By ANDREW C. MCCARTHY
No sooner did I complete the last post than did Manhattan District Attorney Alvin Bragg, an elected Democrat, make a prophet out of me.
In the post, I explained that Bragg was trying to hoodwink the jury into believing that he had charged former president Donald Trump with conspiracy — i.e., an agreement to commit a crime, in this instance a “scheme” with David Pecker and Michael Cohen to suppress politically damaging information. In reality, (a) the grand jury did not charge Trump with conspiracy, and (b) it is not a crime to suppress politically damaging information, so it could not.
Beginning the state’s opening statement, Assistant DA Matthew Colangelo — formerly a top official in the Biden Justice Department — proclaimed to the jury, “This case is about a criminal conspiracy and coverup.”
To repeat, the crime of conspiracy is not charged in the case. Charged, instead, are 34 counts of falsifying business records. That offense is normally a misdemeanor, but Bragg enhanced it into a felony — 34 felonies — by claiming that, in making false bookkeeping entries, Trump fraudulently intended to cover up another crime. Nowhere in the indictment does the grand jury allege that this crime was a conspiracy.
One of the more outrageous constitutional violations that has occurred in this case is that Bragg has attempted to alter the grand jury’s indictment with his own “statement of facts” — a document he drafted and published in conjunction with the unsealing of the indictment, as if it were part of the indictment.
Under the Constitution’s Fifth Amendment (which has been held to apply to the states), “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” In this case, the grand jury indicted Trump for falsifying business records, not criminal conspiracy. Bragg’s statement of facts, so called, is not part of the indictment; yet he has used it to modify the indictment as if Trump were charged with criminal conspiracy. That’s not permissible; the charges must be stated with specificity in the indictment.
And it gets worse. Bragg’s “statement of facts” does not utter the word “conspiracy.” He uses “scheme.” As I contended in the earlier post, that is because suppressing politically damaging information is not, in fact, a crime, and therefore it cannot be the objective of a conspiracy.
The DA employs the word scheme because of its pejorative connotation. In fact, the agreement between Trump, Pecker, and Cohen was not illegal, even if Bragg calls it a “scheme” and Colangelo calls it a “conspiracy.” The non-disclosure agreement (NDAs) that Trump and Cohen used as a means to suppress information about porn star Stormy Daniels’s alleged 2006 extramarital fling with Trump was a lawful contract, not a crime.
Bragg is trying to convict Trump of conspiracy without having charged Trump with conspiracy. He has injected into the case federal campaign-finance law — law he has no jurisdiction to enforce — in order to obscure this constitutionally offensive gambit. We’ll see if he gets away with it.
