When Bullshit is Karma

As everyone knows, Donald Trump was convicted of 34 felonies. And I have to admit I’m enjoying the heck out of it. Trump is a sociopathic scumbag — always has been — and I enjoy watching bad things happen to him. Many of his supporters are also terrible people, and their hysterical over-reactions are one of the best parts of this.

Cry harder! Ha ha ha ha ha!!

Ahem.

But…I have to admit I’ve never been a fan of this case. I’ve spent a fair amount of my blogging life complaining about bullshit prosecutions, and Alvin Bragg’s case against Trump smells like bullshit. Let me see if I can explain.

I remember the first time I traveled on business, I filled out my expense report, and a few days later someone in the accounting department angrily called me to his office and proceeded to berate me for mis-categorizing expense items.^[1]Pro-tip: You can sometimes back these people off by apologizing and then asking for the manual that explains the correct procedures, which they never have. I had charged some hotel restaurant meals to my room and then categorized payment of my hotel bill as a hotel expense. What I should have done is broken out the meal portion of the hotel bill as a meal expense.

That’s basically what Trump is accused of doing. Trump gave his lawyer a bunch of money, some of which was to be used to pay off Stormy Daniels, but on the books the entire amount was recorded as legal fees. Apparently, this was not the right way to record the payment to Daniels. Still, recording a payment to a lawyer as a legal fee doesn’t strike me as an outrageous crime.

There’s a difference, of course, in that I had simply erred, whereas Trump was deliberately trying to hide the payment to Stormy Daniels by laundering it through his lawyer. Falsifying business records is a crime in New York, but it’s a misdemeanor for which the statute of limitations has long since run out. That’s probably why prosecutors decided to charge Trump was with falsifying business records to conceal other crimes, which makes it a felony, and the felony version of the crime has not yet run out the clock.

What makes it even stranger is that prosecutors have not really spelled out the crimes that trump is supposedly concealing. Or rather, they spelled three possibilities for the jury to choose from.

One possibility is that Trump and/or his lawyer committed campaign finance fraud because the hush money payment to Stormy Daniels was in furtherance of the goal of getting Trump elected, thus making it effectively an unreported contribution to his campaign. This all hinges on exactly why Trump and/or his lawyer were motivated to pay the hush money, which quickly gets into murky questions of motivation and intent that I’m not sure can ever be known. Also, I just think a lot of campaign finance law is arcane and stupid.

Another possibility is that Trump was committing tax fraud. Trump’s payments to Michael Cohen were reported as income to Cohen (presumably so that Trump could argue it was Cohen, not Trump, who was paying off Stormy Daniels). This might actually raise Cohen’s taxes, which is a pretty weird way to commit tax fraud.

The third possibility offered by the prosecution is the theory that Trump falsified business records in order to hide the falsification of other business records. This sort of circular reasoning is a bit of a head scratcher.

(Reason‘s Jacob Sullum does a pretty good job of explaining some of these problems in more detail.)

Making matters worse, the Jury is not required to agree on which of these three possibilities is true. As long as each juror believes at lease one of them is true — the campaign finance fraud, the tax fraud, or hiding other other fraud — they can vote guilty and the vote is considered unanimous. (Assuming they find the other elements of the crime proven as well.) That sounds wrong, but it’s the rule in New York.

I’m not making a legal argument that Trump is not guilty. My guess is that the prosecutor, the judge, and the jury followed the letter of the law in convicting Trump. But that doesn’t mean it isn’t bullshit.

I’m also not arguing that Trump was singled out for prosecution in an especially egregious way. Bullshit prosecutions happen all the time, just usually not to people that make it news. Ordinary people get pulled over and ticketed for a workplace parking sticker or an air freshener hanging from the rear view mirror because it violates the law against obstructing your view out the windshield. For decades, New York arrested people for possessing utility knives bought from Home Depot, because they technically met the test for a prohibited “gravity knife.” If you’re in the same room with some illegal drugs, you can be found in “constructive possession” even if you never touched the drugs. Prostitutes who work together have been charged with “pimping” each other. People have been arrested under “open container” laws because they had an open box of beer cans, even though all of the cans were still sealed.

Some might argue Trump’s case is different from those other examples because it was being done for political reasons. But bullshit prosecutions happen for all kinds of reasons. Cops give out bullshit tickets to meet job performance “activity” targets.^[2]Which are totally different from quotas. Nobody has ticket quotas any more, just “activity” targets, got it? Prosecutors press bullshit charges to go after people they don’t like, or to get their names in the news. Bullshit prosecutions happen for bullshit reasons, including bullshit politics.

Washington, D.C. criminal defense lawyer Jamison Koehler describes Trumps’s recent experiences this way:

Narcissist that he is, Donald Trump approaches life as if he is the first person ever to learn or experience something.

[…]

And now the world – through Donald Trump – is learning about the criminal justice system in the United States.

We have learned, for example, that a defendant cannot speak out in court.

The defendant must defer to the judge.

The defendant cannot criticize, stare down or otherwise intimidate witnesses.

Courtrooms can be cold and uncomfortable.

[…]

The defendant has the constitutional right to call witnesses on his own behalf. That “a lot of witnesses were not called” can only be blamed on one’s own lawyers.

The defendant has a Fifth Amendment right to a grand jury and indictment and notice of the charges against him. It is therefore probably not a good idea to complain that “the defendant doesn’t even know the charges against him.” This might serve as an admission that the defendant was either too ignorant or too lazy to have figured this out.

The defendant has a constitutional right to testify on his own behalf. This should not be confused with a court’s gag order preventing the defendant from making certain out-of-court statements.

The most unusual thing about this bullshit prosecution is that it happened to a rich and powerful white dude.

Then there’s the matter of karma. Not in the religious sense, but in the colloquial meaning of someone getting what they deserve.

From the “Polish Brigade” to Trump University, Donald Trump has been scheming and scamming for decades. He is famous for not paying his bills, even to the point of multiple bankruptcies that have left other people holding the bag. He and his father created a sham corporation to funnel money around without paying taxes. He involved Don Jr. and Ivanka in a fraudulent SoHo construction project which seems to have used money from a Russian financial criminal. Trump has lost a bunch of civil suits over these kinds of things, but he’s never before been charged. It would be crass of me to suggest that his donations to the Manhattan D.A.’s election campaign had anything to do with it.

Despite his his financial shenanigans and connections to criminal figures, Trump somehow got the State of New Jersey to let him run a bunch of casinos, which he ran into the ground. How exactly he pulled this off is unknown, but it all smells a bit swampy.

Trump has been scamming his way around the criminal consequences of his actions for his entire life. In 2024, it finally caught up to him. All that shit he pulled made him a lot of enemies, and now a few of them — a porn star, a disgraced lawyer, and a few others — have come together to help a politically ambitious District Attorney run a questionable prosecution that just might put Donald Trump in jail.

It’s a bad way to run a criminal justice system. But it’s pretty good script writing.

On personal level, I have to relax and remind myself that none of this actually involves me. Had I been responsible for this case, I probably would have declined to prosecute.^[3]I would totally have pursued that classified documents case, because that seems open and shut. The Georgia election interference case sounds like it would be pretty good if it weren’t for the decision to use RICO, and I don’t know enough about the Federal election interference case to tell if it’s legit. But it wasn’t my responsibility, so I have no duty to resolve the tension between my policy preferences for the criminal justice system and my utter loathing of Trump. I can question the ethics of his prosecution and still enjoy watching bad things happen to him.

With no responsibility comes the freedom to say fuck that guy.