I have written many pieces over the last few years about Donald Trump's criminal culpability and I've always believed that if he's never held accountable for any of it — either his shady business dealings or the numerous crimes against the Constitution that he committed while he was president — the nation may never recover. Trump's corruption is so blatant that if he gets away with all of it, it's impossible to see how there can be any more pretense of equal justice under the law.
Having said that, I've also written more than once that I'm just not optimistic.
Trump floods the zone with so much bizarre and unconventional behavior for a public figure that it becomes difficult to discern the difference between what is criminal, what is unethical and what is merely performance. In fact, his behavior is so extraordinary that I think it's convinced many of his followers that he must not be guilty of doing anything nefarious simply because he is so open about it. It's a neat trick.
I suspect this also spooks the legal system. He cultivated a combative public persona long before he entered politics. There was plenty of evidence that he was doing some extremely corrupt business deals, from running cons on unsuspecting marks to money laundering to doing backchannel deals with terrorist states for years. But there was a sense that nobody could be as ridiculously flamboyant as he was and still be a criminal. His clownishness was a form of shield.
As a politician, he's exchanged that for something much more powerful: tens of millions of committed followers who have, in turn, cowed out the entire Republican establishment and allowed Trump to beat back two impeachments. And then he leveraged that power to incite a violent insurrection in which those followers stormed the Capitol to stop the peaceful transfer of power.
He has already threatened to use that leverage again. At a January rally in Texas he bemoaned the legal investigations that plague him:
If these radical, vicious, racist prosecutors do anything wrong or illegal, I hope we are going to have in this country the biggest protests we have ever had in Washington, D.C., in New York, in Atlanta and elsewhere, because our country and our elections are corrupt. They're trying to put me in jail. These prosecutors are vicious, horrible people. They're racists and they're very sick. They're mentally sick. They're going after me without any protection of my rights by the Supreme Court or most other courts.
If you think it's strange that he's calling prosecutors who are investigating him, racists, it's because he's referring to the New York Attorney General Tish James, the Manhattan District Attorney Alvin Bragg and Georgia's Fulton County DA Fani Wallace, all of whom are Black. He doesn't use a dog whistle, he uses a bullhorn. He wants everyone to hear him, especially those prosecutors.
As far as we know, the civil case being pursued by James over Trump's business dealings is ongoing as is the investigation into Trump's pressure campaign to get officials to "find" enough votes in Georgia to overturn the election in 2020. But the criminal investigation in Manhattan, with which James' office was cooperating, has apparently fizzled, causing the two prosecutors who had been leading the probe to quit last month.
That case was considered by many to be one of the most important because it was looking into some of the practices used by Trump to fraudulently obtain loans from banks by over-inflating his assets and then cheat on his taxes by underestimating them. Before he left office, the previous DA indicted Trump's COO, Allen Weisselberg, and it had been anticipated that he would turn state's evidence and testify against his boss. That has not happened, which has led many legal observers to assume that without him they couldn't make the case that Trump knowingly committed fraud. Trump famously doesn't write anything down and is known to speak in a Godfather-style code so without a first hand witness, it was believed they probably didn't have the goods.
The New York Times released the resignation letter of one of the prosecutors Mark F. Pomerantz this week which throws some cold water on all those assumptions. We had learned from previous reports that when Bragg had assumed office after the last election that he had not been particularly interested in the case and had pretty much decided not to pursue it from the beginning. Pomerantz's letter makes it clear that he thought otherwise — and that Trump committed "numerous felonies."
Pomerantz wrote, "The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes — he did," and he said that he and Carey R. Dunne, the other senior prosecutor on the inquiry who resigned along with him, had planned to charge Trump with falsifying his financial statements which is a felony in New York. He said, "whatever the risks of bringing the case may be, I am convinced that a failure to prosecute will pose much greater risks in terms of public confidence in the fair administration of justice."
According to the Times, Bragg didn't believe they could prove that Trump "knowingly" inflated his assets, proof of yet another of his slick maneuvers to evade justice.
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Too many people believe that Trump is so eccentric that he probably believes all the lies he tells and has no idea when he's behaving in a criminal manner. I'm sure there's some truth to that, but I'm not sure why it should matter. The man had the most powerful job on earth. I think the law should expect him to know the difference between reality and fantasy.
Both Bragg and Pomerantz are the very best the American legal profession has to offer. Pomerantz is a specialist in white-collar crime with years of experience as a federal prosecutor. Bragg is equally qualified, with a similar background as an assistant US Attorney and Deputy NY Attorney General. There's no reason to believe that either are corrupt.
But it's easy to imagine that, despite the fact that it pertains to Trump's private business dealings, Bragg looked at the risk of taking on what is inherently a political case, thought of the immense blowback from Republicans and figured it just wasn't worth it for the crime of falsifying financial statements which is apparently common among the rich and shameless. And I'm sure it didn't escape Bragg's notice that over all the years Trump has been threatening to "lock up" Hillary Clinton, his opponents have been screaming that putting political rivals in jail is something that only banana republics do. Is there even the slightest chance that Trump and his minions wouldn't be throwing that exact line right back at them without the slightest shame?
In my mind, none of that is any excuse, although I can understand the dilemma.
Trump is a corrupt politician, a criminal businessman and a danger to our democratic system. I think it's outrageous that he keeps escaping serious consequences for any of that. But I'm afraid that even after all we witnessed and continue to learn about Trump's assault on our democracy and the threat he poses, there still isn't the will to stop him. It's clear that a report from the January 6th Committee or a civil case that costs him some money and some time isn't going to get the job done. Let's hope somebody, somewhere has the guts to hold him legally accountable.