The Tufts Federalist Society hosted a panel about the criminal indictments against former United States President Donald Trump on March 1 in the Joyce Cummings Center. The panel consisted of Jeffery Cohen, associate professor of the practice at Boston College Law School; Ilya Shapiro, a senior fellow at The Manhattan Institute, a conservative think tank; and the moderator, Tufts’ own Eitan Hersh, an associate professor of political science and civic studies.
The panel opened with compliments to the Federalist Society from Hersh, who stated his goals for the event.
“I hope we can create the vibe of open discourse,” Hersh said.
The beginning of the event served to set expectations. Shapiro clarified that the panel would only discuss criminal indictments against the former president and that the civil suit from E. Jean Carroll against Trump and the New York State civil fraud suit were not relevant to the panel. Shapiro then summarized the four current indictments against Trump.
The first indictment alleges that Trump made false payments to his then-lawyer, Michael Cohen, as hush money about an affair he had with Stephanie Clifford, an adult actress, also known by her pseudonym Stormy Daniels.
The second indictment alleges that Trump partook in a criminal conspiracy to overturn the 2020 presidential election results in Georgia. In his summary of this case, Shapiro commented on the recent controversy related to the prosecutor in the case.
“I don't see that kind of sideshow as much relevant to the merits of the prosecution,” Shapiro said.
The other two indictments, both coming from the federal level, allege that Trump engaged in a conspiracy to defraud the U.S. and falsify the 2020 vote. These indictments also allege that Trump illegally and intentionally withheld classified documents after the end of his presidency.
Out of the four indictments, Cohen believed the weakest case was the indictment relating to the false payments.
“The problem is, I think that when you look into prior cases of the use of this statute, it’s very rare for the prosecutors to use a federal statute as the other crime that they were going to commit.”
He also noted that all of these documents were internal to the Trump organization, and therefore it’s a less clear case.
“[The internal documents] are not things that other people would generally review. Sometimes there are false documents of a business organization that they know the state, for example, is going to look at. And so if they falsify them, then it’s a much clearer case,” Cohen said.
Ultimately, his conclusion was that the indictment is partisan.
“If this were a Democrat, and your sympathies [were] with the Democrats, would you think this was a good prosecution? ... I think it's hard to say that,” he said.
Shapiro agreed and added that this charge made the prosecutor’s other indictments seem less legitimate by association. “This was the first of all the indictments we’ve referenced that was announced by the Manhattan [District Attorney] Alvin Bragg and because it’s so out there and looks facially partisan, it tainted all the rest of the indictments,” he said.
Cohen and Shapiro agreed that the other indictments are much more credible, particularly the federal documents charge, noting how brazen Trump’s behavior was in relation to it.
“There was that period of negotiation and then grand jury subpoena. If at any time then, before the raid, Trump had willingly just given back the documents or negotiated whatever the deal would have satisfied … there wouldn't have been this indictment,” Shapiro said.
Cohen agreed and added his thoughts on the indictment.
“I'm sure the FBI did not want to do this case. The FBI didn’t want to go into Mar-a-Lago,” he said.
The panelists agreed still on matters related to indictments alleging Trump attempted to overturn the 2020 election. Cohen noted of the federal election indictment that the prosecution seemed to be intentionally avoiding First Amendment issues in their indictment.
He mentioned that “there's been some suggestion in the press that the First Amendment has something to do with this case. … But in reality, the indictment and I think Jack Smith [special counsel prosecuting the case] was very careful not to make this indictment about first amendment conduct. In fact, he says in the indictment that everybody has the right to contest the election.”
Cohen also supported the ruling against Trump’s claim of presidential immunity in a D.C. circuit court and shared his hope that the Supreme Court, which recently took the case, will uphold the circuit court’s ruling. However, they noted that due to the court not expediting their decision, the criminal trial will likely conclude after the election.
The two panelists were also in agreement about the moral issues, expressing a belief that Trump should be prosecuted for these alleged crimes.
“I hope that the decisions that come down from the Supreme Court … will be a presidency that is not above the law, but still allows the president discretion to do what they need to do as official acts,” Cohen said.
Shapiro added that “the conventional wisdom is that there'll be unanimous or near unanimous court, to reverse the Colorado Supreme Court in the 14th Amendment case,” something he believed would aid public trust in the court.
SCOTUS did ultimately overturn the Colorado Supreme Court just a few days after the panel.
