Manhattan District Attorney Alvin Bragg's tenure began with resignations from top prosecutors in the office. When they spoke out, it was because Bragg wasn't going to charge Donald Trump with criminal fraud over the same civil case being heard at the state level. The prosecutors maintained that there was more than enough there to charge Trump.
Former FBI legal counsel and prosecutor for special counsel Robert Mueller, Andrew Weissmann, explained at Just Security, that Bragg has already been criticized based on his Day One memorandum, which was so flawed that it had to be withdrawn just as quickly as it was released. Even after Bragg has been in office for eight months, everything he's done has been viewed through the lens of that first misstep.
Then there's the matter of the Trump case.
"To many in the public and media, it seemed inconceivable that Trump had not committed at least one prosecutable financial crime and that Bragg could responsibly come to a contrary conclusion so quickly in his tenure as DA," wrote Weismann.
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At the same time, Weissmann said that like Attorney General Merrick Garland, Bragg is really limited on what he can say about someone who has or hasn't been charged. There's also the matter of not discussing an ongoing investigation.
After the past week, Weissmann said he thinks that the opinions may have been premature. He cited Allen Weisselberg's agreement to plead guilty prior to the Oct. 24, 2022 trial date for the Trump Organization, and his promise to testify against the company, but not Trump himself.
Weisselberg pleaded guilty to 15 counts involving an ongoing conspiracy for Trump's company to pay people through untaxed perks like free apartments, luxury cars and, in his case, private school tuition for his grandchildren.
"The plea agreement does not follow the form routinely used for the DA’s plea or cooperation agreements," Weissemann explained.
"In fact, there isn’t even a written plea agreement; the terms were just orally articulated to the court at the plea hearing. The terms are equally bespoke, befitting the unique circumstances of this case, with plusses and minuses for both sides."
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Bragg earned the benefit of getting a convention out of the Trump-adjacent case.
"And while a 5-month prison term even in Rikers Island is entirely unfair when compared to sentences handed out to non-economic crimes and non-white collar criminals, that inequity is pervasive in the courts, both state and federal, in sentencing rich, white executives (I personally saw it at play repeatedly in the Enron prosecutions)" wrote Weissmann. "Here the state judge was reported to have signaled that he was going to follow this standard practice. But Bragg guaranteed that the 5-month term would be available to Weisselberg only if he was truthful in the upcoming trial and repaid all the money he owed as a result of the scheme. To make sure Weisselberg fulfilled these obligations before he got the benefit of the 5-month deal, Bragg made sure that sentencing be after the trial."
The upcoming trial involving Trump's company could ultimately end up in a kind of corporate death penalty, according to lawyer Tristan Snell, who successfully shut down Trump University using the New York corporate death penalty law.
Weissmann said that Bragg also got a few other things from the Weisselberg plea. It was going to be impossible to get Weisselberg to sell Trump down the river for the tax scheme. But testifying in October may prove that Bragg has something else up his sleeve, Weissmann explained.
He also noted that the plea agreements with Weisselberg doesn't include the protection that the prosecution won't simply turn around and prosecute him for other crimes.
"Could the defense have taken the risk that no such charges would be forthcoming?" Weissmann asked. He thinks Bragg is waiting for the conclusion.
Read the full piece at Just Security.
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