Being powerful and influential should not render Trump immune from minor prosecution. On the contrary, it should make minor crimes more important.
Among the most infuriating critiques of Donald Trump’s indictment by Manhattan District Attorney Alvin Bragg is that the crime is “too minor” to merit the prosecution of someone as important as a former President.
I’ve heard variations on this argument from more sources than I can count. In his most recent podcast episode analyzing the indictment, former federal prosecutor Preet Bharara said that he put the proposal to his law school class at NYU: “If you had the same 34 misdemeanor counts against a former US President, would you prosecute,” and that the class unanimously said they would not. Bharara agreed.
Let’s start by condemning the unjust premise that powerful and prominent individuals should live by a different set of laws than the rest of us. I’m a regular listener to Bharara’s podcast, and earlier this year listened in horror as he and fellow former SDNY prosecutor Elie Honig flippantly agreed that wealthy and powerful people simply shouldn’t be prosecuted unless their crimes are severe.
Essentially, the laws on the books might be the same, but the practice of prosecutorial discretion has led to a culture where the law as written does not apply.
In Trump’s case, I think there’s a better argument. Here’s my thinking:
It’s already a given in our legal system that some kinds of theft are worse than others. Stealing twenty dollars is petty theft. Stealing a car is grand theft. Grand theft is pursued more aggressively, and punished more harshly, than petty theft.
What, then, is stealing the presidency?
Trump paid people off specifically to keep information secret that might hurt him with the voters. We know this because of the timing of the coverup — immediately following release of the Access Hollywood tape — and because he literally told people if they could drag out negotiations until after the election, he wouldn’t have to pay. He’ll likely make some argument that this was really about “keeping the truth from his family,” because that worked for John Edwards in a similar situation, but that’s nonsense and we all know it. This was about the election.