NYC Indicts Trump And Engages In Creative Prosecution

When a district attorney who ran as a Democrat and promised to "get" Donald Trump indicts the candidate running for president against the incumbent head of his party, he had better have a slam dunk case. Although we don't know exactly what the Manhattan grand jury indicted Trump for, it seems likely, based on what we know, that this is a very weak case which would never have been brought against anyone else.

If this indictment is based on the hush money paid to a former porn star and the manner by which it was recorded in corporate records, this may be one of the weakest cases in my experience. It is a stale case that appears to be beyond the statute of limitations.

The DA may argue that Trump was out of the state continuously during the period of limitations, thus tolling—that is, pausing—the statute of limitations, because the former president couldn't be indicted while out of state. But Trump was indicted while he was in Florida, so he could have been indicted any time over the past 7 years. Why wasn't he?

Because previous prosecutors decided not to indict Trump based on the facts and law available to them. Has new evidence been discovered? We will see, but it seems unlikely.

This is a case of targeting an individual and then rummaging through the statute books in search of a crime. Prosecutors seem to have come up with nothing under established law, then made up a misdemeanor and then piggybacked it on another alleged crime to create a felony. But one plus one does not equal 11, and zero plus zero equals zero. That is what we seem to have here.

And even this weak exercise in creative prosecution seems to rely on the testimony of Michael Cohen, who has a long history of lying to federal authorities. No ethical prosecutor can present Cohen to a jury as a credible witness. The DA can try to make the case without Cohen, though he apparently relied on Cohen's testimony to secure the indictment.

Because the case is to be presented to a Manhattan petit jury and judge—unless there is a change of venue—it is certainly possible that Trump could be convicted, against the weight of the evidence and the law. It is also possible that a conviction could be affirmed on appeal by New York courts. It would likely not survive Supreme Court review, but that will not occur for years, if at all.

In the meantime, Trump will continue to run for president. An indictment cannot constitutionally stop him. Neither could a conviction or even a prison sentence. This ill-advised indictment is likely to help his campaign to secure the Republican nomination.

If he is photographed, his mug shot may become his campaign poster and the most popular mug shot t-shirt since Frank Sinatra's. I have already received messages from voters who said they had been planning to vote for Ron DeSantis in the 2024 GOP primary but will now vote for Trump as a protest against this indictment.

No one, of course, knows the impact this will have on the election. And that shouldn't matter. What matters greatly is that DA Alvin Bragg has weaponized the justice system to target a political opponent based on a nonexistent or, at best, an extremely weak crime.

When the indictment is unsealed, probably early next week, we will know the extent of the damage to the rule of law. It is not impossible that the evidence and law will surprise us all and present a slam dunk case. But based on everything we know about the long history of this investigation, don't count on it.

Alan Dershowitz is emeritus professor law, Harvard Law School, and author of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.