No, the Cases Against Trump Are Not "Lawfare"

Notwithstanding the view of Sarah Isgur, Republican voters' concerns about lawfare are indeed almost entirely unfounded

Above: Don’t you dare cut down all the laws to get to this guy! Photo courtesy of Matt Brown

Sarah Isgur’s latest edition of the newsletter The Collision at The Dispatch is titled Why Donald Trump’s Prosecutors May Be Helping His Campaign. In it, she advances the rather dubious claim that “Republican voters’ concerns about ‘lawfare’” against Donald Trump “aren’t entirely unfounded”:

It’s easy to argue that Trump should be held accountable if a prosecutor believes there’s evidence to support a conviction. He’s not above the law just because he is running for president. In fact, plenty of people believe that is why he’s running for president again—to avoid justice.  

But Republican voters’ concerns about “lawfare” aren’t entirely unfounded, either.

(My emphasis.) Then she drags out, for the umpteenth time, the hoary old saw about Thomas More and cutting down all the laws to get at Donald Trump:

Sarah’s View

“Lawfare” is essentially the darker, more nefarious-sounding word for the concept from A Man for All Seasons that I often talked about last year: They are willing to cut down the laws to get to the Devil himself. 

It’s important to realize that the people who cut corners always think they are the good guys. In cases where police or prosecutors frame someone, you will universally find that they did it because they thought the person was guilty, and they believed they were protecting the public against a bad guy. It’s an “ends justify the means” thinking that is anathema to our rule of law and especially to our criminal justice system. 

The problem is that Isgur’s summary of the alleged problems with the cases against Donald Trump appears to me to be decidedly one-sided, and omits some obvious arguments that contradict the view that the cases are “lawfare.”

I am going to provide those arguments here.

If it seems like I have been picking on Isgur lately, I will say in my defense I didn’t set out to constantly refute Sarah Isgur’s opinions about Trump prosecutions in this newsletter. But if she is going to keep saying things about the Trump prosecutions that demand a response, somebody has to give one. I guess that’s going to have to be me, because I’m not really seeing it elsewhere.

Because many readers are busy and may not want to wade through 10,000 words that detail my arguments at length, I’ll start with a bullet-point summary of the various claims Isgur makes, and what she omits.

The TL;DR Version

In Internet speak, “TL;DR” stands for “Too Long; Didn’t Read.” It’s a term that might apply to many people facing one of my lengthy legal posts. And a “TL;DR” version is therefore the executive summary designed for the busy reader.

Here is that summary in bullet points, which I am told is a format especially attractive to people who don’t like reading long detailed arguments chock-full of evidence and links and logical discussion.

• Isgur suggests the Bragg prosecution might be lawfare, because (she says) Bragg is “using an underlying federal charge that the Department of Justice decided not to bring.” But Bragg is relying on many theories. I have pointed out before that Bragg does not have to rely on the theory Isgur is referring to: that Trump himself committed a federal campaign finance violation. It is enough that Trump falsified documents to conceal, say, Michael Cohen’s campaign finance violation—a charge that DOJ did bring, and to which Cohen entered a guilty plea. Isgur knows I have made this point because she has discussed my argument in a podcast and acknowledged that I had a good point. And yet here, she repeats the same exact claim that I have previously refuted.

  Moreover, Bragg has since made clear that he is also relying on several other underlying felonies other than Trump’s own federal campaign finance violation —and all of his theories (save one) have since been ruled valid by at least two court decisions, the latest being a decision by the trial judge rejecting Trump’s motions to dismiss the Bragg prosecution. I’m not sure why Isgur is pushing ahead with her initial reaction, in the face of so much information that has come out since showing that there is a lot more to Bragg’s case than a reliance on a federal case DOJ declined to bring.

• Isgur suggests Jack Smith’s January 6 prosecution might be lawfare, because Smith “charged Trump with corruptly obstructing, influencing, or impeding an official proceeding,” and the Supreme Court might soon narrow the scope of that law. First of all, Smith also charged Trump with two other counts that Isgur doesn’t mention at all. Those counts, as far as I can tell, would be unaffected by the upcoming Supreme Court ruling. As to the obstruction charges, Isgur does not explain how a ruling favorable to the January 6 defendants who stormed the Capitol would necessarily help Donald Trump.

  The biggest concerns about the Supreme Court ruling are 1) that it will restrict obstruction to actions that are similar to altering or destroying documents, and 2) that the Court will adopt a narrow definition of what it means to obstruct a proceeding “corruptly.” But Trump’s fake electors scheme certainly involved actions similar to altering documents. I would think Trump’s participation in that scheme would fall within the catchall definition in the statute of “otherwise” trying to obstruct, influence, or impede an official proceeding.

