DV Journal

Is the 34-count indictment against former President Donald Trump as weak as some are saying? Or is it a formidable legal morass that Trump, even as he campaigns for president, needs to beat?

The indictment returned by a grand jury at the behest of Manhattan District Attorney Alvin Bragg claims Trump did not properly document business transactions regarding a hush payment to porn actress Stormy Daniels.

Harvard law professor Alan Dershowitz said he believes the case should not have been brought.

Dershowitz wrote, “But this indictment speaks to how laughable and blatantly political this prosecution really is. It’s a tragedy. Bragg labored mightily – ultimately, he produced a mouse.

“In essence, this is a case about book-keeping,” Dershowitz continued.

He added, “Trump is accused of not accurately recording hush money payments on public financial documents. Consider how ridiculous that is. As I’ve written before, while immoral, such payments are legal and, in fact, common among high-profile people. It is also not uncommon to withhold why the actual hush money is paid.”

A key witness against Trump is his former lawyer, Michael Cohen, who gave Daniels the $130,000 hush money check claiming Trump told him to do it. Cohen had previously pleaded guilty to nine charges in federal court and was sentenced to three years in prison.

Earlier, the U.S. Justice Department and Bragg’s predecessor, Cy Vance, also investigated the matter and declined to charge Trump.

Tom Hogan, a former Chester County district attorney who is an adjunct fellow at the Manhattan Institute think tank, told DVJournal, “The case against former President Trump is an untested and highly technical legal theory based on deeply flawed witnesses. But in front of a Manhattan judge and jury, it is not an unwinnable case.”

In a City Journal article, Hogan said the indictment, whether he succeeds in convicting Trump or not, is a political win for Bragg, a Democrat.

Bruce L. Castor Jr., a former Montgomery County district attorney now in private practice, said, “We are supposed to be a nation of laws and not men. When prosecutors base decisions on political self-interest or to advance a political agenda, we become a nation of men and not laws. Who in their right mind thinks that is the way the law ought to be enforced?”

Joe McGettigan, a former assistant attorney general now in private practice, said, “As for the Trump indictment, well, this action reminds me of the statement attributed to Lavrentiy Beria, the head of Stalin’s secret police. He is supposed to have said, ‘Show me the man and I’ll find you the crime.’

“When I was responsible for making decisions about whether to charge persons with crimes, one of the bases for declining to charge was ‘lacks prosecutorial merit.’  DA Alvin Bragg had his man even before he was elected. Bragg then found his crime, regardless of the lack of prosecutorial merit. One need not be a particular fan of Trump’s, as I am not, to regret a politically motivated prosecutor bringing charges that lack prosecutorial merit, because he must ‘get Trump.’

“As a longtime prosecutor, this is an embarrassment,” said McGettigan. “As an American, it is repugnant. Obviously, many Americans look forward to the day when Trump is no longer powerful, or even relevant. An equal or greater number may come to hope for the day when those pursuing Trump are no longer in power either. Prosecuting crimes is to protect the public, not to attack political enemies.”

But other lawyers believe Bragg has the goods.

“This is your basic run-of-the-mill ‘the coverup is what gets you’ sort of crime.  Just ask (Richard) Nixon or Al Capone,” said Villanova Law School Vice Dean Michael Risch. “Is this case weak? Probably no weaker than those, depending on how you feel about the underlying crime that was covered up. People get a little more exercised about mob crime and campaign spying than they do about campaign donation violations. I suspect that people are regularly convicted under this statute for covering up run-of-the-mill wire fraud, etc.

“The prosecutor has to decide whether to go after someone and to that extent, it is political. But I don’t see this as a particularly weak case,” Risch continued. “You have a crime for which someone served jail time already. Whether you think it should be a crime is sort of irrelevant at this point, it is. You have falsification of business records to hide that crime. You have evidence that Trump directed the falsification. The toughest part of the case, I think, will be proving intent. Trump will argue that the coverup was to hide embarrassing facts, not to hide the crime, and that’s not actionable.”

