Will Trump get arrested? Between sketchy witnesses and the law, case comes up short.
If former President Donald Trump is indicted, Manhattan District Attorney Alvin Bragg would be prosecuting a case that has been widely criticized as long on politics and short on the law.
The courts would have to address a controversial case in which a city prosecutor attempts to prove a federal crime long ago declined by the U.S. Department of Justice. They also would have to deal with a charge brought seven years after the alleged offense, despite a two-year statute of limitations for the underlying misdemeanors (or a five-year period for a felony).
And Bragg would have an even more unpalatable prospect in putting two key witnesses on the stand embodying a case that borders on the legally indecent: a former porn star and a disbarred lawyer.
Michael Cohen worked for Trump
The star witness is one of the most repellent figures in New York. It is only the latest reinvention of Michael Cohen – this time from legal heavy to redemptive sinner. Cohen spent much of his time when he worked for Trump threatening critics, journalists and even students.
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In 2015, students writing for The Harvard Lampoon played a harmless prank on Trump by having him sit in the stolen “president’s chair” from the Harvard Crimson for a photo. In response, Cohen used his signature bludgeoning style against the students. He was quoted by a student on the Lampoon staff as saying: “I’m gonna come up to Harvard. You’re all gonna get expelled. If this photo gets out, you’ll be outta that school faster than you know it. I can be up there tomorrow.”
On another occasion, when a journalist pursued a story he did not like, Cohen told the reporter that he should “tread very f---ing lightly because what I’m going to do to you is going to be f---ing disgusting. Do you understand me?"
After he was arrested and Trump refused to pardon him, Cohen proved that when you scratch a lawyer, you can find a foe.
Cohen may be joined on the stand by Stormy Daniels, who agreed to a $130,000 payment to hush up an alleged affair with then businessman Trump. Bragg would have to show that Trump made the payment only with the election in mind, which would have made the money an undeclared campaign donation to himself. But there are a host of other reasons why a married celebrity would want to hush up a one-night stand with a porn star.
Case is similar to failed prosecution of John Edwards
In John Edwards' prosecution in 2012, the Justice Department used the same theory to charge the former Democratic presidential candidate after a disclosure that he not only had an affair with filmmaker Rielle Hunter but also sired a child with her. Edwards denied the affair, and it was later revealed that Fred Baron, Edwards' campaign finance chairman, gave money to Hunter. Andrew Young, an Edwards campaign aide, also obtained funds from heiress Rachel "Bunny" Mellon to pay to Hunter.
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The Justice Department spent a king's ransom on the case to show that the third-party payments were a circumvention of campaign finance laws, because the payments were designed to bury an election scandal. Edwards was ultimately found not guilty on one count while the jury deadlocked on the other five.
The jury clearly believed there were ample reasons to hush up the affair beyond the election itself.
Despite legal flaws in the case, Bragg is counting on favorable judges and jurors in New York City. Win or lose, he would reap a huge political reward in being the first to charge Trump.
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Ironically, Trump also could come out ahead politically. Of all the possible charges he could face, this is the one he would likely invite. Bragg would give Trump strong evidence that Democrats have politically weaponized the criminal justice system against him.
However, it's Cohen who might profit the most. He already has tried to cash in on the burgeoning market of liberals obsessed with Trump, even hawking a T-shirt with the image of a jailed Trump as a way to "celebrate the fall of the Mango Mussolini."
Cohen's cross examination will be the most target rich environment since the Battle of Thermopylae. Of course, prosecutors often put dubious figures on the stand, but Cohen is someone who has shredded legal ethics and the criminal code in pursuit of his own interests.
Cohen's primary talent has been an impressive moral and ethical flexibility. He gladly did the dirty work for Trump until it became more beneficial to turn against him.
One could say that Trump and Cohen deserve each other, but the legal system does not deserve what may soon unfold in a New York courtroom.
Jonathan Turley, a member of USA TODAY's Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley
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This article originally appeared on USA TODAY: Will Trump be arrested? Why indictment in New York case comes up short