COMPASS: Across the Rubicon

June 3rd, 2024

Good afternoon from Capitol Hill. 

The House and Senate return this week to a state of American politics that looks very different than when they departed Washington a week ago. When they left, the foundations of the American system – blind and fair justice, a respect for legal tradition and accommodation, and the ability to vigorously disagree without descending into blatant institutional weaponization and raw applications of power – were all hanging by a thread. 

On Friday, that thread was ripped apart and our politics fundamentally and perhaps forever altered with the first ever criminal conviction of a former president who is also the leading candidate to challenge the sitting occupant of the White House.

To put it more bluntly: state politicians allied with the party in the White House contorted the legal system beyond recognition for the sole purpose of jailing the President’s leading political opponent. And this wasn’t in some far flung South American junta or Russian satellite state dictatorship. This was in the United States of America.

Andy McCarthy unpacks the legal fiction that underlay the Alvin Bragg-led criminal prosecution and, ultimately, conviction, of Donald Trump last Thursday.

Bragg indicted based on a business-records statute that, as applied in this case, is unconstitutionally vague under New York’s constitution. He resorted to this penal provision because he was bereft of what any prosecutor even thinking about indicting a former president and de facto presidential nominee should have: a serious crime that would be charged against anyone, supported by clear, convincing evidence. Ergo, Bragg had to rely on caprice — which is page one in the selective-prosecution playbook.

The DA did not so much find a crime as manufacture one. But even in New York, where “Orange Man in orange jumpsuit” is a collective fever dream, Bragg had to labor in stealth. The best he could do, in reviving L’affaire Stormy, was to frame Trump’s tawdry NDAs and funky bookkeeping as a campaign-finance infraction. That was a problem, however, because Bragg is a state prosecutor who has no jurisdiction to enforce federal law — which is what controls elections for federal office. Plus, the two federal entities that Congress endowed with exclusive authority to prosecute Federal Election Campaign Act (FECA) violations, the Justice Department and the Federal Election Commission, had thoroughly investigated Trump and determined not to take action — precisely because the NDAs were not cognizable campaign expenditures (unless you think hush money for porn stars can properly be paid using campaign funds — and imagine what Bragg would have charged if Trump had done that).

His essay, which covers the unprecedented, fairy-tale nature of the charges, how they had to be spun to try a federal case in a state courtroom, as well as the layers of malintent and ethical confliction displayed by Judge Juan Merchan, is worth reading in its entirety.

Matt Taibbi also noted the staggering double standard for Trump’s “offense”  in Racket News:

Hillary Clinton got mere fines for a far more serious records offense in an almost exactly similar context: calling the funding of the infamous Steele dossier “legal and compliance consulting.” That’s hiding a role in an electorally significant public fraud, and though I’m not sure that offense warranted jail, it’s certain Trump’s “crime” didn’t, if Hillary’s doesn’t even go to court. This was one non-crime, serving as the predicate for conspiracy to commit another non-crime, which incidentally was artificially split in pieces to add years and penalties. The 34 counts are another absurdity, one reporters continually forgot yesterday to cover up by pretending the case was about multiple acts and not one deal (the Globe and Mail: Trump convicted of trying to hide a US$130,000 payoff to porn star Stormy Daniels”).

Donald Trump’s sentencing is scheduled for July 11 – a mere four days from the GOP Convention in Milwaukee. And in the wake of the verdict, the Left has taken to referring to Donald Trump not as the former president, or their honorable opposition, but as “convicted felon Donald Trump.”

Another outstanding issue is the role that Biden’s former number three at the Department of Justice played as a member of Bragg’s prosecution team. On Thursday, Matthew Colangelo could be seen standing behind Alvin Bragg at his press conference. As New York Post columnist Miranda Devine noted on X/Twitter, Colangelo is a “former DNC political consultant…who left his job as third-ranking official in Biden’s DOJ in December 2022 to take a lesser job in Manhattan DA Alvin Bragg’s office as senior counsel in the criminal case against Trump.”

For their part, congressional Republicans have denounced the verdict. In the House, Speaker Mike Johnson has pointed to the fact that the Weaponization of the Federal Government Subcommittee has requested the testimony of Bragg and Colangelo, and will also begin an investigation into Special Counsel Jack Smith. No word yet if the House Republican majority plans to keep funding the Department of Justice in their forthcoming spending bills.

In the Senate, Minority Leader Mitch McConnell issued the following two-sentence statement: “These charges never should have been brought in the first place. I expect the conviction to be overturned on appeal.” 

Given the passive nature of McConnell’s statement, the Senate’s conservatives have stepped into the leadership void and are attempting to build a coordinated response from their conference. Sen. Mike Lee, joined by Sens. Vance, Tuberville, Schmitt, Blackburn, Rick Scott, Marshall, Rubio, Hawley, and Johnson have pledged not to vote for any non-security related increased spending for this administration, including funding for the Department of Justice, vote for any Biden nomination, or allow expedited consideration for Democrat legislation. They have urged the rest of the Senate GOP conference to join them.

So far, the Senate’s conservatives are the only ones who have put forward anything resembling a response to the abuse of the courts to dispose of a political rival. We are in uncharted waters and swift, decisive conservative leadership is not only vitally necessary, it is expected. 

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One More Thing…

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