Former Southern District of New York federal prosecutor Andy McCarthy laid out multiple reasons on Friday why Manhattan District Attorney Alvin Bragg’s case against former President Donald Trump is likely to fail.
Though the indictment has not been made public yet, it reportedly centers on a hush money payment made to porn star Stormy Daniels in 2016 by Trump’s then-personal attorney Michael Cohen, according to The New York Times.
Cohen said what business records indicated were payments to him were really reimbursements for $130,000 he paid to Daniels so she would not discuss an alleged sexual liaison she had with Trump in 2006.
In 2018, Cohen pleaded guilty to his payment to Daniels being an improper in-kind campaign donation to Trump, though it did not go to Trump’s presidential campaign.
McCarthy told Fox News on Friday that he didn’t think Cohen was guilty of campaign finance violations, but was trying to curry favor with federal prosecutors who had charged him with multiple fraud and tax evasion counts in matters not related to Trump.
“He was guilty of a bunch of other fraud counts, which drove his sentencing guidelines up. [Prosecutors] threw in two campaign finance violations because they were trying to make a case on Trump,” McCarthy said.
“[Cohen] agreed to plead guilty of them in order to make himself a more attractive cooperating witness to the Southern District because he was trying to get a cooperation agreement,” he explained. “It didn’t work out for him and he ended up going to jail.”
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It wasn’t the campaign finance violations that sent Cohen to jail, but all the other crimes he pleaded guilty to that did, McCarthy noted.
As for Trump, McCarthy said, “The federal prosecutors and the Federal Election Commission that actually have jurisdiction over federal campaign finance law investigated Trump on this and decided not to prosecute him.”
McCarthy listed other problems with Bragg’s case against Trump.
The DA must prove not only that the former president falsified business records, which is a misdemeanor, but also that he did so to conceal another crime.
“And here we have this very problematic situation where we’re told that the other crime is a federal campaign finance violation. And I think there are numerous problems with that legally,” McCarthy said.
“Legally, when the New York state statute talks about another crime, it clearly means another New York crime. Alvin Bragg does not have jurisdiction to enforce the federal campaign finance laws,” he pointed out.
“I don’t think that what Trump did here, no matter what you think of it, actually constitutes a violation of the campaign finance laws,” McCarthy said.
Andy McCarthy calls the indictment of Donald Trump a “classic abuse of power” pic.twitter.com/eYEMsyPIJj
— Daily Wire (@realDailyWire) March 31, 2023
He elaborated in a piece for National Review that “as a matter of law, it is highly unlikely that the payment [to Daniels] — for which Cohen and Trump used their own personal funds, not campaign funds — was an in-kind campaign contribution.”
“There is no reason to believe Trump was intentionally trying to conceal a campaign-finance crime. There is, however, immense reason to believe that his actual motive was to avoid humiliation if his wife and family learned that he’d paid for a porn star’s silence about a fling,” McCarthy wrote.
“Falsifying records to avoid personal embarrassment is no doubt disreputable, politically and morally; but legally, it is not the concealment of a crime.”
During his Fox interview, McCarthy argued that even if Bragg’s team could prove it was a campaign finance violation, they’d have to convince a jury that Trump knew it was, and that’s why he falsified business records.
McCarthy concluded, “I don’t see how [Bragg] gets there.”
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