Doubts Grow Over Bragg’s Case Against Trump

The office of the district attorney is reported to be riven by uncertainty.

AP/Seth Wenig, file
The Manhattan district attorney, Alvin Bragg, at New York, February 7, 2023. AP/Seth Wenig, file

When the Manhattan grand jury weighing whether to hand up an indictment of President Trump convenes again on Thursday, it will do so while the doubts swirling around the case grow ever louder — and the office of the district attorney itself appears to be riven by uncertainty. 

That is a cautionary development, in the view of a criminal law professor at New York Law School, Anna Cominsky. She tells the Sun that “a prosecutor should have a good faith basis that they can prove the case ‘beyond a reasonable doubt’ at trial.” She adds that the “reason why prosecutors are so powerful is because we have given them an unbelievable amount of discretion.” 

That is the context in which the New York Post is quoting an unnamed source to the effect that the “last thing” the district attorney, Alvin Bragg, wants is “for the grand jury to vote against him.” The Post’s source added that the D.A. “wants a no-doubt-about-it case.” So he is pressuring the “‘Trump-obsessed’ prosecutors within his own office to step up and prove the case.”

The Post adds that Wednesday’s day off was prompted by the unavailability of a witness meant to rebut the testimony of an ally of Mr. Trump’s, Robert Costello. Mr. Bragg’s decree that the grand jury not meet in the absence of this witness would suggest that the case against Mr. Trump is not quite buttoned up. 

The Post goes on to report that a “substantial number of assistant district attorneys” — those who will be doing the work of prosecuting Mr. Trump — were “shaking their heads” over the pursuit of the former president, befuddled as to “how this case is going forward.”

These doubting Thomases, the Post adds, are “not fans of Trump but they are  professional lawyers and know the law.” Fox News adds that Mr. Bragg’s team is “rife with dissension.” All of this puts the district attorney of New York County in an ethical quandary even as Manhattan sits on tenterhooks and the former president games out his possible perp walk.

In conversations with the Sun, legal experts offer a chorus of warning for Mr. Bragg. Ms. Cominsky observes that “if the prosecutor handling the case” — Mr. Bragg —  “does not believe he has the requisite proof to bring the charges then he should not present the case to the grand jury (or should not ask the grand jury to vote for an indictment).”

Ms. Cominsky adds that “it is up to the prosecutor and the prosecutor alone whether or not to present the charges to the grand jury.” Other legal sages tell the Sun that they have doubts about those charges. A veteran litigator, Harvey Silverglate, calls the looming charges “outrageous” and adds that “if Trump is going to be indicted for something, it has to be more substantial than this petty matter.”

That view is shared by a famed Harvard professor, Alan Dershowitz, who writes in these pages that “Mr. Trump should not be indicted for novel and unprecedented technical crimes for which no one else would be prosecuted.” Ms. Cominsky notes that the “decision to charge or not charge should be based on the facts and quality of the evidence alone.”

It is now up to Mr. Bragg to decide whether those “facts” point toward an indictment. A former attorney general, prosecutor at Nuremberg, and Supreme Court justice, Robert Jackson, said that “one of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.”  

The New York Sun

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