Donald Trump and the creation of pseudo-crimes

The great historian Daniel J. Boorstin coined the phrase “pseudo-events” to describe the modern contrivances between politicians and the press that have the semblance of news but remain artificial and choreographed.  Welcome to the era of “pseudo-crimes” where there is no underlying criminal act, only an endless investigation with the sole purpose of an indictment, frequently based on the actions of the investigators themselves.

For better or worse, the political and legal implications of the indictment of former President Donald Trump in a Manhattan court last week have been widely covered, rarely with the acknowledgement that accurately predicting the fall out in a dynamic and ever shifting situation is near impossible.  In the short term, it appears that President Trump will benefit in the Republican primary as voters rally to his defense, but whether that remains true as the case continues, much less if he is convicted, remains to be seen.  What becomes of the case itself is also anyone’s guess.  Some smart observers believe it will never make it to trial and be dismissed long before the former President faces a jury.  Others believe District Attorney Alvin Bragg might well be able to obtain a guilty verdict, especially when the venue is progressive, largely Trump-hating New York.  Not surprisingly, what party you belong to or whether you sympathize with conservative or progressive causes generally aligns with your opinion on the outcome.  Those who have long loathed President Trump believe he will be convicted.  Those who have supported him believe he will emerge triumphant.  Meanwhile, precious little attention has been paid to the underlying principles at play and the implication of those principles on the future of the country.  For all the talk about the indictment proving that “no one is above the law,” not even a former President, or rampant prosecutorial misconduct and the targeting of political opponents if you prefer, much of it misses the point.  What we are actually witnessing is the emergence of a new trend, arising from the conflict between the underlying principles of justice, even if many remain confused about what side they are actually on.

For progressives, the underlying principle is very simple.  President Trump represents a unique threat to the very fabric of America and therefore must be destroyed whatever the means.  In this view, it does not matter that he still enjoys the support of millions of Americans and that he is almost just as likely to be the next President as the current occupant of the Oval Office.  Indeed, the durability of his support only places even more pressure on the need to remove him from consideration, and all other principles must be made subservient to that fact.  Thus, it is not an issue that no one (or next to know one) has ever been charged in New York with a felony version of the crime DA Bragg is alleging.  Nor is it relevant that this very same prosecutor has downgraded a host of other felonies, almost universally transforming them into misdemeanors, yet seeks to do the exact opposite when it comes to President Trump.  Whether or not DA Bragg clearly identified the crime in question is equally unimportant, alleging only that the former President falsified business records a claimed 34 times to cover up or conceal another crime that is left completely unsaid despite laws governing the contents of indictment clearly requiring these details to be spelled out.  Likewise, progressives have no issue with investing a judge who has donated to Democrat candidates and who’s daughter worked for Vice President Kamala Harris with the power to try this case and even issue a gag order on a former President in the middle of a Presidential campaign.  To them, President Trump has no rights, and if Judge Juan Merchan decides he should be silenced, he necessarily has the power to do so, whatever the broader ramifications.  Crucially, none of this, nor any of the other pending cases against the former President, are seen as election interference, a threat to our democracy, or the potential disenfranchisement of millions of Americans for whom President Trump remains their first choice in the 2024 election.  There is also no fear that this philosophy will extend beyond Trump to other Republicans, or perhaps even be turned against members of their own party in the future.  All that matters is the need to get the former President in the here and now.  The principle might be restated as some people are so horrendously awful, all rights and rules are subservient to the need to silence them.

