The facts and the law behind New York District Attorney Alvin Bragg’s successful prosecution of Donald Trump could be argued at length. But as a government prosecutor for 30 years, I have been most interested in the ethics of prosecuting that case.

Outside the courthouse after the verdict, Trump said, “This was a disgrace.” That echoes comments made over the year since his indictment in the case in which Trump repeatedly claimed the prosecution was “political persecution.”

There’s merit to his point.

No one better outlined the important ethical standards that have enabled state and federal prosecutors to maintain an image of integrity and honesty than Supreme Court Justice Robert Jackson. In a speech to the nation’s federal prosecutors on April 1, 1940, he noted that prosecutors should select cases where the offense is “most flagrant and the public harm the greatest,” while warning that the prosecutor’s ability to choose defendants is the “most dangerous power.”

Choosing defendants, Jackson said, requires judgment. It is a power that can be abused.

“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding a technical violation of some act on the part of almost anyone,” Jackson said. In certain cases, he said, “it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

It is when the prosecutor “picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies,” Jackson warned.

For years, as a federal prosecutor, I had been proud to stand up before the juries and announce, “Ron Sievert for the United States.” I believed that the majority of those in the courtroom understood that the federal government traditionally prosecuted cases that were the “most flagrant.” These were cases where, as Jackson said, “the public harm” was “the greatest.”

We prosecutors preserved our reputation of not prosecuting cases for political reasons by only pursuing cases where there were real victims, in the sense of bodily harm or financial loss. The U.S. Department of Justice had an unwritten but long-understood policy of never indicting and trying a politician for a nonviolent crime within one year of an election.

New York’s prosecution of Donald Trump can be, and has been, characterized long before today by some as a “political prosecution” because of the strong belief that a case on an allegedly false record would never have been brought if Trump were not running for president.

Justice Jackson warned that such a case, without an apparent victim, could undermine the public’s perception of the prosecution’s legitimacy. This prosecution may have upset Trump, but the real question is: Will it damage the good faith – both in the United States and internationally – that has been earned for decades by American public prosecutors?

---

Republished with permission under license from The Conversation.

After the May 30, 2024, conviction of former President Donald Trump on 34 felony counts of falsifying business records in New York, what comes next?

Trump’s legal team will likely appeal the verdict. “We will fight for our Constitution,” Trump said following the jury’s announcement. “This is long from over.” A sentencing hearing for Trump is set for July 11.

The Conversation U.S.‘ politics and society editor Amy Lieberman spoke with Gabriel J. Chin, a scholar of criminal law and procedure, to better understand the verdict.

1. Why were there so many different felony counts in this case?

The essence of the offenses Trump was convicted of is falsifying documents or records. Accordingly, each check, invoice or other document that the jury found had been falsified was a separate offense, which can be the basis of a separate count and punished separately. The prosecution wanted to make sure that the jury saw the full scope of the scheme it alleged had occurred – which is that Trump covered up the fact that he paid hush money to porn star Stormy Daniels by disguising the payment as a legal fee to his lawyer, Michael Cohen. Cohen then allegedly used Trump’s money to pay Daniels to stop her from talking about her alleged affair with Trump.

2. What is most important for people to understand about this conviction?

It is historic and groundbreaking for a former or future president to be convicted of felonies in the United States. There will be debate, and people will have to judge whether this prosecution is an example of the principle that no person is above the law, or whether this is an example of political persecution.

As a technical legal matter, this conviction has a significant effect on all of Trump’s other criminal and civil cases. At a minimum, it means that if Trump takes the stand to testify in any case, opposing lawyers will be able to attack his credibility with this conviction. Lawyers can argue that any witness with a felony conviction might well be lying.

Practically speaking, this verdict also means that Trump – who is registered to vote in Florida – cannot vote there until completion of his sentence. Under federal law, he cannot possess a firearm. But he can still run for president and serve in office, because nothing in the Constitution disqualifies people with convictions – or who are in prison – from running for, or serving as, president.

3. What can we know, if anything, about what his sentence might look like?

New York judge Juan Merchan will decide the sentence alone, without a jury.

It is not surprising that sentencing has been set for July, rather than sooner. As in other cases, the probation office will prepare a report that lays out Trump’s background and history, and the facts and circumstances of this case. Trump has no criminal record, which is generally a favorable sentencing factor. On the other hand, he does have negative results from lawsuits, including a civil finding in 2023 that determined he committed sexual assault. One issue to look out for is whether the prosecution or the probation department argues that Trump’s other criminal charges and civil cases should be considered in sentencing.

One sentencing factor which sometimes comes into play is lack of remorse; it is often a reason judges impose a more severe sentence. It certainly does not seem that Trump has in any way acknowledged that he did something regrettable, or committed a crime. Trump’s violation of the gag orders in this case, which the judge has already punished him for, could also be a factor used to argue for or impose a higher sentence.

4. Given this verdict, is it likely that Trump will serve time in prison?

The offense of falsifying business records is deemed a “Class E” felony in New York state – and each felony has a potential sentence of up to four years. Probation is available instead of incarceration, or probation plus a short term of incarceration. Sentences may be imposed concurrently or consecutively, so theoretically Trump could get a sentence of 136 years if maximum sentences on all counts are imposed consecutively. But, while the sentence is up to the judge, based on past practice it is reasonable to speculate that Trump will not be sentenced to a long prison term, and may well receive no incarceration time at all.

A not-guilty verdict would have been final because of the Constitution’s prohibition against double jeopardy – meaning a person cannot be convicted, acquitted or punished more than once for the same offense.

This conviction will undoubtedly be challenged for years, and the appeals process could have at least two chances to get to the U.S. Supreme Court. Whether this case was appropriately tried in state court will also be an issue – federal authority over federal elections and election crimes is likely to be examined on appeal.

In other words, this case is not over by a long shot. It is likely that even were Trump sentenced to incarceration, he would be allowed to remain free, pending appeal. This practice is not uncommon in complex and high-profile cases, at least where there are reasonable legal claims of error.

5. What made the evidence so strong in this case that it persuaded jurors?

It is in part the breadth of the New York law which, unlike the law in many states, criminalizes falsifying internal business records even when they are private and not used to cheat the tax system or defraud anyone. But even in New York, generally falsifying private business records is a misdemeanor. It becomes a felony only if, as the jury found here, the actions are used to cover up or conceal a crime.

In this case, the jury may well have been persuaded by the prosecution’s argument that the crime covered up was essentially a scheme to defraud the American people by concealing information about the character and conduct of a presidential candidate.

Because Trump was alleged to have deceived voters, perhaps the jury was unwilling to simply shrug this off as business as usual. Another factor is the remarkable investigation that went into preparing this case. The prosecution had so many witnesses and documents that it could tell the story in highly specific detail.

---

Republished with permission under license from The Conversation.