Ryan Goodman and Andrew Weissmann write:
Though it may be tempting to do so, it is a mistake to assess the Manhattan district attorney’s investigation of Donald Trump by comparing its relative severity with those of myriad other crimes possibly committed by him. That is not how state and federal prosecutors will — or should — be thinking about the issue of charging Mr. Trump, or for that matter, any other defendant.
Prosecutors are trained to consider whether a case can be brought — in other words, is there proof beyond a reasonable doubt to support a conviction? They also consider whether a case should be brought — principally, is the crime one that is typically charged by the office in like circumstances? Put another way: Is bringing the charge consistent with the rule of law that requires treating likes alike?
Alvin Bragg, the Manhattan district attorney, would be well within his discretion in determining that the answer to those questions is yes and therefore supports charging Mr. Trump in connection with any crimes arising from an effort to keep Stormy Daniels from disclosing an alleged affair to the electorate before the 2016 election.
This case is just one of a few ongoing criminal investigations into Mr. Trump’s conduct — including potentially a much larger financial investigation by the Manhattan district attorney — and the hush money scheme is no doubt the least serious of the crimes. It does not involve insurrection and undermining the peaceful transfer of power fundamental to our democracy, nor the retention of highly classified documents and obstruction of a national security investigation.
But does that mean the Manhattan criminal case is an example of selective prosecution — in other words, going after a political enemy for a crime that no one else would be charged with? Not by a long shot. To begin with, Mr. Trump’s former lawyer Michael Cohen, who was instrumental in the scheme, has already pleaded guilty to a federal crime emanating from this conduct and served time for it and other crimes. Federal prosecutors told the court that Mr. Cohen “acted in coordination with and at the direction of” Mr. Trump (identified as “Individual 1”). It would be anathema to the rule of law not to prosecute the principal for the crime when a lower-level conspirator has been prosecuted. [Continue reading…]