Ingrassia: Alvin Bragg’s Case Against President Trump Is A Total Scam With No Basis In Law, Fact, Or Reality
The weaponization of the rule of law has reached a point beyond repair in New York State, with the ongoing trial being waged by District Attorney Alvin Bragg against President Donald Trump. Even at this late hour, the State has failed to prove 1) how President Trump falsified business records; 2) how the alleged falsification of the business records scheme was criminal; and 3) why that alleged crime should be prosecuted as a felony, rather than a misdemeanor, which is the typical charge for falsification schemes under New York State Law.
Given that President Trump’s alleged wrongdoing is being treated as criminal misconduct, the burden of proof is for the State to prove that Donald Trump is guilty beyond a reasonable doubt for every single element of the asserted crime. The legal burden of proof of “beyond a reasonable doubt” means that the prosecution must convince the jury that “there is no other reasonable explanation that can come from the evidence presented at trial.” That incredibly high evidentiary threshold must be established for every single element of the crime alleged. What is more, criminal trials require unanimity on part of the jury; a hung jury will result in a mistrial, ultimately pushing the case back until after the November election, which is not what Bragg wants.
Obviously, the goal of Alvin Bragg and Letitia James is to prosecute – and put President Trump behind bars – as soon as possible (before election day ideally) to sabotage his chances of winning re-election. President Trump’s re-election appears increasingly like a foregone conclusion with the latest polls consistently putting him in a significant lead over Joe Biden.
President Trump is currently being tried under New York Penal Law 175.05. The law ordinarily makes it a misdemeanor, not a felony, to falsify business records with “intent to defraud.” The law permits, however, the District Attorney to upgrade what ordinarily would be considered a misdemeanor to a Class E felony if the intent to defraud is combined with an intent to commit another crime.
Of course, the State has a heavy burden of proof to show that President Trump intended to defraud in the first place, let alone defraud with an intent to commit some other yet undefinable crime. Paying off an adult film actress, if that even occurred, is not a crime under New York law. The idea, then, that a fraud was intended, let alone committed, by what is widely recognized to be, at worst, a mere “clerical error” in how the President’s accountant reported the alleged payment to the tax collector, is absurd.
Nobody seems to be asking who was lied to in this case – was it the public? The IRS? The FEC? Moreover, even if a reporting error constitutes a lie, the lie must have been done with the requisite intent to be considered a fraud under law. Errors in and of themselves hardly make a lie, let alone impute criminal fraud upon the one making the error.
If the State is attempting to argue, for instance, that President Trump’s accountant, lawyer, or (so the State’s theory goes) whoever intentionally misrepresented the hush money payment to defraud the public, the onus is still on Bragg and his team (which conveniently includes the Biden-DOJ political appointee, Matthew Colangelo) to show on what basis the injured party — here, “the people,” or public — would have relied on such fraud, resulting in a specified damage to them.
Under New York law, in order to prove fraud, the State must show, by clear and convincing evidence, each and every one of the following elements:
(1) a material misrepresentation or omission of fact;
(2) made by defendant with knowledge of its falsity;
(3) and intent to defraud;
(4) reasonable reliance on the part of the plaintiff; and
(5) resulting damage to the plaintiff.
The underlying assumption that appears to be working in the background and driving Bragg’s bogus fraud theory is that the public somehow would be damaged by the allegations of an extramarital affair implicating Donald Trump. But it is difficult to see just exactly what those damages are. Sure, one could, I suppose, entertain the view that a portion of President Trump’s voter base might have been alienated from voting for him if revelations of an affair came to light, but that is a rather incredulous sell. Moreover, a scandalized portion of President Trump’s voter base would only be indirectly related to this case, which, again, is not based on a hush money payment, but an alleged falsified business records scheme implicating a hush money payment that, on its own terms, has no legal significance, much less something that could impute criminality (let alone a felony) upon the perpetrator.
This is especially so, given how much we already know about President Trump’s personal life, his marriages, divorces, etc., etc., etc., which are thoroughly documented, and have long been part of the national conversation – and in the public record – decades before President Trump ever thought of descending that escalator and stepping foot into the political arena.
There is no such thing, really, in criminal law as “moral” damages – or damages afflicting one’s conscience because of moral scandal resulting from an illicit affair. But to the extent any damages at all stemming from the fraud perpetrated here exist, that would be it (what else could there possibly be?). The State cannot prosecute President Trump on economic damages resulting from the State being denied taxable money because of how the law was structured before the 2018 change in the law. At the time of President Trump’s tax filing, it was perfectly legal to write-off hush money payments for an affair – trying him now, on a theory of damages, based on the changed law encounters serious ex post facto and double jeopardy problems, both of which are obviously unconstitutional.
Should the State try to contend that moral damages resulted from the cover up, that argument would be even more ridiculous than believing that portions of President Trump’s voting base would not have supported him but for revelations of the fraud. The law already permits hush money payments for the type of conduct alleged in this case. Thus, the law patently does not track moral improprieties arising from extramarital affairs.
