NRPLUS MEMBER ARTICLE O ne of the mantras of Democrats and their media voices in response to Manhattan district attorney Alvin Bragg’s indictment of Donald Trump has been that “no one is above the law.” That’s a fine sentiment, but there are three very big problems with Democrats making this argument: They don’t believe it, they don’t mean the same thing by “law” as the rest of us, and Alvin Bragg is about the worst possible representative for the theory that violations of the law will never be tolerated.
In particular, I never want to hear another word — not another syllable — about how “nobody is above the law” from people who spent years on end telling us that perjury and obstruction of justice by the president should not lead to consequences because it was “just about a blow job.” I never want to hear this from people who professed to be horrified by “lock her up” chants on the theory that one should never call for jailing political opponents even when they have violated specific federal criminal statutes regarding the handling of sensitive information — least of all in defense of a prosecutor who ran for office publicly promising to go after this particular political opponent of his. I never want to hear it from people who said that the vice president could break a federal law without consequence so long as there was “no controlling legal authority” interpreting the law. I certainly do not want to hear this from people who are, even today, arguing that the president can get away with breaking the law and seizing the powers of Congress to give away half a trillion dollars of our money to his supporters so long as he can argue that nobody has standing to sue him in federal court.
Consider a sampling of statements by Democrats on the Trump indictment:
I could go on, but you get the idea. If a memo didn’t literally go out, it may as well have.
This is not how Democrats talk about the law when one of their own is in the crosshairs. The most obvious and glaring parallel is Bill Clinton’s perjury. At the time, the all-but-uniform argument among Democrats was that the Clinton impeachment was “just about sex,” as if covering up a sexual affair is somehow a defense to breaking the law. On the simplest charge against Clinton, perjury in his civil deposition, there really was no question that Clinton lied under oath about his affair with Monica Lewinsky. He did so again in the grand jury. And yet, we were told that he should be neither prosecuted nor impeached, and that even investigating him for this was a terrible affront because he was the president.
Democrats were united in treating Clinton as being above the law against perjury, even though federal judges had previously been removed from office for committing perjury and filing false documents such as income-tax returns. Two hundred of the 205 House Democrats voted against impeachment. Every single Democrat in the Senate — every last one — voted for acquittal on all charges. That includes five Senate Democrats who are still there (Durbin, Patty Murray, Dianne Feinstein, Jack Reed, and Ron Wyden); it includes prominent Democrats who were in the House then, including Pelosi, Neal, Lee, Chuck Schumer, and Ed Markey; and it includes Joe Biden.
In his closing speech, Durbin argued that senators should focus on the partisan motives of Republicans bringing the charges: “When I listen to Paul Sarbanes recount the painstaking efforts to avoid partisanship during the impeachment hearing on President Nixon, it is a stark contrast to the committee process which voted these articles of impeachment against President Clinton. . . . The American people clearly believe that the process which brings him before us in this trial was too partisan, too unfair, too suspect.”
Biden literally argued that presidents should be judged by different standards:
We have heard it argued repeatedly that the Constitution does not create different standards for judges and the President. But that argument fails to comprehend the organizing principle of our constitutional system — the separation of powers. The framers divided the power of the Federal Government into three branches in order to safeguard liberty. This innovation — the envy of every Nation on earth — can only serve its fundamental purpose if each branch remains strong and independent of the others.
We needed a President who was independent enough to spearhead and sign the Civil Rights Act. We needed a President who was independent enough to lead the Nation and the world in the Persian gulf war. We still need an independent President.
The constitutional scholarship overwhelmingly recognizes that the fundamental structural commitment to separation of powers requires us to view the President as different than a Federal judge.
Consider our power to discipline and even expel an individual Senator. In such a case, we do not remove the head of a separate branch and so do not threaten the constitutional balance of powers. To remove a President is to decapitate another branch and to undermine the independence necessary for it to fulfill its constitutional role.
Only a President is chosen by the people in a national election. No Senator, no Representative can make this claim. To remove a duly elected President clashes with democratic principles in a way that simply has no constitutional parallel. By contrast, there is nothing antidemocratic in the Senate removing a judge who was appointed and not elected by the people. [Emphasis added.]
