The Clinton-Trump Parallels

From a Wall Street Journal commentary by Julian Epstein headlined “The Clinton-Trump Parallels”:

I was chief counsel to the House Judiciary Committee Democrats fighting President Clinton’s impeachment. The House impeached Mr. Clinton in 1998 for alleged “process crimes”—perjury and obstruction of justice—stemming from attempts to cover up an extramarital affair in the Paula Jones civil suit and subsequent grand jury proceedings. Later, independent counsel Robert Ray obtained a settlement with Mr. Clinton under threat of criminal prosecution.

Nearly every Democrat I worked with, including Chuck Schumer and Nancy Pelosi, argued that there was no precedent for such extreme legal measures. They agreed that pursuing impeachment and criminal charges on a case that was fundamentally about covering up a private affair—as wrong as that conduct might have been—was unprecedented. Democrats were virtually unanimous in that view.

There are surely differences between the Clinton case and the recent indictment of President Trump in New York. But there is one important similarity: In both, prosecutors pursued cases that they would have normally declined, but for who the two men are. That the Democrats, the supplicant pundit class, and left-leaning mainstream media aren’t more outraged by the corruption of the blind-justice principle is a bad omen for the nation.

The hopelessly conflicted prosecutor Alvin Bragg—who campaigned for office on a promise to go after Mr. Trump—built his case by bootstrapping relatively trivial bookkeeping misdemeanors to a dubious interpretation of federal campaign-finance laws.

Quite apart from this odd formulation involving a federal statute over which Mr. Bragg has no jurisdiction, there is nothing in underlying federal law defining hush money as a reportable campaign expenditure—and plenty of official guidance that it isn’t. Former chairmen and members of the Federal Election Commission have said publicly that hush money isn’t a campaign expense.

How can a prosecutor possibly prove that Mr. Trump’s actions meet the required element of intent to evade the campaign laws if experienced federal enforcement officials have publicly stated the laws don’t apply in this fact pattern? No impartial jury would or should convict. At a minimum, the indictment should be dismissed on the constitutional principle that you can’t convict someone using an ambiguous interpretation of a statute.

The impending fiasco should be a warning to Democrats and the media who have been dining out and boosting ratings on the “breaking news” of a Trump Waterloo for seven years. If you are going to take the unprecedented and divisive step of prosecuting a former president, you’d better have the goods.

For starters, local prosecutors like Mr. Bragg (and Fani Willis of Fulton County, Ga.) significantly involved in partisan electoral politics should recuse themselves because of the conflict. Taking politics out of prosecutorial decisions should be an obvious principle to even the fiercest partisans.

Second, Democrats and Trump opponents should learn humility and resist the impulse to get ahead of the facts. During the Robert Mueller probe in 2018, Rep. Adam Schiff claimed there was “plenty of evidence of collusion and conspiracy in plain sight,” only to eat humble pie when Mr. Mueller’s subsequent report found there wasn’t.

In this vein, the other potential cases against Mr. Trump may also turn out to be less definitive than the chattering class would have us believe. Georgia prosecutors would likely have to prove that Mr. Trump’s urging a state election official to “find” him 11,780 votes was an implicit request to falsify election returns. It won’t be easy to persuade 12 impartial Georgia jurors of that.

The Mar-a-Lago documents case is also more complex than many understand. Because President Biden also reportedly removed national-security related documents, federal prosecutors—fearing charges of selective prosecution—will probably shift their focus to Mr. Trump’s alleged refusal to return similar material. Good luck explaining why one president should be punished for mishandling documents while another shouldn’t.

Finally, the Jan. 6 riot was an odious event for which there should be full accountability. But the potential charges against Mr. Trump would likely require proof that he intended the mob to obstruct Congress’s presidential certification proceedings—a difficult test under both the statutes and the Constitution—and that his reliance on John Eastman’s fringe views about alternate electors was criminal.

Mr. Trump argues Democrats are weaponizing law enforcement. Democrats like Mr. Bragg seem determined to prove him right. I never voted for Mr. Trump, but the left’s performance art is getting old. It’s also making it almost impossible to mount a prosecution that isn’t perceived by at least half the country as purely political.

Julian Epstein has served as chief counsel to the House Judiciary Committee and staff director to the House Oversight Committee.

Speak Your Mind