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

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Note:  An edited version of this post appeared earlier at American Thinker.

Manhattan DA Alvin Bragg’s indictment of Donald Trump is a Constitutional obscenity.  Bragg has crafted an indictment that denies Trump his most fundamental constitutional right, to know the criminal charges against him. That is a right with a 1,000 year old pedigree in English and American law.  It is the lawfare one would only expect in a banana republic, where the best interests of the powreful substitute for the law.  Then Bragg goes even a step further, rewriting New York law, a red flag if there ever was one.

Bragg and all others of his ilk – progressives who do not believe in the sanctity of the Constitution and laws, but only in their moral claim of a right to rule this nation – will succeed if not stopped AND punished.  There must be consequences for this, or they will take tyrannical power even if Donald Trump is exonerated.  Progressives are evil people who will not stop until they are made to stop with full and equal enforcement of the law.

In respect to this case, that means that, under the facts of this case, every single person in the criminal justice system who plays a role in this obscenity, from judge to prosecutors and others, must be punished with all of the force of law for their acts of sedition and treason.  They cannot be allowed to claim the protection of the same Constitution that they cynically violate with this obscenity. The Trump indictment is so significant, it will either spell the end of our nation if there are no consequences, or it will mark our nations start of a return to rule of law if there are.

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

Dershowitz left out one overwhelmingly important thing: Bragg denied Trump his most basic civil right; namely, to know the laws that the state claims he violated. This is huge, as this is how Bragg will drag out this circus to affect the 2024 election.

The first two paragraphs of Trump’s indictment are:

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

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 one 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.)

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]

When the Bill of Rights was drafted in 1789, the right to be informed of the nature and cause of the accusation was included in James Madison’s draft and, without recorded comment, became a part of the Sixth Amendment.

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.

Note that for a government actor to deny a person their Constitutional rights is a criminal act.  See 18 U.S.C. §§ 241-242

The problem with Bragg’s stage-managed indictment is hidden behind the 34 separate references to New York Penal Law §175.10 FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE. That law 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, the accused creates a fraudulent business records.  Two, the accused committs 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.

This morning, just before hitting publish on this article at Bookworm, I saw that Fox News ran their lead story on this issue.   The single most important part of that article was their questioning of Bragg.  It is beyond breathtaking:

When questioned by a reporter as to what the underlying crime the indictment fails to name is, Bragg replied in New York State, he does not have to.

“The indictment doesn’t specify it because the law does not so require,” he told the journalist.

That is complete bullshit.  It runs completely counter to the Constitution and all thousand years of English jurisprudence on due process of law that informs our Constitution.  This is beyond Soviet.  Even Lavrentiy Beria, Stalin’s Chief of the Secret Police, only said “Show me the man and I’ll show you the crime.”  Now progressives don’t even feel compelled to show the crime.

There is no common law of crimes in our modern era, whether in state or federal law; thus, for any violation of §175.10, Bragg must allege a second statutory crime. Alluding, as Bragg does, to bad acts and inviting Trump to wonder what that second crime might be is, to grossly understate the matter, criminally and constitutionally insufficient.

The reality is that there is no second crime.  As Andy McCarthy points out at NY Post:

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.

And therein lies the rub.  Bragg knows that to place a nonexistent crime in the text of the indictment would see this case thrown out immediately on a motion to dismiss.  So Bragg has crafted an indictment designed to obfuscate the fatal absence of a second crime for as long as possible so as to interfere in our national elections.

This is not a mistake or incompetence.  It is truly evil and a criminal travesty.  It is an outrageous violation of Trump’s constitutional right — and ours, given that this man is consequential to American politics — to know the crimes charged against him and a criminal, if not seditious and treasonous, attempt to manipulate an upcoming collection.  And yet, the horrible truth is that 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 succeed in their goals of manipulating our national elections on a scale Putin could not possibly imagine in his wettest of dreams.  To paraphrase Carl von Clauswitz, this lawfare is war on the United States “by other means.”

Now for a final observation on the indictment – in the charging paragraphs, Bragg has subtly rewritten §175.10 itself. Why?  I can assure you, any attorney claiming the violation of a law repeats precisely the text of that law in an indictment.  Yet in this case, Bragg curiously does not.

The text of the statute provides that misdemeanor bookkeeping fraud only becomes a felony when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”  Bragg removes that relationship between the bookkeeping fraud and the subsequent crime in the indictment, Bragg alleges that Trump acted “with intent to defraud and intent to commit another crime . . .”  That is a giant red flag.

Folks, it is an absolute truism that, when progressives rewrite a statute, there’s a reason. They are either creating a new law to punish political enemies or they seek to exonerate progressives.  We saw a variant of the former when House Majority Leader Nancy Pelosi managed to create an impeachment process that wrote out the requirement of due process of law for the defendant (see here, here, here, and here) —something unprecedented in the thousand year history of impeachment at English and American law.  As to the latter,  the best example was when FBI Director James Comey brazenly announced a new standard of intent for a criminal violation of our security laws, outrageously letting Hillary Clinton escape criminal accountability.

Our Constitution was built for a people acting in good faith. But there is no more good faith in this country, and the worst of the bad actors are progressive politicians, jurists and prosecutors. We must return this nation to one of equal justice under the law or, in a decade, this nation will be no more.

Part of that effort must be to hold progressives liable for violating the law and to fairly punish their abuses. No judge and no state or federal prosecutor should be able to claim immunity for denying Americans of any political ideology their most basic civil rights.  Indeed, such actions threaten to tear apart our nation and lead to civil war.  They should be treated as actionable treason. Such judges and prosecutors — (let alone politicians such as Pelosi and government employees such as Comey) —  should be afforded all the rights of due process of law, tried before an unbiasesd jury, and if found guilty, executed.

Update:  John Solomon points out today a truly stark example of what a dual standard of justice looks like, with progressives above the law and converatives below it:

In 2016, two New York-based candidates ran for president. Both listed expenses believed to be tied to their campaigns as legal bills. One, Hillary Clinton, walked away with a fine and no prosecution. The other, Donald J. Trump, is facing trial on 34 felonies in Manhattan state court.

The differing treatments of Clinton and Trump for transactions that are now nearly seven years old has reinvigorated a raging debate about whether America has drifted into a two-tier system of justice rife with seemingly double standards.. . .

Our nation can not long survive this assault on the Constitution.

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