BeldarBlog

Regardless of how you assess its legal strength, the Manhattan DA's case against Trump was factually devastating

Jonah Goldberg's latest newsletter at The Dispatch — entitled "No, We Are Not Living in ‘Late Soviet America’: What Niall Ferguson’s recent Cold War analogy misses" — is superb, an excellent example of the shrewd analysis to be found in Dispatch Media's online writing, podcasts, and videos. At least as of the moment I'm writing this, it's not paywalled — although membership at Dispatch Media, the content it brings, and the commenting community to which that opens access, would be an incredible bargain at triple the price. 

What follows below (as slightly edited) is from a comment I left on that particular newsletter — a comment which has nothing to do with its main subject (which the title and subtitle succinctly describe), but instead expresses my frustration with Mr. Goldberg's continuing description (in passing here, but consistently lately in other essays and podcasts) of Manhattan District Attorney Alvin Bragg's successful prosecution of Donald Trump as "weak." (For my position on the extent to which Bragg's prosecution was politically motivated, see my post from June 10, 2024.) For context, in my comment as reprinted below, I was responding specifically to this from Mr. Goldberg:

New York’s prosecution of Donald Trump was politically motivated, and Manhattan District Attorney Alvin Bragg’s legal case was weak. Granted. But Trump was not detained in a “torture dacha” pending trial, and his family wasn’t threatened with execution or prison ... [continuing, persuasively, with other significant differences].

My response:

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It's very fair to say that the Manhattan prosecution of Trump was widely considered to be a weak legal case by legal pundits when it was first filed. I was one such.

But at the recommendation of my friend Patrick Frey aka Patterico, I invested the time to read Judge Merchan's pretrial order of February 15, 2024 — weeks before the trial began. In it, he comprehensively reviewed the relevant New York business records falsification statute, and he tested the evidence Bragg's team produced in response to Trump's motions to dismiss against that law. Trump's motion to dismiss was granted as to one of the prosecution's theories. But legally, Judge Merchan was on well-trod ground. The only thing that was novel wasn't the law, but the facts: "Wow, what a fraud! And for what a nationally consequential motive and possible effect!"

But as the trial itself established, Bragg's case on the facts turned out to be very, very strong. It was constructed from witnesses and documents other than perjurer and coconspirator Michael Cohen. Even on the absolutely key question of Trump's personal involvement so as to prove beyond a reasonable doubt that he had "made or caused" the falsifications, there was both direct evidence — Allen Weisselberg's handwritten notes calculating the "grossing up," essential to covering up the falsification of the hush money payment in Trump's own records — plus the overwhelming inference, including public brags from Trump himself, about how he squeezed every nickel while examining it under a microscope. Even without corroboration through Cohen, this other evidence, if credited by the jury, would have been enough to sustain a conviction on its own. But as it turned out, Cohen — like so many other flipped witnesses, including literal murderers and international terrorists — turned out to be very damned credible on the stand.

So please, Mr. Goldberg, if you are going to continue to insist that Bragg's case was legally weak, at least acknowledge that it was factually devastating. And of course, I trust you will agree that Trump was his own worst enemy —

• insisting on disputing the affair, thereby throwing open the evidentiary (relevance) door to salacious details;
• the stage-whispered comments ("Bullsh!t!"), and all the mugging and drama and then, disdain for the jurors by sleeping or simulating sleep;
• the conspicuous attempt to sway the jury by bringing powerful politicians kissing Trump's ring (or something);
• the disastrous decision to call Robert J. Costello as the only substantive defense witness;
• the ten criminal contempt convictions (each proved beyond a reasonable doubt);
• Trump's lawyers' overpromises in opening statement and insults to the jurors' intelligence;
• permitting a BigLaw civil litigator and BigLaw deal lawyer on the jury, where they likely functioned as teaching assistants for the prosecution team

— and I could go on and on.

Again, I know the Manhattan prosecution was not the subject of this newsletter. But I hope you and others will look at it afresh, post-verdict.

Observations and conclusions regarding the House's referral of criminal contempt of Congress charges against Attorney General Merrick Garland

(1) Our starting point is that criminal investigations, state and federal — broadly defined to include communications, deliberations, and gathering of witnesses' testimony and evidence of all sorts — are universally treated as confidential by law enforcement authorities including prosecutors. The law recognizes and promotes that confidentiality by treating information and materials relating to the investigation as being privileged from compelled disclosure through, for instance, a subpoena. If the investigation results in charges, especially if it eventually results in a public trial, then some considerable portion of that information and those materials may end up becoming public as part of the prosecution's proof of its case, or if it's exculpatory, in response to defense motions to produce. A public trial may not reveal inculpatory materials from the investigation that were too hinky for an ethical prosecutor to rely upon. And when the investigation never results in charges — which is true in the very large majority of investigations — law enforcement authorities and prosecutors uniformly refuse to comment, typically not even confirming (or denying) whether there is (or was) indeed an investigation, and likewise refusing to confirm or deny that it's been closed without charges. These materials remain confidential forever (unless perchance an investigation is re-opened).

