Bragg’s Bad Defense of Trump’s Impeachment

Manhattan District Attorney Alvin Bragg on May 30, 2024 in New York. (Spencer Platt/Getty Images)

Trump was convicted on 34 counts of falsifying business records with intent to conceal another crime. Alvin Bragg and his allies defend the prosecution as fair, but their defense is weak.

It is a weak defense of the Bragg prosecution to claim, as the New York Times columnist did, that it was based on a “mountain” of evidence, because a fair prosecution requires more than evidence. Similarly, it is a weak defense of the Bragg prosecution to claim that a jury of Trump’s peers reached a verdict, because a fair prosecution requires more than a jury verdict.

We would not say, for example, that the prosecution of Richard and Mildred Loving for violating Virginia’s 1924 law banning interracial marriage was fair, even though there was ample evidence that Richard was white and Mildred was black. Nor would we say that the conviction of Percival Coffin was fair when the judge refused to tell the jury that Coffin was innocent until proven guilty.

There can be no justice in a prosecution unless the law and the procedures used to enforce it are just. Evidence and jury verdicts are just two parts of the process that ensures justice, and if any part of that process is tainted, the outcome will be tainted as well.

The first step in this process is the writing and publication of laws. Laws are unjust if they are made unconstitutionally, are not known to the people they govern, do not identify what they prohibit, or require people to do something impossible. No jury can return a just verdict based on an unjust law, no matter how much evidence it sees.

The second step is enforcement. Enforcement is unjust when a government claims authority it does not possess, applies the law not to wrongdoings but to people it believes are wrongdoings, selectively spares its friends and targets its enemies, or fails to tell its target how it has broken the law. No jury can reach a just verdict against a man who is unjustly brought to trial, no matter how much evidence it has against him.

The third step is to try. A trial is unfair when due process is denied. If the judge is not impartial, the trial is unfair. If a judge allows the government to introduce unduly prejudicial or otherwise inadmissible evidence, the trial is unfair. If a man is denied the opportunity to present his best defense, the trial is unfair. If the judge incorrectly instructs the jury on the law, the trial is unfair. Only after all this does the jury show up. A jury may be open, impartial and fair, but none of this can cure the injustice that occurred before the jury’s deliberations.

In this case, Bragg and Judge Juan Merchan sentenced the trial before any evidence was presented and before the jury reached a verdict.

Bragg made a promise during the campaign to get his man, and once elected, he kept his word. To do that, he twisted and perverted the law to create a crime no one had ever seen before, and he didn’t tell Trump what that crime was until the end of the trial, when even then he presented not one but multiple theories for the jury to choose from.

Merchan is biased; he allowed Bragg to introduce irrelevant and highly prejudicial evidence; he denied Trump the right to call a witness necessary to rebut one of Bragg’s legal theories; he refused to sequester the jury and failed to properly instruct it on a key element of Bragg’s argument.

In the Trump trial, we can’t say the law was fair because we don’t know what the law was. And we can’t say the enforcement and process were fair without lying on all sides.

The criminal justice system strives for procedural justice, the best kind of justice that can be obtained this side of eternity. To achieve its goal, it must remain a process that transcends each of the people – judge, prosecutor, defendant – who participate in it. The moment a judge or prosecutor undermines a trial, even to catch just one man, it ceases to be a trial that transcends the people involved and becomes a tool no better than the person using it. Worse still, in this form his power to mete out injustice will be inversely proportional to his previous capacity to mete out justice. The great justice system, once broken, will become an instrument of great injustice.

Bragg and Merchan ignored procedure, took justice into their own biased and fallible hands, and inevitably caused injustice. Of course, they deny this, claiming to be staunch defenders of the rule of law, but it is now clear that they pay lip service to the rule of law only to destroy it.

They were not the first to act, but they struck hardest. It is not clear that the damage they have done to the rule of law can be repaired, at least not when so many Americans support and defend their mistake.