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Trump indictment could backfire just as investigations into Clinton, Edwards did | Opinion

Americans are skeptical of using the law to punish sexual indiscretions or the cover-ups that follow them. We saw this in 1998 when House Republicans began impeachment proceedings against President Bill Clinton for lying to a grand jury about Monica Lewinsky. They expected to reap big midterm gains from the media frenzy, but many voters were as disgusted by independent counsel Ken Starr’s overzealous investigation as by the behavior he investigated. Clinton became the first president since James Monroe to win House seats in his sixth year in office.

The next time ordinary citizens weighed in on a presidential-level sex scandal, the subject was John Edwards. The former senator and aspiring Democratic nominee had spent nearly a million dollars during the 2008 primary campaign trying to conceal an affair with a staffer. Four years later, a Republican prosecutor attempted to resurrect the scandal as a crime. His logic: the money was used to protect a political candidate from bad publicity and therefore constituted an illegal campaign contribution.

Edwards said he wanted to keep the affair from his wife. His defense argued that the prosecution’s case rested on a novel definition of “campaign contribution” that had no precedent in case law.

Perhaps the timing and target of the prosecution’s legal creativity aroused the jury’s suspicions. Perhaps the six charges against Edwards, each carrying a maximum penalty of five years, struck them as unreasonable. Whatever their thinking, eight jurors declined to send a man to prison for trying to conceal an extramarital affair.

A sequel to the Edwards saga is now underway in Manhattan, where District Attorney Alvin Bragg has led an investigation of Donald Trump’s 2016 payment of hush money to Stormy Daniels. Trump’s attorney, Michael Cohen, paid the adult-film actress $130,000 and got reimbursed over months. Bragg has secured a grand jury indictment against the former president, presumably for disguising the reimbursements as legal expenses in his business records.

The prosecutor hopes to elevate that misdemeanor to a felony by tying it to campaign finance violations. As in the Edwards case, success will depend on a jury treating hush money as campaign contributions. It will also depend on a New York D.A. having the authority to prosecute violations of federal election laws or, alternatively, to use state election laws to prosecute a candidate for federal office. Neither scenario is legally clear-cut.

The U.S. attorney’s office in Manhattan, which made a plea deal with Cohen for his role in “Stormygate” and other financial misdeeds, never indicted Trump himself. They doubted the campaign finance idea would fly. Perhaps Bragg will show that it can, but the media trial that always precedes big court trials in America is raising red flags.

First, the practical side. Compared to other live criminal investigations against Trump — for hoarding stolen classified documents and pressuring an official to “find” enough votes to flip Georgia in 2020 — a payoff to a mistress is trivial. Why preempt stronger, more serious cases with a questionable one about a tawdry affair? Why give Trump the chance to beat the weakest case and then trash the others as more of the same deep-state harassment?

Second, the public interest question. This indictment is the first ever against a former president and a sure bet to intensify the country’s ongoing political bonfire. The Manhattan D.A. has reached back in time for fudged bookkeeping entries and deep into his imagination for a legal theory to magnify them. He could hardly make his case look more like a partisan hit job if he tried.

Few Americans will delve into the intricacies of Bragg’s argument; even some who have are doubtful. Many will see a case about sex — and a prosecutor who found the defendant he wanted and then went looking for a crime.

Alvin Bragg could become this generation’s Ken Starr.

Michael Smith
Michael Smith

Michael Smith is a freelance opinion writer in Georgetown, Kentucky.