Why is everyone trashing Alvin Bragg?

The dauntless District Attorney Alvin Bragg may be the most criticized man in America. He has become a veritable piñatawith sharp blows coming mostly from the right, but from the left as well. I think the criticism, much of it menacing and racially charged, is unfair.

Bragg is said to be soft on crime, even though crime rates are down. So soft he is being investigated by Rep. Jim Jordan in whose Ohio district crime rates are up.

He is attacked for indicting former President Trump for political reasons — so political Trump says that the arraignment brought court officers to tears. Turns out no one saw anyone crying, and veteran court staffers rubbished his claims. And, we forget, how is a DA going to charge a political figure with a crime under any scenario without its being styled a “political prosecution”?

Bragg and his family have been threatened with violence. Fortunately, there’s been no violence, only a suspicious but harmless white powder in Bragg’s mailroom. Trump has prophesied “death and destruction.” He even shared a social media post that appeared to be a picture of himself wielding a baseball bat in the vicinity of Bragg’s head.

So far, no death, no destruction. Only a significant rise in the stock market.

They say Bragg’s indictment, arising out of 2017 facts, is a stale and ancient claim, forgetting that it was brought well within the statute of limitations, if we exclude time that Trump was outside the state, and the grand jury didn’t meet because of COVID-19.

They say the charge (cooking the books to conceal a payoff to a porn actress with whom Trump allegedly had an affair) has no merit. A great man deserves a great indictment, and this stuff is nothing compared to trying to fix the vote in Georgia, mishandling classified documents or inciting an insurrection. But Bragg is sworn to enforce the laws of his state, not any other laws, and he should bring indictments when he is ready to bring them, without regard to what anyone else is doing.

They say that the crime of falsification of business records is a misdemeanor and becomes a felony only if the defendant cooked the books intending (operative word) to commit or conceal “another crime.” What is the other crime?

Here’s the sleeper: the charge that the falsification of records concealed a state tax crime. Besides federal and state election law violations, which may make out the other crime, Bragg’s statement of facts, filed contemporaneously with the indictment, alleges that Trump “mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”

Cohen used a home equity loan to advance $130,000 in hush money to Daniels on the eve of the 2016 election. His problem was to get the money back from Trump. So, in 2017 he met with Trump in the Oval Office and arranged for Trump to reimburse him by means of phony invoices for legal fees. Cohen asked that the payments be “grossed up” because he would have to pay federal and state income taxes on the payments.

It is not known at this point whether Trump or one of his companies deducted the payments as legal fees, which would be clear tax fraud. Bragg prides himself on keeping a poker face, and a good prosecutor never shows his hand too early. What we do know is that Trump paid the money off invoices for purported legal fees that he knew were phony, and increased the payments so Cohen could retire the falsely created state and federal tax liability. This should suffice to meet the “intent to commit another crime” requirement of the statute.

Bragg’s critics say he indicted Trump because he hates Trump; he never would have indicted anyone else on these facts. But, according to a survey conducted in March by Just Security, during the past 15 years, prosecution of falsifying business records in the first degree has been commonplace and used by New York district attorneys’ offices at least 30 times “to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized.”

Alvin Bragg is a courageous and gifted prosecutor. True, Trump appears to have committed more serious crimes than those charged in Bragg’s indictment. No matter. I wager that Bragg will get his case to a New York jury, before which I give Trump long odds.

There is a further virtue. Justice Department prosecutors may have hesitated out of fear that an unprecedented indictment of a former president might “tear the country apart.” This hasn’t happened. Perhaps the Bragg indictment over the cover up of hush money paid to a porn actress will embolden the prosecutors in Georgia and Washington, D.C., to complete their investigations and exercise their sworn duty to enforce the law.

James D. Zirin is a former federal prosecutor in the Southern District of New York.