In remarks at the National Press Club in November 1998, Biden warned that enforcing the law against a president without scrupulous fairness could undermine public confidence:
The American people have a greater right than all of you. They have a greater right than the Congress, they have a greater right in the press as an institution, they have a greater right than the Senate. They have a greater right than any other single institution to make their own judgment. And they have made that judgment. And when we are going to take away. . . . We better be darn sure . . . that we can convince them that we’re doing it on the merits, as called for by the law and the Constitution and doing it fairly, for if we do not, we will further undermine the confidence in the American people in a democratic system that we have, and that’s all it runs on. The moment we lose the confidence of the American people that the system meets their needs is the day we lose our legitimacy.
He also argued that Kenneth Starr had gone too far in insisting that the law must be vindicated:
The grand jury system has been around for hundreds of years. . . . No one has ever pushed it to the limits that this man has. And what I worry about is what [a legal scholar] said to me. . . . He said Joe, remember, everything that is constitutionally permissible, is not necessarily wise, and everything, every exercise of power by a single branch of government is not necessarily prudent. No one in my view has pushed the envelope as far as this man has. And I think that is — I won’t say dangerous — I think that’s imprudent.
Clinton, in the end, was not removed from office. He was not prosecuted. The only legal consequence he faced was a brief suspension of his law license in Arkansas. He was welcomed back to speak at the Democratic convention in 2012, and there was nary a peep at returning him to the White House when his wife and vocal defender was the Democrats’ presidential nominee in 2016. In the years since, even as progressives have developed post hoc qualms about Clinton’s predatory sexual behavior, scarcely any Democrat or any liberal or progressive commentator has argued that Clinton should have been prosecuted. When Kenneth Starr died in September 2022, there were no rethinkings or apologies for the period in which, as the Associated Press obituary accurately put it, “The White House pilloried Starr as a right-wing fanatic doing the bidding of Republicans bent on destroying the president.” It remains the position of most Democrats to this day that a federal prosecutor had no business investigating the president for a flagrant violation of an unambiguous federal criminal law.
If anything, Starr’s case against Clinton was much stronger than Bragg’s case against Trump. I will delve back into the precise details of New York’s false-business-records law when we see the indictment, but there are two fundamental and related differences between the law against perjury and the law against false business records, and they boil down to the questions of clear notice of the law and who exactly was harmed.
First, notice and clarity. I do not argue that former presidents should be above the law. They have no special immunity from prosecution. But Biden had a point in 1998-99: Presidents occupy a unique role in our system, which makes them very tempting targets for creative prosecutors, and which could easily touch off a cycle of partisan retribution. And our laws have expanded in complexity and vagueness in all manner of ways that give prosecutors too much discretion in deciding whom to investigate and charge. What should be true of every American citizen should be particularly true in the first-ever criminal prosecution of a former president:
If Trump — before, during, or after his presidency — unambiguously broke a clear law for which an ordinary person would be prosecuted, such as shooting someone in the middle of Fifth Avenue, [the Manhattan district attorney] would have a duty to prosecute him. But trumped-up charges against former leaders are a familiar sight in banana republics, one that America has thus far avoided. Mounting a prosecution against a former president — especially a former president who was investigated extensively in office without the bringing of charges by the self-styled “Resistance” — is a grave step for the nation and its confidence in the rule of law. That Rubicon should be crossed only on the basis of a case that can be easily explained and shown to people outside of deep-blue Manhattan as a well-known and traditional crime.
When you learn criminal law in law school, you learn the distinction between crimes that are malum in se and malum prohibitum. This is fancy Latin for things that are crimes because they universally recognized as bad acts, and things that are bad because they are against the law. The distinction tends to break down as a legal doctrine, but it is still a helpful way to think about the law. Murder, robbery, rape, fraud — these sorts of things have been banned by the law since Moses and Hammurabi, and in the English common law, many of them were treated as crimes even without the king or Parliament writing down a law against them. Every ordinary citizen knows without asking a lawyer or a policeman that stealing stuff is a crime.
Perjury may not quite be malum in se, but it is a simple and well-known crime, and any legal system that takes the testimony of witnesses needs a rule against lying on the stand. Most of us learn as kids from the first time we see a courtroom scene on TV or in the movies that you can get sent to jail for lying under oath. People get charged with perjury all the time. The decision not to charge Bill Clinton was a very public announcement that he, as the president, was above the law.
