Former federal prosecutor Andrew C. McCarthy joined me this morning to set the stage for the imminent trial of Donald Trump by Manhattan District Attorney Alvin Bragg in New York City on March 25:

Audio:

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Transcript:

HH: Andrew C. McCarthy is the former assistant United States Attorney for the Southern District of New York, whom you know probably mostly because he prosecuted the Blind Sheik successfully. He has a lot of years in the SDNY, which is the preeminent prosecuting unit in the United States. He now serves with National Review, commentator on Fox News, and he joins me this morning. Good morning, Andy. Welcome back.

AM: Morning, Hugh. Great to be with you.

HH: Andy, I wanted to do a primer for our audience on the upcoming case in Manhattan. Alvin Bragg has charged former President Donald Trump with 34 felony counts of falsification of business records. That trial is set to begin on March 25th. This all goes back to the Stormy Daniels affair and the payments that Donald Trump allegedly directed Michael Cohen to make to her. Before we get into the specifics of how long this trial will go, can you lay out how he managed to stack 34 counts out of 1 night with Stormy Daniels and the payments that followed?

AM: Yeah, it’s really remarkable. Basically, Hugh, what he has done is he’s taken one finite, what in New York ought to be, if he can prove this much, a misdemeanor falsification of business records. Generally speaking, if a course of conduct is basically a single transaction, prosecutors will charge it as a single transaction. And judges will sentence as a single transaction if it is proved. What he did was he took this single transaction and turned it into 34 felonies. And the way he did that was the transaction we’re talking about is hush money payments in connection with a non-disclosure agreement. It’s called hush money, or it’s described as hush money in the media, because that’s got a dark connotation. But in fact, non-disclosure agreements are legal, they are a staple of civil litigation in settlements and civil litigation. We hear all the time that the parties close to some undisclosed financial settlement and nobody admitted fault. That, we hear that kind of stuff all the time. That’s basically a non-disclosure arrangement. And in this instance, prior to the election, Cohen, on behalf of Trump, paid $130,000 dollars to Stephanie Clifford, whose stage name, as it were, is Stormy Daniels over an affair that she credibly claims to have had with Trump about ten years earlier in 2006. So it was basically purchasing her silence.

HH: So this is 18 years ago. It is alleged that the former President had a physical relationship with Stormy Daniels. She surfaced. For whatever reason, Michael Cohen made her money, paid her money from Trump businesses, and made 13 of those payments. Is that correct, or 36? How many…

AM: Yeah, well, basically, Cohen used his own money. I think he drew on a line of credit that he had at a bank. But he used his own money to pay, and then so flash forward. That happened around October of 2016. Beginning in February of 2017, and running every month through 2017 from there, it was agreed that Cohen, that Trump and the Trump Organization would reimburse Cohen. And the way they did it was basically to double the amount that he paid Stormy Daniels so that he wouldn’t have a tax bite. And they paid him in installments monthly, beginning with two payments in February, and then once a month through the rest of the year. And the way they did it was Cohen would provide an invoice. They would cut him a check. And then they would do a book entry. And what Bragg alleges is they were trying to make that look like ongoing legal services, when in fact it was payment of a debt from 2017. And what Bragg has done is he has made a separate four-year felony count into every single aspect of each of these installment payments. So each book entry, each check, and each invoice from Cohen is charged as a separate four-year felony. And that’s how you get 34 counts.

HH: Now Andy, this is called stacking counts.

AM: Right.

HH: And I’ve never prosecuted anyone. I’ve defended three criminal defense actions, so I’m way out of my league here, all right, because it’s not my world. But is it routine to stack counts this way?

AM: The Justice Department actually tells you not to do it. And that’s unlike the vaunted 60-day rule that we hear about from time to time, Hugh, which is actually unwritten and doesn’t really exist as a rule. This is actually Justice Department manual policy. You are supposed to charge enough counts so that you have a potential for punishment that is commensurate with what the real offense is. So for example, you know, if you have a fraud count where somebody defrauded somebody by, you know, for $100,000 dollars, and if by charging five, three fraud counts, you can get 15 years of prison exposure, which would allow the judge to sentence, to say you know, six years or something like that, that’s enough. You don’t charge, even though there may be 100 mailings in the fraud thing. You don’t charge 100 counts.

