The Trouble with Lawfare | Steve Berman

Former President Donald J. Trump had to miss an important oral argument before the Supreme Court that is immediately relevant to a pending felony case against him in federal court. He missed it because a petulant, purse-lipped judge with a giant chip on his shoulder against Trump would not allow a one-day adjournment so the defendant could attend the hearing. The right to attend such a hearing is black-letter law–it is due process. But Judge Juan Merchan, who adjourns every Wednesday in order to release more mentally ill homeless people into the wild in New York City, has a schedule to keep.

Since Trump left office on January 20th, 2021, he has faced 91 felony counts in two state courts and two federal courts. He has faced three lawsuits on sexual abuse allegations and libel from denying those allegations after losing the suits. He has been penalized (the math boggles) somewhere around $563 million in the civil cases; most of it going to the State of New York. His associates and employees have served jail time.

Only one of these cases is related to the clearly illegal and chilling events of January 6th, 2021. That case hinges on whether the Supreme Court will grant some kind–if not blanket–immunity to a sitting president in cases where judgement is on trial. The House of Representatives twice voted to impeach Trump, and the Senate did not convict either time. The Senate had the option of convicting Trump for January 6th, with just days remaining in his term, and banning him from ever seeking federal office. They did not.

Now, we see the entire network of prosecutions in the largest full-court press of lawfare this nation has ever known. All it would take is a single felony conviction–on the most serious charges dealing with the mob on January 6th, or the charges of illegal possession and handling of highly classified material–then lying about it–to derail Trump’s 2024 run at the presidency.

But the hungry prosecutors are so rabid, they are pursuing the worst possible course for nabbing their prey. Manhattan District Attorney Alvin Bragg held these “hush money” charges for years, in order that the trial would take Trump off the campaign trail. But nobody could pay enough for the media blanket descending over this trial, so the campaign trail is secondary to the free media–tens of millions of dollars’ worth–that Trump is getting.

Add to that, David Pecker’s testimony that Trump paid to “catch and kill” bad stories, also admitted under cross-examination that the National Enquirer regularly bought stories to kill them for other reasons, or simply as leverage over celebrities they want to arm-twist. In other words, “catch and kill” was not just a political play, it was business as usual for tabloids. In his opening statement, Trump attorney Todd Blanche said that influencing an election was “called democracy.” Suppressing bad stories is what candidates do. It’s what the Clintons have done for many years. It’s what Joe Biden continues to do.

Clinton fixer James Carville infamously said about Paula Jones, “if you drag a hundred dollar bill through a trailer park, you never know what you’ll find.” Paula Jones, Gennifer Flowers, Monica Lewinsky, Rosatom, Whitewater, file servers in the bathroom, Jeffrey Epstein–you name it, the Clintons are neck deep in sex, money, and corruption. But despite Trump’s go-to chant during his 2016 campaign rallies “lock her up!” Hillary never faced a judge, or rabid prosecutors, like Trump.

The problem with this multi-front lawfare against Trump is that the more you see it, the less likely it will be to work. The jury in this New York “hush money” trial has two lawyers on it. Judge Merchan’s instructions to the jury will practically compel them to convict, minimizing the defense and putting three or four fingers and a thumb on the scales of justice and the meaning of “beyond a reasonable doubt.” Oh, there’s little doubt that the facts presented happened. But there’s tremendous doubt if such things constitute a crime were the defendant anyone but Donald J. Trump.

If Trump avoids a conviction here–and it’s likely he won’t avoid it but it will go to appeal–he will be more powerful and electable than ever. If he is convicted, he will play the victim. If the Supreme Court affirms any kind of immunity, without “blanket immunity” for a sitting president (which may happen), Jack Smith’s case in Washington could end up significantly derailed. The document case faces a Trump-friendly (or, said differently, not a prosecutor lap dog) judge, who is aware of the political nature of the prosecution. The Fulton County, Georgia case is hopelessly dogged by the unmitigated stupidity and corruption of D.A. Fani Willis and her staff of incompetents.

The problem with lawfare on this scale is that the target may emerge unscathed. Then what will they do?

Follow Steve on Twitter @stevengberman.

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