On the Trump New York Indictment: A Postscript

In the original of this note, I declared:  “If the counts brought against Mr. Trump ultimately amount to no more than falsification of business records under New York law … such charges are highly likely to be seen … as ticky-tack fouls.  Such an impression helps Mr. Trump.”  I have no background in criminal law.  I have seen it reported that the 34 charges brought against Mr. Trump will amount to NY law misdemeanor counts, not felony counts, unless the prosecution can persuade a jury beyond a reasonable doubt that Mr. Trump falsified his business records in order to evade apprehension for a separate felony crime.  Judging by the muted tones I heard from NY District Attorney Alvin Bragg’s predecessor, Cyrus Vance, Jr., during a CNN interview about the indictment, and by the reserved commentary I have heard from some of the legal experts on MSNBC’s decidedly-liberal Morning Joe, I’d venture that they consider Mr. Bragg to have brought … a whole lotta ho-hum.  (I know, I know; Al Capone.  Even so ….)  Whether this indictment ultimately helps Mr. Trump politically – more on that below — remains to be seen.

Since former WI Gov. Scott Walker’s victory in 2010, I have had a lot of surprises in politics; but rarely have I been stunned.  I was stunned by Mr. Trump’s 2016 presidential election victory; and I was stunned by the margin of Judge Janet Protasiewicz’ victory over former WI S. Ct. Justice Daniel Kelly for a seat on the Wisconsin Supreme Court — 11 points – in such a closely divided and deeply polarized state.  Ms. Protasiewicz had campaigned primarily on women’s abortion rights and her concerns with Wisconsin’s despicably gerrymandered legislative districts.  We learned the day after the election that a close woman friend who is fairly apolitical, and who had truly significant personal issues literally coming to a head on election day, nonetheless made the time to vote for Ms. Protasiewicz because of the abortion issue.  It would appear that former U.S. Senate Majority Leader Mitch McConnell has again been proven too smart by half; if he had either allowed U.S. Attorney General Merrick Garland’s ascension to the U.S. Supreme Court or chosen not to proceed with U.S. Supreme Court Justice Amy Coney Barrett’s confirmation, there would not have been five U.S. Supreme Court votes to overturn Roe v. Wade (recall that conservative Chief Justice John Roberts adopted a more limited rationale that would have upheld Roe).  From Republicans’ perspective, the political milk is now spilt; they are seemingly stuck on the wrong side of an emotive, galvanizing issue that appears likely to be the political gift that keeps on giving for Democrats for years.

That said:  into every life, a little rain must fall (at least for us Irish 😉 ).  As Judge Protasiewicz was winning her Supreme Court seat, Republican state Rep. Dan Knodl won a WI state Senate seat to create a Republican supermajority bloc that now has the votes to remove WI Gov. Tony Evers and other Wisconsin office holders – including judges – from office if the Wisconsin Assembly chooses to impeach them.  (As in the federal system, impeachment charges need only receive a simple majority in the lower house Assembly – now controlled by Republicans – to be referred to the state’s Senate.)  This is not comforting; Mr. Knodl was among state lawmakers who signed a letter in 2020 calling for Vice President Mike Pence to reject the certification of the 2020 presidential election.  Even so, do I think that the Republican Wisconsin legislature will seek to remove Mr. Evers from office?  I may be too optimistic, and stand ready to be corrected (some who read these notes have forgotten more about the innards of Wisconsin state politics than I’ll ever know), but I actually don’t believe that Wisconsin Republicans – despite what (or perhaps because of) what recently happened in Tennessee – will undertake such an effort; such would too closely smack of a Republican Wisconsin state coup d’etat, and could be predicted to incite too fierce a political backlash.  Do I think that the Republican legislature will seek to impeach liberal WI Supreme Court Justices if they seem likely to rule that women have abortion rights under the Wisconsin Constitution?  Again, particularly given Ms. Protasiewicz’ margin of victory, I’m guessing that Wisconsin Republicans would consider the political repercussions of such an action for such a reason too great to risk.  On the other hand, do I think they’ll consider attempting to remove a liberal WI Supreme Court Justice on some trumped up (if you will 😉 ) charge if such is necessary to avoid having their perniciously gerrymandered legislative districting – the reason some of them have jobs — declared unconstitutional under the Wisconsin Constitution?  You bet.

Back to Mr. Trump’s indictment.  Two notions:

First, I was recently asked by someone aware of my legal background why New York Supreme Court (note:  in New York courts, the Supreme Court is actually the trial court) Justice Juan Merchan doesn’t find the former president in contempt and put him in jail for attacking the judge and his family after the Judge instructed Mr. Trump during his arraignment not to make remarks that could endanger others.  My view:  Justice Merchan confronts the horns of a dilemma.  I suspect that the former president may be goading the judge because in his warped view, Mr. Trump wins either way:  either he can significantly tarnish the credibility of the proceedings by consistently casting aspersions upon the judge and the judicial system, or he gets to play the persecuted martyr if Justice Merchan orders his incarceration for contempt of court.  Ultimately, I think Justice Merchan will have little choice but to jail Mr. Trump for contempt if he continues his outbursts; but I would imagine that he’ll wait a bit.  At least were I in his place, I would feel I needed to.  He just shouldn’t wait too long.

Finally, although Mr. Bragg’s charges against Mr. Trump may well ultimately amount to no more than two-pound walking weights when compared to the baggage he’s already carrying, the notion lingers that as Mr. Trump’s legal woes mount, it might be possible for a Republican moderate to run a bit to his left and surpass him for the nomination.  However, even if that happens, Judge Protasiewicz’ victory margin makes clear what a difficult juggling act any GOP presidential nominee will have with the abortion issue in the swing states in the general presidential election campaign.  If the Republican takes the position that s/he will appoint more judges like Mr. Trump did, it will mobilize those seeking to protect women’s abortion rights; if s/he waffles on the issue, s/he will lose the Evangelicals and other religious conservatives, without whom I will venture no Republican can win the presidency.  This issue even seems to help President Biden blunt the ageism issue facing him; in two years, when asked about his obviously advanced age, he can respond, “Justices Alito and Thomas are our oldest Supreme Court Justices.  If they leave the Court during the next four years, who do you want to have appointing their successors – [the Republican candidate] or me?”

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