Dr. Malcolm Cross

The hush money trial of former President Trump is a travesty.  Trump is actually being prosecuted for crimes for which he hasn’t even been indicted, much less convicted. In the interests of justice, the case against him should be dropped immediately.

The one crime for which Trump has been indicted is falsification of business records—“lying to his checkbook,” as one critic put it.  But under New York state law, falsification of business records is merely a misdemeanor for which Trump can’t be prosecuted because of the statute of limitations—unless he falsified business records in the furtherance of another crime.  

Trump is accused of paying “hush money” to Stormy Daniels, a former porn star in 2016, to prevent her from publicizing a sexual encounter they allegedly had in 2006.  The actual payment to Daniels was made by Michael Cohen, an attorney and Trump’s one-time “fixer.”  Trump reimbursed him with a series of payments, each of which was labeled a “business expense.”  Alvin Bragg maintains that the payments were to help commit a felony.  But he has not yet said exactly what the felony was.  How can Trump or anyone else accused of a crime defend himself if he doesn’t know what crimes he is being accused of?    

In the absence of a specific felony alleged by Bragg, most speculation has held that Bragg may be claiming that Trump broke federal election campaign laws:  Trump was presumably trying to buy Daniels’s silence to suppress news that would otherwise jeopardize his 2016 election chances, and his failure to report those payments as election campaign-related expenditures thereby broke federal law.   But neither the Federal Elections Commission nor the Biden Justice Department chose to prosecute Trump.  Federal officials may have concluded that Trump might well have sought to buy Daniels’s silence to protect his own reputation even if he were not a presidential candidate.  If so, the transactions were not made solely because of the election and therefore need not have been reported to the FEC anyway.

Or does Bragg have some other alleged crime in mind?  If so, why hasn’t he said what it is?  Doesn’t basic fairness require that Trump be told, so he can use that information for his defense? Indeed, one would think that Bragg would actually have to indict and secure a conviction of Trump through due process of law for the mysterious felony before prosecuting him for a misdemeanor committed to help commit the felony.  Evidently, New York law does not impose such a requirement.  So Bragg’s prosecution may be legal, if not just.

This should concern everyone, Trump supporters and opponents alike.  After all, if a former President of the United States can be prosecuted because of crimes for which he has not been indicted and convicted and of which he hasn’t even been informed, it can happen to anyone.  Under such a system of “justice,” nobody can be safe.

Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024).  He was Mayor pro-tem of Stephenville from 2008 to 2014.  He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015.  He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District.  Views expressed in this column are his and do not reflect those of The Flash as a whole.

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