  As to any potential narrowing of the term “corruptly,” I believe Trump’s actions would qualify even under the narrowest definition on offer of the term “corruptly”: an attempt to secure an unlawful benefit for one’s self or another person. Certainly Trump’s fake electors scheme was an attempt to secure an unlawful benefit for himself: the presidency, which he had lost.
  

  (There’s a third possible group of issues—that I consider minor but that really could help Trump—that I will discuss below in the more detailed section. These seem to me more like Hail Mary plays, but with this Court you never know.)

  These are complex matters involving a lot of nuance, but I think it would be have preferable for Isgur to note that the Supreme Court decision may help Trump . . . or it may not. And in any event, there are other statutes that Smith charged in the January 6 case that will not be affected at all by the Supreme Court’s ruling.

• Isgur suggests the enormous New York civil verdict against Trump might be the result of lawfare, citing as her expert the well-known legal scholar Jeb! Bush, who believes Trump was treated unfairly because (he claims) there were no losses to financial institutions and thus no victims. But Judge Engoron’s opinion says that victims and financial losses are not elements of the causes of action he was assessing. Also, Judge Engoron says, financial institutions nevertheless were victims, and did suffer financial losses . . . because they relied on Trump’s misrepresentations to lend him money at a lower interest rate than they would have demanded if they had been told the truth. Me, I’m going to go with Judge Engoron over Sarah Isgur’s chosen legal expert, shown here explaining that he is “not a lawyer”:

  

• Isgur suggests that even the classified documents case might be lawfare, because there is a precedent discussed in the recent report by Robert Hur (the special counsel in charge of the Biden documents case) in which Ronald Reagan was allowed to retain his own handwritten notes, which contained highly classified material, even after his presidency had ended. Isgur says Trump supporters are “left to wonder” why Trump is being treated differently, darkly suggesting that the reason is because Trump is running against Joe Biden.

  What Isgur knows, but does not tell her readers, is that the Hur report clearly lays out why DOJ thinks Trump is different from Biden or even Reagan. Specifically, Hur says in his executive summary, which Isgur says she has read, that “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.” That was not true of Biden or Reagan. Hur explains that such aggravating facts present a circumstance why DOJ is compelled to bring a prosecution that it might not otherwise have brought. Isgur should have explained this to her readers.

• Finally, Isgur makes a decent case that the state prosecutors said inappropriate things during their campaigns about going after Trump. But she oversells her case when she also cites commentary by Joe Biden that he is frustrated with the pace of the Trump prosecutions. Biden’s comments, which he has made only privately, are absolutely inappropriate. But what Isgur fails to discuss is that Biden’s comments actually illustrate the independence of the Department of Justice—which, if it were taking all of its marching orders from Biden, would not be upsetting Biden so much.

  It turns out that Biden is upset with more than just the Trump prosecutions. He’s mad about the Hur report and the mean (and accurate) things it said about Biden being super-old and in a constant mental fog. He’s mad about how the Department of Justice is handling the case against his son. In all of these cases—the Trump case, his own documents case, and his son’s criminal case—Biden’s complaints are actually an illustration that the cases are not “lawfare” being perpetrated by the President of the United States . . . because Biden appears to have no control over how those cases are being handled. This is in line with a long tradition at the Department of Justice of independence from the White House in politically charged matters. Isgur knows about that tradition. She was a high-level official at DOJ and she has talked about their independent streak many times. Why is she now so silent about it?

That’s the summary. What follows is the more detailed discussion of Isgur’s claims and what she is leaving out. Each section will have its own headline, so if you have any question about any of the bullet points, or want to read more about them, you can simply scroll down to the relevant headline. The first of the five more meaty sections is free for all. The rest of the good stuff is saved for the elite paid subscribers.

Why Am I Doing This?

Before I get to the detailed explanations, let me finish this introductory section by saying: I like Sarah Isgur. She’s smart and she does interesting and entertaining legal analysis. But . . . she really seems to have a blind spot when it comes to efforts by the legal system to hold Donald Trump accountable. For example, I recently documented errors she and her Advisory Opinions co-host made in assessing the Maine Secretary of State’s decision that Trump does not qualify to be on the ballot in Maine. (Isgur issued a correction of her errors at The Collision . . . but so far I am aware, is still refusing to issue a correction of the numerous errors on the Advisory Opinions podcast, apparently taking the position—in my view misguided—that the errors were unimportant and would take too long to explain.) As you’re about to see, in 2023 I pointed out some deficiencies in her analysis of the Bragg case.