For conservatives, the situation is more complex.  There is, of course, the reflexive desire to defend one of their own against what they perceive as unfair attacks.  President Trump, after all, is a man who once claimed he could shoot a person in New York City and still keep his base.  Tribalism is certainly on display to some extent, and in this sense the underlying principle is the same as progressives, only applied in the opposite direction.  At the same time, there is something deeper that ultimately goes to the foundation of our judicial system, underpinning our notions of justice itself.  Laws, whatever they are, are best seen as the embodiment of our judicial principles in action.  We do not punish someone for murder because they broke the law, but because they committed an unspeakable, morally repugnant act, depriving another person of their lives without due process.  The law codifies what constitutes the crime and the potential punishment, but it is the murder itself that is the crime, not merely the violation of a statute.  In President Trump’s case, conservatives can’t help but note that neither having an affair nor paying someone to keep it quiet is illegal.  Neither his potential relationship with Stormy Daniels nor the non disclosure agreement is a criminal act.  On the contrary, it is Ms. Daniels herself who has been ordered by two courts to pay the former President’s legal fees in a defamation case, and some have even gone so far as to insist she engaged in extortion by threatening to go public if Donald Trump didn’t pay her off in the fall of 2015.  It is only the sleight of hand of the prosecutor, who magician-like takes an issue that is non-criminal and turns into one by claiming President Trump fraudulently filed payments to Ms. Daniels and another as “legal fees” rather than revealing their specific nature.  Even here, however, it is not quite clear whether this misfiling is a crime beyond the most basic misdemeanor.  No one disputes that the money was paid to Trump’s attorney Michael Cohen rather than Ms. Daniel’s directly, meaning the core issue of criminality seems to hang on whether the filing should have been listed as “legal expenses” rather than legal fees.

To be sure, DA Bragg vaguely alleges that the former President violated campaign finance laws, but even there the Federal Election Commission has declined to pursue any possible charges and President Trump duly listed these payments on his election filings, making it likely that no law was broken, however minor the infraction. Somehow, however, DA Bragg believes a felony was committed – one punishable by imprisonment – despite no underlying crime.  In yet another irony, President Trump denies having either of the affairs in the first place and no substantive evidence has been provided by any party to prove they occurred.  Given his history with women, it is all too easy to believe he slept with both, but the fact remains the DA plans to put a former President in jail over a precipitating event that might or might have not occurred.  Putting this another way, no one has proved Trump even had the affair in the first place, which would not have been illegal, nor was it illegal to pay both women for their silence in any event, but because of the way these transactions were filed – and they way they were filed alone – a former President should be jailed.  No one has quite explained how there is any justice in that, save for the principle that getting Trump at all costs is justice as I outlined earlier.  Progressive economist Paul Krugman put it this way, “Trump Indictment is Karmic Justice, Regardless of Verdict.”  Thus, we can add “karmic” to the list of things progressive claim are justice that simply aren’t, right along with social justice.

Sadly, we see similar thinking and principles at play in the other potential cases against former President Trump, where prosecutors appear to be transforming non-crimes into crimes solely for purposes of an indictment.  For example, The Washington Post recently reported that Special Counsel Jack Smith is aggressively pursuing obstruction of justice charges against President Trump over the withholding of classified documents.  As they described it, Special Counsel Smith has “amassed fresh evidence pointing to possible obstruction by former president Donald Trump in the investigation into top secret documents found at his Mar-a-Lago home.”  The claim is now that  the government has “gathered new and significant evidence that after the subpoena was delivered, Trump looked through the contents of some of the boxes of documents in his home, apparently out of a desire to keep certain things in his possession.” This might well be true, but it is also a radical new standard.  The idea at the time of the raid and afterward was that Trump committed a crime in possessing these documents in the first place.  In the heady days of August 2022, we were told the documents contained nuclear secrets and he might be sharing them with a foreign power.  This would, of course, be a heinous crime punishable under the Espionage Act and other statutes, yet the focus has suddenly become whether or not the President looked through documents under subpoena because he felt he should be allowed to keep them, not even whether or not he actually kept them.  The two are not remotely equivalent, and the latest incarnation of the crime arises solely because a government agency, in this case the National Archives colluded with the FBI to issue the subpoena in the first place.  Further, we still do not know whether or not President Trump had a legal right to possess these documents, meaning the entire situation might have arisen over nothing at all.  It is conceivable he would’ve committed a crime if he held them in violation of a court order, but no such one was issued.  At this point, we know only that the Archives believed they should have been returned, but they are not a prosecutorial branch or a court of law, capable of settling the dispute.  In other words, the Special Counsel and the media are alleging that Trump could be criminally guilty of a crime for looking through documents he had every right to look through.  The subpoena is the only thing that suddenly turns it into a felony.