Bill Mathesius, a former Mercer County prosecutor who went on to serve as a Superior Court judge, said the case is “not a slam dunk.”

“There are many consequential judgment calls made as to how to deal with any case. In the end, there are always variations of human judgment, which play a part, good or bad — it is not an algorithmic or immutable deduction,” said Mathesius.

“As a general proposition, all indictments and investigations have a political facet which is part of the human mechanism. For the most part, we, at least in the Northeast, do it ‘right.’ I think that while there is a droplet of politics in the Trump indictment, it is a worthwhile endeavor given the very real threat (Trump) presents to the notion of democracy. The simplest reflection upon Trump’s post-arraignment comments proves the point. Letting Trump just ‘walk’ is the antithesis of equal justice under the law.”

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I used to believe in Larry Krasner. But after two and one-half years working for him, I left the Philadelphia District Attorney’s Office disillusioned with his cavalier attitude toward prosecuting violent crime. Larry threw out the book on prosecution, but never bothered to read it. Now we are seeing the results of his go-it-alone strategy, which has led to a series of self-created crises impacting Philadelphians every day.

Seventy-five percent of all line prosecutors have departed on Larry’s watch—including over 30 percent of lawyers he hand-selected. These mass departures have hurt case outcomes because it takes time to understand the evidence and to build a working relationship with those involved—victims, witnesses, police, and defense attorneys.

Indeed, the data prove those departures have inhibited the office’s ability to effectively prosecute crime in the midst of record-breaking murders, shootings, and gun-related violence. In 2021, the office charged 6,491 “violent offenses.” Over 70 percent of those cases were dropped. One out of every four gun-involved murders was withdrawn, 40 percent of non-fatal shootings were dismissed, over 50 percent of attempted murders were tossed, and 60 percent of robberies with a deadly weapon were discharged. Thousands of victims went to the DA’s office seeking justice. Few received it.

Mass incarceration has given way to mass abdication.

To be clear: This is not a condemnation of a modern model of prosecution or the diligent line attorneys who remain. These holdouts struggle because Larry’s mission appears to embrace zero accountability—unless the accused is a police officer. In every instance where a cop is arrested, the case is referred to a dedicated, specialized unit, generally with a press release to match. If you happen to be the victim of crime and the accused is not a cop, however, no such luck.

These results are unsurprising. Once elected, Larry spent countless weeks on a nationwide tour disparaging law enforcement and the many dedicated prosecutors (including myself) who worked at the office before he graced us with his presence. He promised us safer streets because he was going to remake the “grade-B office” into an A+ team.

To do so, Larry openly admitted he was shunning local law schools and sought outsiders to join his own version of the “Serial” Podcast. In reality, his hires—many of whom I worked alongside—were stunned to learn they would be going to court five days a week and meeting with countless victims severely affected by violent crime. Being a prosecutor is difficult enough if you know the job; it is impossible if the sitting District Attorney sold you a false bill of goods.

Now, as reported by The Inquirer and The Legal Intelligencer, the office is suffering from a mass exodus. Line prosecutors are leaving in record numbers because our repeated requests to the administration—for more support staff, better technology, comprehensive training, and a focus on victim and witness outreach—go unanswered. And Larry’s recent moves inspire little confidence that things will change.

Specifically, he promoted a new chief of staff; unsurprisingly, it is someone who has never tried a case on behalf of the commonwealth. The new lateral hiring committee is composed entirely of people who have never prosecuted a case at the trial level. To this day he ignores the basic needs of prosecutors willing to try serious, violent cases. We are all now reaping what Larry has sowed.

In 2017, before Larry took office, there were 315 homicides, and 1,270 people shot in Philadelphia. Of those, 115 were children, 16 of whom died. Each and every year under Larry’s leadership those numbers have ballooned. People have gotten the message: The District Attorney has chosen to absent himself from the process.

