Bragg abuses law in prosecution of Trump

Josef Stalin’s secret police chief Lavrentiy Beria was notorious for hunting down real and imagined enemies of his patron. Beria once said, “Show me the man, and I’ll show you the crime.”

While Manhattan District Attorney Alvin Bragg is a far cry from Beria, his prosecution of Donald Trump has all the makings of a political rather than legal initiative.

Bragg accuses Trump of multiple felonies by joining a state misdemeanor business records charge with a potential other crime dealing with both federal and state election laws. Our country has two parallel systems of governance — state and federal — and therefore two parallel justice systems run by separate sovereigns, each with their own laws and prosecutors.

The New York State case of People v. Trump oversteps the boundaries of those systems by premising a state criminal prosecution on a purported federal criminal violation. Neither state nor federal law supports that concept, and if upheld it would undermine both legal systems with harsh and unpredictable consequences.

Trump is accused in state court of falsifying business records in the first degree. The crime consists of making false entries in the written records of a business with intent to defraud. It is upgraded to a felony if done to commit or conceal “another crime.”

Setting aside the significant definitional issues, this prosecution founders legally on the conflation of the two legal systems. The indictment itself never identifies the underlying “another crime,” although standard practice, and standard due process notice requirements demand prosecutors expressly inform the defendant of the crimes charged. Here, the prosecutors simply suggested several possible crimes to fill that gap.

Federal authorities chose to take no action on this issue, not even a civil regulatory violation. In legal briefs, prosecutors suggest this lack of federal action is no bar to a state prosecution since they need only prove the intent to violate federal law.

This is an even more disturbing proposition, since it would mean that any business record that might show an intent to violate any federal law, including federal misdemeanors, could be prosecuted as a New York felony.

In Bragg’s version of the law, he could prosecute federal income tax violations or federal national security laws. Strikingly, and contrary to arguments the Biden administration has made in U.S. Supreme Court, under Bragg’s interpretation local district attorneys could prosecute federal immigration law violations.

The illogic of Bragg’s position goes even further since his team asserts that literally any crime could serve as “another crime” to enhance the falsifying business records misdemeanor. Because this theory has no principle that would limit the definition of “another crime” to any specific set of crimes, other states’ crimes or even those of other countries would suffice.

Justice Juan Merchan denied the defense’s motion to dismiss but these issues will surely be ripe for appeal if Trump is convicted, though that would come after the November election.

As the late Justice Antonin Scalia wrote in another context, legislatures do not “hide elephants in mouseholes.” If New York prosecutors had such sweeping powers to import the whole of federal criminal enforcement powers into state criminal law, that would have been clearly stated by the State Legislature.

To the contrary, New York’s laws make no claims to federal criminal enforcement authority.

Bragg’s prosecution is a gross abuse of prosecutorial discretion. Somewhere, Lavrentiy Beria is smiling.

This guest essay reflects the views of John J. Faso, a member of the New York bar and a Republican who served as a member of Congress.