The Point of No Return

There is simply no choice but for the Right, and for Republican prosecutors in deep-red jurisdictions across the country, to prudentially and reasonably respond in kind.

The Roman historian Suetonius described Julius Caesar as timid and noncommittal as he initially approached the Rubicon River — a shallow and narrow waterway that, at the time, demarcated the boundary between Cisalpine Gaul and Italy proper — in January 49 B.C.E. In fact, the historian ultimately attributed Caesar’s decision to cross the waterway, precipitating a four-year civil war and ultimate Caesarian dictatorship, to the supernatural. Prior to crossing, again according to Suetonius, Caesar uttered the now-infamous phrase: “The die has been cast.”

While we cannot know for certain whether New York County District Attorney Alvin Bragg’s catastrophic decision to successfully indict and arraign a former president of the United States was partially attributable to an intervening apparition, we can reasonably conclude that the actions of this past week have cast a most woeful die for the trajectory of our decadent, declining republic. The 34-count formal indictment of former President Donald Trump, laughably meritless on the legal merits and scandalously imprudent on the broader political judgment, represents a genie that cannot, and will not, ever be returned to its bottle.

Much ink has already been spilled on the glaring legal deficiencies in Bragg’s case, which ought to be evident to any competent first-year law student and which had led Bragg’s predecessor Cyrus Vance Jr., U.S. prosecutors, and — in the not-so-distant past — Bragg himself to eschew prosecution. The underlying New York State crime that Trump allegedly violated and which is the exclusive crime invoked in the formal indictment, falsifying business records in the first degree, has a two-year statute of limitations under New York criminal law. The final alleged criminal bookkeeping action — a “hush money” payment to former porn star Stormy Daniels by former Trump “fixer,” and more recent convicted felon, Michael Cohen — was on Dec. 5, 2017. The statute of limitations thus tolled over three years ago. That alone should suffice to dismiss the case.

Bragg’s theory appears to be that he can somehow evade this, and simultaneously enhance the misdemeanor to a felony, by proving — beyond a reasonable doubt, naturally — that Trump’s bookkeeping falsifications were done in furtherance of another crime. But Bragg, remarkably, has not said what that crime is. It appears to be some amorphous combination of skirting federal campaign law and/or New York State election law, in the context of Trump’s successful 2016 presidential run; but the former has a five-year statute of limitations (thus also tolled) and is also well outside Bragg’s legitimate prosecutorial jurisdiction as a county district attorney, and the latter should not properly apply to a U.S. presidential candidate. Moreover, even ignoring the dispositive statute of limitations and jurisdictional issues, the very thing Bragg would need to prove to a jury “beyond a reasonable doubt” to secure the felony enhancement — that Trump directed Cohen to make the payments with the specific intent to benefit his 2016 presidential campaign — is rebutted by Cohen himself, who has testified under oath that Trump requested the payments to be made furtively to spare his family personal embarrassment.

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