The conspiracy begins.
No, no, Donald Trump is not charged with conspiracy – which, as we’ll see, is the whole point. I speak of Manhattan DA Alvin Bragg’s conspiracy.
As I related in a column this morning, Bragg is an election denier. In the trial that began in earnest this morning, he and his assistant prosecutors are trying to hoodwink the jury into believing that they have formally accused Trump of stealing the 2016 election — as if that were an actionable criminal charge. That is why, after opening statements, they will reportedly call as their first witness, David Pecker — the former CEO of American Media Inc., which used to own the National Enquirer.
In point of fact, Bragg does not have an actionable criminal charge related to Trump’s supposed theft of the 2016 election. He needs to make it look like he does, though. Otherwise, the jury might wonder why, if Trump stole an election in 2016, the actual charges in the case — which are trivial business-records violations, not grand conspiracies — all took place in 2017, months after the 2016 election took place.
In the so-called Statement of Facts that Bragg penned and published in conjunction with the unsealing the grand jury’s indictment, the DA accuses former president Donald Trump of “scheming” to “suppress” politically damaging information. It is telling that Bragg uses the word “scheme” rather than “conspiracy,” and that he does so in a document he wrote.
I’ll repeat that because it bears noting: The grand jury did not accuse Trump of a “scheme” — much less a conspiracy — in its indictment. This is a matter of Bragg using a “Statement of Facts” he wrote in order to spin the grand jury’s indictment into a grand election-theft conspiracy that the grand jury did not actually charge.
Bragg cannot use the word conspiracy because a conspiracy is an agreement between two or more people to commit a crime. It is not a crime to suppress damaging information — that is something politicians do all the time. Withholding information is only a crime when there is a legal obligation to divulge the information. Politicians, of course, are not legally required to divulge extramarital affairs in political campaigns.
The DA’s invocation of the word scheme is of a piece with the media Democrat complex’s description of Trump’s trial as the “hush money” case, rather than the non-disclosure agreement (NDA) case. NDAs are legal — and what fun would it be to describe something legal done by Trump as, well, legal? So, they say “hush money”; it’s a pejorative term, used to makes NDAs sound sinister and unlawful.
Analogously, Trump, Pecker, and Michael Cohen had an agreement — a plan, if you will — to suppress politically damaging information about Trump. Specifically, they agreed to purchase from women who credibly claimed to have had affairs with Trump the exclusive rights to their stories, and then not publish those stories. This plan may have been unsavory — the underlying details about extramarital affairs that the three men hoped to bury were certainly unsavory. But it was not illegal.
Hence, Bragg brands this legal agreement as a scheme. That’s a loaded term, useful — especially when dealing with non-lawyers — in spinning a legal arrangement as if it were illegal. If the arrangement had actually been illegal, Bragg would not merely have described it as a conspiracy; he’d have asked the grand jury to charge it as a conspiracy. He didn’t because he could’t.
This leaves Bragg with a huge hole where his case is supposed to be.
The election-denier DA claims Trump stole the election in 2016. Obviously, if you stole something in 2016, a prosecutor would normally charge you with theft and the indictment would clearly state that the theft happened in 2016. Yet, although Bragg claims Trump stole the 2016 election, all 34 of the business-records crimes he’s charged occurred in 2017 (beginning in February 2017 — nearly four months after the election — and continuing monthly through December 2017).
You can’t steal something in 2016 by committing crimes in 2017 . . . which, naturally, is why Bragg doesn’t charge Trump with theft. He has no such evidence.
So here is Bragg’s conspiracy — the one he and his prosecutors are executing (with the indulgence of Judge Juan Merchan). David Pecker is being called as a witness, just as Trump’s former lawyer/fixer Michael Cohen will soon be called as a witness, to describe for the jury “a scheme to suppress information” — their discussions, apparently beginning in 2015, leading to the plan to purchase the rights to embarrassing information.
This is being done so the jury will hear about conduct — not charges, but lawful conduct — that occurred before the 2016 election. That lawful, uncharged conduct will be misleadingly presented as if it proved a crime — to wit, a conspiracy to steal the 2016 election. But it was not criminal conduct. The only charged conduct in the cases occurred after the 2016 election — the allegedly fraudulent falsification of business records.
Bragg & Co. will try to kick dust in the jury’s eyes by referring to federal election law. But it changes nothing. Payments for the NDAs were not campaign expenditures under those laws. That is why the federal authorities — who, unlike Bragg, are authorized by law to enforce those laws — did not charge Trump.
Bragg’s scheme — he likes that word, right? — is to hoodwink the jurors into believing that the lawful, pre-election conduct he will elicit from Pecker and Cohen was criminal, and that they can effectively convict Trump of a 2016 election-theft conspiracy by finding him guilty of alleged recordkeeping offenses that occurred in 2017, well after the election was over.
As I explain in this morning’s above-linked column, Trump’s “scheme” had zero impact on the 2016 election, particularly in Bragg’s jurisdiction, Manhattan, which Hillary Clinton carried by nearly 80 percent of the vote. By contrast, Bragg hopes his scheme will be decisive in its impact of the 2024 election. So you tell me which one is the more nefarious.