(2) The investigation of President Biden's retention of classified documents from his vice presidency, though, obliged the Attorney General and the executive department he heads to investigate the AG's boss — an ethical conflict of interest. There's no perfect solution to such conflicts of interest, but the way they're currently handled is through the appointment of a special counsel — someone who still reports to the Attorney General (and through him, ultimately, to the POTUS). Unlike the 92 U.S. Attorneys for the various federal districts and other DoJ prosecutors, the special counsel, under the current regulations (codified at 28 CFR part 600), can in theory (and in practice so far) only be fired for cause (although it's still the AG making that often subjective determination on "good cause"). Special counsel also have some national geographic jurisdiction that regular U.S. Attorneys have to get special permission to exercise, and there are additional financial and staffing resources made available to help ensure as much independence as can be effectively simulated.

Ultimately the POTUS can still fire an AG who refuses to fire a special counsel, though, as happened in the Saturday Night Massacre during the Watergate investigation — and that chain of authority is probably required for special counsel to have authority to prosecute in court on behalf of the United States. To compensate in part, the regulation prescribes limited sunlight: The AG must advise Congress when a special counsel is appointed, and if the AG has overridden or reversed a prosecution decision or other major decision, and if the special counsel has been fired or replaced, and if the special counsel has closed his or her investigation without public result. This is only a barebones notification, though. By contrast, each special counsel is obliged under the regulation to write a full report to the AG at the conclusion of his or her duties; by default, those reports, and the materials (including witness interviews and grand jury transcripts) upon which the reports are based, remain confidential within the DoJ — just like all other criminal investigational materials than haven't been made public through indictment and trial. The regulation gives the AG discretion to release all or part of a special counsel's report to Congress or the public. But it also gives the AG discretion to refuse to release, or to delay releasing, a special counsel's report — especially parts whose release might compromise other ongoing investigations or otherwise harm the public interest.

(3) In practice, notwithstanding the regulation's confidentiality protections, Congress and the public have come to expect AGs to release all or most of such special counsel reports, at or near the same time the AG advises Congress that a special counsel's investigation has been concluded. President Trump's second AG, Bill Barr, as per a strong (but not ironclad) assurance he'd made during his confirmation hearings, thus released most of the Mueller report, albeit with extensive redactions, shortly after he and Deputy/Acting AG Rod Rosenstein advised Congress that Mueller's investigation had been completed in a report of their own about Mueller’s report. (Garland has since released a less-redacted version of the Mueller report in response to FOIA suits.) And during AG Garland's confirmation hearings, when he was quizzed by senators about then-ongoing work of special counsel John Durham, Garland likewise gave strong (but not ironclad) assurances that he'd release Durham's report. Since then he's extended that public near-promise — an unwise one in my own judgment — in writing for all special counsels appointed during his tenure.

Thus did politics effectively gut the discretion the regulation gave to just say, "Nope, the AG has determined that releasing the report on this investigation that didn't produce an indictment actually doesn't serve the public interest." And thus was Garland so hoist on his own petard that with Hur's report and its declination-of-prosecution decision, Garland didn't even repeat Barr's gambit (with the Mueller report) of first releasing his own statement about the report, then delaying the report itself for a couple of weeks to do redactions. But Garland has surely pleased the White House by resisting the release of the audio.

(4) Political motivations and consequences aside, however, as a legal proposition, by voluntarily releasing the Biden interview transcript along with Hur's report, not just in private to the chairs and ranking members of the House and Senate Judiciary Committees, but also to the public at large, AG Garland thereby waived — conclusively (because you can't un-ring the bell) and knowingly and deliberately — the investigative privilege that would otherwise have protected the written transcript against attempts by either Congress or private parties to force the transcript's public disclosure through a subpoena.

(5) The nature of a privilege against compelled disclosure that's being waived doesn't depend on the method of recording that which has been gathered in the investigation. The privilege attaches to the substance of what's been recorded, regardless of the means. (The means might become important if there is a dispute about the accuracy of the transcript; here there has been no basis even alleged, much less shown, to believe that, and their accuracy is certified by licensed professionals.) As with other waiver cases in other contexts, once the substance has been deliberately revealed — once the horse is out of the barn, indeed slapped on the rump by the farmer on his way out the barn door — the privilege is gone as a basis to resist an otherwise lawful subpoena. So: Is the House subpoena otherwise lawful?

