“Apparently Donald Trump Is A Ham Sandwich,” Continued: Prof. Turley Weighs In, Among Others

I’ve been looking for commentary by legal and ethics experts I trust that defend Alvin Bragg’s indictment of Donald Trump, now that the thing is in black and white. (Speaking of White: old Popehat blogger Ken White was one of the first I checked. The former Ethics Alarms Award-winner as best ethics blogger has so far avoided the topic, I suspect because he regards explaining why an indictment of someone he obviously detests is a lot of hooey with the same eagerness he applies to having sex with a horseshoe crab.) In the earlier post today, Ethics Alarms looked at Andrew McCarthy’s analysis, which was searing in its contempt for Bragg’s efforts. Later, I discovered that one of the Washington Post’s worst knee-jerk progressive members of its editorial board, Ruth Marcus, wrote,

…the indictment unsealed on Tuesday is disturbingly unilluminating, and the theory on which it rests is debatable at best, unnervingly flimsy at worst.That is a scary situation when it comes to the first criminal charges ever lodged against a former president.

Then she almost immediately demonstrated why I hold her in such contempt by adding,

I’m not saying prosecutors will lose this case. They could well win, and I hope they do, because a failure to secure a conviction will only inflame Trump and his supporters in their claims that the criminal justice system is being weaponized against them.

Got that? She hopes Bragg wins a bad case and Trump is convicted because Trump and his supporters will have evidence to support the “claim” that the criminal justice system is being weaponized against them. Somebody explain to Marcus, a lawyer, though it always astonished me that she is, that ethical lawyers don’t want defendants to be convicted on bogus charges no matter who they are.

I saw that CNN had found some “experts” to defend Bragg. Excitedly, I clicked on the link: “Opinion: Alvin Bragg was right to prosecute Donald Trump.” Hilarious. CNN’s experts: Norman Eisen the impeachment counsel to the House Judiciary Committee in 2019-2020, when the House engineered an impeachment of Trump with no due process whatsoever and…wait for it! John Dean, whom CNN deceitfully describes as “former White House counsel to Richard Nixon”without mentioning his striking similarity to Michael Cohen: he’s a disbarred lawyer and a convicted felon with a prison record. Hey, it’s not the messenger, it’s the message that matters, right?

Right. And in this case the message is deceitful, disingenuous and designed to deceive the public while bashing Trump, not to illuminate the legal and ethical issues. For example, one serious problem with Bragg’s theory is the statute of limitations, meaning that it may be too late to charge Trump. Do these two legal and ethics icons deal with that issue? No, they disguise it:

Some complain that too much time has passed to bring charges now, about six years after the payments were made. Our answer is that it takes time to charge a president, or even a former one. Years were lost while charges could not be brought federally under Justice Department guidance prohibiting charging a sitting president – and while Trump repeatedly litigated the New York state investigation up to the Supreme Court.

It’s hard to fault Bragg for lost time when his predecessor, Cy Vance, stated this weekend that federal prosecutors had told him and his team to “stand down” during the Trump administration because their own investigation was underway.

“Too long” is not an aesthetic standard, it’s an important legal one to protect the rights of the accused. Trying to duck the effect of the statute by saying, “Well, you can’t blame them: it takes a lot of time to charge a former President” is an insulting dodge aimed at legally ignorant readers. If the statutory time to charge for a crime runs out, it’s out: why the charging was delayed is completely irrelevant….and both Eisen and Dean know it. The rest of their op-ed piece is equally misleading What hackery. This is the strongest case for Bragg’s prosecution CNN could dig up? That tells you something.

Fortunately Prof. Turley finally finished his review of the indictment, and if anything the George Washington Law School professor was even more disgusted than Andrew McCarthy. Turley concentrates his fire a bit more on how damaging this partisan hit job is to the rule of law and our democracy, writing in part,

Bragg knew that he had no criminal case against Trump. However, after running on bagging Trump for some crime (any crime), Bragg knew that many would not care if he had a basis for a criminal charge. He would be lionized to be the first person to ever indict a former president in the blind rage against Trump…We now have the indictment, and it is basically what many of us anticipated. It is a series of stacked counts of falsifying business records for the purpose of influencing the election. The indictment seems to address the lack of legal precedent with a lack of specificity on the underlying “secondary” felony. Bragg has done nothing more than replicated the same flawed theory dozens of times. This is where math and the law meet. If you multiply any number by zero, it is still zero….

If the New York bench retains any integrity, this case will be thrown out as legally improper with an admonition to Bragg and his office for politicizing the criminal justice process. That, however, may be asking a lot of state judges who are elected on both the trial and appellate levels…The cost, however, to the legal system will be immense. In a single indictment, Alvin Bragg bulldozed any high ground that the Democrats had after January 6th. He has fulfilled the narrative of the Trump campaign by supplying a raw and undeniable example of the politicization of the legal system. What is most shocking is that this attack on the rule of law was met with the rapturous applause of many, including lawyers and legal pundits. They not only will ignore the affront to the integrity of our legal system, but celebrate its demise.


Read it all.

40 thoughts on ““Apparently Donald Trump Is A Ham Sandwich,” Continued: Prof. Turley Weighs In, Among Others

  1. Jack, if you want a coherent analysis of the Statute of Limitations issues, I recommend this post by Scott Greenfield, who unlike most media commentators is an actual NY criminal defense lawyer.

