Democrats worry about things going wrong politically even when they're going well. Republicans are optimistic about things going right politically even when they're going poorly.
OK, that's a broad generalization. But there's still a lot of truth in what I just said.
Evidence in support of my thesis comes from the reaction to the indictment and arraignment of Donald Trump.
Yesterday Alvin Bragg, the Manhattan District Attorney, presented an outline of his case against Trump in a post-arraignment news conference. I thought he did fine.
Basically, a few weeks before the 2016 election Trump paid hush money to an adult film actress he had sex with so Stormy Daniels wouldn't tell her story after the Access Hollywood tape (where Trump talked about grabbing women by the pussy) had captured the public's attention.
Trump falsified business records when his reimbursement to Michael Cohen, his attorney, who paid $130,000 to Daniels from a home equity loan, was wrongly shown as legal expenses.
Even though false business records usually is a misdemeanor, Bragg charged it as a felony under New York law. This is where most of the freakout at the indictment among nervous Democrats, and angry Republicans, is focused.
Did Bragg make a mistake in elevating the falsification of business records to a felony? Well, here's how I see this question.
First, Bragg is an experienced prosecutor. So are the attorneys who work under him. Recently elected as the Manhattan DA, Bragg has both a strong personal and professional interest in making Trump's indictment as solid a case as possible.
So everybody who is claiming that Bragg screwed up when he charged Trump with 34 felonies relating to the false business records assumes that they're smarter than the prosecutor who has seen all of the evidence against Trump and is highly familiar with New York law in this area.
Here's a tweet that makes this point.
Second, while I admit that I've been paying more attention to legal analyses that say the Trump indictment is on solid ground, my favorite MSNBC/CNN attorneys are well qualified to weigh in on how strong Bragg's arguments will be.
Like Harry Lipman, who wrote an opinion piece in the Los Angeles Times, Don't underestimate the strengths of Alvin Bragg's case against Donald Trump.
Manhattan Dist. Atty. Alvin Bragg’s indictment of former President Trump takes an open-ended approach to the charges that some critics of the unprecedented prosecution see as a weakness. What the detractors have overlooked are the substantial and unanticipated legal and factual strengths in the case Bragg outlined.
A key question in advance of Tuesday’s unsealing of the indictment concerned how Bragg would augment the easily proven misdemeanor charges of falsifying business records. Under New York law, those offenses become felonies only if they’re in furtherance of another crime. Many theories were circulating as to what second crime Bragg would allege, and most of the possibilities had noteworthy shortcomings.
Bragg’s answer was essentially “I’ll tell you later.” He took advantage of the wording of the state law, which requires only that the misdemeanor be done in service of “a crime,” to buy himself maximum time and flexibility.
...So even as Bragg hedged his bets with a skeletal indictment, his statement of facts and public comments reveal a clear path to a felony conviction: showing that Trump’s falsification of business records was meant to aid and conceal a tax offense (whether or not it occurred) and to prevent a revelation that would damage his campaign on the eve of the election.
Third, I liked the piece by Josh Marshall in Talking Points Memo: The Law Isn't Brittle for Following It. He makes some good points about the law.
We’ve now had the day of spectacle and legal experts have had a chance to provide their first analyses of the case brought against former President Trump. On the substance the case isn’t difficult to understand: In the final weeks of the 2016 campaign, Trump orchestrated a hush money scheme to keep a series of affairs and assignations out of the press and in so doing broke a series of laws.
The legal arguments behind the case are more complicated, involving both federal and state laws, and a specific argument about how different violations of the law interact with each other to create a broader pattern of criminal conduct.
On this point fair-minded people (by which I mean people who are knowledgable and by no means carrying water for Trump) appear divided. Those saying the legal foundations of the case are shaky include Rick Hasen (see here) and Ian Millhiser (see here). On the contrary, Ryan Goodman et al. at JustSecurity (see here) say these skeptics are wrong and, broadly, that they’re not focusing squarely enough on the New York case law which controls the prosecution.
I’m not in a position to tell you which narrowly legal arguments are better. But I am in a position to argue against the underlying political argument of those who fear that the legal merits of the case aren’t unassailable.
Many who worry that the legal arguments of this case aren’t strong enough argue that if the case gets watered down or thrown out on a legal technicality that that will just confirm the beliefs and add power to the arguments of those who say the legal system is already a sham, biased against conservatives and worse. So in this sense, it’s not just that the case may fail. It’s that its possible failure will empower those already trying to tear down civic democracy, the concept of impartial justice and the rule of law.
That’s flawed reasoning. Prosecutors shouldn’t bring marginal cases or those they don’t believe in in any case — not for ex-presidents and not for street criminals.
I hope the legal theory of this prosecution is robust because the underlying offenses are serious and deserve accountability. It’s fundamentally about a conspiracy to undermine the integrity of the 2016 election. (Let’s remember that one of Trump’s accomplices already did jail time for just part of this criminal conduct.) But if they don’t survive judicial scrutiny, that’s the rule of law too. That’s okay.
The rule of law is a set of agreed upon processes, not agreed upon outcomes. I don’t buy the argument that the rule of law cannot survive the rule of law working in Trump’s case. That doesn’t make sense.
Some people imagine I’m being a judicial Candide in these arguments: however it works out will be for the best. That’s not right. Everyone needs to make a concerted effort to disengage from the gravitational force of Trump’s drama, which so many are still living within. Trump committed a lot of crimes.
Now that he’s out of office the criminal justice process should take its course. The criminal justice system doesn’t have to pitch a no-hitter, let alone a perfect game, to justify itself or survive. That’s very much the world of Trump’s drama. Heads he wins; tails you lose.