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How This Trump Prosecution Could Have Happened Years Ago

The Justice Department was looking into the hush-money saga. Then, suddenly, it wasn’t. Why?

Trump in Manhattan Criminal Court
Curtis Means/Pool/Getty Images
Trump in Manhattan Criminal Court on Tuesday

Congressman Jim Jordan wanted revenge on behalf of Donald Trump against Manhattan District Attorney Alvin Bragg for bringing the election interference charges against Trump for which he’s now standing trial in Manhattan.

Jordan threatened Bragg with “oversight”: dragging him before his committee repeatedly, threatening him with contempt of Congress, putting a right-wing target on Bragg’s back by publicizing him to draw sharpshooters from as far as Wyoming or Idaho, and the possibility of going to jail if he didn’t answer Jordan’s questions right. He, James Comer, and Bryan Steil—three chairmen of three different committees—wrote to Bragg in March 2023:

By July 2019 ... federal prosecutors determined that no additional people would be charged alongside [Michael] Cohen.... [Y]our apparent decision to pursue criminal charges where federal authorities declined to do so requires oversight.

They were furious that Bragg would prosecute Trump for a crime that the Department of Justice had already decided and announced that it wasn’t going to pursue.

But why didn’t Bill Barr’s Department of Justice proceed after it had already put Michael Cohen in prison for a year for delivering the check to Stormy Daniels to keep her quiet, at least until after the election, and then lying about it? Why didn’t Barr’s DOJ go after the guy who allegedly ordered the check written, the guy who’d had sex with Daniels, the guy whose run for the presidency was in the balance?

Why didn’t the Department of Justice at least investigate (it has a policy against prosecuting a sitting president) the crime it put Cohen in prison for but was possibly directed by, paid for, and also committed by Donald Trump?

For one possible answer let’s turn to Geoffrey Berman, the lifelong Republican and U.S. attorney appointed by Trump to run the prosecutor’s office at the Southern District of New York. He wrote the book Holding the Line, published in September 2022, about his experiences.

In it, he came right out and accused Barr of killing the federal investigation into Trump’s role of directing and covering up that conspiracy to influence the 2016 election. Had Barr not done that, Trump could have been prosecuted in January 2021, right after he left office. And Jim Jordan couldn’t complain that Alvin Bragg was pushing a case the feds had decided wasn’t worth it.

As The Washington Post noted when the book came out:

He [Berman] says Barr stifled campaign finance investigations emanating from the Cohen case and even floated seeking a reversal of Cohen’s conviction—just like Barr would later do with another Trump ally, Michael Flynn. (Barr also intervened in the case of another Trump ally, Roger Stone, to seek a lighter sentence than career prosecutors wanted.)

This is why Manhattan District Attorney Alvin Bragg felt he had to pick up the case, if the crime was to be exposed and prosecuted.

After all, this crime literally turned the 2016 election to Trump. Without it, polling shows and political scientists argue, Hillary Clinton would likely have been our president for at least four years.

But Barr put an end to Berman’s investigation, according to Berman. The DOJ pretended to be investigating Trump for another few months, then quietly announced it wasn’t going to continue the investigation. The news media responded with a shrug of the shoulders, and America forgot that Trump had allegedly been at the center of Cohen’s crime.

In 2023, The New York Times reported that Main Justice wouldn’t prosecute because Cohen wouldn’t testify to earlier crimes, which was a standard to which the Southern District usually held cooperating witnesses, and because Trump might’ve been ignorant of the law. The decision not to pursue the case, the Times reported, was made by prosecutors in New York and not by Barr.

Incomplete testimony and ignorance of the law have rarely stopped prosecutors in the past from pursuing a case as clear as this one appears to be (Trump signed the check, and Cohen had a recording of their conversation, after all), but the story stuck.

In contrast, Berman wrote:

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations [including by Trump]. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed. Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals [including Trump].

If the above is true, it wouldn’t be Barr’s only time subverting justice while heading the Justice Department, according to Berman, who says Barr ordered John Kerry investigated for possible prosecution for violating the Logan Act (like Trump is doing now!) by engaging in foreign policy when not in office.

Most people know that when special counsel Robert Mueller’s investigation was completed—documenting 10 prosecutable cases of Donald Trump personally engaging in criminal obstruction of justice and witness tampering to prevent the Mueller report investigators from getting to the bottom of Trump’s 2016 connections to Russia—Barr buried the report for weeks.

And it doesn’t stop there. Just last month, The New York Times revealed how Barr apparently inserted himself into a Justice Department criminal investigation of a billion-dollar corporation for allegedly corruptly hiding its income offshore to avoid paying its fair share of taxes.

Bragg and his attorneys are racing the clock to get the voters a verdict before November. But according to Berman, this all could have been settled one way or the other long ago.