INTERVIEW: The Trump Trap

By Reuvain Borchardt

Prof. Josh Blackman of South Texas College of Law Houston discusses the indictment obtained by Manhattan District Attorney Alvin Bragg on former President Donald Trump.

Tell us about this indictment the Manhattan DA got against Trump.

The allegation is that Trump, through his associate, Michael Cohen, paid money to try to keep certain embarrassing information from coming out in 2016.

The argument was that if embarrassing information had come out during that presidential campaign, it could have hurt Trump’s election chances — and so this money was paid to help Trump win the election. Generally, any sort of contribution made to a campaign to help the campaign has to be reported to the government, and Trump and Cohen didn’t report these payments.

Those sorts of charges would typically be brought by federal prosecutors who would allege that Trump didn’t comply with federal campaign-finance laws. But here, the charges were brought by a prosecutor in Manhattan, arguing that Trump failed to keep proper business records, which is a state crime. And then they sort of enhance that fairly minor misdemeanor to a felony by saying that the failure to keep the business records were a way to pursue a bigger crime, which was the campaign-finance violation. That’s the basic gist of the charge.

The payment was allegedly made in 2016; how did the DA avoid a statute-of-limitation issue?

The statute of limitations is a little tricky. New York has this weird law that says that every day you’re not in New York doesn’t count toward the statute of limitations. And Trump has spent the last six years in Florida and D.C. So if you use that reasoning, the statute of  limitations has been paused forever. If there’s a felony, it’s a longer limitation period, but I don’t think they needed to rely on that.

So the underlying crime here, the campaign-finance violation, is a federal crime. Are you aware of any other case, in New York or any other jurisdiction, where a state prosecutor brings such a case, where the underlying crime is a federal crime?

I’m not aware of one. It’s very rare to have to connect that — in fact, some argue that Bragg can’t rely on this federal offense.

And it’s not clear that Trump broke the law. The Merrick Garland DoJ already looked into this. They could have brought charges against Trump on federal campaign finance law, but didn’t, which suggests that this was either a risky case or that Trump didn’t break the law.

So how was this payment filed on Trump’s books, if not as a campaign payment?

There was some record of the payments made, but it didn’t specify what it was for.

What’s your opinion of the indictment?

Bragg’s predecessor, Cy Vance, decided this wasn’t worth bringing, and a number of people in Bragg’s office said this is not worth bringing, but I think Bragg’s a politician. He’s facing pressure. If he didn’t bring the charges, he’d probably be primaried out of office. And I think he found some lawyers who signed off on this, to bring it to a grand jury, and to get an indictment, which is not very hard.

He doesn’t have to win the case. This will be in litigation for years; he’ll be sitting pretty.

But I think this was a mistake to bring.

There were so many other charges against Trump that have more substance. This was perhaps the weakest of all the cases. You have a case in Georgia, you have one in DC, a special counsel thing. This was the weakest one.

Bragg initially hesitated to bring a case against Trump — and then some of his prosecutors resigned.

That’s right. They were pressuring him to bring these claims.

As you alluded to, Trump’s facing three other investigations: one in Georgia, one in Washington, and one over the documents in Mar-a-Lago. Can you discuss those, and whether this indictment makes it more likely that those might be brought?

It’s who’s first to file, so to speak. They got Trump on this one, and now it makes it a little bit easier for the others to bring cases, because going against a former President is a big deal, but that hurdle’s been cleared. So Bragg sort of broke the ice.

The Georgia one concerns election fraud, and the allegation that Trump called the secretary of state of Georgia and told him to “find” some more votes. That grand jury has been finished some time ago. The grand jury foreperson went on TV and made ridiculous statements about Trump. But the DA can bring charges anytime — and maybe she won’t because it’s too risky. Maybe she doesn’t want to lose. There’s an old expression, “If you shoot the king, don’t miss.”

If you go up against Trump and he wins, it makes him so much stronger. He’ll look invincible.

But the issue is, it’s less clear that Trump was actually having the requisite criminal intent.

I’m from New York. I know how Trump speaks. I know how New Yorkers speak. And I think what he’s getting at is that the machines are rigged, there’s nonsense going on, the votes are somewhere, just find the votes they haven’t counted yet.

“Find votes” doesn’t necessarily mean “manufacture votes.”

Then we have the Mar-a-Lago case, and this one, I think, is most risky for Trump, because obstruction is an easy claim to bring. The government asked for some papers, Trump said, I’ll give ’em to you, and it turns out he didn’t. There are a lot of sort of ticky-tack charges you can bring potentially, and that one is probably the easiest of all of them to bring.