(6) Congress has oversight responsibilities for the actions of the Executive Branch, including the Department of Justice. But those responsibilities do not extend to the details of individual investigations and prosecutions: While it can re-write the laws for the Department to use in dealing with all persons, it may not re-write laws, or consider re-writing laws, to deal with the criminal responsibility of a single particular target or defendant. (If it did so, it would run afoul of the Constitution's prohibition against bills of attainder, i.e., laws directed at particular persons rather than at the public generally). Ordinarily a Congressional subpoena demanding materials relating to one specific investigation would therefore fail when Congress tries to enforce it in court (assuming it can get a lawyer with authority and standing to so argue on behalf of Congress in court, that role normally belonging to, you guessed it, the AG). The House Judiciary Committee's subpoena of AG Garland attempting to compel him to produce the recorded audio version of the transcript is therefore invalid, as being beyond any proper legislative purpose. Of course Garland cannot be prosecuted for contempt of Congress after timely and properly objecting to the subpoena's validity (which the DoJ has done, in contrast to, say, Steve Bannon or Peter Navarro, who just ignored their subpoenas altogether).

(7) Whether a news organization might now be able to get the audio version under, e.g., the Freedom of Information Act, is a different question legally. I don't know the answer to that, but it might depend on whether DoJ's voluntary release of the substance of the interview, in the form of the written transcripts, waive objections that the DoJ would otherwise have — not only per its usual practice and tradition of confidentiality, but by specific statutory exemptions to FoIA. It would surprise me to see that litigation play out before Election Day, however.

(8) The assertion by AG Garland that disclosure of the audio will hamper future law enforcement is silly and disingenuous, unworthy of a man who sat as chief judge of the D.C. Circuit bench: Any potential future deterrent effect on witnesses voluntarily giving information if they fear their recorded voices will be disclosed (absent extraordinary circumstances, e.g., transcripts of confidential informants whose very identities are secret; Joe Biden's isn't) could only possibly apply in the tiny fraction of cases that result in special counsel appointments, and further, in which the AG has independently exercised his discretion to release the special counsel's report (and supporting materials including written transcripts of the recorded audio). The FBI isn't generally luring witnesses into cooperation with promises to keep secret only the audio version of what the witnesses say, while reserving the right to broadcast the transcription of the same interview. That would be nonsense, without some particularized reason that the audio had legal significance distinct from the transcript. (Political significance is no part of this equation — or at least, shouldn't be.)

(9) Likewise, the assertion by AG Garland that for purposes of privilege determination (investigative or, as discussed below, executive privilege), one can preserve privilege as to an audio recording of an interview, the transcript and therefore the entire legally relevant substance of which has already been released, is frivolous: substance having been waived, form doesn't matter. (Note that when AG Garland released the transcript of Hur's interview to Congress and the press, he didn't even attempt to carve out and preserve an exception to the broad substantive waiver for the audio version. This is all a post hoc rationale, contrived just to oppose the subpoena.)

(10) Finally, the argument that President Biden and the Office of the Presidency can invoke executive privilege — as opposed to the DoJ invoking its already deliberately waived investigative privilege — is again an offensively stupid argument. Yes, technically Hur was in the Executive Branch's chain of command. But he was as far independent of it as Neal Katyal's clever regulation-drafting could manage. And Hur was not aligned with, but formally adversarial to, Biden's interests in these interviews. That's why Biden had his own personal lawyers present, plus White House counsel to represent him in his official capacity. Hur was not a close advisor of a POTUS whom we expect the POTUS to be able to trust for confidential advice, but someone who potentially might be indicting him, and who certainly wasn't there to give Biden forever-confidential advice and counsel. Shame on anyone who even pretends for an instant that this qualifies for executive privilege; that is a wild overreach that reeks of Trump's absolute immunity argument, or Nixon's excuse to David Frost that "It's not illegal when the President does it."

CONCLUSIONS: The House referral of AG Garland for prosecution for contempt of Congress is invalid because the underlying subpoena is invalid — but the Biden DoJ and its AG are being extremely disingenuous in resisting it anyway. Their resistance is transparently, exclusively political and legally laughable. If this referral somehow makes it to court, the judge should declare a pox on both of their houses (i.e., on the House’s subpoena and the DoJ’s claims of privilege), and therefore dismiss Congress' attempts to enforce the subpoena as a nonjusticiable political question that the federal courts must abstain from answering.

(Congress as an institution is not left without other means of pushback, including structural reorganizations and the power of the purse; but they’re all likely to require both chambers’ approval, and that is unlikely.)

Congressional Republicans won’t get their audio. But they are still free to argue to their hearts' content — in the court of public opinion, and in connection with the upcoming election — that there must be something politically awful that's unique to the audio and that is the true motivation for refusing to release it. They may justly ridicule the DoJ’s audio-only privilege claims and purported rationale for refusing to produce the audio.

