D.A. Alvin Bragg Unseals 34 Felony Counts

“The task for politicians is to give politics a rest, as our nation is undergoing a stress-test the likes of which even Richard Nixon was exempted from. Our Republic need not have gotten to this day, as we ought not have had January 6th. It is time to be American first, and party-politician second. America is made up of all Americans, and we need political E Pluribus Unum more than ever to remain the United States of America, and not become, as Senator Joe Manchin recently said: divided States of America.”

In our nearly 250 year history, since our exceptional birth and Constitution, we have proudly said: we are a nation of laws, not men. Today, on that secular alter of justice, Manhattan District Attorney Alvin Bragg held up former President Donald John Trump, duly indicted with 34 felony counts, as “Exhibit A” proving that truly “no one is above the law.” The Manhattan DA’s office has been occupied by Giants, each of whom made history: Tom Dewey, Frank Hogan, Robert M. Morgenthau (my dear friend and mentor), Cyrus Roberts Vance, Jr., and now Alvin Leonard Bragg, Jr.

Leaving politics aside, there ought be no joy in the heart of any American that a former American President stands criminally charged – no matter whether you love Trump or hate him. Indeed, it’s painful, perhaps, even more than January 6th, that a former President violated his personal oath to honor the rule of law. That Justice will prevail, and Mr. Trump will be afforded every Constitutional right that every American gets, including, presumptive-innocence and the all-powerful right to confront the witnesses against him is something we, as Americans, are uniquely proud of. After all, these legal and constitutional rights protect citizens from preventing anyone in Government – who may seek to violate Lincoln’s promise that our government is “of, by and for” the people – run roughshod over any one of us.

These 34 Felony Counts Are All about “Mens Rea” and the “Upgrade”

The 34 counts are business record-based, which is to say that the “bad act” part of each crime is nearly incontrovertible, leaving open for advocacy only the “bad mind,” or “mens rea,” to prove the crime was committed beyond a reasonable doubt. Normally, the Prosecutor has to prove both the “bad act” and the “bad mind” beyond a reasonable doubt to a fair and impartial jury of twelve.

The additional legal challenge for DA Bragg here is to prove the “upgrading” of normal misdemeanor business record-charges into felony charges due to: “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.” And, for that, DA Bragg, in his press conference post-plea, said the “other crime” was New York State election law violation as well as a violation of federal campaign contribution limits. He need not prove both; just proving one of the two will be enough to “upgrade” the misdemeanor into a “felony,” and unlike flying on a plane when the upgrade gets you more seat and leg-room for greater comfort, here, the upgrade provides the Sentencing Judge with the authority to order the then-convicted-defendant more pain and a longer sentence commensurate with the crimes convicted, while considering all mitigating factors, including, age and health, for a lesser sentence, including, no jail time. The political irony here is that New York State has been blasted by Republicans on being “soft” on defendants charged with crimes. Well, now, that very objected-to New York “softness” helps former President Trump, including, our state laws that insist upon expansive discovery production by prosecutors to help all defendants better prepare for trial.

The legal battle, then, when it truly gets past the initial flurry of activity, will be hand-to-hand combat with the defense trying to raise doubt about Mr. Trump’s “intent” for each Count and the “upgrade” state or federal predicate.

Justice Merchan Takes Charge

Today, President Trump pled “Not Guilty,” and was warned by Justice Juan Merchan to “refrain” from social media posts with the potential to incite violence. This warning was not idle, and presents additional legal jeopardy for Mr. Trump – just like Justice Oliver Wendell Holmes, Jr. did by holding: you cannot yell “fire’ in a crowded theater, without being held liable for those who get trampled in the ensuing melee.

While President Trump has enjoyed being a political or economic pugilist to-date, suddenly, there are legal risks now imposed by Justice Merchan, as the law is not a trifle, and the integrity of the profession must be maintained. As America’s greatest mayor Rudy Giuliani has learned, a title he earned by keeping all New Yorkers together after 9/11, when his law license was suspended by the NYS Supreme Court’s Appellate Division First Department for his over-zealous advocacy, which the Court held violated the core obligation imposed-by-law on every lawyer by the Rules of Professional Conduct: to maintain the integrity of the profession, and safeguard Judicial Independence. Lying by a lawyer is not allowed, and is surely not risk-free.

Procedures and Timelines

New York allows interlocutory appeals of Orders the aggrieved party wishes to appeal, and by doing so, there is delay of the trial. Federal cases, generally, do not have as-of-right appeal of every Order issued, and hence are quicker to try the case. Here, President Trump has more legal jeopardy as there is US DOJ Special Counsel Jack Smith (Confidential Documents etc.) and Georgia state DA looking into the “11,780 votes” Mr. Trump was desperately looking to find. And then, there are civil cases. Mr. Trump is going to be quite busy consulting with his lawyers or being in Court. The national convention will occur next summer, with a presidential election in November 2024. It’s quite likely that one or more trials may not have occurred before November 2024. Mr. Trump may well find that he needs to pay real close attention to exercising all of his legal rights, if he is to avoid, or at least, minimize, legal liability.

E Pluribus Unum, Not Republicans or Democrats

The task for politicians is to give politics a rest, as our nation is undergoing a stress-test the likes of which even Richard Nixon was exempted from. Our Republic need not have gotten to this day, as we ought not have had January 6th. It is time to be American first, and party-politician second. America is made up of all Americans, and we need political E Pluribus Unum more than ever to remain the United States of America, and not become, as Senator Joe Manchin recently said: divided States of America.

America: Reveille!

To close, I urge all Americans to recall the special wish of the Lion of the Senate, Pat Leahy: let America always have “Reveille”!

(The author is the publisher of The America Times Company Ltd., and since January 2022, is the Editor-in-Chief. He is a member of the National Press Club, in Washington D.C., and a member of its “Freedom of the Press” and “International Correspondents” Teams/Committees. An eminent, he is a member of the bar since 1981. )

(Originally published in America Times. Republished with abridgements, with publisher’s permission)