What Does It Mean to Prosecute Al Capone for Tax Evasion?

It should be clear by now that many Trump critics are nonetheless uneasy about prosecuting him for the Stormy Daniels payoffs. And others have suggested that the charges may be flimsy, but this is sort of a case of prosecuting Al Capone for tax evasion.

I disagree.  And in trying to analyze why I disagree, I came up with a series of criteria for what makes prosecution of a serious criminal for trivial matters the proverbial case of prosecuting Al Capone for tax evasion and why it just doesn't apply here..

I would say that for a case to be justified under the prosecuting Al Capone for tax evasion standard, it must meet the following three criteria:

1. There has to be a serious underlying crime.  Al Capone was not just a murderer, his entire fortune was the product of criminality.  The Stormy Daniels payoffs, by contrast, do not involve any underlying crime, just a distasteful affair.  A case of hush money that legitimately resembles prosecuting Al Capone for tax evasion is the case of former Republican Speaker Denny Hastert, who sexually abused underage boys while serving as a teacher and coach and was prosecuted for concealing hush money payments.  I would also throw in the case of Alger Hiss -- almost certainly a Soviet spy, he was tried for perjury in lying about it.
2. The real crime must for some reason evade prosecution.  Al Capone intimidated witnesses and covered his tracks well.  Denny Hastert and Alger Hiss were safe from prosecution on the underlying crime because the statute of limitations had run.  Another classic case might be someone of the underlying crime who is later determined to have concealed evidence or intimidated a witness.  Double jeopardy prevents a second prosecution for the underlying crime, but witness intimidation and tampering with the evidence are separate crimes. Or there may be a heinous act that no one ever thought to outlaw.  All irrelevant in the case of the Stormy Daniels payment, since there was no underlying crime.
3. The lesser crime must be clear-cut.  It may involve stretching the law beyond its original purpose, but there can be little doubt that the accused committed the lesser crime. It was beyond dispute that Al Capone had somehow accumulated a vast fortune, or that he never paid taxes on it.  A simple bank audit made clear that Denny Hastert has engaged in structuring (breaking a large payment into smaller payments to conceal its nature).  And Alger Hiss actually admitted to perjury.  I will admit to not knowing anything about New York's financial records law.  There may very well be a clear-cut misdemeanor case there.  But deceptive financial records are only a felony under New York law if done to conceal another crime.  Any by all accounts, that latter is dubious at best.

Of course, none of this is to admit that Trump has committed serious crimes. They just are not related to the New York prosecution. And that case that may genuinely be comparable to prosecuting Al Capone for tax evasion is the pending Georgia indictment for attempting to overturn the election there.

Consider how the criteria apply:

1. A serious underlying crime.  The attempt to pressure the Georgia Secretary of State into changing the election result was one sub-part of a vast, multi-state scheme to overturn the election and perpetuate the loser in power, subverting our entire system of elective government.  In effect, an attempted autogolpe.  A very serious crime indeed!
2. That cannot be prosecuted.  I don't know if that one applies. But it is possible that Trump's acts were so unthinkable that nobody thought to outlaw them.  No one ever thought to forbid fake electors from certifying themselves in violation of state election outcomes.  There may or may not be federal laws that can be stretched to apply.  Any Trump may or may not have had a provable role. There is ample evidence that Trump wanted to use the machinery of the federal government to overturn the election outcome, which is clearly a crime. But, to state the obvious, Trump was not successful in using the federal government to overturn the election because the federal government at all levels fiercely resisted, hence complaints about the "deep state."*  For anyone else, such an attempt, even if unsuccessful, would probably be prosecutable as criminal solicitation or conspiracy.  But it is not so clear for a President.  After all, Presidents need wide leeway to consider a broad range of options, including some options that are ultimately rejected on legal grounds.  At what point does loose talk about an illegal proposal cross the line into criminal solicitation or conspiracy?  I don't know.  But it is certainly possible that Trump stayed on the right side of the line.  Likewise, standards for criminal incitement are extremely high, and Trump's speech to the angry crowd probably did not meet the standards. 
3. An easily proven lesser crime.  Calling up the Georgia Secretary of State and asking him to change the result is about as clear-cut as you can get.

Finally, even if some part of the federal attempt to overturn the election does turn out to be indictable, it will almost certainly be for a less serious crime than insurrection or sedition.  So any prosecution related to the attempt to overturn the election will be an Al Capone for tax evasion prosecution.

Let's not prosecute on extraneous matters.

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