HH: Now Andy, I want to get to the idea of whether or not the President can have a fair trial. But first, I want to get to the idea of whether or not the underlying charge is credible, if there’s a defense here. And let’s go down to the original transaction, the payment of an NDA, the falsification of a business record. If it was just one charge, is it credible, in your view, if it had been brought within the statute of limitations, which was two years? We’ll come to why it’s been resurrected to five years in a moment. But if they had just brought the charge for falsification of business records, one charge within two years of the first payment to Stormy Daniels via Michael Cohen, would there be merit to that? Or is an NDA sort of the ordinary course of business?

AM: I think, Hugh, it would be arguable that there was merit in it because what Bragg alleges is probably true, which is to say they were making their business records look like they were paying for ongoing legal services when in fact it was a payment of a debt. But that’s a stretch unless the office routinely charged that kind of an offense, because we’re talking here, as my friend, Dan McLaughlin from National Review says, Trump basically lied to his checkbook. There’s no, you know, it didn’t have any tax consequences. There’s no allegation that anyone was defrauded. There’s no evasion of money that’s owed to the state. Trump simply on his own books misrepresented what the payment was for, and I think he’s going to argue that on one interpretation, this actually was payment of legal services. Now I think that’s a reach, but you could argue for misdemeanor treatment of this if it was brought within the two-year statute of limitations. What Bragg has instead done is try to turn all of these into felonies and get the advantage of what turns out to be a six-year statute of limitations, because in New York, if you falsify your business records with a purpose of concealing another crime, you get the benefit of a five-year statute of limitations. Then, it becomes a four-year felony. And in this instance, it becomes six, because New York changed its law during COVID to extend the statute of limitations by a year, because the courts really couldn’t process cases. So that’s how Bragg tries to squeeze this…

HH: And I’m going to come back to that secondary bootstrapping to a felony. But I want to stay focused for a moment just on the original charge. There are a lot of NDA’s out there. Just recently, the California Bar had me sign my annual statement concerning client trust funds. And I’m retired, so I don’t maintain it anymore that I will maintain that I have maintained my client trust fund free of intermingling with firm funds, etc., the kind of statement you normally have to make for many state bars. And it is in fact not unusual for law firms to make payments on behalf of clients pursuant to their direction. Am I correct about that, Andy? That’s my experience in California, but I’m not a New York lawyer.

AM: Entirely correct.

HH: So is, but we’ve already had Merchan, the judge here, Judge Juan Merchan, reject all of the challenges that the former President’s legal team has brought. Is there any interlocutory appeal of those rejections, because this does seem to me to be a pretty ghastly court stacking abuse of process moment, Andy McCarthy.

AM: There is, as I understand it, Hugh, there is no interlocutory appeal on the motions that Trump brought, which were in the nature of selective prosecution, the stacking of counts, the statute of limitations, the fact that Bragg as a state prosecutor shouldn’t be trying to prosecute federal law, because the crime he says Trump was trying to conceal was campaign finance violations, which are federal statutes. Merchan rejected all of those claims. They are not subject to interlocutory appeal. Now I should add that Trump at the 11th hour in the last few days has tried to raise his immunity claim in connection with this case to try to get it derailed prior to trial. I don’t think he’s going to succeed with that, but that may be subject to interlocutory appeal.

HH: Well, what’s interesting to me about what you told me this morning, is I thought that all of these claims were beyond the immunity claim, because they had occurred in 2016. But you’re telling me the payments were made in 2017 after he became president, so it becomes an interesting question that ought to be delayed until after the Court renders its verdict. Now, let me go to the bootstrapping, Andy, because I want people to understand this, and we have two minutes to the break, and we’ll talk during the break, and I’ll bring you back on the other side. How does he use a federal statute that’s never been prosecuted by either the Federal Election Commission or by any U.S. Attorney that I’m aware of, or the Department of Justice, main Justice? How does he use that? I mean, how does the judge not laugh that out of court?

AM: Well, he takes advantage of the fact that the New York statute does not specify that the crime that you have to be concealing is a New York crime. So in theory, the way Bragg reads the statute, if Trump was committing a crime against, let’s say, the law of France, it would be eligible for Bragg to call it a concealed crime.

