And yes, I understand that Trump supporters will call prosecution for real crimes politically motivated and threaten to riot over them, too. That is not an excuse for making a genuinely politically motivated prosecution on dubious charges. Sticking to real crimes will not mollify Trump supporters, but it will make their complaints look less legitimate to the general public, and, in any event, it is the right thing to do.
And no, prosecuting Trump for the Stormy Daniels payments is not in any way like prosecuting Al Capone for tax evasion. Prosecuting Paul Manafort for tax evasion was like prosecuting Al Capone for tax evasion. Both men were good enough at covering their tracks, and in Capone's case, intimidating witnesses, that tax evasion was about all the government could prove. Donald Trump is terrible at covering his tracks and has a whole parade of witnesses to testify against him. Tax evasion is an extremely easy crime to prove and did not require any stretching of existing law. The Manhattan DA appears to be stretching the law almost to the breaking point to bring charges. There are plenty of much more serious offenses that do not require any difficult legal gymnastics to establish.
Nor is this about establishing that Trump is not above the law. The serious prosecutions, in DC and Georgia, are about whether Trump is above the law. This case is more like the case of the Hillary Clinton e-mail server -- an attempt to place Trump below the law. There are innumerable technical crimes that people break every day, most of which appropriately go unprosecuted. Trump supporters warn Democrats that two can play at that game. I think it safe to say that most of us on our side of the aisle roll our eyes at that threat. Republicans have been playing that game for thirty years!
Consider the Clinton presidency. Republicans in Congress did everything from shoot a pumpkin in an effort to prove that Vince Foster was murdered to investigate the use of government personnel to answer letters to the White House cat. And, of course, ultimately impeached Clinton over an affair with the White House intern. I was much impressed at the time with Alan Dershowitz' book Sexual McCarthyism, which addressed what is properly an impeachable offense. Impeachable offenses, Dershowitz said, should be limited to abuse of public office, or very serious private crimes, like murder.
Dershowitz goes on to say that a sexual impropriety should not be treated as an impeachable offense, and any claim that the real issue was not the sexual impropriety, but some technical crime to cover it up should be treated as disingenuous. I believed that then and believe it now, whether the technical crime was Bill Clinton committing perjury in a civil deposition,* or Donald Trump paying hush money to a porn star. Ken Starr ultimately send Monica Lewinsky's dress to a crime lab and ordered a blood sample from Bill Clinton to prove that he lied under oath about the affair. This sort of thing is normally saved for serious crimes -- real crimes -- like rape. And now one hears people demanding that Trump submit to a physical examination to see if there was an affair. No then, no now.
Dershowitz then goes on to say that a financial impropriety should also not be grounds for impeachment. I am a little hesitant there. How serious a financial impropriety is he talking about? Clearly a candidate living beyond his means, being late on bills, even having bounced checks and bills turned over to collections can be dismissed as a private vice, rather like a consensual affair, and not a matter of public concern. At some point mere financial mismanagement starts to look more like an attempt to defraud creditors, and at some point does become the stuff of criminal investigation. At that point it becomes a legitimate public concern. I confess to not having any clear sense at what point fraud becomes a serious public concern, much less grounds for impeachment or indictment. And that would include the question of whether Trump's myriad financial improprieties cross over that line.
Many things that are technical crimes are handled through civil or administrative penalties. The Justice Department, investigating Hillary Clinton's server, found that, in fact, lower ranking employees were not prosecuted for the sort of mishandling of classified information that Hillary had done. But lower ranking employees did not escape punishment in such cases. Rather, they received administrative penalties such as reprimand, writeup, demotion, loss of security clearance and, in extreme cases firing. The real injustice is that administrative penalties of this sort are not available against political appointees, so there really is no intermediate step between prosecution and no penalty.
Something similar applies to lying in a civil deposition and concealing evidence in a civil lawsuit. Technically, these may be crimes, but as a practical matter, they are almost never prosecuted as such. But this is not the same as saying that such actions go unpunished. They are subject to a wide range of civil penalties, up to and including dismissal against a plaintiff or default against a defendant.** A wide range of campaign finance violations are also handled as civil matters, as are many cases of fraud and other white collar crimes. The New York Attorney General treated the Trump Organization's frauds as a civil matter. The Manhattan DA could likewise have sought civil penalties if he truly thought the Stormy Daniels payoffs were worth pursuing.
Admittedly, there is the example of John Edwards, in the 2008 election, which is remarkably similar. Edwards had an affair with a campaign staffer while his wife was dying of cancer and had a child by her. Some of his wealthy friends paid roughly a million dollars to hush up the affair. These were prosecuted as undeclared campaign contributions, which was widely seen as a stretch. The jury declined to convict, but Edwards saw his political career ruined and fell into ignominy and disgrace.
So prosecuting Trump for a similar offense is not wholly unprecedented, but it is still a serious stretch and impossible to read any way other than as a politically motivated vendetta. If done before Trump is indicted for real crimes, this will undermine the credibility of much more serious charges. If done after, it just looks like piling on. Let it go and stick to real crimes, like trying to overturn an election.
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*Bill Clinton went on to lie to a grand jury about the affair, a much more serious crime, but still ultimately in an attempt to conceal an affair that should never have been the subject of grand jury proceedings.
**Something like that happened in Bill Clinton's case. The original lie took place during a deposition in a civil lawsuit for sexual harassment by Paula Jones. The judge dismissed the suit as not meeting the legal standard of sexual harassment, but Clinton ended up paying damages -- something that presumably would not have happened in the absence of his lies.
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