There is a through line here: Isgur’s analytical powers seem to get weaker when she is analyzing situations where the legal system is trying to impose consequences on Donald Trump. She seems to see him as a victim: in the refrain she likes to repeat, she constantly reminds us that he is not above the law but is also not “below the law.” We have to hear about Thomas More and cutting down all the laws, over and over again . . . until we’re ready to emulate Donald Trump and throw a plate of spaghetti against the wall. It’s not just me noticing this. I’m seeing some discontent about the seemingly partisan nature of her Trump commentary in comments at The Dispatch.

I say all this because I like her, and I would want someone to do the same for me if I had a blind spot (narrator: Patterico in fact has several blind spots). I would want people to tell me about my blind spots. But not just that: I would want them to back up their criticisms with specifics. Because in fact, people do tell me all the time that I hate Trump too much for their taste—but when I ask them for specifics, I never get any. I just get handwaving about how I am too hostile to him. I don’t think that helps. What does help is specifics. If someone can give me chapter and verse, and show me where I wrote a piece about Trump but mischaracterized one argument; failed to note critical context with respect to a second argument; relied on a shaky source for a third argument when a much better source was available, and so forth . . . I would find that kind of criticism helpful. Because it would make my writing and commentary better.

That’s the hope here. So if you find me going into a lot of detail below, it’s because I want to show that my criticisms are based on evidence. I want you, the reader, to believe I am not just handwaving, or complaining because someone dislikes Trump less than I do. I’m trying to provide substance, in the hope that it will be taken in the constructive spirit in which it is intended. (Isgur has, in fact, been very complimentary and kind about my criticisms in the past, so I think (and hope) she will take it in the right spirit.) And if I seem to get carried away in this piece at times, for example expressing amazement that Isgur is saying x when she is well aware of fact y and so forth, please understand: vigorous advocacy is just my way. (Have you met me?) I hope none of this comes across as mean-spirited. I would never want it to be seen that way.

Onto the painfully detailed substantive criticisms that I outlined in summary fashion above, starting with . . . the upcoming Bragg prosecution.

No, the Bragg Prosecution Is Not Relying Entirely on an Underlying Federal Charge that DOJ Decided Not to Bring

Isgur first targets the Bragg prosecution, which makes sense, as it is the weakest of the four. But the particular attack she brings is one that I have debunked before. And as we will see, it has since been debunked by a more relevant critic: the judge overseeing the Bragg prosecution.

Here’s what Isgur says:

Bragg’s case, for example, is an obvious effort to get around the statute of limitations using an underlying federal charge that the Department of Justice decided not to bring (despite bringing two other cases) regarding alleged hush-money payments to Stormy Daniels.

You would never know from Isgur’s newsletter that, in fact, there is a lot more to the Bragg prosecution than that. And most of the other theories have been upheld as legally valid.

Isgur and her Advisory Opinions (then) co-host David French made a similar argument in a podcast recorded in early 2023. I detailed their argument on March 27, 2023, in a Substack piece taking issue with their analysis. As I explained, Isgur and French argued that the potential Bragg prosecution for falsification of business records was based on a campaign finance violation by Donald Trump, but that relying on such a federal crime was (in their view) shaky for various reasons, critically including the fact that the “[t]he feds here specifically declined to bring that case.” I argued that was not necessarily the case; I pointed out that the underlying crime Trump sought to conceal could instead be Michael Cohen’s campaign finance violations, which DOJ did charge, and to which Cohen pled guilty.

I went on to make a lengthy legal argument as to why the New York records falsification felony could indeed be premised on a theory that Trump falsified business records for the purpose of concealing Michael Cohen’s campaign finance violation. I won’t repeat that entire legal analysis here, but it’s available at the link if you wish to take a more detailed look.

I know Isgur knows about my argument, because she and David French discussed it in an April 1, 2023 live broadcast of their Advisory Opinions podcast at Harvard Law School. At 11:27 French confirms that he and Isgur had assumed that the New York falsification of records felony had to be tied to a crime by Donald Trump, which presumably had to be Trump’s commission of a campaign finance felony—and that seemed shaky in part because DOJ had declined to prosecute Trump for that crime:

FRENCH: The way we analyzed it was to say well the other crime—what other crime of Donald Trump—is this tied to? And the best thing we could surmise was federal campaign finance violations tied to the Cohen federal campaign—Michael Cohen federal campaign finance violation prosecution. And so that’s how we analyzed it, tying the misdemeanor falsification of business records to a felony federal campaign finance violation that was shaky because the federal campaign finance violation a) is problematic under its own terms, and b) was never prosecuted by the DOJ. So both the Trump and the Biden DOJ declined to prosecute, and that was the core reason why we said: this seems shaky.

