Surviving a circus: A gameplan for the Trump prosecution
As most of you know, I ran for Manhattan DA during the 2021 cycle, and our campaign had to think about “the Trump case” quite a bit. Incumbent DA Vance had notoriously let the Trump family off the hook, so it was a salient topic in the race, both because Trump was president during the race and because many facts of the Stormy Daniels situation were well-known by then. A few months after dropping out of the race, I endorsed Alvin Bragg, who narrowly defeated Tali Weinstein Farhadian, with Bragg attributing our endorsement to helping put him over the top. He now faces the biggest case of his career, one that will play out in both the courtroom and in the media.
Even though many people have known this case was coming, the moment seems to be catching a lot of people flatfooted, so I’m offering my gameplan for how to handle the prosecution of Donald Trump.
Scouting Report: Things have not gone well for DA Bragg since taking office. He’s been pilloried by the right since his first day in office, and has unfairly been branded as “soft on crime” by the tabloids, even as crime in Manhattan is down, and even as Bragg does exactly what he was elected to do: focus on serious offenses like gun crimes, while supporting alternative to incarceration programs for lesser offenses. This onslaught is reminiscent of the relentless negative coverage former San Francisco DA Chesa Boudin endured for ushering in modest reforms.
Bragg also suffered a brutal news cycle when he declined to bring criminal charges against Donald Trump in early 2022. Democrats on Twitter were apoplectic - surely this meant Bragg was somehow bought off by Trump, or maybe even in cahoots with him! Never mind that Bragg had successfully prosecuted the Trump Organization as Deputy Attorney General, that he was running on a joint investigation into Trump with AG Tish James, or that he successfully prosecuted Trump’s CFO, Allen Weisselberg. (That crowd has been quiet the past few days.)
Alvin Bragg is a mainstream Democrat, not a movement radical. He’s a Sunday school teacher from Harlem who has spent most of his career in increasingly senior government prosecutorial roles. That’s why being disowned by New York Times reading liberals left him without a clear base of support as he began one of the most high profile prosecutions in American history.
Keys to the Game: This will be a legal case, a political fight, and a messaging battle. It’s hard to analyze the legal case until seeing the indictment on Tuesday (wall to wall news coverage notwithstanding), so we’ll focus on the politics and messaging for now.
Trump has been extremely clear in his messaging around Bragg’s criminal investigation:
The investigation is a partisan witch hunt done at the behest of the Democratic party and George Soros;
Bragg is to blame for crime being out of control in New York;
Trump is completely innocent.
These talking points, which range from strained legal theories to racism & anti-Semitism, are meant to delegitimize DA Bragg. His right-wing allies have seized on the first two points and are hammering them across every media platform. (They are quieter on the facts of the case.) They’ve mobilized Congress against him, with Rep. Jim Jordan subpoenaing Bragg and threatening his jurisdiction.
For Trump’s right-wing supporters, they have a playbook for this moment - the impeachment process. As with Trump’s scandalous call with President Zelenskyy, Republicans might make passing reference to the substantive allegations, but they are much more focused on calling the process into question and character assassinating Trump’s opponent. It’s offense, offense, offense; attack, attack, attack. This fight is existential for them.
In contrast, the defensive counter message in the week leading up to Thursday’s indictment was a mess. While Bragg’s office gave people little to work with, New York pols are an experienced bunch, and for the most part opted to stay quiet. Rev. Sharpton was, for a moment, Bragg’s most vocal defender against racist attacks. Since Thursday’s indictment, however, politicians have been more comfortable coming to bat.
I suspect that the main challenge prominent Democratic elected officials and others on the left are having is figuring out how to support DA Bragg doing his work without appearing partisan, which would play right into Trump’s argument.
I suggest focusing on messaging that focuses on the case and protects Bragg from unfair character assassination.
Alvin Bragg is a lawyer first, and politician second, so let’s focus on the case. Anyone who knows Bragg or has seen him in action knows he is the last person who would bring an explosive case for political reasons, without a strong legal theory. That’s why he didn’t indict Trump last year, when people in his own office were pushing for it. His home court is in the courtroom - the more focused the story is on what happens there, the better this will go. The further we step outside of the courtroom, the more this degenerates into a circus, which is very much Trump’s home court. Messaging that reinforces what is happening *in the case* will help him do his job. That should get easier once the indictment is public.
New York is a safe city with a fair legal system. A core facet of the right-wing smears against Bragg is the notion that crime is out of control in New York City, and Bragg should be dealing with that instead of this political trial. There is absolutely no excuse for New York politicians not to push back on this forcefully. New York City is one of the safest cities in America, and for all our many problems, that is because we have spent the last century investing in our people and communities to build strong neighborhoods. New York is undeniably safer than nearly all of the places right-wingers call home, and Bragg has a much stronger record of taking on crime as an Assistant US Attorney, Deputy AG, and Manhattan DA than these talking heads.
We also have a legal system that provides indigent people strong representation, discovery laws around evidence that inure to Trump’s favor, and a court system that has dealt with many high-profile people over the last century. Should Trump be convicted, no one should question his right to appeal. Despite the right’s careening towards authoritarian lawlessness, we still value a legal process that can hold people accountable while protecting their rights.
