Recent actions involving former President Donald Trump threaten to harm all Americans. In The People of the State of New York v. Donald J. Trump, New York County District Attorney Alvin Bragg sullied his office, perhaps irreparably. In concert with New York State Supreme Court Judge Juan Merchan, Bragg not only obtained convictions against the former president on 34 felony counts, he indicted the American legal system as administratively corrupt.
The trials of Trump are the trials of America. The transformation of our judiciary into an instrument of politics will destroy vital elements of our republic if not remediated without delay.The major legal cases against Trump represent bills of attainder and ex post facto law, which are expressly forbidden by the U.S. Constitution at both the federal and state levels.
Bills of Attainder
Bills of attainder were used by various kings of England to destroy persons of high station; “attainder” references an “attainted” individual or group whose rights are obliterated. This means that those so designated may be executed or severely punished and their property seized by the state. The condemned suffered “corruption of blood,” wherein their heirs could not inherit any aspect of what had been the estate.
A bill of attainder designates the person or group to be scourged, with the bill written not to punish a type of crime but to select for destruction those who are targeted by a tyrant. For example, Catherine Howard, the fifth wife of Henry VIII, and her lady-in-waiting, the Viscountess Rochford, were subject to bills of attainder and beheaded at the behest of the king.
The father of our Constitution, James Madison, wrote in Federalist No. 44, “Bills of attainder, ex post facto laws … are contrary to the first principles of the social compact, and to every principle of sound legislation.” Article I, Section 9, Clause 3 of the Constitution, which applies at the federal level, states, “No Bill of Attainder or ex post facto Law shall be passed.” Article I, Section 10, Clause 1 declares, “No State shall … pass any Bill of Attainder, ex post facto Law.”
Ex Post Facto Laws
Ex post facto laws retroactively create or alter laws. In the 1798 case Calder v. Bull, the Supreme Court held that the prohibition against ex post facto law applies only to criminal and not civil law. However, in the 1878 case Burgess v. Salmon, the Supreme Court asserted, “The cases cited hold that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal.” This determination is of relevance with regard to the action brought against Trump for battery and defamation under a New York law enacted in May 2022.
Tyrannical Rule
Our founders understood that despotic rule necessitates the concentration of power. The will of the American people was therefore designed to be realized through representative democracy; this can only be obtained through a separation of powers between the legislative, executive, and judicial branches of government.
Bills of attainder are thus inherently undemocratic, for they violate the separation of powers by permitting a legislature to act as a court while destroying the legal rights of the accused in the absence of due process. A bill of attainder thus fuses the powers of the judiciary with the powers of the legislative branch of government and wields this unbounded authority at the behest of a dictatorial executive, creating powers not granted by the Constitution, which is the supreme law of the land. This defies the separation of powers, thereby abetting tyrannical rule.
The assertion of guilt to destroy political adversaries is central to the creation of a bill of attainder. For example, in her campaign for office, New York Attorney General Letitia James repeatedly pledged to get Trump.
Classically, bills of attainder place the power of the judiciary within the purview of the legislative branch. In major cases against Trump, highly politicized judges and prosecutors, acting within intensely partisan districts, have combined these powers, which were intended to be kept separate. This new union of authorities constitutes the essence of a bill of attainder in a heretofore unseen form, which must be nullified immediately. This novel, surreptitious instrument is a hideous scaffold erected to defeat Trump.
Carroll Case
The matter brought by E. Jean Carroll and her attorneys, which concerns alleged felonious acts, could not be charged criminally due to New York’s statute of limitations, as the supposed events occurred decades ago. Statutes of limitations exist to protect the innocent from being charged and condemned for acts that are unprovable due to the passage of time, the errancy of memory, and the adulteration of evidence. The civil decision against Trump relating to battery could not have been obtained but for the passage of the Adult Survivors Act, signed into law by New York Gov. Kathy Hochul in 2022, which selectively suspended New York’s statute of limitations, allowing alleged victims a “lookback window” of one year to file civil suits without regard to the date the purported crime was committed.
This part of the Carroll case violates the essence of the Supreme Court’s ruling in Burgess v. Salmon, which concerns cloaking “essentially criminal” cases in a “civil form.” This is because the alleged offenses asserted by Carroll are felonious in nature but could not be proved criminally due to an established statute of limitations; they were thus pursued civilly in apparent contravention of a coherent reading of Burgess v. Salmon.
The various cases brought against Trump do grave damage to our republic, as do the ludicrous fines imposed, which violate the prohibition contained in the Eighth Amendment against “excessive fines.” As a group, what is being done under the guise of legal action to get Trump, to harm him personally, to damage his family, and to thwart his run for the presidency must ultimately be brought to the Supreme Court and overturned as affronts to the Constitution and its protections.
Bragg Case
The repetitious and supremely unfair verdicts obtained by Bragg, with the obvious assistance of Judge Merchan, will go down in legal infamy as not only evocative and representative of bills of attainder in their most callous and gross form but as the creation and leverage of ex post facto law. A potential misdemeanor involving business records, which could not be brought due to the statute of limitations, was revivified by lashing it to an unproven felony.
The forced joining of an expired misdemeanor with a felony charge created a new law, without any legislative action. Not only did Bragg violate Trump’s Sixth Amendment rights, which necessitate the appropriate transmission of the specific charges faced, but Bragg constructed the de facto equivalent of ex post facto law. Bragg deserves to be disbarred, as does Judge Merchan, for this deeply deceitful inquisition.
Judge Merchan did not require that the members of the jury reach an agreement as to the unlawful means that undergirded the supposed felony. The judge, in his instructions to the jury, wrote, “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”
In his instructions, the judge, with sleight of hand, exchanged the requirement that the jury be unanimous regarding the essence of the purported crime for the jurors’ individual ruminations as to “unlawful means.” This unprincipled substitution enabled the judge to direct the jury in such manner that it could deliver guilty verdicts on each count without first reaching a unanimous agreement as to the nature of the foundational felony. This specific omission is acutely injurious to due process, for the nature of the felony was not required to be established.
Trump’s Legacy
Trump led our nation to prosperity without war, while subduing the plans of our principal adversaries. Trump enlarged freedom at home through regulatory and criminal justice reform. Trump, through his creation of the Abraham Accords, made peace between Israel and four Muslim-majority nations, thus reducing incidents of antisemitism worldwide.
The many triumphs of the Trump administration have been disparaged by President Joe Biden, his party, leftist elites, and those who seek the dismantling of America. Their arguments hinge on the destruction of Trump by any means necessary. In their malicious efforts, these agents of destruction clearly do not comprehend America’s birthright.
America is a nation built upon the study of God’s Word and history, which inspire the search for fairness and truth. To accept any other standard is to deny the wisdom expressed in Proverbs 11:1, “False balances are an abomination before the Lord: but a just weight is acceptable unto him.”
If the thumb of the state rests upon the scales of justice, there can be no justice. It is time to recognize the severe prejudice levied against Trump. It is time for every citizen to decry the tremendous damage done — so our republic may prevail.
Richard B. Levine is a graduate of the Johns Hopkins University and the Harvard Business School. He served as a senior Pentagon official for security assistance and as director for policy development on Ronald Reagan’s National Security Council staff. He is the recipient of two presidential letters of commendation and the Department of the Navy’s Distinguished Civilian Service Award. He is the author of the new book “Pillars for Freedom” (Fidelis Publishing).
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