Reports circulated yesterday that the Manhattan District Attorney is considering indicting Donald Trump for state law crimes related to falsifying business records related to hush money payments to adult film actress Stormy Daniels. To turn this from a misdemeanor to a felony under state law, prosecutors are going to have to show that he had an intent to commit another crime. In this case, that crime would be violating campaign finance laws. Doing all of this won’t be easy to do. As the NYT put it yesterday, “Even if Mr. Trump is indicted, convicting him or sending him to prison will be challenging. The case against the former president hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony. If Mr. Trump were ultimately convicted, he would face a maximum sentence of four years, though prison time would not be mandatory.”
At this point, it seems ill-advised to prosecute Trump on this difficult legal theory. Back in 2018, I wrote at Slate about how Trump could be prosecuted for the underlying campaign finance crime. It is going to turn on Trump’s state of mind in a case that federal prosecutors looked at and passed on. It seems like a risky move to go after Trump on an uncertain legal theory that requires bootstrapping two crimes, for something that might not even merit jail time.
It would be far better to go after Trump for trying to subvert the results of the 2020 election. Those crimes are serious, and they are provable given the mountains of evidence regarding what Trump was told about his bogus fraud claims, and given the irrefutable evidence of his attempt to interfere in multiple states’ appointment of presidential electors.
David French explained it well a few weeks ago in a NYT column:
If prosecution decisions are imminent, what principles should guide the prosecutors? What factors should they consider when deciding whether to charge a former president? When weighing the facts and the law, they should remember the rule of law and apply the rule of lenity. They should not, however, consider politics or the potential of mob violence.
In short, the guiding prosecuting principle should rest in the old maxim “Let justice be done, though the heavens fall.”
The rule of law is easy to explain. America’s republican form of government does not create or permit a special class of citizens who are immune from legal accountability. (The arguable exception is the serving president. It’s the longstanding position of the Department of Justice that indicting a sitting president would “impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” But Trump, of course, is no longer president.) The United States has prosecuted a vice president, governors, members of Congress and federal judges. The Supreme Court has held that presidents are subject to the legal process, even when they occupy the Oval Office.
So yes, former presidents should be subject to prosecution. This position doesn’t endanger our system of government; it protects and applies a fundamental American legal principle: We are all equal in the eyes of the law.
But that principle of equality brings me to the second factor to consider, the rule of lenity. It’s a principle of statutory construction that states “when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant.” Another way of stating the rule is that the government shouldn’t stretch or extend the law to criminalize misconduct.
The rule of lenity is both just and practical. As a matter of justice, should our nation be prosecuting citizens criminally under novel legal theories? The law should give fair notice of its scope, and it should be clear enough to permit us to conform our conduct to the relevant legal standards. Expanding the reach of laws beyond their plain text violates this principle and undermines trust in law enforcement.
Applying the rule of lenity to Trump — as it should be applied to every citizen — means that he should be prosecuted only when the evidence indicates that he has clearly violated laws with plain and clear meaning, either on their face or as further defined by controlling precedent.
Thus I was concerned when I read The Times’s report on the Manhattan grand jury proceedings. It rightly said that although he is accused of making hush money payments, the legal theory that it could support a felony charge “has largely gone untested” and “would therefore make for a risky legal case against any defendant.” If that’s the case, then don’t file the charge.
Georgia criminal law, by contrast, is both clear and quite obviously relevant to Trump’s conduct. For example, Georgia law prohibits “criminal solicitation to commit election fraud” when a person “solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage” in conduct that would be a felony under Georgia election law.
Moreover, Georgia law makes it a felony to conspire to commit election fraud, and the crime is complete “when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the violation of this chapter is consummated.” In other words, the conspiracy does not have to succeed to be criminal.
Why highlight these Georgia statutes? Because Trump was caught on tape telling Georgia’s secretary of state, Brad Raffensperger, that he just wanted to “find 11,780 votes” and Trump clearly threatened Raffensperger with a “big risk” of criminal prosecution for allegedly “not reporting” fictional Georgia election fraud and for “letting it happen.”
In addition, we know that Willis has stated that 16 Republicans who falsely claimed to be Georgia’s valid presidential electors are targets of her criminal investigation. The fake electors scheme and the threats directed at Raffensperger clearly implicate the plain language of the relevant statutes.