Law and politics in America

As in any society that calls itself modern, law and politics in America are distinct and separate spheres. They operate by different codes, and one is not superior to the other. Decisions made in the legal sphere do not determine what happens in the political sphere, and vice-versa, even as their effects may spill beyond their respective boundaries.

Following Republican presumptive presidential candidate Donald J. Trump’s felony conviction by a New York jury the other day, the question has been asked whether he is now barred from running for president. No, he is not. Indeed, American voters may yet elect him again as president of the United States in November this year. And, if his conviction is upheld by a higher court, he may assume the presidency while he serves time in prison. If he gets off with probation, he may be made to wear an ankle monitor to record his movements while he hits the campaign trail.

The coming US presidential election has been touted as one of the tightest in America’s history. The votes of a few thousand voters in seven battleground states may determine who will govern the country in the next four years. It’s difficult to say how Trump’s felony conviction will affect the vote in these so-called swing states. What is known is that the majority of Americans did not closely follow the proceedings at the Manhattan court. Therefore, it may reasonably be assumed they didn’t really care about the specific grounds that led the 12-member jury to convict Trump on 34 felony counts.

This means that people are likely to stick to the initial narratives with which they regarded the New York trial. Those who are for Trump see the charges against him as an ill-disguised political persecution, pursued by a partisan prosecutor, and presided over by a biased judge before a rigged jury. Those against Trump would view his jury conviction as an affirmation of the democratic principle that no one is above the law, and that Trump has now become the first former president in America’s history to be convicted as a felon.

Three more cases await him in other jurisdictions, but procedural challenges have delayed the hearing of these cases until after the election. Most legal observers believe these pending cases are far more serious than the one in which Trump was convicted. As a non-lawyer, I myself have struggled to wrap my head around the New York case, and why and how it was pursued by Manhattan District Attorney Alvin Bragg Jr. as ultimately a case of election interference.

From the start, it was clear that Trump was not being criminally charged for having sex with the porn star Stormy Daniels. Indeed, the judge had to restrain this colorful witness from giving too graphic and detailed a description of her 2006 encounter with Trump at a hotel suite in Lake Tahoe. The case has been referred to as a “hush money” trial, suggesting that the crime committed was the payment of $130,000 to Daniels by Trump’s one-time lawyer and overall fixer Michael Cohen. Yet, Trump was not being charged specifically for buying Daniels’ silence.

The crime that the Manhattan District Attorney chose to charge Trump with was for falsification of business documents (invoices, cheque payments, and ledger entries) with the intent of disguising the reimbursements made to Cohen for the payment he had made to Daniels. These records, all 34 of them, emanated from the Trump Organization. The prosecutor had to convince the jury that they were all fabricated with the knowledge and consent of Trump, who was by then already sitting as US president.

That the documents had been falsified was proven beyond doubt. That Trump caused them to be fabricated seemed to many legal analysts not as crystal clear. Many of them believe that, in any case, this was a minor offense that would not rise above a misdemeanor. To pursue it as such seemed like brazen political weaponization of the justice system. But it’s fascinating how district attorney Alvin Bragg Jr., a Democrat, and an elected prosecutor, managed to spin the case to make it appear that the payments and their concealment through falsification of business records were all part of a larger and deliberate scheme to prevent voters from knowing the behavior of the person they would be voting for president. Framed this way, the case against Trump metamorphosed into a case of election interference, a felony, and not just a misdemeanor.

To many, this seems quite a stretch. It bolsters the suspicion there was a political motive underlying the charges. But would it matter if the prosecution was politically motivated? Addressing this question, David A. Graham of The Atlantic wrote: “The bar for convicting any defendant in the American justice system is extremely high: It requires a unanimous decision by 12 citizens who deem a crime to have occurred beyond a reasonable doubt. A prosecutor may well have political motivation, but his motivation isn’t what determines a verdict …” Trump’s defense team “had every opportunity to challenge jurors, introduce evidence, question prosecution witnesses, and call their own.”