The first-ever criminal trial of a former U.S. president is over with a guilty verdict from a Manhattan jury.
The case has been remarkable in many ways. Not the least of these is the fact that the verdict is almost entirely irrelevant. Donald Trump will have to spend more money to overturn the verdict on appeal, and there will be a great deal said about how Secret Service agents are going to be accommodated at Rikers Island in the unlikely event that Justice Juan Merchan imposes jail time on a first-time record-keeping violator.
But in the real world, the guilty verdict won’t change anyone’s mind. Trump haters will be chanting “Felon! Felon!” with the same enthusiasm their opponents shouted “Lock her up!” in 2016. Anti-Trumpers will see this as justice long deferred for a man who’s guilty of virtually any crime you might name. Pro-Trumpers will be even more convinced (if that’s possible) that he’s the victim of the most vicious judicial campaign to destroy a political rival since … maybe ever.
And everyone else? Well, are any of them likely to be shocked that the man in the Access Hollywood tape had consensual sex with a porn star 20 years ago? Or that politicians and other celebrities try to keep bad stories out of the press? Um, Hunter Biden’s laptop, anyone?
The prosecution’s theories in the case were so complex and confusing, even down to what crime Trump was trying to conceal, that even the prosecutors couldn’t explain them clearly. They mashed together three New York misdemeanors and two federal statutes (over which they have no jurisdiction) to create a lurching, creaking, incomprehensible Frankenstein to befuddle and scare the 12 poor jurors who were told the fate of democracy depended on a guilty verdict.
I’ve been a lawyer for 40 years and a law professor for 25. I used to do white collar criminal defense, I’ve taught criminal law and criminal procedure, and now I teach most aspects of modern business law. I was so puzzled about the weirdness of the prosecution’s Rube Goldberg case that I spent my time during the trial working solely on a law review paper about the case, simply trying to understand what the prosecution’s theories might be. I confess I failed. I doubt any of the jurors could do better in the time they had.
District Attorney Alvin Bragg, whose political fortunes in New York got a big boost from the verdict, has claimed he wanted to show Trump “no one is above the law.” Really? Is there — and this is a serious question — any mobster, drug lord, serial killer, torture-rapist, child molester, Ponzi schemer, or pension-fund defrauder roaming New York streets on whom Bragg would have spent a tenth of the time, money, and resources he spent on getting Trump for a felony that is literally equal in seriousness to shoplifting a Gucci bag at Macy’s?
In the end, the most important thing about the case is that it was brought and wasn’t immediately thrown out to general ridicule.
No one, it’s true, is above the law. And going after powerful political figures for serious crimes is treating them like any other citizens. That’s admirable. They should have no special privileges.
On the other hand, targeting political rivals with charges based on novel theories so unprecedented and confusing that neither the prosecution nor the judge can explain them is very different. It’s singling them out for punishment that no ordinary citizen would face. None of the thousands of businesses in the Empire State have ever been charged under circumstances similar to those in the Trump case.
So this case takes us far beyond the usual American “here is the crime; who did it?” to the much less American “here is the guy we want to get; what can we charge him with?”
That was the McCarthy approach in the 1950s, and 20 years ago it was inconceivable that large swaths of the legal profession and the legacy media would think it a good thing. The legal profession has a long and often inspiring history of protecting people against abuses of political power, against crooked sheriffs, judges, and prosecutors who made up crimes with which to charge those they didn’t like. Law schools and lawyers were products of that.
But that’s gone by the board, apparently abandoned in the greater cause of getting Trump. Those on the Left have long argued that the system is rigged. This case will go a long way to convincing those on the Right that maybe their opponents have a point. We may be at a point where neither side of the political spectrum trusts the neutrality of the justice system. That doesn’t strike me as a good thing for society. When justice depends on who you are and who you support, the rule of law evaporates.
An illustration of this is the very profitable book written by one of the prosecutors in this case. It documents just a year in prosecutors’ Ahab-like seven-year pursuit of their great white whale. To a lawyer who values individual rights and the rule of law, the book is appalling. The avowed purpose is not to prosecute a crime, but to prosecute an individual for whatever they might possibly be able to find.
They viewed the actual elements of crimes and legal precedents as old-fashioned obstructions to their work rather than the rules that should govern their work. They showed contempt for the rights of defendants and witnesses. And they prized “creativity,” the author’s word, in ginning up ways to bend the law to get around minor quibbles such as the actual language of the statute.
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What makes the book far worse is that the author is proud of himself for his role in getting Trump. He and his colleagues undoubtedly are celebrating the verdict.
But it’s the rest of us who will be paying the price for the case. There are thousands of county and city prosecutors around the country, and there is no shortage of controversial politicians that some of them dislike. Any of these prosecutors can call a grand jury, find a friendly judge, and follow Bragg’s Manhattan playbook. Who’s likely to be the next target is anyone’s guess. But there will be one.
Frank Snyder is an executive professor of law at Texas A&M University School of Law.