Falsifying business records is a very different thing. It is clearly on the malum prohibitum side of the line. It is easy to imagine a society that has no such law. One of the hallmarks of a malum prohibitum crime is that it is written without some of the traditional elements of common-law crimes. In a traditional common-law fraud case, for example, there must be a victim who relied on the lie and suffered damage. The statute intentionally omits these elements.
New York’s false-records law is what we might call a hybrid law: It requires proving a bunch of separately stitched-together elements, some of which are defined in other laws. Bragg, for example, is apparently going to try to rest his case on the theory that Trump was attempting to conceal a violation of the famously arcane and Byzantine federal campaign-finance rules. I doubt that the average New York attorney, let alone the average citizen, could define for you offhand what is and is not against the law under section 175 of the New York Penal Law.
That brings us to the other question: Who was harmed? In a perjury case, that’s easy. Bill Clinton was sued by Paula Jones, a subordinate employee during his tenure as governor of Arkansas, who claimed that he sexually harassed her with a fairly direct and crude pants-dropping proposition. Under the civil-discovery rules, Jones had the right to explore whether Clinton had done similar things to other women serving under him. When asked about Monica Lewinsky, Clinton lied and denied having “sexual relations” with her — after he reviewed an exhibit that explicitly defined “sexual relations” to include “contact with the genitalia” performed to “arouse or gratify the sexual desire of any person.” Jones’s lawsuit was dismissed not long after, but when Clinton’s perjury came to light, he settled the case on appeal for $850,000.
The harm from Clinton’s perjury was straightforward: Jones was entitled to develop truthful, relevant evidence in order to have her day in court. Her lawyers asked a direct question. Clinton could have quibbled with them, but he chose instead to stonewall and conceal the facts.
Here, the theory is that Michael Cohen made hush-money payments to Stormy Daniels to cover up Trump’s affair with her — all of which was entirely legal, however tawdry and dishonest — that Trump wrote checks to Cohen to reimburse him, that those checks falsely classified the payments as legal fees, and that they were accordingly entered as such on the books of the Trump Organization. Even under Section 175.10 of the Penal Law, the courts have still required prosecutors to prove that a false entry was “material” — that is, that it was important to someone who might review those books — and that the defendant had an “intent to defraud,” i.e., that he at least intended there to be a victim.
This is why the bulk of uses of the false-records law have involved insurance frauds, government-benefits frauds, tax evasion, or the like — situations in which the false record is presented to someone else in order to claim money from them. “Intent to defraud,” in the law, typically refers to defrauding someone of money or property. In one 1998 case, a New York court threw out a charge that a call-girl ring falsely classified payments for prostitution as payments for other services (such as a limousine). The prosecution said that this was a fraud on American Express, but American Express wouldn’t actually care what the bill said, so long as it got paid. As the court noted, the real targets of the deception would be the wives of men visiting prostitutes — not someone who was defrauded in a business transaction. The one major case where the false-records law was used against a campaign-finance violation involved a Brooklyn politician who received payments from a lobbyist that exceeded the legal limits under state campaign-finance law. This was money he wasn’t entitled to receive.
Who was harmed by what Trump wrote on his checks, or by what the Trump Organization wrote about the checks in its ledgers? Trump clearly never wanted anybody but Cohen and his accountants to see the checks. The Trump Organization isn’t a public company with innocent shareholders; Trump owns it. The Manhattan DA already abandoned an investigation into Trump defrauding his lenders, because they were big, sophisticated banks who knew who they were lending to and got paid back. The checks were written at a point when any campaign-finance reports covering that period wouldn’t be filed until after the election anyway. There are a couple of possible legal weak links in the case, including the statute of limitations and the question of whether the New York law can properly be read to allow a backdoor to enforcing Federal Election Commission regulations, but the one at the heart of the case is the flimsiness of the theory that these were material false statements aimed at defrauding anybody at all.
It is precisely in cases of such charges under artificially vague and hybrid laws that a prosecutor has maximum discretion to decide how far to stretch the law beyond its ordinary contours onto unprecedented ground. That is where a prosecutor should exercise that discretion with maximum judgment. To speak of that discretion as “the law” is to confuse the rule of law with the rule of lawyers. And it is a spectacular feat of chutzpah to do so in defense of Alvin Bragg, whose tenure as a prosecutor has been defined by his refusal to prosecute whole categories of violations of the law, while publicly pledging to pursue one particular man.
So, when these people talk about who is and isn’t “above the law,” remember: They don’t mean a word of it.