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Why it's so hard to prosecute Donald Trump

CNN 9/24/2022 Elliot Williams

It happened again!

With the resignation of Carey Dunne and Mark Pomerantz, two top prosecutors leading the Manhattan district attorney’s criminal investigation into former President Donald Trump and his business, it appears that Trump has, yet again, escaped accountability.

This time, that may not be a bad thing. Based on publicly available evidence, it would be unwise for the DA’s office to bring charges against Trump.

Prosecutors in Manhattan had been investigating whether Trump and the Trump Organization misled lenders and others by providing false or misleading financial statements about Trump properties. Trump has denied the allegations, calling the investigation a partisan “witch hunt.”

Notably, the decision not to proceed with presenting evidence to a grand jury was made by Manhattan District Attorney Alvin Bragg, a Democrat. Bragg said the case is still active, but the resignations and grand jury point make clear that the case is all but closed.

Did he puff up the value of his properties, or not? The question seems painfully straightforward. It’s not. I have been a lawyer for nearly 20 years, with part of that time as a federal prosecutor. I have found that one of the most confounding concepts to explain to others is “criminal intent”: the defendant’s mental state that prosecutors must establish to convict him. Cases rise and fall on whether prosecutors can prove intent, which varies from crime to crime.

Here, prosecutors would have had to prove not just that he inflated the value of his assets, but that he intended to break the law by doing so. It is a subtle but profound distinction, and one in which the cliché “ignorance of the law is no excuse” doesn’t apply cleanly.

Gumming things up is the fact that property valuation is inherently subjective. For instance, the fact that I might genuinely believe that my home is worth $50 million dollars (for the record, it is not) would complicate prosecutors’ ability to prosecute me for conveying that belief to a lender.

Financial fraud cases are most easily proven on the strength of electronic documents linking the defendant to misconduct. However, Trump is notorious for using computers and email infrequently. Here, there wasn’t likely to be a smoking-gun email or document pulled from the defendant’s hard drive or cell phone.

This fact might not be fatal, if other evidence, particularly from witnesses, could have helped establish his state of mind. But who would testify against him? Trump is famously surrounded by loyal senior staff. For instance, Allen Weisselberg, the Trump Organization’s longtime finance chief facing criminal tax charges, might have been a promising candidate to testify, but he resisted pressure from prosecutors to do so. (Weisselberg maintains his innocence.) And, thus far, it doesn’t appear that prosecutors can get solid on-the-record testimony from anyone else in the inner circle.

Which brings us to the possible testimony of Trump’s former self-described “fixer,” Michael Cohen. Despite Cohen having already testified under oath before Congress about Trump’s assets, he would have been a disaster on the witness stand. He has pleaded guilty to nine criminal offenses, including lying to Congress, tax fraud and campaign finance violations for helping pay off two women following alleged affairs with Trump. (Trump denies the affairs.)

Cohen would have faced questions of personal bias, given his own multiple lawsuits against Trump and his associates. He would have faced questions about whether he received a benefit from prosecutors for testifying. Trump wouldn’t have needed a skilled defense attorney; a middle schooler with basic mock trial training could have eviscerated Cohen’s credibility on the stand, likely dooming the prosecutors’ case.

Criminal cases do not materialize from the ether; prosecutors must be able to prove their facts to a jury beyond a reasonable doubt. It would be irresponsible, and perhaps unethical, for lawyers to proceed with a prosecution they weren’t confident they could win.

Put another way, the fact that something might be true doesn’t mean that even the best prosecutors will be able to establish it in court.

That truth is not comforting to people who are frustrated by the fact that nothing seems to stick to Trump. They are onto something; it cannot be coincidental when the same individual or organizations with his name on them face, at once, a civil investigation regarding property valuation from the New York attorney general; separate criminal investigations from the Fulton County, Georgia, and Westchester County, New York, district attorneys and the Washington, DC, attorney general; civil suits alleging election misconduct in Delaware County, Pennsylvania, and Michigan; a defamation suit by a voting machine company; congressional investigations into his tax returns, conflicts of interest, the lease of his Washington, DC, hotel and potential mishandling of government documents; civil suits from multiple police officers who were injured on January 6; an allegation from the January 6 House Select Committee that he was part of a criminal conspiracy to defraud the United States; a defamation suit from someone who has accused him of sexual assault; and a suit from his niece alleging fraud around her inheritance. And those were just the ones I could remember. (Trump, the Trump Organization and his campaign deny wrongdoing in all.)

Those who are frustrated are right to be upset.

Tempting as it may be to conflate every allegation against the former President, most have little to do with each other beyond their least common denominator – the name at the center of them.

And accountability may not always come through the criminal justice system. For instance, civil suits have a lower burden of proof than criminal cases. Trump could face serious civil liability in some of the places the criminal justice system can’t reach.

More importantly, allegations – particularly ones judges have reviewed and allowed to stand – carry some weight outside the courtroom. The dizzying number of them help demonstrate that the former President was manifestly unfit to serve when in office. He should never hold elective office again. Congress, led by the overwhelming majority of Senate Republicans, failed the American public and history, twice, by not barring him from future office following his impeachment trials.

If the raft of claims isn’t enough to convince the electorate to stop rewarding this unfit individual with high office, nothing will. That continued failure, which started with his first election in 2016, is on the American people – not the Manhattan district attorney.

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