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National Review
National Review
1 Apr 2023
Andrew C. McCarthy


NextImg:The Corner: What to Make of 34 Counts against Trump? That Bragg Just Needs One

The federal prosecutors and regulators, who actually have jurisdiction over and expertise in campaign-finance law, looked hard at the Stormy Daniels caper and decided it was worthy of a goose-egg — zero, zip, nada counts. And mind you, the Biden administration has been running the Justice Department for more than two years, and has been moving heaven and earth — now, with a special counsel appointed — to make a criminal case against former president Donald Trump. Still, with Biden prosecutors now responsible for enforcing federal law, Trump’s 2016 hush-money arrangement with the porn star who alleges a long-ago fling with him has resulted in 0 criminal counts.

Alvin Bragg is more accurately seen not as a law-enforcement official, but as an elected progressive Democrat who won his political office in one-party Manhattan by vowing to his progressive base that he would exploit the district attorney’s law-enforcement powers against Trump, the Democrats’ arch-nemesis. Unlike the feds, Bragg has no jurisdiction over or expertise in federal campaign-finance laws.

So, how’s this for a shocker? Bragg looked at exactly the same evidence as the feds did, and has decided it is worth 34 criminal counts. Not one or two — 34.

I have a short opinion column over at Fox News explaining this notorious prosecutorial abuse: the effort to camouflage with quantity what a criminal case lacks in quality — loading up a dubious case with charges to suggest to the jury that the defendant is a dangerous criminal even if the evidence of any one alleged crime is weak. The column excerpts Justice Department guidance that admonishes federal prosecutors to steer clear of this unseemly tactic.

Why is Bragg doing this? Because for him to “win” the case in the all-important political realm, the court of public opinion, he just needs a jury to convict on one count. Then, no matter how flimsy the case Bragg has presented, Trump will be branded a convicted felon. By contrast, Trump can only “win” if he prevails on all 34 counts.

Here is the way this game works. A prosecutor may have scant evidence that a person committed felonies as defined in penal law — i.e., proof beyond a reasonable doubt of all essential elements of a statutory offence — yet have copious evidence showing the defendant is a dissolute character. What can happen in such a case is that jurors who closely follow the law as instructed by the judge will want to acquit; jurors who are more emotionally moved by proof that the unpopular defendant is a scoundrel will want to find a rationale to convict — in effect, giving state prosecutors the benefit of the doubt, even though our due-process standards demand that the defendant be given the benefit of the doubt.

In such cases, juries can deadlock, resulting in a mistrial. Because trials are expensive, resource-intensive propositions for courts, government agencies, and taxpayers, the law frowns on mistrials. Judges thus sternly instruct juries who indicate that they are deadlocked that it is their civic duty to decide the case.

In that scenario, compromise verdicts are common. There is horse-trading between jurors bent on conviction and those who believe acquittal is the proper result. If the prosecutor has presented a weak case against a rogue, you might find jurors favoring acquittal agreeing to convict on one or a handful of counts, calculating that, by returning a lopsided number of not-guilty verdicts, they will have sent a strong message that the state’s case was unworthy and should not have been charged at all.

Bragg knows that jurors may draw that conclusion about his case. But he’s banking on the jurors’ not knowing that he only needs them to convict on one count to achieve his objective — which is a political objective, not a law-enforcement objective.

Bragg is inflating the number of counts, just like he is inflating trivial misdemeanors into ostensibly serious felonies, because he just needs one.