Indicted!

Get the Point!

Unless you were in a deep, comatose, Rip Van Winkle like sleep over the past 12 hours, by now you know that Donald John Trump, the 45th President of the United States, was indicted yesterday by a Manhattan Grand Jury!

The pending charges stem from allegations that in 2016, Trump ordered illegal hush money to be paid by his then lawyer, Michael Cohen, to porn star Stormy Daniels to keep her silent about their 2005 sexual relationship; the payments were made during the last weeks of his hotly contested presidential campaign against former Democratic Sen. Hillary Clinton.

The president, the payer, and the porn star

The soon to be unsealed indictment means that Mr. Trump, already seeking to make history in hopes of becoming the second former president to serve a non-consecutive second term (Grover Cleveland being the first), will be forever etched in the annals of American history by becoming the first former president to be indicted for a felony offense.

A bit of history trivia: Former President Ulysses S. Grant, the hero of the Civil War, was arrested for the misdemeanor offense of driving his horse and buggy in excess of the speed limit in Washington, D.C. circa 1872, but only faced a small fine and an admonishment to slow down…

What does this all mean?

First, it is critically important to note that an indictment is merely an accusation, not proof beyond a reasonable doubt that the alleged criminal offense did happen. In fact, there is an old legal cliche derived from Tom Wolfe's classic Bonfire of the Vanities that in the criminal justice system, you can "indict a ham sandwich." Meaning, probable cause that a criminal offense occurred is an extremely low threshold to cross, with even some murder cases yielding indictments with no eyewitnesses, no videotape recordings, circumstantial evidence at best, and in one case that was tried in Tallahassee over a decade ago, NO DEAD BODY!

To be clear, any criminal defense attorney who has ever walked their client out of a courtroom after hearing a jury pronounce “Not Guilty” knows that the satisfying verdict started with a prosecutor or a grand jury declaring that probable cause existed to charge the crime.

And yet, from a statistical standpoint, the overwhelming majority of criminal cases in state and federal court end with a conviction, even if adjudication is withheld, via a plea bargain or a guilty verdict at trial. Thus, suffice it to say that at this point, the proverbial game is on and no one can predict whether Manhattan District Attorney Alvin Bragg's office will win their case against Donald Trump, or whether Trump will emerge victorious from a New York City Courtroom in due time.

Manhattan District Attorney Alvin Bragg is a graduate of Harvard University and Harvard Law, and is a veteran trial lawyer…

POLITICIZED PROSECUTION?

Ever since Mr. Trump announced last week on his Truth Social platform that an indictment was pending, he and his supporters immediately went on the offensive by portraying DA Bragg's investigation as a “partisan witch hunt” meant to hurt his 2024 presidential campaign.

One problem with this position is that the hush money investigation was ongoing while Mr. Trump was still president, not a “gee, let's see if we can find a way to keep him from returning to office” whimsical attack that Mr. Bragg chose to start a few months ago.

A second problem with this position is that while most district and state's attorney prosecutorial races are partisan, those elected and appointed are bound by their oaths to only prosecute cases in which they believe that probable cause exists that a crime was committed—and that they believe, in good faith, that they can win a conviction. Once more, that, too, is a very low threshold to cross—one that shields prosecutors, Democratic and Republican alike, from smears that they are mere political hacks.

That said, do not be deceived for one second into thinking that partisan political prosecutions do not occur—they do and quite often all across the ideological spectrum by Democrats and Republicans alike!

Just last year, former Tallahassee Mayor Andrew Gillum (D) and political strategist/public relations expert Sharon Lettman-Hicks were indicted in federal court on specious allegations that emanated from local conservative activists and undercover federal agents during Trump's term in office seeking to entrap Gillum and his inner circle during his tenure as Tallahassee Mayor—while characterizing the routine legal business practices of Lettman-Hicks during his narrow loss to Florida Gov. Ron DeSantis in 2018 as illegal; both have entered not guilty pleas and will have their days in court really soon—stay tuned…

Full disclosure: Ms. Lettman-Hicks and Mayor Gillum are two old friends and punditry colleagues of mine…

Conversely, where Mr. Trump may struggle in his pending case is that there was no “entrapment” involved by the government whatsoever. Now, while many Trump supporters have thrown around the entrapment word quite a bit of late, to those unaware, entrapment generally occurs when the government sends agents to entice a target into committing a crime; that surely did not happen in the Trump-Daniels affair.