Cynical observers might suggest this change in strategy is a direct result of the discovery that President Biden was hoarding documents at multiple locations as well, making a prosecution for the possession of these documents highly unlikely.  Either way, we’re now reduced to talking about whether he moved boxes of documents around and if he “ignored requests from multiple advisers to return the documents to the archives…that he asked advisers and lawyers to release false statements claiming he had returned all documents, and that he grew angry after being subpoenaed for the documents.”  On the last part, the claim is that the Department of Justice has evidence that “suggests” he told people to mislead the National Archives, whatever that means.  We will undoubtedly find out in due course, but the fact remains all of these supposed crimes are now precipitated by a non-criminal event, the same as DA Bragg.  If the Archives simply left the matter alone, agreed to inventory and work with copies as they have done in the past, or resolved the dispute without the FBI, no crime would have been committed, but now magically one is solely because of government action in the first place.  Similarly, an investigation in Georgia into the President’s actions in the state after the 2020 election has transformed into a potential “racketeering and conspiracy” charge rather than the election fraud one might expect.  According to CNN last month, “Investigators have at least three recordings of Trump pressuring Georgia officials, including a phone call that he made to the Georgia House speaker to push for a special session to overturn Democrat Joe Biden’s 2020 victory in the state.”  Since this is not a crime in and of itself, the goal is to turn it into some kind of conspiracy and, sure enough “Investigators have a large volume of substantial evidence related to a possible conspiracy from inside and outside the state, including recordings of phone calls, emails, text messages, documents, and testimony before a special grand jury.  Their work, the source said, underscores the belief that the push to help Trump was not just a grassroots effort that originated inside the state.”  There is another investigation being carried out by the Special Counsel into January 6, but unless some new bombshell emerges – anything is possible, after all – the outcome seems much along these lines.  Whether or not there is an actual underlying crime, prosecutors are more than willing to create one, either through the process itself, or by extending existing laws into entirely new domains, from how one files payments on their taxes to a felony, or from electioneering to racketeering.  The only principle underlying it all is the need to get President Trump.

Principles should, of course, matter substantially more than this.  The legal system is not supposed to be a bazaar of endless laws and possible infractions for prosecutors to rummage through to assemble their cases.  It is true that people can be guilty of obstruction of justice or perjury with no underlying crime, but these instances are necessarily rare. The phrase obstruction of justice itself assumes that an individual is interfering with a just outcome, suggesting they are impeding the solving of an actual crime. That almost every case alleged against the former President would be reduced to these process crimes seems to indicate something deeper at work. The bedrock principle of our justice system has always been that an investigation is predicated on probable cause that a specific crime has occurred, but of course that requires the definition of a potential crime in advance.  Here, we have the opposite:  There is a shady allegation of wrong doing without a specific accusation, an investigation is begun, the investigation runs through every possible crime on the books, seeking solely to apply whatever they feel might stick under the circumstances, even to the point of creating crimes that would never have occurred save that they were investigating the non-crimes and, thus, justice becomes a circular affair.  The late, great historian Daniel J. Boorstin coined the phrase “pseudo-events” in the early 1960s to describe the advent of mass media rituals such as the press conference and their influence on subsequent history.  In his view, news in the mid-20th century was largely generated by contrivances between politicians and the media.  A press conference for example is an exchange between a politician and the press that has no real bearing on events, but statements made at these conferences – which would not otherwise have been made in the absence of them – certainly do.  Presidents, for example, in the 19th century held no such events.  Can you imagine what might have happened during the Civil War if Abraham Lincoln talked about it weekly for no real reason other than ritual?  Thus, we are creating history and affecting the future of the entire world as a result of an arbitrary contrivance that need never have occurred in the first place.  To pseudo-events, we can now add pseudo-crimes, those which never would have been charged save for an all consuming investigation predicated solely on the desire to bring charges, whether or not any criminal act initiated the investigation in the first place.  Where this ends, no one can say for sure, but that it will not end well, either in the near future or the longer term, seems assured.  

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