If Trump broke the law, he should be prosecuted. He is not “too big to jail.” I’m sure some people are wondering why a convoluted porn-star payoff case is worth pursuing, given everything else Trump has done before and during his presidency. The reality is that our criminal legal system is mostly driven by what we might call “minor offenses” - violations, misdemeanors, nonviolent felonies. I’ve been prosecuted for a misdemeanor in Manhattan criminal court, and let me tell you, “it’s not that big a deal, they should really be focusing on other crimes,” isn’t a valid defense. Trump allegedly committed real offenses – many of them, including felonies, according to reporting about the indictment. Nor is it unusual for New York prosecutors (state and federal) to investigate politicians for corruption. Just in the last 15 years, there have been prosecutions of two governors, an Attorney General, a State Comptroller, and an Assembly Speaker, and those are just Democrats that have been prosecuted by Democrats! Yes, it is historic and unusual to prosecute an ex-president, but no ex-president in American history has been accused of as many crimes as Trump.
This is one of several cases speaking to Trump’s alleged illegal behavior. This prosecution makes the Georgia and federal prosecutions more likely. No one wants to go first in uncharted waters. The Georgia election tampering case is much closer to a slam-drunk legally than New York’s case, and should Special Counsel Jack Smith bring a federal indictment, it’s going to happen sooner rather than later. Then there’s AG James’ tax case. Individually and, of course, collectively these cases could put Trump in real legal jeopardy. My suspicion is that much like a Me Too situation, regular people will have an easier time believing Trump that one case is a “witchhunt” than they will multiple indictments from across the country. People need to be reminded that DA Bragg’s case is not the culmination of some elaborate Democratic scheme, but rather one of many criminal allegations that have been brought.
One additional key to the game is patience. This slow-rolling circus could stretch on deep into the 2024 campaign. Even though this is by some criminal court standards a fairly simple case, there are so many moments for delay and disruption via pretrial motions and haggling over the trial. (And each of these numerous procedural moments will monopolize that media cycle.) There’s a chronologically plausible scenario in which Trump is convicted once he is already the de facto Republican nominee. Perhaps the wildest scenario would feature a Trump conviction and sentencing during the general election, with the prospect of appealing his conviction from prison.
Drawing Up Plays: Like they say in basketball arenas, Let’s make some noise! Pretending this trial is not a big deal is not going to work. The right wing’s messaging dominance over the performance of a prominent Democratic district attorney harkens to the Chesa Boudin recall, which went down nearly a year ago. At that time, I wrote about what the criminal justice movement could learn from his defeat, but here we go again. Back then, there wasn’t enough recognition that the recall wasn’t about Chesa, it was an attack on the whole criminal justice reform experiment. Likewise, people on the left have to recognize the threat posed by the right winning the messaging battle that Bragg is illegitimate, or bringing this case for political reasons. That means people need to take to the airwaves, editorial pages, and social media when big moments in the case occur.
Look, is it my preference to be talking about Donald Trump in 2023? It’s not, but in a situation that is complex and poorly understood by the American people, letting one side define what this case is and how it works will do great harm to democratic system.
Building a Team: We get through this circus with everyone playing their role.
When it comes to the actual criminal case at hand, responsibility falls on DA Bragg and the actual team that will be prosecuting the case. Several ADAs are about to be in by far the biggest moment of their lives, let’s give them some grace as their lives are raked through the coals.
When it comes to defending New York as a safe, successful city that invests in its people and runs a (comparatively to other American states) fair legal system, New York politicians need to step up. Likewise, New York-based advocates who work around the country, like myself, need to let people know that for all the BS that goes down in our jails and court system, there are only a handful of states around the country who I’d trade with.
When Trump sics his Congressional allies on DA Bragg, Democrats in Congress need to call that out the right’s extreme proposals, like taking away local prosecutorial jurisdiction - especially prominent New Yorkers in Congress like Majority Leader Schumer, Minority Leader Jeffries, and Rep. Ocasio-Cortez. (Several have started to do this, with Rep. Jamaal Bowman standing out early.)
People who wind up doing a lot of media for this need to familiarize themselves with the grim contours of the New York state criminal court system. A lot of those talking heads on cable news are former federal prosecutors, which is a different game by different rules.
For a lot of organizations that are in the criminal justice or civil rights space, this is an odd moment. We don’t usually cheerlead prosecutions. But any opportunity we get here to educate people about the criminal justice system is a good one. For example, the fact that Trump won’t know the charges against him until arraignment, something an objective person might consider unfair, is actually just how our system works. Meanwhile, pro-democracy groups will have an easier time defending DA Bragg from attacks that will likely come right up to the border of calls for unlawful violence, if they don’t cross them explicitly.
Last, but certainly not least, what should regular people do in this moment? Some have suggested counter-protesting the pro-Trump crowds that may gather at the courthouse. I oppose that. In such a tense moment, a mix of hostile protesters and NYPD can only lead to ugly outcomes. For now I suggest following this case as best you can, and doing your part to stem the tide of disinformation that could circulate in your personal networks.
Postgame: It’s on Alvin Bragg to bring a case that justice calls for, and to prosecute it to the full extent of the law. On the politics and the messaging, his office can’t do it alone. That doesn’t mean anyone has to be on all-in for Bragg, or declare Trump’s guilt before the case starts. But there are ways to step up in this moment so that it is one that builds confidence in our system, not one that undermines it.
Thank you for this breakdown and strategy guide! Very helpful.