THE GREAT TRUMP GOOSE CHASE. Donald Trump’s adversaries have sought to use the law against him — to charge him with a crime, to sue him, to target him with endless investigations — ever since he entered presidential politics in 2015. As a businessman, Trump had a litigious past, of course, but the legal onslaught directed at him after he ran for president was unprecedented in U.S. history. And it has continued since he left the White House.
Some of the anti-Trump lawfare succeeded to the extent that it damaged Trump’s standing with the public, harmed his reputation — remember the big-time commentators who called him a “Russian asset?” — and distracted him from the work of his administration. But none of Trump’s inquisitors actually succeeded in charging him with a crime. (Put aside Trump’s two impeachments, which were political processes separate from the justice system and which both, given the high standard required for conviction, ended in acquittal.)
Trump investigations fit into a pattern. An allegation was made and then amplified in the media. An official body, such as law enforcement or congressional committee, began an investigation. Evidence was leaked. The media amplification rose even higher, along with the hopes of Trump’s adversaries. Then the official body neared a conclusion of its work. Word began to get around that it might not be the anti-Trump coup de grace that some hoped. Then Trump’s adversaries began to focus on a new investigation, with new hopes that it would be the one that would do Trump in. The excitement-investigation-letdown cycle would repeat itself.
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In the last year, since the end of Trump’s presidency, the investigation that has attracted the most hope in Resistance circles has been the inquiry by the Manhattan District Attorney’s Office into allegations of illegal business practices inside the Trump Organization. Specifically, some of the prosecutors in the office believed that Trump had habitually overstated the value of his properties on financial disclosure statements when he was trying to get loans and understated the value of the properties when it came time to pay taxes on them in order to pay less tax. The hope was that Trump could be charged with some sort of fraud.
The DA’s office had been put on the case by Michael Cohen, the former Trump fixer who went to jail for cheating on his taxes — he concealed $4,134,051 in income from the IRS — and for lying to Congress. “It was my experience that Mr. Trump inflated his total assets when it served his purposes, such as trying to be listed among the wealthiest people in Forbes,” Cohen told Congress in February 2019, “and deflated his assets to reduce his real estate taxes.”
The investigation moved along two tracks. Manhattan District Attorney Cyrus Vance Jr. was conducting a criminal investigation, and New York Attorney General Letitia James was conducting a civil investigation that covered a lot of the same territory. The two offices were cooperating in hopes of finally bringing Trump down.
Democrats were excited by the prospect. “I think the walls are finally closing in on the truth about the Trump Organization and what has happened,” Democratic Rep. Madeleine Dean told CNN in March 2021, echoing what many other Democrats, and their allies in the media, felt.
These were politically motivated investigations. It’s as simple as that. Remember that both James and Alvin Bragg, the new Manhattan district attorney who replaced Vance, were elected on a platform of getting Trump. Indeed, the Democratic campaigns for those two jobs, New York attorney general and Manhattan district attorney, were essentially bidding wars in which each candidate pledged to be tougher on getting Trump. I’ll be tough on Trump, one candidate would promise. I’ll be really tough on Trump, another candidate would promise. No, I’ll be super-duper tough on Trump, yet another candidate would promise.
Bragg, who during the campaign boasted, “It is a fact that I have sued Trump more than 100 times,” won the contest. He then began work on what the New York Times called “the most prominent and contentious criminal case in the United States.”
Then a funny thing happened. The new district attorney, who by the time he took office had become well known for not wanting to prosecute thousands of lawbreakers in New York, had to take a close look at the actual evidence in the Trump case. Two headstrong prosecutors whom Vance had chosen to handle the case, Mark Pomerantz and Carey Dunne, presented their evidence to Bragg and his team. It was not a strong case. In fact, Bragg learned that all along there had been concerns in the office that the case was weak and that Vance, Bragg’s predecessor, was moving too fast.
“Late last year,” the New York Times reported, “three career prosecutors in the district attorney’s office opted to leave the investigation, uncomfortable with the speed at which it was proceeding and with what they maintained were gaps in the evidence. The tension spilled into the new administration, with some career prosecutors raising concerns directly to the new district attorney’s team.”
Bragg began to worry. He had “concerns about the challenge of showing Mr. Trump’s intent — a requirement for proving that he criminally falsified his business records — and about the risks of relying on the former president’s onetime fixer, Michael D. Cohen, as a key witness,” the New York Times reported. Indeed, what prosecutor would not worry about building a case on Cohen’s word?
There were more meetings. In an effort to convince Bragg, Pomerantz and Dunne wrote opening arguments for the case they would make. But that didn’t fix the underlying problem. There was a lack of documentary evidence to support the charges, and there was no Trump insider who had flipped and was telling prosecutors what they wanted to hear.
A desperate search ensued. What can we charge Trump with? We’ll take anything! Just look at this New York Times description of the prosecutors’ effort to settle on a crime they could accuse Trump of committing:
For months, the prosecutors had envisioned charging Mr. Trump … with the crime of “scheming to defraud” for falsely inflating his assets on the statements of financial condition that had been used to obtain bank loans. But by the end of the year, the prosecutors had switched gears, in part because Mr. Trump’s lenders had not lost money on the loans but had in fact profited from them. The new strategy was to charge Mr. Trump with conspiracy and falsifying business records — specifically his financial statements — a simpler case that essentially amounted to painting Mr. Trump as a liar rather than a thief. The case was still not a slam dunk, [one of the prosecutors] acknowledged at the meeting. But he argued that it was better to lose than to not try at all.
The troubles with the case became public in late February, when Pomerantz and Dunne resigned. Bragg said the investigation would still go forward, but it was clear to all that the energy had been drained from the effort. The politics of this political case, however, dictated that Bragg could not just kill it outright. Reported the New York Times: “Mr. Bragg’s decision on the Trump investigation may compound his political problems in heavily Democratic Manhattan, where many residents make no secret of their enmity for Mr. Trump.” Reading that, does anyone need any more evidence that this was a politically motivated prosecution?
What is next? Now, as sure as the sun rises in the east, some resistance types have switched their get-Trump hopes from the Manhattan district attorney to the House Jan. 6 committee. The committee filed court papers recently declaring that Trump had violated laws after the 2020 election and in the run-up to the Jan. 6 Capitol riot. “The Select Committee … has a good-faith basis for concluding that the President and members of his campaign engaged in a criminal conspiracy to defraud the United States,” the committee wrote, adding that “the evidence … provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. 1512(c)(2),” referring to the law against obstructing an official proceeding.
Of course, the Jan. 6 committee does not have the authority to file criminal charges. Members of the House of Representatives are not prosecutors. Instead, the House would have to ask the Justice Department to charge Trump. And we have already seen a number of explanatory articles noting that prosecuting Trump on the committee’s charges, much less winning a conviction, would be a very difficult matter. Still, the hope is there. There have been so many letdowns, including Robert Mueller, the congressional investigations, Impeachment I, Impeachment II, and the Manhattan DA, that the Jan. 6 committee has become the main source of optimism for those who believe the indictment of Trump is just around the corner.
Maybe it is, and Trump will be charged — unexpected things can happen — but the excitement-investigation-letdown cycle has been a terrible thing for the former president’s adversaries in the past. They’ve had their hopes raised so many times, but they just can’t give up on Trump, even though he is now a defeated former president. Maybe the next investigation will be the big one.
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