By Earl Ofari Hutchinson
The Manhattan District Attorney’s office, at least two years before it indicted former President Donald Trump, had put together an apparently solid case for prosecution. Prosecutors did not indict him then.
There were several reasons at the time. To start, Trump would have, by far, been the biggest fish that office ever prosecuted. He has, and will have, an army of top-gun attorneys, a cowered and powerful Republican Party behind him, millions of impassioned supporters with the ominous threat of division and disruption, and an enraptured media that continues to report every one of his inanities.
They realized then that a prosecution would give him a colossal public forum to claim martyrdom, that he was the ultimate victim and target of petty, hateful, vindictive Democrats.
There were more reasons. Trump’s years of personal, financial and political wheeling and dealing that broke the law, or were close to skirting it, are a big, complex, detailed and tangled maze. It would take endless time and hard work to plow through them and connect the legal dots tightly enough to bring a prosecution. That would just be the first step.
Now to the second. That is to win a conviction. It is a crucial distinction to make, especially with Trump.
“Prosecutors know a criminal charge isn’t a conviction,” said Carol C. Lam, former U.S. attorney for the Southern District of California. “There is a world of difference between obtaining a criminal indictment, which requires only probable cause, and a criminal conviction, which requires a finding that the defendant is guilty beyond a reasonable doubt. The latter is, for good reason, the highest burden of proof that exists in our legal system.”
It was the second step that is the most daunting. Trump has shown a marvelous talent for ducking, dodging, deflecting, delaying and stalling investigations. He has shown himself time and again to be the master of defense and parrying of all legal challenges.
Then there is the third step: To sustain a successful prosecution a prosecutor must prove criminal intent. Trump did not just commit a potentially criminal act. He had to intend, knowingly and willfully, to commit the act. That is a high bar to leap.
The ongoing New York state investigation of Trump’s dubious tax dealings in 2022 was a good example of how Trump could deny wrongdoing by simply passing the buck to any and everyone else in his organization. The line went like this: “My accountants prepared my returns and I just signed them.”
Trump delivered a perfect paraphrase of this defense when he told New York prosecutors that his taxes were prepared by “among the biggest and most prestigious law and accounting firms in the U.S.”
Prosecutors had to spend countless hours and effort trying to get Trump’s tax preparers and advisors to testify that they acted at the direction of Trump. That is shaky because a top defense attorney would simply say that, short of an incriminating document or recording to that effect, these witnesses must be considered liars. That puts a prosecutor back at square one with Trump.
The other option was to narrow the case down to maybe one offense, to improve the chances of convicting Trump on something. That was not much of an option, because it cast aside the rash of other chargeable offenses.
Trump would then shout even louder — if that is possible — that he was the target of a political attack, solely because he’s Trump. Again, prosecutors file cases they are certain, or near certain, they can win. Anything less is a waste of time and money, and leaves them wide open to the charge of pursuing a frivolous cases and vindictiveness.
To get a conviction out of the starting gate, prosecutors must win a unanimous verdict. That means they must convince 12 persons on a jury of Trump’s guilt. One or more doubtful jurors can blow a prosecutor’s case to smoke.
Given the heavy drama and political implications of a case against Trump, the openings for a defense attorney to plant doubt that he was being prosecuted not because he broke the law, but because he’s Trump, were as wide as the Grand Canyon.
As 2022 wound down, many in the media, loads of Democrats and millions of Americans asked the question that has been asked every moment that the long trial of Trump’s alleged illicit dealing has been in the news: Will he ever be charged with anything? Here’s one part of the answer to that question. Prosecutors know that, to nail the biggest fish, a former president, the evidence, testimony and presentation must be flawless. Plus the jury must be as neutral and objective as humanly possible. That is asking a lot and, for most prosecutors, too much.
The grim alternative is to do nothing. That would cement the precedent of an untouchable criminal and would also seem to prove that some individuals are above the law — and that one of those individuals just happens to be a former president.
The Manhattan District Attorney’s office finally took the plunge and brought the long-warranted indictment of Trump. Now comes the hard part: convicting him.
Earl Ofari Hutchinson is an author and political analyst. He is the host of the weekly Earl Ofari Hutchinson Show on KPFK 90.7 FM Los Angeles and the Pacifica Network Saturdays at 9 a.m.