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John Wilson is a retired attorney living in Hampden.
It seems as if Bangor Daily News columnist Michael Cianchette has decided to join the ranks of those who opt to criticize the workings of our legal system when they are displeased with its results. I respectfully disagree with Cianchette (and U.S. Sen. Susan Collins).
The New York Legislature (not Joe Biden and not Alvin Bragg) passed a law that made it a felony crime to falsify business records with the intent to commit or conceal a crime ( New York Penal Law Section 175.10). Back in November of 1986, the effective date of that law, Donald Trump had not yet falsified his business records to hide the fact that he had paid hush money, let alone run for president.
Cianchette, in his column in the June 8-9 edition of the BDN, takes issue with the fact that the underlying criminal activity engaged in by Trump was a misdemeanor offense for which he was never separately charged. He appears concerned that the unlawful means used by Trump to cover up this activity were merely hush money payments booked as legal fees.
When the New York Legislature passed Penal Law 175.10 they did not make any exceptions for the nature of the underlying crime attempted to be concealed and when the existing evidence was presented to 12 jurors they found unanimously, beyond a reasonable doubt (the standard required for criminal cases) that Trump’s actions satisfied the requirements for conviction under the law. It seems as if Cianchette’s beef may be with the Legislature, not the district attorney. Would Cianchette propose, instead, that a district attorney only prosecute under statutes he or she deems worthy?
Cianchette also expresses concern that Trump was prosecuted as a felon because of who he is, rather than what he actually did, a sentiment also expressed by Collins. As to the felony charge, it was the Legislature, not Bragg, that defined the activity in question as a felony. And, wait, if a jury unanimously found Trump guilty on all counts how can it be concluded that he was not prosecuted for what he did?
New York chooses its district attorneys by popular vote and given our predominantly two-party system, that person is likely to be either a Democrat or a Republican — in the case of Bragg, a Democrat. New York law does not prohibit a district attorney from prosecuting persons of a different party affiliation, and it does not shield a person from prosecution based upon his or her current, former or future possible political status. When evidence comes to light suggesting a crime has been committed, as it did in the Trump hush money case, it is the job of the district attorney to make a decision to prosecute on the strength of the evidence.
Yes, a district attorney does have prosecutorial discretion not to pursue a conviction even when evidence exists to suggest that a crime has been committed. But to decide not to pursue this case against Trump because he was the former president or hopes to be the president again, or is a member of an opposing political party, would be to do precisely what Cianchette and Collins decry — make a decision to charge based on who he is. Collins is correct when she stated: “It is fundamental to our American system of justice that the government prosecutes cases because of alleged criminal conduct regardless of who the defendant happens to be.” She is wrong, I believe, in suggesting that Trump gets a pass on this principle as a past or possible future president.
Why not just give Trump a fine and a slap on the hand, as Cianchette wonders? Maybe that’s exactly what will happen. He is yet to be sentenced, something that can only occur after a guilty verdict is found. But we must afford that decision the same respect deserved of the rest of our legal process, a process that stands as an example to the world.
When a prosecution results in a verdict that is unpopular with the defendant or his supporters, not only is it wrong, but also corrosive to our legal system to suggest that it is the result of partisanship or an unfair process.
