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The Brief: As Prosecutors Pursue Their Lame Cases Against Trump, His Support Rises

Gregg is joined by constitutional expert Horace Cooper.

Photo by Spencer Platt/Getty Images

If liberal Democrats are trying to elect Donald Trump to a second term, they are succeeding.

The more they threaten to prosecute the former president on trumped up charges, the more his poll numbers rise as his base of support rallies to his defense.  What’s behind the boomerang effect?  All of the threatened criminal cases are transparently political, not legal.

Americans can plainly see this, and they resent liberal prosecutors interfering in elections by trying to knock out a leading candidate for the highest office in the land.  Voters choose presidents, not prosecutors with a partisan agenda who are pursuing legally lame charges.

There are three pending cases aimed at Trump.  Let’s take a closer look at each.

New York DA Alvin Bragg’s Asinine Case

Manhattan District Attorney Alvin Bragg and his predecessor devoted unlimited resources to scour Trump’s personal and business records.  Failing to find evidence of a crime, the DA simply dreamed one up.  But his legal theory of supercharging a dubious misdemeanor into a felony is not supported by the law, making his case not just absurd but pathetic.

The so-called “second crime” is a supposed campaign finance violation. But the law does not permit him to do that.  A local prosecutor cannot charge a federal crime.  And he can’t charge a state campaign crime because it was a federal election.  Either way, the statute of limitations ran out long ago.  So, this is simply a fabricated case that is politically driven.

If unclear the Manhattan DA is foolish enough to proceed with his planned grand jury indictment, Bragg will pay a price.

First, sources say there’s an internal revolt within the DA’s office by senior experienced prosecutors who are accusing Bragg of engineering the prosecution of a non-crime that is unsupported by the law and any credible evidence.  Second, the grand jury itself may now recognize that Bragg snookered them by endorsing a lying witness, Michael Cohen, and hiding exculpatory evidence —which is both sneaky and reprehensible.  It’s the kind of stuff for which lawyers get disbarred.

Only an incredibly dumb prosecutor blinded by his hatred of Trump would endorse Michael Cohen as a reliable or trustworthy witness.  Among the many crimes to which he pleaded guilty was perjury.  Cohen is one of the most disreputable and disgusting people you will ever meet.  His name is synonymous with sleaze and dishonesty.  It is mystifying how Bragg doesn’t comprehend this.  Any half-decent lawyer will easily shred Cohen on cross-examination, leaving Bragg to look like the fool that he is.

The Department of Justice looked at the Stormy Daniels payment and concluded there was no crime.  So did the Federal Election Commission.  Why?  Because the payment did not constitute a campaign contribution.  All you have to do is read the law.  It’s obvious.

But Bragg has apparently convinced himself that he can be a hero among progressives and Democrats by prosecuting Trump.  Instead, history will write that he was an incompetent buffoon.  The case will never stand up to the expected legal challenges.

It’s obvious that Trump was targeted for purely political reasons.  Amazingly, Bragg’s now-former assistant DA openly admitted it in an ill-advised book that he published.  Mark Pomerantz vented his hatred of Trump and reasoned that he had to be stopped because the former president “posed a real danger to the country and to the ideals that mattered to me.”

It’s the duty of a prosecutor to see that justice is done fairly and equitably.  Disagreeing with someone’s political views or harboring personal animosity is not a basis for criminal prosecution.  Indeed, it is a serious breach of legal ethics that merits disbarment.

Bragg and Pomerantz should be the subjects of a legal proceeding, not Trump.

Fulton County DA Fani Willis’ Anemic Case

Like Bragg, Georgia district attorney Fani Willis vowed to nail Trump before she ever assumed office.  She made it the centerpiece of her campaign.  She had no access to evidence, mind you.  She knew nothing about the case.  But she preordained the outcome by promising to lock him up.  This, too, constitutes an egregious breach of the cannon of ethics that governs prosecutors.