Notice that this is exactly the same argument Sarah Isgur made in her February 23, 2024 newsletter: that Bragg is “using an underlying federal charge that the Department of Justice decided not to bring.” Back to the 2023 Harvard Law podcast at 12:25:

FRENCH: So Patterico—hopefully I’m pronouncing his last name correctly—said we’re missing something.

ISGUR: Yeah, so he has a few points on this. One, to the extent I said it that had to be to sort of facilitate Trump committing the crime, his point is, it could also be simply to hide the crime, not just to facilitate. Fair enough. I, you know. Loose lips sink ships. My whole thing is about being precise and I was not precise enough. So yes. He could be guilty of it simply for trying to conceal this additional crime.

But, more to the point, his second argument is that it doesn’t have to be Trump’s crime. It’s just any other crime. What about Michael Cohen’s? Right? Michael Cohen pleads to the same federal—well, it’s not the same—similar federal campaign finance charge. Why can’t it be that the Trump state falsification of business records was an attempt to hide Michael’s federal crime of federal campaign finance violation? Um, that’s a pretty good point.

Isgur went on to say that she thought there are weaknesses to the argument because “you gotta prove a lot more stuff” such as a level of knowledge on Trump’s part, including his knowledge of the falsification of records (and of course I agree that such knowledge must be proved). I quote this merely to show that the Michael Cohen crime could be the underlying crime, and it is not a crime that DOJ declined to bring—and French and Isgur acknowledged this at the time. At 19:21 in the podcast, French noted that Michael Cohen’s “already existing guilty plea” would be a better foundation for the falsification charge than basing it on Trump’s own alleged campaign finance violation:

FRENCH: But I will say that the piece, Patterico’s piece about another person’s crime is a very valid critique. I think that’s a valid critique of our analysis. And it does . . . I think it is, perhaps, a better way of looking at the possibility of bootstrapping in the other crime, is Michael Cohen’s already existing guilty plea. I acknowledge, I think that’s a solid analysis and a better way for the prosecutor to pursue it. If he chose to do that.

Isgur did not disagree; in fact, she pointed out that you could even have other theories involving crimes by other people, such as a theory that Trump falsified business records to cover up Allen Weisselberg’s tax crimes. So, she said, “Patterico was good to point that out.”

So let’s sum up. Isgur and French initially claimed that Bragg’s charge was shaky because it relied on an underlying federal charge that the Department of Justice decided not to bring. Then I pointed out that Bragg actually might be relying on an underlying federal charge that DOJ did bring, and they kindly highlighted my critique and said it was a solid analysis, that it was good of me to point it out, and that I had, in Isgur’s words, a “pretty good point.”

Now, perhaps you can see why I am mystified that Isgur just wrote in The Collision that Bragg’s prosecution is “using an underlying federal charge that the Department of Justice decided not to bring” against Trump. It’s the exact same criticism that she and French made back in 2023 and then acknowledged might be wrong!

At this point, you might ask yourself: has there been some intervening law, analysis, or decision that undercuts my analysis? To the contrary! Indeed, we have other arguments made by Bragg that show he is relying on more than just the Trump federal campaign finance charge . . . and we have judicial decisions that support what I argued back in March 2023.

First, as I noted in an August 23, 2023 Substack article, federal district judge Alvin K. Hellerstein issued an opinion remanding the previously removed prosecution back to state court. In that opinion, the federal judge made some notable findings that supported what I had previously argued. As I explained in August:

Hellerstein cites a long string of New York state appellate decisions that consistently repeat an admittedly rather surprising holding, which I will discuss next. First, Hellerstein tells us that, as I have previously argued, a jury can convict Trump of falsifying business records, and can decide that Trump had the intent to commit or conceal another crime, even if the jury fails to find Trump committed the other crime.

But Hellerstein goes even further than anything I had previously argued, because Hellerstein also cites precedent to the effect that the prosecution need not show that Trump or any other person actually committed the crime that Trump was trying to cover up!

If you’re interested in the details of that decision, feel free to click the link and read my extensive review of Judge Hellerstein’s findings. Those findings further refute the claim that Isgur continues to make: that Bragg’s records falsification prosecution is premised entirely on a crime allegedly committed by Donald J. Trump—a crime that DOJ refused to charge.

