the intention of covering up a violation of campaign finance laws.

If convicted, Trump would face a sentence of a minimum of one year and as many as four years.

My Thoughts

First, I am not a lawyer, so most of my thoughts regarding the legality of all of this are heavily dependent on those who are lawyers. From my understanding, the legal maneuver to turn the falsifying business records misdemeanor into a felony is novel and flimsy at best. Trump has never been convicted of breaking the campaign finance laws that the Manhattan DA is claiming he did, and New York, being a state and not the Federal Government, cannot convict Trump of that crime. This means the Manhattan DA has to convince a jury that Trump is guilty of falsifying business records with the intent of covering up an uncharged and unproven federal violation. It’s questionable whether an uncharged and unproven federal violation even counts as “another crime” in New York state law.

If, somehow, the Manhattan DA is able to pull off that legal maneuver, he would still have to prove that Trump broke federal campaign finance laws and intended to cover it up by falsifying business records. This seems doubtful considering the law itself is so complex that it still remains unclear whether paying off a mistress breaks the law. As former FEC (Federal Election Commission) Chairman Bradley Smith wrote in a 2018 Reason essay, "But at a minimum, it is unclear whether paying blackmail to a mistress is 'for the purpose of influencing an election,' and so must be paid with campaign funds, or a 'personal use,' and so prohibited from being paid with campaign funds." How could Trump knowingly and willfully cover up this crime when it’s unclear that it’s a crime to the Federal Election Commission Chairman himself?

Again, this case is a reach at best.

That doesn’t mean that Trump will avoid conviction. It’s possible that the jury dislikes Trump to the point that they ignore the legal arguments simply to put him behind bars; however, I find that outcome to be unlikely.

Though unlikely, I desperately hope that outcome does not come to fruition. I think it is vitally important that the law is not bent or twisted in ways to punish people who are deemed undesirable. No matter how undesirable or abhorrent that person or their views are.

To be clear, I believe Trump is a morally abhorrent person.

As I wrote a little over a year ago,

The reality is that Trump is and has been a person of low moral character. He’s had multiple affairs, paid off a pornstar not to talk about their affair, talked about sexually assaulting women, childishly name called, among other things. To be clear, Trump did not just “send some mean tweets” like many will trivialize but participated in abhorrent behavior as defined by any orthodox Christian perspective with no admission of wrong. Not to mention, he is narcissistic, childish, exaggerates/lies, and refuses to acknowledge error. Even by most non-Christians, these behaviors and characteristics are deemed unethical.

This isn’t a defense of Trump as a person but a defense of the rule of law. When the rights of even morally abhorrent people are protected, that is a win for everybody. The government shouldn’t get to pick and choose who gets rights and who doesn’t. Those considered morally abhorrent and those considered morally admirable are both created in the image of God with inalienable rights that the government ought to protect.

With that said the weak legal case against Trump does not exonerate him morally from his actions. It is largely undisputed (though, Trump denies the affair) that Trump did indeed have an affair with a pornstar and then paid her money to keep quiet. He may not have committed a crime, but he did commit an outrageously immoral act. An act that he won’t even acknowledge happened, let alone demonstrate any sort of repentance. Recognizing that this legal case is fraught with problems should not equate to a pardoning of Trump’s behavior and his lack of repentance.

I dare say it should even be a disqualifying action from ever holding public office again.

There is one last point that I want to make about this whole ordeal. Much has been written that this is a dangerous precedent to indict a former president and/or presidential nominee for one of the major political parties. I disagree with this notion.

One of the most remarkable aspects of America is that the leaders of our country do not have a special legal status or title once they leave political office. Donald Trump is merely another citizen like you and me. I even despise it when former politicians are called by their former titles. For example, I will never say “President Trump” when referring to Donald Trump because he is no longer president.

That’s not to say that this indictment is not political; the entire investigation has been political from the start. However, the fact that the man who used to be the most powerful person on the planet is now going to face average, everyday citizens in New York is simply remarkable. For the vast majority of human history, this would never have happened.

Again, I think this indictment is nonsense and deeply political, but the fact that average citizens of the United States are the ones that get to make the determination of guilt should not be taken for granted.

God Bless,

Hunter Burnett