OPINION:
Less than seven months from Election Day, Americans are continuing to lose trust in President Biden and the Democratic Party’s ability to lead on issues that matter, such as border security, crime, and the economy.
Former President Donald Trump’s political opponents perceive their only hope of winning is to keep him off the campaign trail and in the courtroom. They have weaponized justice to advance that objective without concern for the consequences their approach has on the rule of law and our rights.
Instead of campaigning, Mr. Trump is forced to defend himself against 34 felony counts for what is, at best, a time-barred misdemeanor falsification of business records case. He defends against a case the law forbids, long past the statute of limitations.
Manhattan District Attorney Alvin Bragg misleadingly recast his barred misdemeanor charge into an unprecedented late-filed felony election interference case, which the Federal Election Commission and the Department of Justice evaluated and rejected for lack of evidence.
There is no contemporaneous evidence that Mr. Trump meant to deceive anyone when his lawyers used the generic term “legal fees” in his business records without specific reference to each of the precise services performed.
Moreover, “legal fees” is the ordinary way in which payments of legal fees are listed in business documents. Lawyers who list “legal fees” in business documents do so precisely because greater specificity would potentially violate the attorney-client privilege (revealing what legal services were requested and performed and thereby arguably waiving the privilege).
The money Mr. Trump paid was, in fact, for legal fees; the former president’s nondisclosure agreements are legal documents prepared by his then-attorney Michael Cohen (who has since been disbarred).
The link between Mr. Trump’s legal fees, the content of a nondisclosure agreement, and any actual or potential impact on the 2016 election is far from concrete and entirely speculative.
The chain of assumptions needed to support Mr. Bragg’s case is extreme. Any court that based its judgment on the rule of law would dismiss the case, but politics now controls justice.
Upholding justice requires adherence to the rule of law, free of political bias. When courts become functionaries of politicians, political retribution masquerades as justice. When that happens, we all become slaves to the arbitrary will of those in power.
Under the Constitution, the courts are meant to be guardians of the Constitution, independent powers that check politicians’ abuses and uphold individuals’ rights against the state.
In “Common Sense” (1776), Thomas Paine addressed this issue brilliantly when he observed that the American Revolution was in part motivated by a desire to end the violation of the core principle that law must rule regardless of who serves in political office, an iteration of the concept that “no one is above the law.” Mr. Paine wrote that “for as in absolute governments the King is law, so in free countries, the law ought to be King; and there ought to be no other.”
Forcing a former president to stand trial for novel charges driven by political animus and void of required proof sets a dangerous precedent.
There but for the grace of God go I. Law and legal procedure are precedential. If they can do it to a former president of the United States, they can do it to anyone.
• Jonathan Emord is a constitutional law attorney and candidate for U.S. Senate in Virginia.
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