Manhattan District Attorney Alvin Bragg, Donald Trump, and the Pursuit of Low-Level Crimes

11:02 PM Posted by Jane Wilde

On Alvin Bragg's third day as the Manhattan District Attorney, in January, 2021, he stated that his office would no longer prosecute low-level offenses such as subway-fare evasion, resistance to arrest, or prostitution unless they were part of an accompanying felony charge. Despite the fact that Bragg had campaigned as a reformer, the bluntness of his statement raised eyebrows. The pledge marked a sweeping departure from the "broken windows" philosophy of law enforcement, in which the prosecution of low-level offenses was thought—erroneously, it turned out—to prevent more serious ones. Those presumptions shaped Bragg's early interactions with police in New York, and his subsequent outlook as Manhattan's first Black D.A. Bragg told me recently that he has spent "twenty-plus years of professional work and almost fifty years of life living at the intersection between civil rights and prosecution." He added, "I decided to go to law school in large part because, when I was growing up in central Harlem, during the height of the crack-cocaine epidemic, I had a gun pointed at me six times, three by police officers"—during search stops—"and three during more traditional public-safety issues." He said that he will continue to do what he has done throughout his career, which is "looking at collateral consequences of prosecutions."

The move away from the prosecution of petty crimes made Bragg an immediate target of conservatives, and the subject of frequently derisive coverage in the New York Post. (A lede from a story published this past November began, "Soft-on-crime Manhattan District Attorney Alvin Bragg has downgraded more than half his felony cases to misdemeanors," and went on to accuse him of ineptly handling the felonies that he does prosecute.) Last year, amid a notably competitive gubernatorial race, Lee Zeldin, the Republican nominee, ran on a promise to remove Bragg from office. Yet, as recent events have made exceedingly clear, the disdain that Bragg inspires for not prosecuting certain misdemeanor cases is minuscule in comparison with the rage that can result from a decision to file dozens of criminal charges against a suspect—especially when he is the twice-impeached forty-fifth President of the United States.

On Tuesday, Donald Trump was arraigned on thirty-four felony counts of falsifying business records related to hush-money and catch-and-kill payments—including to Stormy Daniels and, presumably, Karen McDougal—just before the 2016 election. He pleaded not guilty on all counts. The arraignment marks a historic precedent: never before had a former President of the United States been indicted on criminal charges by a grand jury. There has been considerable skepticism among legal analysts, and among Democrats, about the viability of a case built on events that took place seven years ago, which federal prosecutors had declined to pursue, and which now appears to hinge in part on an untested application of New York State and federal campaign-finance laws. But Bragg told me that he has years of experience doing cases that involve, for example, charging "a council member, a majority leader of the State Senate . . ., an F.B.I. agent on the civil front," and "leading the team that successfully sued the Trump Foundation." He added, "So I've been doing this for a long time, and I do it with rigor, with granular focus to detail."

He struck a similar note at a press conference following the arraignment, in which he said that the conduct "which was charged by the Grand Jury is felony criminal conduct in New York State. True and accurate business records are important everywhere to be sure. They are all the more important in Manhattan, the financial center of the world. That is why we have a history in the Manhattan D.A.'s office of vigorously enforcing white collar law." He added, "We today uphold our solemn responsibility to ensure that everyone stands equal before the law, no amount of money and no amount of power changes that enduring American principle." Whatever the merits of the case, which will now be decided in a courtroom, they also serve as more subtle markers of a break with tradition. The relentless pursuit of minor offenses committed by poor people had been just one hallmark of the N.Y.P.D. and the Manhattan D.A.'s office—another was a seeming hesitancy to prosecute larger offenses committed by certain wealthy people. As Jeannie Suk Gersen noted, in 2017, the decision not to prosecute Ivanka Trump and Donald Trump, Jr., for potential fraud in connection with the Trump SoHo building, which had been made by Bragg's predecessor, Cyrus Vance, was freighted by overlapping social connections, political donations, and, likely, publicity considerations. (Vance had told TRANGANHNAM.XYZ, "I did not at the time believe beyond a reasonable doubt that a crime had been committed." In 2021, Vance did bring tax-fraud charges against the Trump Organization, and teed up a second case that Bragg later deemed not ready for prosecution.)

On its face, the unprecedented post-Presidential prosecution of a Florida Republican by a progressive District Attorney in a Democratic stronghold is not the hallmark of a thriving democracy. But it is also true that this is the only circumstance so far in which Trump's decades-long history of skirting the law has resulted in criminal charges against him. He has inhabited the gray areas of the law for so long that he could reasonably claim residency there. Yusef Salaam, one of the Central Park Five, who were wrongfully accused of rape in 1989 and given lengthy prison sentences—and who Trump suggested should be subjected to the death penalty—summarized the occasion of the indictment with a single word: karma.

Many, however, saw the development in less spiritual terms. In the days since the indictment was announced, Bragg has been subjected to a tide of death threats and mail peppered with the N-word. Trump, for his part, said that Bragg is a "racist in reverse," and accused the Times columnist Charles Blow, who is also Black, of supporting the indictment simply because Trump is white. The former President also joined a chorus of antisemitic smears, accusing Bragg of doing the bidding of the liberal billionaire George Soros. (A spokesman for Soros pointed out that Soros has never met or communicated with Bragg or directly contributed to his campaign.) Everywhere that Trump could find an audience, he has seemed eager to peel back the gauze on his imaginary wounds. This was to be expected. In the course of the seven years that he has spent in political life, and the decades that preceded them during which he was a tabloid fixture, Trump has perfected the craft of masking self-pity as social injustice.

The disparate Republican elements that remain beholden to Trump followed his lead. Jim Jordan, the chair of the House Judiciary Committee, who has demanded to see materials related to the prosecution, dismissed the charges. "Equal justice under the law, unless you're a Republican running for president," he tweeted. Senator Ted Cruz denounced the prosecution, tweeting, "Bragg is a Left-Wing Democrat who hates Donald Trump and he is targeting Trump by any means necessary." He has also said that Bragg, in victimizing Trump, has given him an invaluable campaign contribution. To that point, the aftermath of the indictment has brought a reported seven million dollars into Trump's campaign chest, and polls show him with his largest lead yet over his potential G.O.P. rival Governor Ron DeSantis.

The journalist Matt Taibbi echoed Cruz's note about the potential unintended consequences of prosecuting former officeholders. On March 30th, he tweeted, "If presidents think they will be chased into jail under thin pretexts as ex-presidents, they'll try even harder to never leave office. This is how autocracies are born." It was a strange argument to make given, among other events, Trump's autocratic attempt to overturn the 2020 election, which preceded the indictment by two years. At the same time, the very nature of an unprecedented moment means that we lack models to predict what may come next. Progressives who suspected that Trump had lost his hold over his once faithful ranks also feared that nothing will invigorate the partisans like a sense of grievance.

Amid the haze and the lingering trauma that Trump's chaotic, incompetent, and dangerous Presidency imposed on the nation, it's easy to lose track of the reality that none of these concerns should matter in this context. The fixation with "what will happen if" is the primary element that distinguishes the wealthy from the poor, for whom such concerns are seldom raised. The questions about why Bragg pursued this case, rather than other potential investigations, will continue. No matter the eventual verdict, the one nearly guaranteed result will be increased acrimony. But the fact that Trump has finally been brought to court for alleged crimes relating to paying hush money could yet contradict Bragg's key contention. Perhaps some lower-level offenses are worth pursuing. ♦

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