Last year, 1,846 Philadelphians felt the burn of a bullet tearing through their flesh, and 562 people lost their lives on Larry’s watch. That included 231 children, 31 of whom died. Those numbers likely undercount the total, but it also omits the scores of mothers, fathers, sons, daughters, friends, relatives, and neighbors forced to pray at the side of a hospital bed or, worse still, visit at a cold granite memorial where their child, brother, sister, friend, or classmate used to be.

I suspect Larry’s response will be the same as before. First, he will say there’s no crime problem. Then he’ll claim his statements were taken out of context. Or if violent crime is a problem, it’s someone else’s fault, like the legislature or the NRA. When all else fails, he’ll throw up his hands and say it is part of a national trend.

All is not lost, however. Larry can acknowledge these legitimate concerns and strive toward a solution. He must because thousands of lives—and the quality of life for over a million and a half Philadelphians—hang in the balance.

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Tone-deaf comments by Philadelphia’s progressive DA Larry Krasner sparked a firestorm of criticism.

“We don’t have a crisis of lawlessness, we don’t have a crisis of crime, we don’t have a crisis of violence, and that is a category that includes gun violence. It’s important that we don’t let this become mushy and bleed into the notion that there is some kind of big spike in crime,” Krasner said during a Monday press conference.

There were 523 homicides in Philly as of December 7, breaking a record set in 1990 and up 13 percent over last year.

“In 2021, Philadelphia has set an all-time record for homicides,” former Chester County District Attorney Tom Hogan told Delaware Valley Journal. “Claiming the city is not in the middle of a crime spike is reckless and willful blindness. Krasner has anointed himself as the emperor of progressive prosecutors. When it comes to violent crime in Philadelphia, it is time for the city to notice that the emperor wears no clothes.”

Another experienced prosecutor agreed.

“The rapidly rising rate of violent crime in Philadelphia is a direct result of District Attorney Larry Krasner’s soft-on-crime policies, which I fought against every day as U.S. Attorney,” said Bill McSwain, a Republican who is running for governor. “Under Krasner’s leadership, the growing threat of ever-emboldened criminals has left citizens afraid to even leave their homes. For Krasner to deny this growing culture of lawlessness is a slap in the face to every law-abiding Philadelphian. It is time for a leader who will put citizen safety first.”

On Wednesday, the Philadelphia Fraternal Order of Police President John McNesby told Fox News that Krasner, who was reelected in November, has “been getting a free ride for the last couple of years. He blames everybody but his own self. He’s lost 130 employees in that office just since last January.

“A couple of years ago, he was blaming Trump for all the problems. Last year, it was the pandemic and COVID. Now it’s the media. He does everything possible in his power to let people out of jail, to cut sweetheart deals, and now the city’s suffering. He’s ignorant. He’s arrogant. He’s just been doing what he wants to do and now the people are starting to wake up and starting to call him out.”

Even his fellow Democrats are now criticizing Krasner.

Former Philadelphia Mayor Michael Nutter, who served two terms, wrote an editorial in The Philadelphia Inquirer castigating Krasner, saying, “As of Monday night, 521 people, souls, spirits have been vanquished, eliminated, murdered in our City of Brotherly Love and Sisterly Affection, the most since 1960. I have to wonder what kind of messed up world of White wokeness Krasner is living in to have so little regard for human lives lost, many of them Black and Brown, while he advances his own national profile as a progressive district attorney.”

And Democratic state Rep. Malcolm Kenyatta called on Mayor Jim Kenney and Gov. Tom Wolf to do more to stop the violence in the city, according to The Philadelphia Tribune. Kenyatta is running for the U.S. Senate.

“At the state level, we saw the governor do something similar as it related to the opioid epidemic,” Kenyatta said. “What that did was bring together FEMA, the Department of Human Services, the Department of Health to make sure that folks are working together to stem the crisis. We need to do that right now.”

According to McNesby, the numbers tell the story.

The numbers don’t lie.

“Ag (aggravated) assaults are up. Shootings are up. We’ve had over 2,200 shootings this year. Over 500 homicides. I don’t know where he’s saying Philly is not a violent city. It’s safe to come there. It’s not. So wake up,” said McNesby.