But the subpoena is invalid not because of any privilege (waived or otherwise), but simply because it went beyond a legitimate legislative purpose of the present Congress. House Republicans can certainly try to politically shame Biden and Garland for their very shameless stonewall of the audio without any proper legal ground for doing so; but the House nevertheless has no legal or practical tool (short of impeachment, and good luck with that, yet again) to compel Biden or Garland to dismantle that stonewall.

And you, members of the public, friends and neighbors, once again should realize that neither side of this dispute has been telling you anything remotely approaching the truth about these issues and their respective disingenuous positions on them. Your continuing skepticism of all concerned is well justified.

Alas, even without having heard the audio, no one can fault the obvious political calculation shared by both sides in this shoddy affair:

In all likelihood, there's absolutely nothing the audio would show that the transcript doesn't. I've read the transcript; it does not make Biden look good, but rather thoroughly justifies Hur's report’s characterization of Biden's mental acuity and its limitations. But almost no one will read so much as ten pages, or ten lines, of the transcript — whereas a sound bite in Joe Biden’s voice, endlessly replayed, could swing a close presidential election.

Will the Defendant please rise? Beldar's crystal ball reading on Trump's Manhattan sentence

Between now and election day, on the Trump legal front, there are only likely to be two very big events.

One will be the announcement of the SCOTUS' decision on the absolute immunity case. But that is widely expected to be a loss for him on the merits, the extent of which will depend on how narrowly the SCOTUS circumscribes and defines the limits of a qualified presidential immunity. He might get one count of the DC case knocked out, which he will portray as a victory; but he assuredly will continue to face trial in DC and FL unless he wins in November.

But the second is going to be Trump's sentencing. Judge Merchan has, throughout this case, written clear and cogent opinions explaining his important rulings — replete with factual findings and record citations of the sort an experienced trial judge uses to create a record that will withstand appeals.

Contrary to the predictions of most other legal pundits, I think Trump's sentence is more than likely to include a term of incarceration. It will by statute be limited to no more than 20 years but almost certainly not more than a fraction of that. I'd be surprised if it exceeded four. But I'd not be surprised if it were two years. If I had to pick a single most likely sentence, it would be one year plus a tightly restricted and lengthy term of probation, plus fines, costs, and some sort of public service picked to have the most likely rehabilitative effect (which is to say, what he'll most hate). The incarceration would likely be a form of house arrest designed to accommodate the Secret Service.

If I were pronouncing sentence, I'd sentence Trump to two weeks (14 days) on each of his 34 felony counts, stacked to a total of 476 days (just short of 16 months). One fortnight per felony. Let him argue that that violates the Eighth Amendment ban on cruel and unusual punishments.

Here's my point: A lot of people who tuned in only briefly and from 40,000 feet to the trial itself still have only a fuzzy idea of what it was all about. They're were shocked and left somewhat mystified by the verdict. But they're going to be much more shocked by a sentence that includes incarceration.

And Judge Merchan's sentencing decision is going to be the most powerful, important compilation yet of all the nastiest details of both Trump's crimes as found by the jury, and all the other circumstances — including his criminal contempt findings, his lack of remorse, his unsuitability for and resistance to rehabilitation, and his continuing pattern of other fraud and civilly culpable misbehavior in other cases against him and his businesses — that can justify putting a former POTUS, or any person similarly situated, behind bars.

Judge Merchan's pronouncement of sentence will be the New York State criminal justice system's most important, concise, and powerful statement yet regarding Trump's criminal nature. Whatever any pundit or lawyer or Bubba says about it, their pronouncements will not end with "It is SO ORDERED." There is a wide gap between punditry and pronouncement of sentence, the former of which usually doesn't involve ankle monitors or cell bars.

And yes, despite what a lot of very poorly informed talking heads on TV say, there are indeed precedents that include incarceration for felony violations of the New York business records falsification statute under which Trump was convicted. He's old, but the prior civil and criminal determinations against him show he's spent many of those years engaged in fraud. He's a first offender as a felon, but not as a lawbreaker, and there were 34 of those felonies. The crimes were nonviolent, but not victimless — the entire public is victimized by electoral fraud, tax fraud, and business record fraud.

Trump has insisted on being his own top lawyer, and he's had history's greatest fool for a client. He has done everything imaginable to help create a factual record that will justify a sentence of incarceration, and there's almost nothing in the other pan of the scales of justice that weighs in favor of either the trial or appellate courts exercising their discretion over sentencing to his benefit.

Voters are unlikely to see him in cuffs before election day; any incarceration will surely be stayed pending appeals at least through the initial level, which won't play out until 2025. But the distillation of the entire criminal case into a number of months or years of incarceration, if that's part of his sentence, is going to have an even bigger impact than the verdict.

Finally: Even if you reject my analysis and go with the crowd that's saying "No jail time," surely we can all agree: No mere "slap on the wrist" is in the cards.

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.