Below is my column in the Hill on a series of cases that appear propelled by political rather than legal considerations.
The costs to the legal system, the public, or victims in such cases are often overlooked but they are considerable.
Here is the column:
“It’s not about politics.” New York prosecutor Carey Dunne’s words were repeated like a mantra after this week’s indictment of the Trump Organization and its financial chief, Allen Weisselberg. The problem is that it is manifestly untrue.
In fairness to Dunne, he is prosecuting a case given to him by his superiors. Nor is he alone in pursuing a case driven more by political than legal considerations. From the prosecution of Bill Cosby to a federal lawsuit against Georgia, courts are dealing with cases where government lawyers repeat the same implausible claims with the same unconvincing results. The political gains from these cases ignore the real costs borne by others.
The Weisselberg indictment
Dunne’s statement was made after Manhattan District Attorney Cyrus Vance Jr. and New York Attorney General Letitia James paraded triumphantly in front of hundreds of cameras with a handcuffed Weisselberg in their wake. The excitement — if not euphoria — expressed by many in the media was barely containable.
Weisselberg is charged with failing to pay taxes on executive perks, including cars, apartments and holiday gift accounts; prosecutors added up every possible perk and came up with roughly $1.7 million in taxable benefits. There is no question that such tax violations can be charged criminally; however, if they prosecuted all untaxed executive perks, half of Manhattan would be frog-marched to the hoosegow. That does not make Weisselberg a Mother Teresa figure, but neither does it make him John Gotti.
More importantly, it does not make him Donald Trump.
The piling-on of charges clearly is intended to coerce Weisselberg to flip on Trump. However, prosecutors are not investigating anything involving Trump’s election or presidency. Instead, they are investigating another common practice in business — whether Trump undervalued assets for taxes while overvaluing assets for securing loans.
It simply does not matter what the eventual charges are, however. James pledged to get Trump or his associates on any charge, and she found someone to charge. It is the name on the caption — not the name of the crime — that matters in a prosecutorial trophy kill. (James previously targeted the National Rifle Association.) Politicians like James who run for office by promising to bag political opponents, or their associates, do so at great cost to our legal system and to the concept of blind justice.
The Cosby ruling
In Pennsylvania, another prosecutor insisted that politics had nothing to do with a case. Kevin Steele, the Montgomery County district attorney who convicted comedian Bill Cosby in 2018, remained defiant after the Pennsylvania Supreme Court overturned Cosby’s sexual assault conviction on Wednesday.
In Cosby v. Commonwealth of Pennsylvania, the court found that Cosby was trapped by a “bait-and-switch” after a prior prosecutor assured that he would not be prosecuted if he testified in four civil depositions. Cosby proceeded to incriminate himself and admitted giving drugs to women who alleged sexual assaults. Steele later dismissed that agreement, introduced the incriminating statements, and then called five women to testify about their own uncharged alleged rapes. Those gross errors were allowed by Judge Steven T. O’Neill (who the defense sought to force off the case for bias). O’Neill refused to accept the prior agreement and mocked the notion that “The rabbit is in the hat and you want me at this point to assume: ‘Hey, the promise was made, judge. Accept that.’”
The state’s justices had no problem “seeing the rabbit in the hat,” nor did many of us who criticized the trial. However, it was hugely popular to disregard Cosby’s legal rights in the first major trial of the #MeToo period, given the magnitude of the accusations against him.
DA Steele is unapologetic and insists he was trying to show that “no one is above the law — including those who are rich, famous and powerful.” What he missed is that the rule of law should particularly apply to prosecutors who enforce it — and the costs of violating it are borne not just by Cosby but by his alleged victims, who lost any chance for a fair trial and a formal adjudication. The public will pay, too, not just the millions spent on the case but possible damages if Cosby sues for malicious prosecution based on the prosecutor’s public aggrandizing.
The Georgia lawsuit
Last week, the Biden administration surprised many observers by filing a civil rights action against the state of Georgia over its recent election reforms. The lawsuit was less surprising than its timing: It was filed just days before the release of Brnovich v. Democratic National Committee, an Arizona case in which the U.S. Supreme Court interpreted the very statutory provision (Section 2 of the Voting Rights Act) being used as the basis in the Georgia challenge.
The Biden administration has made opposition to Georgia’s law into a rallying cry for its stalled legislative efforts to federalize state election laws. The problem is that President Biden has been long on rhetoric and short on facts in denouncing the law as “Jim Crow on steroids.” The Washington Post awarded him four “Pinocchios” for his characterization of the law, including the false claim that it reduces the hours for voting; the law actually does the opposite. Likewise, Biden falsely claimed Georgia’s law prevents voters in line at polling places from getting water. Georgia was responding to complaints that campaigns circumvent rules barring politicking around polling places by giving food and drinks to voters in line; the law allows “self-service water from an unattended receptacle.” On these and other provisions, Georgia’s law has considerable overlap with provisions in other states.
In its 6-3 decision upholding Arizona’s election rules, including a bar on vote “harvesting,” the Supreme Court rejected presumptions of racial discrimination due to partisan objectives. Justice Samuel Alito declared “partisan motives are not the same as racial motives.” The ruling builds on earlier cases limiting the reach and meaning of the Voting Rights Act. The new Georgia challenge takes a considerable risk of magnifying these losses in court.
The legal cost of this ill-considered move could be immense. Important questions are being raised about the impact of some laws on minority votes. Yet the attack on Georgia’s law is a poor choice, despite Biden going “all in” on the narrative, because it locks the administration into proving a weak case. While the court declined to issue a sweeping new standard for all Section 2 voting rights cases, this case could open the door for precisely that type of ruling. The Biden administration — which has lost a remarkably high number of legal cases in its first year — is likely to lose this one, too, before the next presidential election.
Politically motivated cases like these impose costs that are rarely paid by those who bring them. The more a prosecutor feels it necessary to repeat that “It’s not about politics,” the more likely a case is entirely political.