Once elected, Willis convened a special purpose grand jury headed by a giddy foreperson, Emily Kohrs, who suffered diarrhea of the mouth in a bizarre sequence of media interviews.  At the time, I wrote this:  “She (Kohrs) acted like a vapid and immature teenager who was smiling, gushing, laughing, and joking about a very serious legal proceeding.  Batshit crazy noted some on social media.  I don’t disagree.  I know ten-year-olds with more brains and maturity.  Kohrs made a mockery of our justice system.”

If Trump is indicted in Georgia, you can expect the defense to make an immediate motion to dismiss based on grand jury impropriety and bias.  Kohrs managed to taint the jury pool, not to mention the evidence.

As for the law, Willis claims that Trump somehow solicited Georgia government officials to commit fraud in the 2020 election when he asked them to investigate voting irregularities.  Given the paucity of evidence, that is an exceedingly difficult charge to prove.

Complaining about a rigged election and the suspected shredding of ballots in two phone calls to the Secretary of state, Brad Raffensperger, is not enough.  Nor is it a crime for a candidate to request that votes be “re-examined” because he needed to “find” 11,780 votes —the amount by which he lost.

To bring a legitimate charge, Willis would have to prove that Trump “commanded” an official to commit a crime that would alter an election.  However, offering an opinion is not the same thing as demanding that someone fabricate votes.  The statute requires a showing of specific intent.  That is, Trump “willfully and knowingly” intended to violate the election laws.

Good luck proving that.  The former president’s two telephone calls simply don’t show it.

Special Counsel Jack Smith’s Inflated Case

It’s bad enough that Biden’s Attorney General has been running a protection racket for the many influence peddling schemes that netted the president’s family tens of millions of dollars from malign foreign adversaries such as China and Russia.  The AG didn’t bat an eye when the FBI pressured social media companies into censoring and suppressing the Hunter Biden laptop story in advance of the 2020 election.

It’s equally bad that Garland ordered the FBI to treat vocal parents at school board meetings as domestic terrorists, to spy on Catholics, and to target pro-life activists while refusing to pursue abortion activists who commit crimes.  Protesters were allowed to threaten conservative Supreme Court Justices outside their homes with no criminal charges, despite clear violations of federal law.

But all of that pales in comparison to Garland’s grandest political ploy.  He assigned a special counsel, Jack Smith, to investigate Trump over the events of January 6th, as well as the alleged classified documents imbroglio at Mar-a-Lago that triggered an exaggerated and wholly unmerited FBI raid.

There is no evidence whatsoever that supports a charge that Trump incited violence on January 6, 2021, or that he was involved in an insurrection conspiracy.  In his speech at the National Mall, Trump encouraged his supporters to let their voices be heard but cautioned them to behave peacefully.  Under no construction of the law did he advocate imminent violence which the incitement statute and case law demand.

As for the classified documents dispute, Trump insists he declassified the records before he departed office.  The law affords him unfettered discretion to do so.  If the materials at his residence were no longer classified, then he has not run afoul of the law.

As I have written before, the Trump records are little more than a dispute over the custody of papers that is governed exclusively by the Presidential Records Act of 1978.  This controlling statute is civil, not criminal.  The proper remedy for Garland was to seek a return of the contested documents by filing a motion in civil court and allow an impartial judge to resolve any conflict.

It is not obstruction of justice for Trump to assert his rights under the Presidential Records Act.  After all, that is precisely what Bill Clinton did in a similar case a decade ago.  At the time, the Justice Department argued that a former president can keep whatever documents he wants, and the government has no authority to seize them.

Trump was following the same standard enunciated by the DOJ and endorsed by both the National Archives and a U.S. District Court in Washington, D.C.

Moreover, Trump invited the FBI to take whatever records it wanted.  A warrant was unnecessary and abusive.  But Garland chose to criminalize a civil statute that contains no criminal recourse.  Senior officials at the FBI correctly objected to the raid, but the attorney general overruled them and ordered a phalanx of armed FBI agents to descend on Trump’s home.

As it is with district attorneys Bragg and Willis, the pursuit of Trump by Garland is about politics, not the law.  The true intent is to bludgeon Trump with the cudgel of investigations and threatened prosecutions.

Yet, the unintended consequence is that Trump is gaining even more support by those who see these prosecutors as transparently corrupt and abusive.