“Filmmaking is not about the tiny details. It’s about the big picture.” Thus did the title character of the movie, “Ed Wood,” explain why arguably the worst filmmaker of all time was unconcerned with obvious gaps in logic, or scenes where cardboard tombstones toppled in graveyard scenes. Wood said he relied on the “suspension of disbelief” of his horror-film fans.
If there is an Ed Wood school of prosecution, Manhattan District Attorney Alvin Bragg could prove to be its most apt pupil.
Indicting Donald Trump on 34 counts of falsifying business records, Bragg left out a small detail: The underlying felony Trump allegedly sought to conceal over and over. That, apparently, is left to the suspension of disbelief.
For many weeks, experts on both the left and the right expressed doubts that Bragg could charge Trump with falsifying business records, a misdemeanor with a now-expired two-year statute of limitation. To be able to file such a charge, Bragg would need to kick it up to a felony by alleging it was committed to conceal or further another crime — in this case, a federal campaign violation.
The problem is that the Justice Department declined to bring such charges. The reason was likely due to a tiny problem: There is no campaign finance violation in Trump paying women to hush up alleged affairs. Moreover, even if there were a violation, Bragg is not a federal prosecutor. In other words, his case is as implausible as Wood’s cardboard tombstones.
When asked by reporters what crime was being referenced 34 times, Bragg simply stated that he was not required to state the crime in the indictment. Despite becoming the first prosecutor to charge a former president, Bragg felt no compulsion to explain the claim that kicked the misdemeanor up to a felony and allowed a longer statute of limitations.
Bragg undoubtedly knew that New Yorkers would likely suspend disbelief when the name on the indictment was “Donald Trump.” After all, when Bragg ran for office, he was no more specific; he merely promised to bag Trump on some criminal charge. The actual crime would be named at a later date.
Bragg also undoubtedly counted on Judge Juan Merchan suspending judicial disbelief by not asking for the full basis of the criminal charges. Thus far, he appears to have been correct: Merchan set the next hearing for December, so Bragg has eight months to come up with an actual crime.
Even if the judge ignores the glaring legal problems with this flawed indictment, he must decide where a trial should be held. The correct answer should be “Anywhere but Manhattan.” However, the judge is likely to deny that change of venue motion, and a denial would say a great deal about this case.
Bragg’s cavalier attitude only magnifies the view that Manhattan is the wrong place for this trial.
It is not simply that the district attorney ran on a pledge to indict this defendant. The problem is that he was elected on that pledge by the citizens of this district — the same citizens who would comprise the jury pool in Trump’s case.
When Bragg was elected, he reviewed the theories being advanced by an attorney brought into the office for the purpose of nailing Trump. Yet Bragg and some of his team reportedly balked at the efforts of fellow attorneys Mark F. Pomerantz and Carey R. Dunne; Bragg halted the case, and Pomerantz and Dunne resigned. Their resignation letter was mysteriously leaked to the media and became part of a public pressure campaign; Pomerantz then wrote a tell-all book that many legal observers considered to be an outrageous, unprofessional effort to push for Trump’s indictment.
Bragg faced an outcry from constituents who called on him to make good on this election promise.
So, now we have a case brought by a prosecutor who campaigned on bagging Trump, to be tried before a jury selected from a district that elected Bragg in part for that reason — a district that also voted against Trump, 84.5 percent to 14.5 percent, in the 2020 presidential election.
While a change of venue to a place like Staten Island would not necessarily change the judge or prosecutor, it would change the jury pool.
In 1878, in Reynolds v. United States, the Supreme Court held that the Constitution compels a change of venue in some cases. Courts look to a “totality of circumstances” in determining whether media coverage creates actual prejudice or the likelihood of bias among members of the community. Trial judges in such cases are allowed to presume prejudice and transfer a case in the interests of a fair trial.
In this case, the court will likely deny the motion for a venue change, but it should grant it. It is hard to look at the totality of circumstances here and see anything but highly prejudicial media and political elements. No matter how you feel about Trump, you should have reservations about the fairness of a Manhattan trial.
The problem is that, in an age of rage, reason is a stranger.
Still, Americans — and the eventual jurors in this case — may not have to “suspend their disbelief” if Judge Marchan shows that he will not join the cast of Bragg’s slapdash legal production. The judge can start by ordering a change of venue.
Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.