“I think that’s what these Democratic-controlled cities with the progressive D.A.s,” said McNesby. Shoplifters “know nothing’s going to happen, they’re not going to be held accountable. Why not roll the dice and see what you walk out with. Because they know even if they do get caught, they’re likely not to be prosecuted and even if they are, it’s likely they’re going to get nothing but a slap on the wrist. So why not roll the dice?”

The impact is also being felt among the men and women in blue.

“We’re down 600 to 700 officers where people are just resigning, retiring,” said McNesby. “And they’re going to work every day. They’re still taking the guns off the street. They’re still arresting people. And yet they’re being second-guessed by people that are sitting in leadership positions in the City of Philadelphia.”

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In an effort to deal with the epidemic of gun violence in Philadelphia that has spilled over into Delaware County, state Rep. Craig Williams sought and obtained state funding to hire additional prosecutors for those jurisdictions.

Williams (R-Chadds Ford) recently announced that $1.5 million would be set aside in the new state budget to hire additional prosecutors for the district attorney’s offices in Delaware and Philadelphia Counties.

The new prosecutors would be assigned as special assistant United States attorneys (SAUSAs), who work directly with the U.S. Department of Justice and United States Attorney’s Office in the Eastern District of Pennsylvania, and they would be solely focused on prosecuting gun crimes in Philadelphia through Project Safe Neighborhoods (PSN).

PSN was established by the U.S. Department of Justice in 2001 to improve neighborhood safety through a sustained reduction in violent crime. Supporters say prosecution of gun crimes through the federal program has proven to be an effective tool decreasing gun crimes in PSN cities by 10.5 percent since its implementation.

“I have served as an assistant United States attorney in both the Eastern District of Pennsylvania and the District of Colorado, where I prosecuted PSN cases in both jurisdictions,” Williams said in a statement.

Williams also sent letters to both Philadelphia District Attorney Larry Krasner and Delaware County District Attorney Jack Stollsteimer, informing them of the extra money in the budget.

In terms of violent gun crime, there have been 1,504 nonfatal and 380 fatal shootings in Philadelphia this year alone. The only day someone wasn’t shot in Philadelphia this year was January 2. There have been 443 homicides in total this year, which is a 14 percent increase over this time last year. Arrest percentages for homicides and nonfatal shootings are up too, by 2 percent and 34 percent respectively.

For those who are arrested, prosecutions are up by 16 percent for homicides and 43 percent for nonfatal shootings. When it comes to case outcomes, however, that’s when things start to take a turn for the worse. Sixty-four percent more cases were withdrawn before they even went to trial or were dismissed . Acquittals are down by 12 percent, and guilty pleas and verdicts are both down too, by 11 percent and 24 percent respectively.

Williams hopes that by hiring more prosecutors, more cases will be able to go to trial, and more guilty pleas and verdicts will follow.

“Many people do not know that it is already a federal crime for a prior-convicted felon to possess a firearm or ammunition. Federal prosecution of prior-convicted felons in possession of firearms is an extremely effective tool in fighting gun violence,” Williams said.

This year, there has been a 27 percent increase in arrests for illegal firearm possession, and a 31 percent increase in illegal firearms cases charged. Like violent gun crimes cases, illegal firearms possession arrests haven’t resulted in corresponding convictions. Some 40 percent of those cases were withdrawn or dismissed, and guilty pleas and verdicts were down 26 percent and 33 percent respectively.

“It is my sincerest hope that the district attorneys will seize this moment of collaboration,” said Williams. “At a time when Police Commissioner Danielle Outlaw announces that Philadelphia will receive federal assistance from the Department of Justice through the Public Safety Partnership program, when District Attorney Krasner is asking Philadelphia City Council for more funding for police and prosecutors for a backlog of cases, and when all federal agencies in Philadelphia have announced their ‘All Hands on Deck’ initiative to combat violent crime in the city, I hope this funding will be viewed and used as an added tool and partnership in getting violent criminals off our streets and making our communities safer.”

