I Don't Have "Mixed Views" About New York's Prosecution of Donald Trump

I have mixed views about New York's prosecution of Donald Trump—if you look at all the crimes Trump has committed, the ones charged in New York seem comparatively minor

Orin Kerr's role at Volokh Conspiracy over the years often was to sound a bit like Columbo (he is confused a lot about what the other person says, putting an air of being surprised at what they appear to be saying) answering over the top takes. He was an advisor to Sen. John Cornyn (R) during the Sotomayor and Kagan nominations. Kerr has expertise on certain Fourth Amendment issues. 

Prof. Kerr is the type of conservative that people on the left respect. He openly supported Hillary Clinton in 2016. But, be careful. Kerr repeatedly shows his sympathies. He patronizingly felt the Democrats' pain regarding holding a Supreme Court seat open for over a year. Nothing was wrong with it though. 

Both sides do it.

Kerr bemusingly responded to some of the most excessive responses when the Affordable Care Act was being crafted. Nonetheless, he opaquely referenced (without details that I recall) that he was willing to tighten congressional power.  He also sometimes ignores the point such as when a senator symbolically compared Trump to Stalin. He latched on to the reality that Trump was not Stalin. Rhetorical hyperbole confuses you?

Kerr is back to his role as a bemused corrective regarding the latest overheated defense of Trump. He did this before respecting how the civil case met some minimum test of credibility. Nonetheless, he mixed in his doubts on their overall reasonableness. Kerr noted that it wouldn't upset him if ultimately some higher court struck down the civil judgment.  

There is an important role for reasonable analysis from those we disagree with strongly on various matters. Kerr serves a useful function, including his Fourth Amendment work overall. Still, as a "reasonable conservative," I have too often seen him say problematic things. 

The fact the crimes here are "comparatively minor" is of limited concern. If someone is guilty of murder, they do not obtain a pass for theft of holy relics. The importance of prosecution would be even greater if someone else has already been prosecuted for the overall conspiracy involved. The fact the person was charged under a different statute, notwithstanding.

(As people, including myself, have noted, there is also the reality that other prosecutions are being blocked. We might think of this as the Al Capone for tax invasion rule. I will put that aside.) 

We can note that the matter being covered up here was significant without determining how much so. I think sometimes people lay it on too thick about how much such and such was the "point" or the determining factor. Life tends to be complicated and debatable. Nonetheless, it can be important enough to care about. That is the situation here. 

There is also an equality angle. Michael Cohen was prosecuted. The National Enquirer-related corporation had a non-prosecution agreement. They granted probable guilt. See also, how Biden and Pence handled concerns about having national security documents compared to Trump denying any wrongdoing and obstructing the investigation.  Trump's CFO was prosecuted.

Let us focus on the crimes themselves. The overall crimes involved here can be put in two buckets (the Supreme Court during oral argument these days likes that metaphor): business and campaign finance crimes. 

Trump is a businessman. He has been breaking the law in that field all his career. Those who have kept track are well aware of this. If the basic core of his career is based on fraud and criminal acts, it matters. It isn't murder on Fifth Avenue, but corporate law is still significant in the business capital of the world. Or, one of the leading ones. 

As I have noted, this is not a one-off. Trump and Trump personnel and his entities (university, charity, business) repeatedly have broken the law. Civil judgments have repeatedly been applied. Criminal action also has been brought. Equal justice warrants Trump himself to be prosecuted. 

The other half is for what ends business law is being violated. The details can be a mix of technical and soap opera (porn stars and such). This should not cloud the core values at stake. 

Campaign finance laws are present to protect the integrity of elections. People are passionately concerned about this. They (rightly) vehemently oppose the corruption of democracy, including by people with a lot of money, Trying to stop the transfer of power is more important, obviously, but the rest is not trivial. Many politicians have been caught in the vortex of modern campaign finance laws. They are not "minor" things.

The details here are blatant. Fake names are used to cover up campaign-related payoffs. The money is not trivial. Over a hundred thousand just in one case. The personal lawyer of the accused was behind all of this (later replaced by Jared Kushner).  Corporate laws were bent and broken. 

No one really doubts these things happened. We are supposed to handwave them though if your name is not "Trump," you might get in trouble. More important things should be on our minds. Like the proverbial dumb blond, we can't walk and chew gum at the same time, even while other parties are denying us the gum. The "comparatively minor" crimes here were used to corrupt an election by someone who won and corrupted much more. 

Rachel Held Evans in Inspired references an absurdist play about rhinoceroses taking over a town. People even began to change into them. But, they ignored the large animal in the room, debating minutiae. Well, yeah elephants, but ... 

(Looking the play up on Wikipedia, the townspeople also start to normalize the rhinos. An absurd thing becomes accepted.) 

Yes, claims this prosecution is some First Amendment specter is absurd. Yes, other crimes are more severe (we can look at the possible punishments alone to show this). No, this is not just plain trivial. The core issues here are far from trivial. They address extremely important matters. 

I support the prosecution and won't belittle it.