With a potential indictment of former President Donald Trump looming, Speaker Kevin McCarthy, R-Calif., pledged over the weekend that House Republicans would “immediately investigate” the situation. True to his word, on Monday three GOP committee chairs sent a letter to New York County District Attorney Alvin Bragg accusing him of “an unprecedented abuse of prosecutorial authority.”
The letter from Reps. Jim Jordan of Ohio, Bryan Steil of Wisconsin and James Comer of Kentucky — the heads of the Judiciary, House Administration and Oversight committees, respectively — calls upon Bragg to provide documents and testimony about his investigation into Trump. A close read of the letter shows how flimsy the rationale for the GOP’s latest round of “investigate the investigator” really is.
A close read of the letter shows how flimsy the rationale for the GOP’s latest round of 'investigate the investigator' really is.
First, let’s acknowledge that, based on what little we’ve been able to glean so far, any indictment this New York City grand jury hands up is likely to be a weird one. Even legal experts who’ve often criticized Trump have doubts about the wisdom of Bragg’s pursuing this case. The panel has reportedly been hearing evidence related to a 2016 payment Trump authorized to be made to adult film star Stormy Daniels just ahead of the presidential election to keep her from publicizing what she said was an affair she had with Trump. (Trump has denied there was an affair.)
The payment itself wasn't a crime, but if the Trump Organization cooked the books to conceal it, that most certainly would be. MSNBC columnist Jessica Levinson brilliantly laid out why such a charge may be a tricky one to prove under New York state law. The House GOP chairs, on the other hand, base their argument in large part on the analysis of George Washington University law professor Jonathan Turley, who, following the same steps Levinson does, concludes in an op-ed in The Hill that the Manhattan investigation is “a case that has developed more like a television production than a criminal prosecution.”
Turley, it’s very much worth noting, is the only legal expert the Republican committee heads directly cite in their letter. That’s noteworthy because, since Trump’s first impeachment, Turley has been a right-wing media darling. Stanford law professor Robert Weisberg, writing at Slate last year, described Turley’s recent output as “Republican sycophancy rendered in a sober scholarly tone.”
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The letter also mentions legal experts who described the potential indictment as “unusual” in comments to The Washington Post. But, unlike the GOP chairs, they don’t say Bragg’s case is spurious or claim it amounts to political assault. For example, Leo Glickman, an election and civil rights lawyer, said of Bragg to the Post, “I’m very curious to see what he does, because it is novel, but that doesn’t make it nonviable.”
The Justice Department declined to pursue a prosecution in 2019; the letter suggests it’s because of “President Trump’s announcement that he would be a candidate for President in 2024.” But that wasn’t “the only intervening factor,” as claimed. The Justice Department would have been unlikely to pursue any case against Trump in 2019 when he was president, so his having left office seems like a big one. And the Post article the letter writers cite points out that in January, Bragg said wrapping up last year’s successful prosecution of the Trump Organization for tax violations “allowed investigators to take other steps that, he suggested, might have been unfair during active litigation.”
The chairs try to justify their letter as something other than offering political cover for Trump.
The House committee chairs also attempt to discredit Michael Cohen, Trump’s former attorney and the likely key witness in any indictment against Trump. Cohen, as you may recall, pleaded guilty in 2018 for his role in the hush money scheme. At the time, Cohen said he had done so at the urging of a candidate, i.e., Trump. The letter also mentions that Cohen separately pleaded guilty to lying to Congress in his testimony in 2018 — but not what Cohen was lying about. According to the Associated Press article the leaders cite in a footnote, “Cohen admitted making false statements in 2017 to the U.S. Senate Select Committee on Intelligence” about the work he’d done on a Trump Tower project in Russia. Cohen said at the time that he lied to protect “Individual 1,” again a reference to Trump.
It makes sense that they would want to avoid mentioning that little detail. But, as my MSNBC colleague Jordan Rubin has laid out, none of his past convictions automatically rule out Cohen as a potential witness for the prosecution.
The chairs try to justify their letter as something other than offering political cover for Trump. They claim Bragg’s policies and the potential indictment of Trump require “congressional scrutiny about how public safety funds appropriated by Congress are implemented by local law-enforcement agencies.” But as I noted on Saturday, the New York City Council’s Finance Division is pretty clear that federal funding to the city’s district attorneys is made up “mostly of various grants that support crime victims’ programs, efforts to prevent intoxicated driving, gender-based violence work, opioid programming and justice assistance grants.”
The House Republican leaders also claim that there are legislative purposes to their investigation, including “potential legislative reforms about the delineation of prosecutorial authority between federal and local officials” and “legislative reforms to the authorities of special counsels and their relationships with other prosecuting entities.” Is the GOP suddenly for defanging state and local prosecutors in favor of federal prosecutors? (What if the “woke FBI” decided not to prosecute a member of antifa? Is it these Republicans’ stance that this should preclude a local district attorney from doing so?)
The fig leaf they’re putting over this sham investigation isn’t hiding anything. Their request includes all “documents and communications between or among” Bragg’s office and the Justice Department “referring or relating to your office’s investigation of President Donald Trump.” Assuming there is an indictment, these Republican leaders are demanding materials they could use to litigate the case in public before a trial.
It’s deeply ironic that two of the signatories on this letter — Jordan and Comer — are among the most vocal about the “weaponization of the federal government.” In attempting to undercut an ongoing criminal proceeding, effectively threatening Bragg for doing his job, they are weaponizing their positions in Congress in a naked attempt to subvert the rule of law.