Editor’s Note: Norman Eisen is a CNN legal analyst who was former President Barack Obama’s ethics czar and impeachment counsel to the House Judiciary Committee in 2019-2020. John W. Dean is a CNN contributor and former White House counsel to Richard Nixon. The views expressed in this commentary are their own. View more opinion at CNN.
This week brought an unprecedented event in American history – the first criminal charges against a former president. Manhattan District Attorney Alvin Bragg unveiled an indictment against Donald Trump with 34 counts of violating New York State’s law against maintaining false books and records by concealing hush money payments to his alleged former mistress, adult film actress Stephanie Clifford, also known as Stormy Daniels.
In an accompanying statement of facts, Bragg alleges the payments were intended to benefit Trump’s 2016 presidential campaign by avoiding a damaging scandal. Trump denies any wrongdoing, or that he had an affair with Clifford.
Despite the salacious details, this is an important case for democracy. The 2016 election was a close one. In the wake of the “Access Hollywood” tape of Trump proclaiming that he was free to sexually assault women, which threatened his candidacy, another disgraceful revelation could have altered the outcome of that contest – and American history.
The alleged election misconduct also seems like it might have been a gateway drug for Trump’s even more extensive attempted electoral tampering with respect to the 2020 contest.
Nevertheless, the indictment has been greeted by decidedly mixed reactions – including from some who are usually critical of the former president. They have argued that the hush money case appears too political, it’s too thorny legally and should have been brought by federal authorities – or not at all.
There are a number of important critiques of the case in the furor and they are worthy of consideration. But ultimately, they are all wrong.
Bragg’s case is a strong one and should not be resisted merely because it involves a controversial political figure. Nothing is tougher than a legal imbroglio involving a president – we know that better than anyone, from our experience with the investigations of President Richard Nixon and Trump himself. But that same experience has only reinforced what our experience with rogue presidents has taught us is the bedrock of our democracy: No president is above the law.
Perhaps the single most repeated critique of the case by Trump and his allies is that the DA – a Democrat – is motivated by politics. Trump’s lawyer Jim Trusty has argued for example that because Bragg discussed his experience investigating Trump during his campaign, this prosecution is “not the rule of law” and represents “an upside-down world of criminal justice where we don’t follow evidence.”
That’s nonsense. There’s no good reason to exempt Trump from prosecution when his former lawyer Michael Cohen went to prison for his role in surreptitiously moving these funds to benefit the campaign, as have others for similar conduct.
The violation for falsifying books and records is a clear one: These were alleged hush-money payments by Trump and his entities that they are accused of falsely entering into their records as legal fees.
New York law allows the elevation of the misdemeanor to a felony if the cover-up was to hide or advance another crime. Here, Bragg charges, the hush money was hidden to obscure violations of campaign finance laws that prohibit payments of this kind. Bragg also indicates that there was a plan to make false statements to tax authorities.
Among the other criticisms of pursuing a felony charge is that the campaign finance theory failed in a similar criminal prosecution of 2008 Democratic presidential candidate John Edwards for alleged campaign-related payments to his mistress.
In fact, making various types of concealed payments to benefit a campaign is commonly prosecuted – ergo Cohen’s plea. There was nothing legally wrong with the prosecution theory in the Edwards case or the judge would not have allowed it to go to the jury. Instead, the jury found that the proof was not sufficient in that particular case.
In this one, Bragg has the benefit of an inside cooperator in the form of Cohen, whose account is corroborated by substantial reported documentary, testimonial evidence and even a tape of a conversation with Trump.
Some complain that too much time has passed to bring charges now, about six years after the payments were made. Our answer is that it takes time to charge a president, or even a former one. Years were lost while charges could not be brought federally under Justice Department guidance prohibiting charging a sitting president – and while Trump repeatedly litigated the New York state investigation up to the Supreme Court.
It’s hard to fault Bragg for lost time when his predecessor, Cy Vance, stated this weekend that federal prosecutors had told him and his team to “stand down” during the Trump administration because their own investigation was underway.
Vance’s interview rebuts another of the critiques we’ve heard from Trump and others: that this case had been passed on by others. Vance refuted that in his interview, confirming that he and his team “had not finished that work [the investigation]” and that to move forward was “ultimately…District Attorney Bragg’s decision.”
To those who say the hush money charges are a poor substitute for addressing Trump’s attempted coup or alleged financial wrongdoing, we note that the investigations of all that are hardly over. Charges are possible for the 2020 misconduct in Georgia and perhaps by special counsel Jack Smith federally.
Significantly, if others have minimized these hush money charges, Trump has not. He has treated them with a level of alarm and dangerous rhetoric we have not seen from him since the runup to Jan. 6.
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On Truth Social, Trump has repeatedly called for action from his supporters, writing, “PROTEST, TAKE OUR NATION BACK!” among other reckless declarations. He greeted news of the charges by stating, “This is Political Persecution and Election Interference at the highest level in history.”
The charges are no such thing, but Trump’s strong reaction shows he understands their seriousness. Bragg did the right thing when he said he would not be deterred by such intimidation – just as he was right to bring this case.