The Cheapening of Felony’s Sting
Editor's Note
President-elect Trump is a “felon,” as the Left has not tired of reminding the American people ever since his highly politicized trial wrapped up in New York last year. But the very concept of a felony has been so totally altered as to lose all substantive meaning — enabling its use, in this case, as a political weapon against the chief enemy of the destructive Left. John Eastman, who served as an attorney to President Trump challenging illegality in the 2020 election, explains.
Donald Trump, the 45th and soon-to-be 47th president of the United States, is now branded a “felon,” so sentenced by New York State Court judge Juan Merchan after a ridiculous criminal trial in which District Attorney Alvin Bragg managed to elevate misdemeanor business records offenses (if they were even offenses at all) into felonies, on the unprecedented theory that the alleged mischaracterizations in the business reports were in furtherance of other crimes. Just what those other crimes were, Bragg did not feel obliged to announce, and the jury was not instructed that they even needed to be unanimous in agreement about them. Nevertheless, the “felon” moniker is now affixed to the president, and will continue to be deployed against him even after the conviction is inevitably overturned.
Despite the obvious injustice of this latest “lawfare” attack against the president-elect, there is a broader issue that should be of concern to all Americans, namely, the cheapening of the word “felon” in our discourse.
Black’s law dictionary defines felony as “a crime of a graver or more serious nature than those designated as misdemeanors; e.g. aggravated assault (felony) as contrasted with simple assault (misdemeanor).” In early common law, the term denoted conviction for serious crimes, “which entailed forfeiture of life, limb and chattels.” Pretty serious stuff, involving moral turpitude of the highest order. But even as lesser felonies developed where something less than “forfeiture of life” was imposed, there were still significant sanctions, such as disqualification from holding offices of trust or the loss of the right to vote.
Modernly, the classification of crimes that constitute felonies has so greatly expanded that it now includes much conduct that does not involve moral turpitude at all. England began that process in the days of Henry VIII, when it was a felony to fish in a private pond at night, for example, but we have greatly expanded from there. Wire and mail fraud — which basically includes any transmission of a false statement through the mail or electronically via phone or email — are both felonies punishable by up to 20 years in prison, for example. Technical (and unknowing) violations of a myriad of the nation’s arcane environmental laws are also felonies. The charges brought against many of the January 6 defendants included a 20-year felony for “otherwise” obstructing an official proceeding of Congress, based on an expansion of an old mob witness intimidation statute that imposed a 20-year felony to mobsters who killed or threatened witnesses (and their families) against them. Jumping from what at most would normally be viewed as a minor trespass misdemeanor into a 20-year felony was an abuse that the Supreme Court happily struck down in Fisher v. United States. But such overcharging to induce plea bargains with much lower sentences has unfortunately become the modus operandi of way too many prosecutors.
Which brings me back to the “felony” sentencing of President Trump. The theory is that the listing in business records of payments to settle a threatened “tell all” exposé as “legal expenses” was erroneous, a misdemeanor, but that it became a felony because the erroneous characterization was designed to further other criminal conduct, such as violations of federal election law. Never mind that there was no federal election law violation — had President Trump used campaign funds for this personal expense, that would have violated federal campaign laws! By that standard, Hillary Clinton is also a felon. In fact, her conduct in the “Russian collusion” scandal is far more serious. After all, she funneled millions of dollars through her law firm to pay a former foreign intelligence officer to create a fake dossier that the Clinton campaign would then use to falsely tag Trump as Vladimir Putin’s puppet and that the U.S. Department of Justice would falsely use to obtain FISA warrants to spy on Trump when he was a candidate, after he was elected, and even after he was inaugurated. Those payments were falsely reported as “legal compliance,” and Ms. Clinton’s campaign was fined by the Federal Election Commission for that false report. But the false report masked what is arguably the greatest political scandal in our nation’s history — one which rightly deserves to be treated as felonious conduct, unlike the case with Trump.
Such selective prosecution as we have just witnessed in New York therefore risks eliminating any sting that once did — and, when rightly used, should — accompany a felony conviction. Now, apparently, anyone can be charged as a felon for simply being someone that the government chooses to go after. This way lies tyranny, and one hopes that we can find a way to put this terrible genie back in the bottle before it destroys the rule of law in this country.