Police officials and Philadelphia District Attorney Larry Krasner don’t see eye-to-eye when it comes to the city’s increasing crime rate. Neither side can agree on the cause behind the rising homicides and shootings. So, who’s right?

According to the DA’s office, 29 percent of homicides resulted in an arrest, and only 15 percent of nonfatal shootings resulted in arrests. Some police officials believe the district attorney isn’t prioritizing those prosecutions. However, a representative from that office told The Philadelphia Inquirer violent crimes “have always been a top priority.”

Former Upper Darby police chief Michael Chitwood told Delaware Valley Journal both sides are incorrect.

“There’s no one side that’s responsible or irresponsible,” Chitwood explained. “There are two sides, and the people who suffer from lousy police work and lousy prosecutors is the community.”

Chitwood spent 55 years on the police force before retiring. He served as police chief in Portland, Maine for 17 years, Delaware County for 14 years, Middletown Township for four and half years, and as a Philadelphia homicide detective for 20 years.

Chitwood says he believes the biggest problem with the increase in violence is the police department’s inability to interact with the community.

“I think two things happen. The first thing is the police department. We’re our own worst enemy when it comes to dealing with the public,” Chitwood said. “We don’t know how to treat people the way people expect to be treated. And that’s as follows, and I always say this whenever I hire somebody. Always treat people the way you want yourself and your family to be treated. If you do that, 95 percent of the time you’re going to be alright. There’s going to be 5 percent of the time that you’re not going to be alright and that’s where you learn how to defend and take the aggressive action that’s needed.”

In addition, Chitwood believes Philadelphia’s district attorney isn’t doing enough to keep the violent offenders off the streets.

“The second thing is, you have this elected DA who does not prosecute violent offenders,” Chitwood said. “Those individuals that commit these heinous types of crimes like rape, aggravated assault, murder, they have to be prosecuted to the full extent of the law.”

Thomas Hogan, former Chester County District Attorney, and a former federal prosecutor now in private practice, also sees this as a problem. In a podcast for The Manhattan Institute, Hogan decried progressive prosecutors, including Krasner, who have been elected with outside money in cities around the country.

“The police can do all this stuff, but unless the prosecutors are there to work with the police, to lock up the 5 percent (who commit most of the violent crimes), to lock down these 5 percent of locations (where crime happens), and work with them on taking care of these timeframes (weekend nights in the summer months), the police can work as hard as they want,” said Hogan. “It won’t move violent crime at all if you don’t have a prosecutor working with you.”

He predicted that violent crime will continue to increase in the next 15 to 20 years unless people get fed up and vote out the prosecutors who philosophically oppose incarceration.

“The only question is whether there will be a political will to fix this,” said Hogan.

“You can’t commit a crime if you’re in jail,” said Chitwood. “And you shouldn’t be in jail unless you commit a crime. The non-violent types of crime that are committed, I can see giving somebody a pass. I can see trying to rehabilitate without any problem. But those violent offenders that commit violent crime over and over again, they do not belong amongst us. I think that there’s a way to start that.”

The Inquirer analyzed that out of the 8,500 shootings between November 2015 and August 2020, only 21 percent of them led to an arrest, and only 9 percent led to a conviction. That statistic includes all fatal and nonfatal shootings during this time.

Chitwood’s suggestion to fix the crime and violence in Philadelphia? Put police officials through specialized training that teaches them how to treat people and gain the trust of the community they serve. Chitwood knows that isn’t going to happen overnight.

“It takes a long, long time to build that bridge that interacts with the community,” Chitwood said. “I think that’s the first thing the police have to do. The second thing that the prosecutors have to do is start putting these individuals in jail. You know, no bail, no ‘get out of jail free’ card. Those types of things just don’t work. As long as you see the swinging door of justice in any city, you’re going to see this increase in crime and what’s happening to society as we speak now.”