I have written this piece for Slate:

Based on what I have seen so far, the decision to charge Donald Trump with felonies in New York state is a mistake both legally and politically.

First, the legal problems.

Back in 2018, I wrote at Slate that Donald Trump’s payments of hush money to adult film actress Stormy Daniels to keep her from speaking and hurting his 2016 U.S. presidential chances was likely a federal campaign finance crime. The feds should have charged him, but they did not, perhaps because of political interference from Trump’s then-attorney general, Bill Barr.

The federal case would not have been a slam dunk, because there were big legal and factual issues. Legally, some have argued that these payments were personal expenses, not campaign expenses, even if shutting Daniels up would have helped Trump politically too. Factually, to turn a campaign finance violation into a criminal one, prosecutors would have to prove that Trump knew he was violating campaign finance laws and did so willfully. Proving intent can always be tricky. Just ask those who (unsuccessfully) prosecuted former Senator John Edwards….

Nonetheless, this new theory still has the old problems as the federal case would have, but it also has new, more serious ones. Most importantly, it is far from clear that Trump could be liable for state campaign finance crimes as a federal candidate. Moreover, state prosecutors may be precluded from prosecuting federal candidates for federal crimes” under a rule called “preemption” meaning they have to be brought by federal authorities rather than state authorities. These are thorny issues that likely will have to be resolved by appeals courts over years.

These legal problems raise the political issues with bringing these claims against Trump as a felony based on proving “other crimes” that might not be proven and which rely on complex legal theories.

It is said that if you go after the king you should not miss. In this vein, it is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks.

Trump is not above the law, and if they can prove the misdemeanors, by all means they should go after him. (However, there may be statute of limitations issues around those.) But this kind of case can give credence to Trump claims of a witch hunt.

As I wrote back in Slate in 2012 about the John Edwards case, it seems bad public policy to allow prosecutors to bring novel and difficult claims against politicians, in part because they may do so for political rather than legal reasons. I would much rather see Trump prosecuted for concealing classified documents or for interfering with the 2020 election and seeking to disrupt Congress’s counting of the electoral college votes. Those are cases that are on much more solid legal and factual ground.

I would rather see the fire aimed where it belongs: at Trump’s attempts to undermine American democracy and interfere with the peaceful transition of power during the 2020 election. Those kinds of prosecutions can help to support the rule of law. This one may undermine it.