But that’s not all!

Because in addition to Judge Hellerstein’s decision, we also have the February 15, 2024 decision by Hon. Juan Merchan, the trial judge in the Bragg prosecution, denying Donald Trump’s motions to dismiss the case. I direct your attention to pages 11-18 of that decision, discussing Trump’s arguments about the “other crime” that the prosecution contends Trump attempted to commit or conceal by the falsification of the records. As we already knew from the Hellerstein decision last year, the prosecution is not relying simply on an argument that Donald Trump committed a federal campaign finance violation (the charge DOJ declined to bring). They submitted four different theories to the trial judge:

The four theories being violations of the: (1) Federal Election Campaign Act ("FECA"); (2) N.Y. Election Law § 17-152; (3)Tax Law §§ 1801(a)(3). 1802: and (4) Defendant's intent to violate PL §§ 175.05 and 175.10 by intending to commit or conceal the falsification of other business records.

(This is consistent with the prosecution’s May 16, 2023 response to Trump’s request for a “bill of particulars” In that response, Bragg specified the same four theories.) Judge Merchan has now ruled that Bragg may proceed on the first three theories, but failed to present sufficient evidence of the fourth to the grand jury, and thus may not proceed on that fourth theory in the upcoming trial.

The viability of the first three theories alone tells you that Bragg is not relying entirely on a charge that DOJ chose not to bring, as theories 2 and 3 are premised on New York state law, not federal theories.

But even as to theory #1, the federal FECA violation, Bragg does not appear to be relying solely on a theory that Trump himself committed a federal campaign finance violation. As I argued back in March of last year, Michael Cohen’s campaign finance violation can be the underlying felony—and indeed, Bragg argues exactly that, and Judge Merchan has upheld the validity of that argument.

Here are the specifics. Judge Merchan on page 7 of the decision agrees with and quotes the People’s argument that the defendant need not intend to cover up his own crime (italics here are the judge’s own):

“Nor is there anv requirement that a defendant intend to conceal the commission of his own crime; instead, ‘a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.’”

On page 8, Judge Merchan adds that “the statute docs not require a defendant to actually be convicted of the ‘other crime,’ but merely that he intend to commit another crime.” (Again, the italics are the judge’s own.) All of this comes as no surprise to readers of mine who read my August 23, 2023 breakdown of Judge Hellerstein’s remand decision.

Judge Merchan next discusses the FECA violation on pages 11-14 of his February 15, 2024 decision. He repeats at page 12 that the defendant need not be convicted of the “other crime” that he intended to conceal or further through the falsification of business records.

Judge Merchan notes that the prosecution does indeed allege that Trump himself violated federal election laws, but also notes that “[t]he People presented evidence to the Grand Jury that Cohen pled guilty in the Southern District of New York to violating FECA for engaging in the very acts which are at issue here, i.e. making unlawful campaign contributions and that he did so at the direction of, and in coordination with, ‘a candidate for federal office’ later identified as Donald J. Trump—the Defendant herein.” (p. 12.) So yes, Bragg is pursuing a theory that Trump himself was guilty of a campaign finance violation—and it does not surprise me that this is one of his theories—but Bragg also clearly presents the fact of the Cohen plea as a backstop, as I argued last year that Bragg was entitled to do . . . in case anyone complained that Trump himself had not been convicted, and that in fact DOJ had not prosecuted Trump.

The judge ultimately holds the following at p. 14 with respect to the FECA theory:

Note that he specifically notes that not just Trump, but Cohen and Pecker as well, took actions that exceeded FECA’s limits—and the judge specifically notes that “Cohen plead guilty to violated FECA and served a prison term as a result of his involvement in this scheme.” He also cites the FEC’s ruling that AMI and Pecker violated FECA. All of this is consistent with the judge’s ruling, noted earlier, that “a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.” (My emphasis.)

In summary, after the trial court’s ruling, Bragg has advanced three separate theories of an underlying crime that he plans to—and may, consistent with the law—rely upon. Only one of those three theories is based on federal law, and even that theory does not necessarily require Bragg to “us[e] an underlying federal charge that the Department of Justice decided not to bring”—because Bragg can just as easily rely on the charge DOJ did bring: the campaign finance charge against Cohen.

I think that Isgur is not properly informing her readers when she implies that Bragg’s entire theory is based on a federal charge that DOJ declined to bring. There is a lot more going on here, and to me, it does not spell “lawfare.”

Next: Isgur’s claims about the Supreme Court taking up a case that she believes might harm Jack Smith’s January 6 case against Trump.