Is Bragg Beria? An analysis of Trump's potential prosecutorial misconduct appellate arguments

For those critical of Manhattan District Attorney Alvin Bragg for supposedly "finding the man and then finding the crime," Lavrentiy Beria-like, in his office’s successful prosecution of Donald Trump, I present the worst modern example I could find of prosecutorial misconduct in running for office on a promise to convict someone. I then drill down into what Bragg did say and didn't say while campaigning, with the details that I think will fatally undercut Trump's prosecutorial misconduct claims on appeal. (I’ve omitted citations throughout, and all emphasis is mine.)

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In State v. Hohman, 420 A.2d 852 (Vt. 1980), Hohman was charged with murder for strangling a young girl. He was convicted of second-degree murder, but the conviction was reversed on appeal. Upon retrial, Hohman was found guilty of the lesser-included offense of manslaughter. And when he appealed again, Hohman argued that the trial court should have disqualified the state's attorney, Bolton, “for alleged unethical pretrial conduct."

So what conduct was that?

Shortly after the 1978 remand of this case, the state's attorney found himself in a battle for re-election. On November 6, 1978, he ran a large campaign advertisement in the Bennington Banner, a newspaper which circulates in both Bennington and Rutland Counties. The advertisement featured a photograph of the state's attorney, accompanied by the following message:

In 1976 I prosecuted State v. George Hohman and he was convicted of murder. The conviction was overturned because the judge allowed evidence to be improperly admitted, not because of prosecutorial misconduct….

… The Hohman case is the most important case pending. My opponent is disqualified from prosecuting George Hohman. If I am re-elected, I will vigorously prosecute Hohman and obtain a second conviction. Your support would be appreciated, Tuesday, November 7th.

And how did the Vermont Supreme Court react to this misconduct?

We strongly condemn the conduct of the state's attorney in this case. The awesome power to prosecute ought never to be manipulated for personal or political profit [quoting cases & rules:]

The [state's attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

For these reasons, it was error for the state's attorney to fail to disqualify himself, and it was error for the trial court to deny the motion to disqualify the state's attorney. Furthermore, because serious questions exist as to the ethical propriety of the state's attorney's conduct, we will refer this matter to the Professional Conduct Board.

Suffice it to say that no lawyer wants his state supreme court to refer him to the state ethics authorities. This prosecutor went so far out of his way to break the canons of ethics, especially those applicable to prosecutors, that he may well have flushed his career, perhaps even his license, down a toilet — for a mere manslaughter conviction.

I'll come back to how Vermont prosecutor Bolton compares to Manhattan prosecutor Bragg, but before we set aside this remarkable opinion, we ought to ask: Did Hohman win based on this appeal point?

And the answer is "nopers":

As a general principle, error does not require reversal unless it is prejudicial to the defendant. While it is true, as defendant argues, that some courts have chosen to make prosecutorial bias per se reversible error as a matter of public policy, we are inclined to join those courts that have required some prejudice. Unethical conduct, however worthy of censure, does not necessarily deprive a defendant of a fair trial, and is therefore distinguishable from prejudicial error. For this reason, we have previously stated that, "aside from our particular interest in professional conduct, we must also adjudicate between the interests of the people of the State of Vermont and those of the respondent." This latter duty requires a determination of the prejudice to the defendant under the particular circumstances of the case at hand.

So was Hohman prejudiced by prosecutor Bolton's misconduct in running for the prosecutor's office on a promise to convict him?

Because the jury convicted the defendant of the lesser included offense of manslaughter, however, reversal is not warranted. On this record, as a practical matter, it is apparent that defendant could not have negotiated a plea bargain to an offense lower than manslaughter. Therefore, the jury's verdict cured the prejudice that resulted from the state's attorney's attitude by giving the defendant the best result he could have attained through plea negotiations.

Beyond the pretrial stage, we have carefully examined the record, and we are unable to find any instance in which the bias of the prosecutor touched the trial itself. [Long discussion of facts & record.] ... The defendant makes no specific claim of prosecutorial overreaching at the trial, and the record discloses none. It is uncontradicted that none of the jurors were ever exposed to the state's attorney's campaign advertisement. The transcript reveals an uneventful trial.... Therefore, in light of the overwhelming evidence of guilt, we find beyond a reasonable doubt that disqualification of the prosecutor would have had no effect on the outcome of this trial.... Since the pretrial prejudice was cured by the verdict, and no further prejudice appears, the actions of the state's attorney do not require reversal.

Hohman's conviction for manslaughter was therefore affirmed. Thus, even if the most trenchant of critics of Bragg are right — and I don't think they are, as explained next — the rationale of the Hohman decision would require those critics to show how anything Bragg said or campaigned on actually prejudiced Trump in his trial.

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On anything more than the most superficial examination — and most pundits don't appear even to done that, but have instead parroted a meme without checking — the Beria comparison fails because Bragg's campaign statements are nothing like Vermont prosecutor Bolton's.

