Bragg’s Lawfare Tears Apart A Thousand Years of Anglo-American Jurisprudence

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April 6, 2023

Manhattan DA Alvin Bragg’s indictment of Donald Trump is a constitutional obscenity. Bragg crafted an indictment that denies Trump his most fundamental constitutional right—one going back 1,000 years in Anglo-American jurisprudence— to know the criminal charges against him. Bragg goes still, rewriting New York law to “get Trump.” If this power grab isn’t stopped, with everyone involved in the case punished under the law, nothing will stand in the way of the leftist drive for total power.

Bragg’s entire career is about normalizing violent crime. Just crazy that he’s bringing this weak case in the middle of a presidential election. https://t.co/WN5DSCRQUP

— J.D. Vance (@JDVance1) April 4, 2023

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In the video below, Alan Dershowitz discusses most of the fatal substantive problems with Bragg’s indictment:

Dershowitz left out one overwhelmingly important thing Bragg denied Trump his most basic civil right: To know the laws he allegedly violated. This intentional omission will allow Bragg to keep the case going long enough to affect the 2024 election.

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The first two paragraphs of Trump’s indictment state:

THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, accuses the defendant of the crime of FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, in violation of Penal Law §175.10, committed as follows:

The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization. (Emphasis mine.)

The remaining 33 sections are duplicative, claiming that each bookkeeping entry and check repaying Michael Cohen for funding the Non-Disclosure Agreement with Stormy Daniels was a separate offense. So how does this deny Donald Trump “due process of law?”

Image: Alvin Bragg’s press conference. YouTube screen grab.

English law has recognized “Due process” for over a millennium. It means that all government entities must follow specific procedures to ensure that proceedings are fundamentally fair. It’s a constitutional bedrock, with our Fifth Amendment stating that the government cannot deny “a person of life, liberty, or property without due process of law….” Around a thousand years of legal decisions flesh out the details, but the Founders also elaborated on “due process” in the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation…. (Emphasis added.)

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Attorney Paul Rosenzweig explains the “arraignment clause” further:

The Constitution requires that an accused criminal defendant be informed of the nature of the charges against him. As Justice Hugo L. Black wrote in Cole v. Arkansas (1948):

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

[snip]

Initially, the function of the constitutional requirement was to provide the accused with adequate notice of the charges against him so that he could prepare a defense. As the concept of double jeopardy developed, the notice requirement came to serve the secondary purpose of allowing the accused to plead a prior acquittal as a bar to a second prosecution for the “same offense.” It also came to serve as a means of informing the court of the nature of the charges so that the court might determine their legal sufficiency.

[snip]

[I]ndictments are required to state clearly the statutory offense being charged, the courts routinely refuse to enforce the requirement by requiring hypertechnical specificity. Generally, a charging instrument will be sufficient if it recites the offense in the terms of the statute allegedly violated (including all the elements of the crime) and identifies the date of the offense and the individuals alleged to have violated the law.

Bragg hides this due process problem behind the 34 separate references to New York Penal Law §175.10 FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, which states:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. (Emphasis added.)

Thus, §175.10 involves two parts: one, creating fraudulent business records and, two, committing a second crime flowing directly from the business records fraud. Where is the second crime identified? In each of the 34 paragraphs alleging a felony, Bragg never sets forth the second crime.

Neither state nor federal law have “common law” crimes; they must all be statutory. Thus, to allege a first-degree violation of §175.10, Bragg must allege a second statutory crime. Bragg’s allusion to bad acts, which leaves Trump to wonder what that second crime might be, is criminally insufficient.

The reality, as Andrew McCarthy notes, is that there is no second crime:

Bragg is attempting to enforce either federal election laws that a state prosecutor lacks jurisdiction to enforce or state election laws that do not apply to US presidential elections.

Bragg surely knows that to place a nonexistent crime in the indictment would justify the case’s immediate dismissal. Therefore, he’s crafted an indictment designed to obfuscate that fatal omission.

This intentional conduct outrageously violates Trump’s constitutional right to know the crimes charged against him and is a criminal, if not treasonous, attempt to manipulate an upcoming election. Sadly, this will work under our legal system because that system presumes good faith in the first instance, no matter how outrageous the prosecutor and judge are. Unless some black swan event occurs, Bragg and his chosen judge will successfully manipulate our national elections in a way Putin or Xi could only dream of. To paraphrase Carl von Clausewitz, this lawfare is a war on the United States “by other means.”

Bragg didn’t stop there. He also subtly rewrote §175.10 itself. The tip-off is that Bragg didn’t quote the statutory language in the indictment. That’s almost certainly because the statute elevates a misdemeanor bookkeeping fraud to a felony only if “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” Bragg’s indictment removed that relationship between the bookkeeping fraud and the subsequent crime. He alleges that Trump acted “with intent to defraud and intent to commit another crime….”

When progressives rewrite a statute, there’s a reason. It’s either to punish conservatives or exonerate progressives. Regarding the former goal, Nancy Pelosi created an impeachment process that wrote out due process of law—something unprecedented in the thousand-year history of impeachment under Anglo-American law. As to the latter goal, the best example was when James Comey rewrote the criminal standard of intent for our security laws, letting Hillary Clinton escape criminal accountability.

Our Constitution was built for a people acting in good faith. Good faith is gone in America, though, with progressive jurists and prosecutors as the worst bad actors. We must return this nation to one of equal justice under the law or, in a decade, this nation will be no more.

To that end, we must hold progressives liable for violating the law and punish their abuses fairly. No state or federal judges or prosecutors should be able to claim immunity after denying Americans of any political ideology their most basic civil rights. Indeed, such actions threaten to tear apart our nation and should be treated as actionable treason. Such judges and prosecutors should be tried and, if found guilty, severely punished.

Wolf Howling is a pseudonym. He blogs at Bookworm Room.

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