Then there’s the January 6 investigation in Washington, which is just a complete disaster. But that’s an attempt to sort of piece through Trump’s state of mind, which is just very risky. This special counsel, Jack Smith, might think it’s worthwhile, maybe not, but indicting the President on insurrection charges when no one else has been charged with insurrection, you know, we had a couple of the Proud Boys charged with seditious conspiracy, but there were no insurrection charges. So I think there’s a lot of risk there.

Trump encouraged the January 6 protesters to march to the Capitol, but he did say they would do it “peacefully and patriotically.”

There’s evidence pro and con, but there’s no guarantee to get convictions.

And the idea of trying Trump in Manhattan or DC is insane. There’s no way the man will get a fair trial. He’s hated there. You can’t find an unbiased jury in those jurisdictions.

I saw Trump said that he wants to transfer it to Staten Island, which is my hometown, so I started chuckling! In D.C., Trump got like 5% of the vote. There’s no way it’s a fair jury trial there.

The right to trial by a jury of your peers doesn’t necessarily mean of your political peers.

Right.

At his press conference after Trump was booked, Bragg was talking about how Manhattan is a major financial center and that going after financial crimes is a fairly typical part of the work of the Manhattan DA. Do you buy that?

[Laughs] No.

Trump said let’s go find some votes, and Bragg said let’s go find something to indict him on. He looked for something and he found something. This is not the kind of usual charge you would bring.

Alan Dershowitz frequently quotes Lavrentiy Beria, Stalin’s NKVD chief, who famously said, “Show me the man and I’ll show you the crime,” as it relates to Bragg, or Attorney General Letitia James, that they just want to get Trump somehow, to prevent him from being President again.

This is actually the best thing to happen to Trump’s campaign. He seems to be doing better now. He’s fundraising. More people think he’s being attacked. If this was trying to harm Trump politically, I don’t think it’s going to prevail.

Trump has been going after the judge publicly. Do you think this is a good strategy?

Trump always does that. No, it’s not a good strategy, but the judge can’t hold it against him. So he sort of has a free pass unless the judge tries to muzzle him.

The judge is not allowed to hold it against him. But the judge is human. Do you think it could hurt Trump with the judge? Or do you think it’s possible the judge may subconsciously now bend over backward to show he’s not anti-Trump? Or will it have no effect?

Trump’s been attacking judges his entire life. You never know how that plays out, because let’s say the judge makes a statement on the record, that could be a ground for appeal.

So, you know, Trump’s going to do what he’s going to do.

Once we’re talking, and I know you follow the Supreme Court closely and Clarence Thomas is one of your favorite justices, I’d like to ask you about recent revelations (reported in ProPublica) that Thomas accepted luxury vacations from a wealthy friend, Harlan Crow. While the gifts were not illegal and perhaps didn’t have to be reported, some say it was unethical for Thomas to accept them and not report it. What do you think of all this?

You have to look at each of the allegations separately. Some of them are pretty minor, some are more serious, others are somewhere in between. It’s not clear that Thomas had to disclose the travel before the rules changed. Now, whether you have to do it or you do it as a matter of public disclosure, are different stories. I would err on the side of disclosing stuff rather than not. But then again, Thomas probably doesn’t want people harassing his friends. Most people are allowed to stay friends with whomever they want. But if you’re a Supreme Court justice, you’re restricted. You have to disclose everything, potentially.

Now you have to disclose, under new rules that were not in place when Thomas took those vacations.

It probably wasn’t clear, but you can always do more. The more recent story about Thomas selling the house to Crow, I think Thomas just messed up. This was a paper he filed like eight or nine years ago; he was under the impression that if he took a loss on the sale he didn’t have to disclose it. That was wrong. He’s amending his filings.

When you put Thomas under a microscope, you find stuff that doesn’t look good. Maybe if you have other people under the microscope, it also looks ugly. But I would hope that Thomas would be very careful with his future disclosures, maybe go back and review some of the older ones and try to err on the side of doing more, not less. Nothing he’s done is illegal. There’s no argument that what he’s done has resulted in bias or conflict of interest. It’s just better to avoid these sorts of issues.

Do you think Congress has a right to make laws about Supreme Court disclosures, or would that be violation of separation of powers?

I don’t buy this argument that there’s a separation-of-powers issue. I’ve never found it very persuasive. There are already statutes on recusal for the Supreme Court, which have been on the books for decades. I would say, though, that the rules for conflicts of interest in the Supreme Court need to be different than rules for conflict of interest on the lower courts. The reason is that if a lower-court judge has a conflict of interest, you just pick another judge out of a hat, no big deal. But if a Supreme Court justice has to be recused, you’re down to eight, and you don’t have a full court. So the rules have to be more permissive there.

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rborchardt@hamodia.com