The most detailed compilation of Bragg's campaign statements (with hyperlinks) that I've come across is this one from PolitiFact. It puts Bragg's statements in the context of the political campaign he was running to succeed retiring DA Cy Vance, Jr., who some argued was too beholden to the rich and powerful. All the candidates in this race were constantly asked, by the press and others, "What about Trump?"

In these settings, candidate Bragg's consistent formulation of his position about Trump was that he would continue his predecessor's investigation and hold Trump “accountable by following the facts where they go.” He pointed out that as a candidate, he wasn’t privy to the investigation, and that even if he were, he couldn’t predict where the investigation might lead. But Bragg also argued that of all the candidates, he was best equipped to see where the facts went, based in part on his own familiarity with the Trump Organization's methods and details:

When questioned on the campaign trail about the Trump matter, Bragg routinely cited his past experience as a chief deputy attorney general for New York state. In this role, Bragg oversaw more than 100 lawsuits against Trump administration policies including a travel ban and the administration’s attempt to rescind an Obama-era program that prevented the deportation of immigrants who entered the U.S. illegally as children. Bragg also sued the Trump Foundation over its alleged illegal coordination with Trump’s 2016 presidential campaign. A judge ordered Trump to pay $2 million as part of a settlement in that case.

Missing from Bragg's campaign rhetoric or later public statements as DA is anything like "Trump is guilty" or — like prosecutor Bolton in Vermont — any promises that if Bragg were elected, he would "vigorously prosecute [Trump] and obtain a ... conviction."

Bragg did not so much as venture a prediction on the likelihood of an indictment, much less a promise of conviction, ever! Bragg did not overpromise, nor, after the indictment, did he overstate the case he was bringing. In his press release announcing the charges, he reminded the public of Trump's presumption of innocence, and that the charges were only allegations until proved. Throughout the pretrial proceedings and the trial, Bragg's trial team behaved with propriety and professionalism, regardless of the fact that Trump and his surrogates did not.

It is fair to say that during his campaign for office, Bragg tried very hard to demonstrate to the public that if — and only if — the facts did indeed lead beyond an investigation, and on to a prosecution, then he was the best qualified candidate to represent the People of Manhattan in any such proceedings.

And so he turned out to be — thirty-four times in a row.

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This is all reminiscent of Thomas E. Dewey:

As a New York City [special] prosecutor [appointed by the governor to investigate and prosecute organized crime and its enablers in the justice system] and District Attorney in the 1930s and early 1940s, Dewey was relentless in his effort to curb the power of the American Mafia and of organized crime in general. Most famously, he successfully prosecuted Mafioso kingpin Charles "Lucky" Luciano on charges of forced prostitution in 1936. Luciano was given a 30- to 50-year prison sentence. He also prosecuted and convicted Waxey Gordon, another prominent New York City gangster and bootlegger, on charges of tax evasion. Dewey almost succeeded in apprehending mobster Dutch Schultz as well, but Schultz was murdered in 1935, in a hit ordered by The Commission itself; he had disobeyed The Commission's order forbidding him from making an attempt on Dewey's life.

Dewey rode his special prosecutor status through to election to the same office Bragg now holds, and his successes there propelled him to the governorship of New York and the GOP nomination for the presidency in 1944.

Of course, Dewey was not the first or only prosecutor to parlay success in that job into higher office. The Sheriff of Wall Street, Eliot Spitzer, rode that horse from chief of Manhattan DA Robert Morgenthau’s racketeering unit to the state attorney general’s office, and thence to the governor's mansion in Albany (and then out, memorably). Rudy Giuliani stormed from the Office of the U.S. Attorney for SDNY into Gracie Mansion, where he became "America's Mayor." And then there's our current VPOTUS, a heartbeat away from the presidency.

In our system of government, state prosecutor positions are commonly filled through elections. That's a fairly direct participation by popular democracy in the criminal justice system, but it's filtered through canons of legal ethics specific to, and more demanding of, prosecutors.

And we've recently seen a wave of prosecutors, particularly from blue enclaves, who've been booted by voters for inadequate representation of the public’s interest in justice. This, too, is democracy.

If you accept that state prosecutors should be elected positions, and that reformers and crusaders can and do indeed serve a public interest, then you should expect statements of the sort Bragg made about holding everyone accountable under the law, including those who quite prominently have skated beyond it.

And you should also give due — which is to say enormous! —regard to the fact that no prosecutor, on his or her say-so, can convict anyone. That's why we have grand juries, and trial judges, and petit (trial) juries, and appellate courts — to hold prosecutors to their burden of presenting first probable cause, then proof beyond a reasonable doubt in open court proceedings in which the defendant, represented by competent counsel, can challenge that proof and present evidence of his or her own.

If Trump had been acquitted, Bragg would certainly have taken a reputational hit, and nobody would be talking about Tom Dewey and him in the same breath. As is, Manhattan voters are likely to reward him with reelection for doing his damn job competently, and indeed, brilliantly — despite formidable challenges both legal and factual.