By Earl Ofari Hutchinson
Contributing Columnist
There was an ominous note for former President Donald Trump and his battery of attorneys and millions of dyed-in-the-wool supporters in a CNN poll taken on the eve of Trump’s scheduled arraignment in a Manhattan court on April 4, 2023. A solid majority of Americans agreed that Trump should have been indicted in the hush money payoff case. It got worse.
The poll found that independent voters overwhelmingly said the indictment was appropriate. It got worse still. A solid majority of women, Blacks, Hispanics, whites, old and young persons, and those with or without college degrees agreed that the indictment was appropriate.
To top it off, 90% of all polled said that Trump had some culpability in the alleged crime. Now, this was not to suggest that with such a wide and diverse range of ethnic, age, gender and political affiliation groupings backing the indictment that all or even most believed that Trump was guilty of a crime.
There was a substantial body of opinion among the public about that. At best, the consensus was that there was something unethical in the payoffs. That was miles away from the belief in, let alone proof, that Trump committed a punishable crime.
There was another small silver lining for Trump in the public disapproval of his alleged actions. Many in the poll said politics was involved in the decision to indict. That was and always would be Trump’s much-shouted contention before and especially after his conviction.
However, the fact that so many Americans across all lines backed the indictment belied the contention of many legal experts that the case was filled with so many holes, and pitfalls, that it was nearly impossible to win. And that Trump would waltz out of court free and clear.
Manhattan District Attorney Alvin Bragg Jr. and many other prosecutors often hedge their bets in criminal prosecution cases. They file multiple charges against a defendant.
Bragg filed 34 against Trump. That gave him great latitude to do several things. One is he could pare off as the case progresses one or more of the charges, which often accomplishes a second goal — getting a plea bargain to fewer or lesser charges.
There was a third reason for piling on the charges. When the case went to trial, it would give Bragg a better chance of gaining a conviction on one or more of the remaining charges.
One defense attorney who had extensive experience in trying criminal cases in the Manhattan courts noted, “By overcharging, the prosecution also wins the advantage of a “compromise verdict. That’s when although the jury doesn’t think the prosecutor proved the top count, they want to find the defendant guilty of something, so they’ll go for the next count down.”
Bragg used that tactic in filing the mass of multiple charges against Trump. On the surface, the case centered almost solely on whether Trump engineered the plot to file false records on the payout to Stormy Daniels to cover up another crime. That would seem a case where a simple case would dictate filing only one or at best two charges — but 34?
Yet another reason for overcharging was that it allowed prosecutors to take firm control of the case. They could put a legal, public and media spin that the charges and the alleged culpability of the defendant were serious and demand a guilty verdict.
Prosecutors have much discretion to broadly interpret the law in a case. This further enables them to add more charges to a case.
Bragg did stretch the charges against Trump into multiple parts. That was done to increase the chances that a defendant would plea bargain. Or, if the case goes to trial, the jury will have the smorgasbord of charges to pick and choose from to find the defendant guilty.
Finally, getting a felony conviction of Trump was a long, winding and tortuous political and legal road, but the charges, the trial and the ultimate guilty verdict against Trump proved that it could be done. But even bringing Trump into a court in itself was something of a victory, given his long record of ducking, dodging, delaying and sleazing out of any criminal charges.
Former federal prosecutor Jennifer Rodgers put it best, saying “It should be evident that no one is above the law, and that Trump should be held accountable for his actions in the way that any other citizen would be.” The conviction represented the first step toward accountability. However, there was a cautionary note, in fact several cautionary notes, in the Trump conviction.
He will scream for five months until the November election that he was the victim of a Democratic manipulated witch hunt. He’ll raise tens of millions off that rant. He will ensure that Republicans close their ranks even tighter around him.
He will fire up even more of his adoring hordes and stand a good chance of getting his Supreme Court appointees pocket to take up his appeal and toss the conviction.
Most heartbreaking of all, he will still have a puncher’s chance of winning the White House. That’s hardly my idea of no one being above the law.
Earl Ofari Hutchinson is an author and political analyst. He is the host of the weekly Earl Ofari Hutchinson Show from 9 to 10 a.m. Saturday on KPFK 90.7 FM Los Angeles and the Pacifica Network.