    • Thanks Dave. I wonder what the construction of “continuously” does to the calculation. Did Trump have to be out of New York State ever since 2017 or 2018? I can’t imagine he was. To add up various time periods broken up by a presence in the state reads “continuously” right out of the statute. Which is a statutory construction no-no.

      • Under People v. Knobel, basically any calendar day that the defendant spends entirely outside New York doesn’t count towards the Statute of Limitations. Essentially, if you neither live nor work in New York, for most purposes the Statute of Limitations doesn’t apply to you. It hardly seems fair, but it seems to be the law – and it isn’t unique to New York, either.

    • i had read Scott’s analysis, which was hardly conclusive even given his expertise. And McCarthy was a NY prosecutor. Of course, all of these matters could have been discussed in the CNN piece, instead it just said, “Hey, these things just take time, so no biggie!”

  2. I’m stunned to learn Ruth Marcus is a lawyer. If that second paragraph isn’t the picture next to the definition of Trump Derangement Syndrome, I don’t know what is. Yowza!

  3. The indictment seems to address the lack of legal precedent with a lack of specificity on the underlying “secondary” felony.

    I commented on this in the other thread, and other sources seem to confirm my interpretation.

    I’ll put it this way: NY law requires that an indictment specify the basis of the charges “with sufficient
    precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation”. That’s the law. So if prosecutors don’t follow the law, they’re the ones who get put in jail.

    Ha! Kidding! Of course they don’t go to jail. No, the judge just dismisses the indictment as insufficient and they lost the case automatically.

    Kidding again! No, what actually happens in New York, is that the defense gets to ask the prosecutor nicely to please follow the law. It’s called a Request for a Bill of Particulars, and it’s covered in CPL 200.95. So the defense asks the prosecutor nicely, and they, in turn, get to channel the ghost of Nancy Reagan and Just Say No (CPL 200.95(4)). At this point, you as defense counsel get to ask the court, nicely, to pretty please make the prosecutor follow the law, which it may or may not agree to do.

  4. “This is where math and the law meet. If you multiply any number by zero, it is still zero….”

    Racist maths strike again!

  5. On a related note.


    “You can be sure that there are prosecutors across Florida and Texas right now who are looking for a state law hook into the Biden family,” said Judicial Watch president Tom Fitton. “And if they’re not, they’re not doing their jobs.”

    Mike Davis, a former chief counsel for nominations on the Senate Judiciary Committee and president of the Article III Project, floated legal theories for possible prosecutions.

    “I think our Republican AGs and DAs should get creative,” Davis said.

    “You just need probable cause. A grand jury can indict a ham sandwich. We just saw that in New York. And the Bidens actually committed real crimes. These are real crimes that the Bidens committed. There is smoking-gun evidence that the Bidens were corruptly and illegally on Chinese and Ukrainian oligarchs’ payrolls.”

    Davis pointed to Hunter and James Biden’s partnership with CEFC China Energy in 2017 and 2018, which also allegedly involved Joe Biden, as potential grounds for charges.

  6. Ken White hasn’t avoided the topic at all. He released an hour long podcast analyzing the indictment and wrote a very balanced and fair article in Rolling Stone.

    Here is a snippet from his article titled “Bragg’s case against Trump is still a mystery”

    “Is the District Attorney arguing — as Bragg and his Statement of Facts imply — that Trump cooked the books to hide that he was committing federal campaign finance violations, because the payoff to Stormy Daniels was a prohibited contribution to his own campaign? That’s a heavy lift…

    Bragg also said that Trump promoted a candidate (himself) by unlawful means through these false entries. That’s probably a reference to New York Election Law § 17-152, a misdemeanor that prohibits conspiring to promote or prevent someone’s election through unlawful means. But what are the unlawful means? Are we back to the campaign finance violations? Is this merely circular? The indictment doesn’t say.”

    Definitely sounds like he’s a “raging never Trumper”

    • You don’t get to use sarcasm here directed at me.

      White IS a NeverTrumper—as I would expect, Ken also has the integrity to make a fair analysis despite his biases. Good for him. Thanks for the Rolling Stone referral: I had checked White’s substack, where I assumed he would post on this first. He chose to do a paid piece for RS: can’t blame him for that.

      I don’t have time for podcasts, as popular as they are. And I can’t cut and paste to quote from podcasts.

      (You owe me your real name, by the way. Friendly reminder.)

      • Why would it be unusual for a “NeverTrumper” to put aside their biases to make a fair analysis? By definition, NeverTrump Republicans put aside their partisan loyalty to objectively evaluate the character and qualifications of an individual.

        I have never seen the word “NeverTrumper” used with the kind of contempt I see it used here outside of explicitly MAGA circles.

        • I wouldn’t even consider Ken White to be a conservative – more of a classically liberal civil liberties wonk. I’d say “libertarian”, but these days, the word seems to refer to either the “taxation is theft!” crowd, the “woohoo, drugs!” or those with weird hangups about Age of Consent laws, and Mr. White is none of those.

        • Seriously wrote, “I have never seen the word “NeverTrumper” used with the kind of contempt I see it used here outside of explicitly MAGA circles.”

          You don’t seem like the kind of person that would hang out in any explicitly MAGA circles, so exactly how a person like you know how people in explicitly MAGA circles would see that phrase? Heck I’m an independent centrist that leans a bit Conservative and Libertarian on some issues and I don’t wander into explicitly MAGA circles, so even I wouldn’t know how they would see that phrase; are you just making up stuff to try to undermine the opinion of those you disagree with thus giving your opinion a faux illusion of authority?

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