Roger Parloff, a senior editor at Lawfare, has published a lengthy essay examining the merits of New York District Attorney Alvin Bragg's case against former President Donald Trump for allegedly falsifying business records to cover up hush-money payments.
After taking stock of some critics' contentions that the hush-money case against the former president was unworthy of prosecution, Parloff drew a line between the current Trump case and the case that prosecutors once brought against notorious gangster Al Capone for tax evasion.
Although it was widely understood at the time that Capone was guilty of far worse crimes, prosecutors felt they could not prove them beyond a reasonable doubt, which was why they eventually decided to bring tax charges against him.
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In fact, Parloff cites the work of former Manhattan Special District Attorney Mark Pomerantz, who has said he would not have brought the hush-money case against Trump even as he would have prosecuted him on business fraud charges, to elaborate on what he calls the "Al Capone factor."
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"In explaining why he felt it was appropriate to bring the draconian 'enterprise corruption' charge against Trump, Pomerantz mentioned a well-known historical reference that he called the 'Al Capone factor,'" writes Parloff. "Though Capone was widely understood to have been Chicago’s bootlegging kingpin, and to have masterminded mob violence -- including the St. Valentine’s Day massacre in which seven men were shot dead -- he was ultimately convicted, and sentenced harshly, only for tax evasion."
Parloff then cites a passage from Pomerantz's book in which he explains why critics of the Capone prosecution were being short sighted.
"Bad conduct can accumulate over time, and separate instances of bad conduct, each perhaps unworthy of prosecution viewed in isolation, can be judged as very serious conduct when viewed collectively," Pomerantz wrote. "Looking at the totality of Trump’s conduct over the years, I thought it was crystal clear that measures short of criminal prosecution meant nothing to him, and would not deter him in the slightest from engaging in other antisocial behavior. Indeed, the more successful he became, the more brazen was his behavior."
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