To his chagrin, Trump's indictment fate on this charge stems from his legendary inability to shut his mouth when audiotapes and hot microphones are all around, as was the case in 2016 when he was overheard instructing his then lawyer, Michael Cohen, to make the payments to Stormy Daniels.

Former Trump lawyer Michael Cohen

POLITICAL RAMIFICATIONS

No matter how much spin that Mr. Trump, his lawyers, or his press corps places on his pending indictment, trust me when I tell you that Trump is extremely nervous about the stakes that he now faces, just as every other person who has ever been charged with a crime and forced to endure the humiliation of being arrested and booked at a detention facility experiences. Because Trump has Secret Service protection for life, he will be afforded every accommodation to make this one aspect of the process quick and as seamless as possible to avoid what he loudly suggested last week, which is for his protesters to take action on his behalf. Lest we forget what happened the last time that Trump called his protesters into action.

January 6th MAGA Riots

But assuming that the Second Civil War will not break out up in New York City due to Trump's charges, it is easy to conclude that the former president will get a major financial boost from his hard core loyalists who will buy his “they hate Trump” rhetoric at this time; Trump has always shown a gift for the grift, and I have no doubt that his coffers will be well replenished in the days ahead.

But for the first time, I now harbor doubts that Trump will even win the Republican Primary, let alone a rematch against President Joe Biden. I say this after watching clips of his latest campaign rally out in Texas where his loyalists laughed per usual when he made his puerile jokes about most of his political foes, but they stood in stark silence when he went into his comedic routine about Florida Gov. Ron DeSantis, a potential rival for the Republican nomination.

While then President Trump surely helped Ron DeSantis win the 2018 Florida Republican gubernatorial primary against perceived front runner Adam Putnam, DeSantis has slowly eclipsed his mentor in the minds of many conservatives who have grown tired of Trump's drama…

That rally, coupled with what I've read on traditional and social media sites AND conversations I've had with Republican friends and associates, leads me to realize that many on the right see the same conservative politics in DeSantis minus the side-show carnival act of Trump, a man that I have called a septuagenarian toddler on many occasions.

Separately, Trump potentially faces even deeper trouble in Georgia, where he is under investigation for that long and foolish telephone call that he placed in December 2020 demanding that Republican state officials illegally overturn the lawful election results in favor of Mr. Biden. Indeed, while the Manhattan charges very likely would not lead to prison if Trump is convicted because he would be a first time felon, a second conviction in Georgia very well could find the former president spending the winter of his years behind bars.

In conclusion, lest we forget that Mr. Trump is innocent “unless and until he is proven guilty,” and at this stage, even the Ol’ Hobbstradamus cannot predict what will happen in a Manhattan courtroom or in Atlanta, Georgia should charges hail forth in that jurisdiction. Verily, as events unfold, I surely will use my past experiences as a prosecutor and defense attorney to break down what's happening in real time.

But as a citizen journalist, I can conclude at this time that what troubles me the most is that the very folks who are attacking DA Alvin Bragg and the criminal process on Trump's behalf today, are the main ones who are silent when real miscarriages of justice occur in the criminal justice system each and every day of each and every year. There's a rank hypocrisy at play that suggests that Trump, a rich and powerful white man, is “too good” to have to answer for his alleged crimes the same as “lesser” folks. Regardless of the outcome, I am pleased that for once, neither financial status, political power, or the color of Trump's skin prevented him from being charged, because Lord knows many men and women just like him, including recent past presidents like Richard Nixon, Ronald Reagan, and Bill Clinton, escaped real legal accountability for their illegal activities before and during their terms in office.

Alas, Trump, now charged, is endowed by the U.S. Constitution with every right to fight his charges with well paid and highly experienced legal counsel, unlike the innocent Central Park Five, five young Black boys falsely convicted of raping a white woman that Trump called to be executed back in the 80’s (see below NY Times ad. Or, the “Mexican drug dealers” that he railed against for years to besmirch an entire ethnic group.

Indeed, lest we forget…