But let us assume, to play devil’s advocate, that the law did indict such misconduct. That would necessarily trigger at least two thorny, and as yet unresolved, legal questions – on what grounds do those alleged improprieties rise to the level of criminality? (A derivative of that first question is: does our society want to impute criminality – and potentially felonious criminality – upon extramarital sexual acts?)
The second question raised: what moral system is animating the asserted improprieties on which the criminality imputed in the law is based? If the moral system is deemed antiquated or no longer relevant in the eyes of public opinion, should not the law be considered illegitimate, and hence no longer operative?
In layman’s terms, it would be quite a riot to see Alvin Bragg condemn as criminal, and indeed a felony, extramarital conduct under the law. If so, Bragg would be acting with all the moral fervor of a pope during the Middle Ages!
Such self-righteous behavior is made even more laughable when placed against what is now happening to Bragg’s good buddies in Georgia, with Fani Willis and Nathan Wade, who were sleeping with one another, raising a massive and disqualifying conflict of interest, all the while their own prosecution against President Trump was taking place!
If what President Trump did regarding an alleged hush money payment is criminal conduct, under Bragg’s revanchist and morally hard-charged legal theory, then both Willis and her special counsel, Nathan Wade – and indeed, Joe Biden and Kamala Harris, by extension – should all be similarly prosecuted under Bragg’s construction for their own, far graver, moral transgressions and many sexual improprieties committed!
Another salient legal issue that Bragg appears to have just blithely swept under the rug with this case is why, exactly, should President Trump be held vicariously criminally liable for an alleged clerical error committed by his accountant or his attorney, Michael Cohen, or whoever might have been overseeing his tax filings at the time the write-off was made? If, as President Trump has said, that it was Michael Cohen, not him, who decided pay off Stormy Daniels, Bragg should be investigating Cohen and forcing him into court, not President Trump.
Bragg has also failed to establish how the alleged fraud rises to a felony. The District Attorney claims that President Trump somehow committed a felony – again, despite not having committed a fraud in the first place, for one, and not being the one to file his tax returns, for two – even though the black letter law (again, §175.05) incontrovertibly treats the alleged misconduct here as a misdemeanor, not a felony!
Under the relevant law, crimes brought under Penal Law 175.05 may arise to a felony if and only if the District Attorney can prove that the alleged misdemeanor occurred to perpetuate or cover up another crime. Bragg plainly states that another crime was committed concomitantly with the clerical error that he is calling a misdemeanor here. But what crime, pray tell, he interestingly, incredulously, does not say!
The reason he does not state the crime is that he is relying, ultimately, on the sensationalized aspect of a hush money payment to engender the public perception that adulterous activity, though immoral, constitutes a felony under the law, even though that is patently not the case! The idea is to exploit and manipulate public opinion, naturally recalcitrant (though perhaps less so nowadays than in years past) to the concept of extramarital affairs — and then conflate those received public biases and strong emotions with tangled legal theories of criminality, distorting the law and sowing both legal and moral confusion in the process.
If it were truly the case that extramarital conduct should be imputed with legal significance, then hush money payments, which necessarily run downstream from such misconduct, would likewise be treated as unlawful. But hush money payments are permissible under law, and have been permissible for ages. Because hush money payments are lawful, Bragg’s legal theory is dead in the water.
But, for Bragg, et al., it does not matter what the law actually says. For Bragg, all he has to rely upon is how the public feels about certain allegations – which he is hoping will be enough of a foundation to prosecute the President’s alleged misdemeanor as a felony, and therefore put him behind bars, even though there is absolutely no basis for any of his hogwash theory whatsoever in either fact or law!
I hate to be the bearer of bad news to Mr. Bragg, but public sentiment — good, bad, or indifferent — is rarely ever a barometer for whether the law should treat a particular act as criminal. Here, public sentiment has no bearing on the legality of any of the facts alleged. The problem for New York’s embattled District Attorney is that he is both logically inconsistent, to an egregious degree, and morally hypocritical in his selective use (ah! one might call, ‘weaponization’) of the law, as a sword, against President Trump.
This ultimately is reason why a critical percentage of the public, including many Independents and Democrats, see Bragg’s prosecution for what it is: an out-and-out persecution against his greatest political adversary.
There is no rhyme or reason to Bragg’s theory of the case, he is merely operating as a political apparatchik for the Biden Regime where he must get off on roleplaying as a tin-pot dictator to bring down Orange Hitler.
The whole thing is a sham, a farce, a scam, and a political scandal of an order of magnitude never seen before in American history. The case should be tossed out, and the public should treat Bragg, James, Judge Merchan, and the entire charade backing President Trump’s latest political persecution for the clown show it is – a flagrant abuse of the rule of law. A case that one never, ever should take seriously, because those bad-faith actors currently executing the Regime’s marching orders are every bit as bad and makeshift as the phony legal theories they espouse, certain in no time to be relegated to at most a forgotten footnote in this dark, dreary, dismal chapter of American history.
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