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You might be thinking about the Donald Trump cases all wrong

If the former president is charged in multiple jurisdictions, it doesn’t matter which prosecutor is first. 


On the eve of potential charges against Donald Trump in Manhattan, I have detected a concern among people who want to see the former president held accountable. It’s a concern that, due to the perceived weakness or triviality of the New York case compared to the Georgia and federal probes, it’s a mistake for Manhattan District Attorney Alvin Bragg to kick things off. But that’s the wrong way to think about it, for multiple reasons.

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First, on the relative strength of potential New York, Georgia and federal cases: It’s unusual to know this much about potential prosecutions before charges have even been filed. But despite all we know, it’s still impossible to truly compare the potential charges in each jurisdiction, because we just don’t know what each prosecutor knows and how that knowledge translates to what crimes, if any, they'll allege Trump has committed. (Trump has denied any wrongdoing in these cases.)

Each case rises or falls on its own. And the order in which each is brought doesn't matter.

Of course, we’re broadly familiar with the matters. We know that in Georgia, Fulton County District Attorney Fani Willis’ probe deals with Trump’s efforts to overturn the 2020 election. Same goes for Justice Department special counsel Jack Smith’s two investigations: one about Jan. 6 and the other about the classified documents found at Mar-a-Lago. In light of those seemingly grander narratives, there’s a line of thinking that goes: How can you compare Jan. 6 to paying off a porn actress in the Stormy Daniels hush money case that Bragg is reportedly contemplating? Isn’t there some risk to bringing the latter case first, especially if the prosecution blows up in Bragg’s face?

But each case rises or falls on its own. And the order in which each is brought doesn't matter. If charges are brought first in New York, and if Willis and Smith also plan on bringing charges, they’re not going to wait around to see how Bragg’s entire case unfolds. That could stretch through the 2024 election, which, if Trump is elected, could bar Smith from bringing charges under Justice Department policy against indicting sitting presidents. So Bragg would only be alone for as long as Willis and Smith want him to be.

And on the respective merits of the cases, recall that the hush money payment came in the run-up to the 2016 election. According to the Southern District of New York, where Trump’s former fixer Michael Cohen pleaded guilty (while Trump was still president), Cohen made the payment "in order to influence the 2016 presidential election." (Of course, Trump could have also been charged in the Southern District after he left office but wasn't.) So, the Daniels case is also an election interference case of sorts — a tawdry bookend to the violence of Jan. 6, 2021.

To be sure, that doesn’t address whatever discrete legal issues could arise in a Manhattan case. If, as reported, the charge there is falsifying business records in covering up the hush money payment, then I’ll be curious about Bragg’s legal theory of the case. Falsifying business records is a misdemeanor unless the prosecution proves that it was done in furtherance of another crime or concealing one — whether an election-related offense or something else entirely.

But these sorts of legal issues will arise in any case, in any jurisdiction. If charges are brought in multiple places, the cases might all play out simultaneously. At any rate, if people feel underwhelmed for whatever reason by Manhattan charges if they come first, there’s no legal reason to apply that lack of enthusiasm to whatever comes next.