Op-Ed: Potential Trump Indictment Shows It's Time to Get Tough on Rogue Prosecutors
Alvin Bragg’s (once) imminent indictment of Donald Trump is wilting.
The Manhattan district attorney seemed totally unwilling to arrest the former president once it became apparent that Trump was benefiting from what many see as a shameless case of political prosecution.
Egregiously, Bragg began stirring up the media before key witness Robert Costello took the stand before the New York grand jury. Costello’s testimony runs contrary to Bragg’s entire case and could exonerate the former president. As Costello told Fox News’ Tucker Carlson, Bragg does “not want to get to the truth.”
At this moment, it does not matter whether Trump is brought in. The result, in either case, is the same. Another opportunistic DA was exposed for making his decisions based not on law but on who he thought was vulnerable enough to get.
This indictment kerfuffle comes as President Joe Biden has a judicial nominee sitting before the Senate who could not explain Brady motions — a basic legal concept. If you do not know what Brady motions are, that’s OK; Biden’s nominee doesn’t either.
Brady motions are used by defendants in a criminal trial to obtain exculpatory evidence. Deriving their name from the case Brady v. Maryland (1963), Brady motions mean that the prosecution must hand over all evidence that would prove a defendant not guilty.
First, Biden’s nominee, Judge Kato Crews, told Sen. John Kennedy of Louisiana, “Senator, in my four and a half years on the bench, I don’t believe I’ve had the occasion to address a Brady motion.” Then Crews admitted he could not recall Brady v. Maryland and wrongly guessed it had to do with the Second Amendment.
Whether Crews is not familiar with Brady motions out of ignorance or because his relatively short time on the bench has not afforded him the opportunity to encounter one, there is a problem in this country and Crews is not the only symptom of it.
In a decade-old dissent, the champion of Brady motions, Chief Judge Alex Kozinski of the 9th Circuit, declared, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”
Prosecutors across this country have been abusing their power in ways that would make even Kamala Harris uncomfortable. Numerous cases demonstrate this.
In the 2000s, there were well-publicized hints that prosecutors had done something wrong in the wake of Enron’s collapse. Federal prosecutors made names for themselves by prosecuting anyone tangentially related to the Texas oil giant.
Indictments brought against Arthur Andersen collapsed the accounting firm and put more than 80,000 innocent people out of work on charges that would be overturned by a unanimous Supreme Court. Executives at Merrill Lynch faced a similar fate, with many of their convictions also overturned on appeal.
Sidney Powell, before she became well-known for defending former national security advisor Michael Flynn, was a defense attorney on the Merrill Lynch case. She wrote a must-read book titled “Licensed to Lie” about prosecutorial misconduct that covered alleged Brady violations in the Enron-related cases, as well as others.
A few contemporaneous news stories covered the Brady motions in the Merrill Lynch cases, and even critics of Powell and her book seemed suspicious that Brady had not been applied properly.
This could have been a blip in American criminal justice, but the prosecution of Republican Sen. Ted Stevens of Alaska was even more outrageous.
Shortly after the Arthur Andersen conviction, prosecutors brought a case against Stevens over an alleged failure to disclose gifts. As a result, one of the longest-serving senators in U.S. history narrowly lost his re-election bid.
A federal investigation into the Stevens prosecution revealed rampant Brady violations. The investigation found that two federal prosecutors had knowingly and deliberately withheld evidence that would have aided the elderly Alaskan senator against false criminal charges. Some of the evidence directly contradicted the prosecution’s case and demonstrated Stevens’ earnest efforts to do business lawfully.
Stevens, a hero of World War II, would go to his grave without seeing his prosecutors reprimanded. Years later, when the prosecutors were finally disciplined, their punishments would be quietly overturned.
Prosecutorial misconduct and Brady violations do not just affect powerful men in suits.
In a joint lecture with Powell on prosecutorial misconduct, Kozinski recalled a case he heard on appeal involving about a dozen illegal immigrants brought into the U.S. by a man named Ramirez-Lopez.
Kozinski recounted that there was controversy among the apprehended aliens about whether Ramirez-Lopez had been their guide. Some said yes. Some said no. “Before there was even a defense lawyer involved,” Kozinski said, “[the federal government] deported most of those witnesses [who said no].”
The 9th Circuit ruled in favor of the government and Ramirez-Lopez’s conviction was upheld. But Kozinski wrote a scathing dissent that was “so excruciating that the government then filed a petition for a rehearing.” Kozinski said, “Usually it is the losing party that files a petition for a rehearing. In this case it was the winning party.” The petition was granted, and the conviction was reversed “so [the prosecution] could dismiss the indictment.”
Then came the kicker. A decade later, in an identical case from the same prosecutor, Kozinski noted that the government again deported witnesses. “Do you remember Ramirez-Lopez? I think you yourself argued the case,” Kozinski recalled reminding the prosecutor.
Then Kozinski relayed the prosecutor’s dismissive response: “Well, that case was vacated. It has no precedential value.” This interaction demonstrates the chicanery Americans should find intolerable.
Political prosecution, evidence suppression and other forms of prosecutorial misconduct cannot be tolerated in the United States. Kozinski is correct; judges must put a stop to this.
However, there are additional tools available. The Senate should reintroduce and pass Sen. Lisa Murkowski’s Fairness in Disclosure of Evidence Act, which would strengthen and standardize the obligations of federal prosecutors to disclose evidence favorable to the defense. States must pass similar legislation as well.
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