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Advice for Alvin Bragg from Former Trump Prosecutors

Advice for Alvin Bragg from Former Trump Prosecutors

If, as expected, Donald Trump is indicted in Manhattan in the days ahead, the most important legal case of District Attorney Alvin Bragg’s career will unfold in the dingy, nineteen-thirties-era Manhattan Criminal Courts Building. Bragg, who just began his second year in office, will enjoy legal glory—from Democrats and Trump opponents—if he secures a conviction. If Trump is acquitted, Bragg’s decision to prosecute the former President will be seen as a major debacle that could help Trump politically. Three former Justice Department officials who have been involved in investigating Trump or in prosecuting his allies predicted a protracted, ugly, and raucous legal and public battle ahead. Their advice, over all, was for the Manhattan District Attorney and his prosecutors to ignore Trump’s antics as much as possible and to hope that the former President sabotages himself legally. Jonathan Kravis, who was the lead prosecutor in the trial of the longtime Trump ally and adviser Roger Stone, told me, in reference to the former President’s expected attacks on prosecutors, “At the end of the day, there’s nothing you can do about it.” And, he added, “If you win the case, nobody remembers what the defendant said in public.”

Assuming that Trump is indicted, Kravis and other former prosecutors said that whoever is appointed as the judge in the case, as well as the prosecutors, cannot ignore one type of comment from Trump: threats of violence against participants in the trial. A former prosecutor who asked not to be named but who was involved in the trial of a Trump associate told me that, if Trump makes statements that could incite physical attacks on the judge and prosecutors, or intimidate jurors, he could be held in contempt of court. Trump, throughout his Presidency and the two years since, has repeatedly disparaged judges and prosecutors who investigated him and his allies, declaring them to be corrupt and part of a “deep state” plot against him. In a fund-raising e-mail sent to supporters on Monday, he suggested that they are part of “George Soros’ globalist cabal of thugs.” Trump has also called Bragg, who is Black, a “racist.”

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The former prosecutor said that Trump’s rhetoric could make Manhattan jurors reluctant to serve in a trial, fearing that they could face attacks from his supporters. “You could have jurors fearing physical harm if they serve on the case and fear that their identities will be revealed,” the former prosecutor said. “Judges are very sensitive about their courtrooms feeling unsafe.”

The judge could impose a limited gag order on Trump regarding his public statements about the trial. If Trump were to defy such an order, the judge could then take the extreme step of holding him in contempt of court and even jailing him. Kravis noted that Roger Stone, at one point in his case, posted a photo on social media of the judge, Amy Berman Jackson, which appeared to have the crosshairs of a gun next to her face. Berman Jackson subsequently barred Stone from posting on social media. Stone, known for his embrace of political dirty tricks dating back to Richard Nixon’s reëlection campaign, was ultimately convicted of seven felonies, including obstructing a congressional investigation and making false statements to Congress. Trump, before leaving office, commuted Stone’s three-year prison sentence and set him free.

Kravis said that prosecutors were unlikely to request a gag order, given that it would play into the former President’s narrative that he is being persecuted by Democrats who are trying to prevent him from running for President again. The situation, of course, is unprecedented. But Trump could use his position as a former President, and as the current front-runner for the 2024 Republican Party nomination, to make it more difficult for a judge or prosecutors to try to limit his public comments about his own trial. “For someone like Trump, who is a candidate for office, restricting their speech is different,” Kravis said. “It’s generally not a good look to be going into a court and asking for an order that prevents the defendant from making public statements about the case. In that circumstance, it’s an even worse look.”

Sarah Isgur, a Trump critic who formerly served as the spokesperson for the Justice Department, under Attorney General Jeff Sessions, said that Bragg and his prosecutors should try to speak and conduct themselves in a manner that is the opposite of the former President’s habit of bombast and bullying. State bar rules in New York and elsewhere limit what prosecutors can publicly say about a defendant before and during a trial, in order to prevent jurors from being biased and to insure a fair trial. But prosecutors can hold press conferences after an indictment is released. Isgur urged Bragg to do just that. “This is your one chance to look like a human being, and to explain the charges in human terms,” she said. “You want to sound calm, unemotional. You want to just explain. You don’t want to try and sway.”

Isgur also said that, during the trial, prosecutors should not take steps that publicly humiliate Trump. When the former President is arraigned, for example, law-enforcement officials should not handcuff him, publicly release his mug shot, or parade him in front of the press, in a perp walk. “I wouldn’t do the handcuffs. I wouldn’t do a mug shot. I wouldn’t do the perp walk,” Isgur said, arguing that it would fuel a group that she referred to as “the beast”—online partisans who want to focus on what they see as biased and vindictive prosecutors. She added that Bragg “can’t win against the beast, so he should at least try to starve the beast.” (Trump’s mug shot, whatever Bragg’s wishes, is bound to be leaked. Trump, though, will likely blame Bragg.)

A former senior Justice Department official who asked not to be named agreed that Bragg should strictly obey rules barring prosecutors from publicly disparaging defendants. He said that in high-profile cases it is more important than ever to obey standard practices. “The prosecutors should emphasize that the defendant is presumed innocent and the charges are only allegations,” the former official said.

Trump, given his past behavior, is likely to behave badly. The legal rules and traditions that restrict Bragg’s conduct do not apply to him. His relentless attacks on Special Counsel Robert Mueller, an esteemed former prosecutor and F.B.I. director, swayed public opinion against both Mueller and the F.B.I. Outside the courtroom, in particular, Trump vs. Bragg will be a vast mismatch, with Trump running circles around prosecutors in the press. Kravis pointed out, though, that Trump’s public statements outside the court can be used against him during cross-examination, if he testifies. He said Bragg’s best hope may be that Trump’s conduct backfires with the jurors and voters. “A defendant’s public statements can be helpful,” he said. “They’re all admissible.” ♦

Advice for Alvin Bragg from Former Trump Prosecutors