Is Trump Getting Closer To Facing The Bar Of Justice?

Now that he's out of jail, Michael Cohen is on the TV circuit continuing to blow the whistle on Trump's life of criminality. Today he was Chuck Todd's guest on Meet the Press, which you can watch above. The major takeaway, beyond Trump's Big Grift, is that Cohen is certain prosecutors could "indict Donald Trump tomorrow if they really wanted and be successful." He also claims the prosecutors also have to goods on Don Jr, Eric and Ivanka.

So why haven't they indicted any of them yet? In his review of Jonathan Karl's book, Betrayal: The Final Act of the Trump Show, today, Peter Conrad referred to Trump as "a man unfit to govern" and offered a look at "the chaos wreaked by an ego unable to grasp its own ineptitude." That this social monstrosity isn't behind bars yet is an indictment of the American justice system.

Conrad wrote that "During the Black Lives Matter unrest, Trump ordered out the troops to impose martial law on Washington. His wily secretary of defence, Mark Esper, deployed an army unit, but confined it to a fort outside the city. The ruse was a pacifier; rather than calming the streets, Esper’s aim was 'to quell the dangerous and dictatorial urgings of his commander in chief.' ... for four years the US had an outright lunatic as its president."

Like all reality TV, what Karl calls “the Trump show” is the product of fantasy and fakery; its star is an existential fraud who admits his unease by referring to himself in the third person. “You must hate Trump,” says Trump when Bill Barr, his previously compliant attorney general, rebuffs his lies about a stolen election. He then says: “You must hate Trump” a second time, making it an exhortation as much as an accusation. He can’t command love and suspects that he doesn’t deserve it: will hatred do as a second best? Elsewhere, Trump re-enacts for Karl an exchange with his sullen adolescent son. “Do you love your dad?” he wheedles, as needy as a black hole. “Uh, I don’t know,” grunts Barron. “Too cool,” remarks the paterfamilias, frozen out.

Karl’s anecdotes offer some sharp insights into Trump’s compulsions. He fawns over autocratic thugs such as Putin because he is himself a weakling. While demanding “total domination” of demonstrators outside the White House, he is hustled to safety in a fortified basement, which prompts an internet wit to nickname him “bunker bitch.” As a populist, he cares only about popularity and purchases it with tacky giveaways; while in hospital with Covid, he sends lackeys to distribute “cartons of M&M’s emblazoned with his signature” to the fans outside. When Karl prods him to denounce the riot at the Capitol, he fondly recalls that “magnificently beautiful day” and grumbles that the fake news didn’t give him “credit” for attracting such a large crowd. Negotiating with Karl over his attendance at the White House correspondents’ dinner, where the president usually delivers a jocular speech, Trump asks: “What is the concept? Am I supposed to be funny up there?” Yes, the psychotic shtick of this would-be dictator is dictated by whatever audience he is playing to.

Last May, writing for NBC News, Carol Lam, a former U.S. attorney for the Southern District of California asked a question everyone is thinking about, Why Hasn't Trump Been Criminally Charged With Something-- Anything-- Yet? "Let's assume a prosecutor wants to pursue... a big case against Trump," she wrote. "Such a case would be likely to involve complex financial transactions, such as those resulting in huge, questionable tax refunds to the Trump Organization, a focus of New York's attorney general and Manhattan's district attorney. The problem is that complexities can open the door to potential defenses in a criminal trial. Putting aside the enormous task of collecting, analyzing and summarizing all of the documents (a job that the Manhattan DA's office has wisely outsourced to an expensive consulting firm), the prosecution must also prove criminal intent, which can be challenging when the target heads a large organization. In fact, the typical defense offered by tax evaders-- 'my accountants prepared my returns and I just signed them'-- hasn't gone unnoticed by Trump, who has already pointed out that his tax returns were prepared by 'among the biggest and most prestigious law and accounting firms in the U.S.' It could be a heavy lift to convict a former president of any kind of business fraud when he has surrounded himself with lawyers and accountants.

So, if a big category case includes too many problems, should prosecutors consider charging a smaller case-- for example, a single misstatement on a bank loan application? Such a charge could perhaps come out of the New York state and Manhattan probes.

Maybe, but bringing a small case against a big target carries its own risks. Such cases leave the impression, perhaps unfairly, that either the defendant isn't being prosecuted for the full scope of his or her illegal conduct or that the defendant is being singled out for prosecution simply because he or she is a high-profile person. Neither takeaway seems particularly satisfying.

In fact, it's possible that all of the above concerns played roles in the apparent decision by New York federal prosecutors not to pursue charges against Trump over allegations that he made "hush money" payments to Stormy Daniels; the Federal Election Commission has similarly declined to take any action regarding those payments.

And finally, what about Jan. 6 attack on the Capitol or Trump's phone call to Georgia Secretary of State Brad Raffensperger, which may have violated Georgia election laws?

Both would be big cases, but they would also be politically charged cases, and therein lies another problem for prosecutors. Prosecutors know a criminal charge isn't a conviction. There is a world of difference between obtaining a criminal indictment, which requires only "probable cause," and a criminal conviction, which requires a finding that the defendant is "guilty beyond a reasonable doubt." The latter is, for good reason, the highest burden of proof that exists in our legal system.

Prosecutors know they should bring criminal charges only if they believe they can convict the defendant; to operate under any other standard would be unethical. That is true no matter who the defendant is, but in the case of a high-profile defendant, prosecutors aren't likely to file charges unless they are as certain as humanly possible that they will be able to obtain a conviction. And because prosecutors must convince an unanimous jury of 12 ordinary citizens that a defendant is guilty beyond a reasonable doubt, bringing a politically charged or divisive case puts that certainty further out of reach.

Which brings us back to the question: With all these investigations hanging over his head, will Donald Trump ever be charged with a crime?

We know this: For a former U.S. president to be convicted of a crime, the prosecutor's case must be substantial, the evidence overwhelming and the jury unbiased. The most likely scenario is that the Trump Organization will be criminally charged with a financial crime (yes, organizations themselves can be charged and criminally fined if convicted). And if the New York prosecutors have enough documentary and testimonial evidence that Donald Trump knew about those financial crimes, they would be likely to bring charges against the former president, as well.

That's a high hurdle for them to clear. But if they don't make it, it won't be for lack of trying.