HH: Well put. Well put. But it still has to be a crime, right? There has to be a crime that you can, this is not a crime, what he did. I mean, people do this all the time. It’s not even fined by the FEC here.

AM: Yeah. Yeah, I have at least three points I want to make about that, Hugh, because I think it’s worth covering all the reasons.

HH: All right. Then hold onto it. We’re going to go to a break, and we are going to put the entire transcript of this, because the primer is necessary. I’m doing this not only for my audience, but for the media out there that just does not understand how bad this is. And I believe Trump is going to be convicted. I mean, I haven’t asked Andy that, yet. I think they’re going to stack the jury. I think he’s going to be convicted. I think they’re going to have a sentencing trial. I think it’s going to be a show trial right out of Beria. “Show me the man, and I’ll find you the crime.” Beria was Stalin’s chief of secret police, and he said famously, “Show me the man, and I’ll find the crime.” This appalls me, and it ought to appall any American who believes in the rule of law.

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HH: I’m back now with Andrew C. McCarthy. I’ll play this later in the program, and it’ll be on the podcast today. Andrew, hold forth on why it is so bad to do what Bragg is doing vis-à-vis reaching out for a crime that is not a crime, not in his jurisdiction, to take the payments made by Michael Cohen and turn them into 34 felonies against Donald Trump in Manhattan.

AM: Well, first of all, Hugh, as John Yoo has pointed out, it’s a Constitutional problem, because the president and the executive branch of the federal government are charged by law to enforce the campaign finance laws, which are federal. So to the extent that Bragg, a state prosecutor, purports to do that, he’s actually invading what is the proper legal realm of presidential decision making. There’s two different federal bureaucracies that enforce these laws – the FEC and the Justice Department. Both of them looked at this and decided not to enforce against Trump. Even if the campaign finance laws applied, Trump as a candidate is subject to different limitations than, say, a Michael Cohen, who was a supporter. So there’s even less of a basis to try to bring an action against Trump. But I think the two things I would point out are just like more of a real life thing, Hugh, than necessary a legal principle. One is imagine if Trump used campaign money to pay a hush money agreement with a porn star, how, you know, the Alvin Braggs of the world would have just exploded in wrath over that. And I think that just underscores that this is not a campaign finance, that this isn’t a campaign debt or expense. If you have something that is, that would be a debt irrespective of whether there was a campaign, that’s simply not a campaign expense.

HH: Correct.

AM: And here, this is a payment of a debt that existed irrespective of the campaign. But the other thing that hits me like a thud, Hugh, is that, I’m sorry, Bragg’s theory is that Trump stole the election. It was a very tight election with Hillary, and by concealing these payments, if voters had known about these payments, what Bragg’s theory is, is that Hillary would have won the election. And even if you indulge the fiction that this was a campaign expense that had to be booked and had to be disclosed, the next disclosure period after Cohen paid this money would have been in the first quarter of 2017. That is to say that even if this was under the campaign finance laws, it wouldn’t have been disclosed by law prior to the election. So the whole theory is wrong.

HH: Boy, that, people need to hang onto that. The theory is wrong, and somehow, Judge Merchan said go forward with it. I am hoping that the immunity motion last minute filed before now and the 25th knocks this back a few months, because this is a show trial the sort we ought not to have in the United States of the nominee of the leading Republican, of the leading opposition party to the party in power. And it’s just appalling. I’ll be right back with Andrew C. McCarthy on the other side when we return to the radio show. Stay with us.

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HH: A jillion years ago, I would take the West Side Rapid from 110th and Broadway down to Foley Square. And the federal courthouse was down there. I have no idea where this is going to be tried in New York. Andy, you’re a New Yorker. Where is this going to actually be tried?

AM: It’s the state criminal court. I don’t think it’s the big Supreme Court building next to Foley Square, Hugh. I think it’s the criminal court on Center Street, if I remember right.

HH: All right, and I do not believe it’s going to be televised, am I correct?

AM: So far, that is correct. The last I saw on that was a report in the BBC about 10 days ago where Merchan hasn’t allowed any of the proceedings up to now to be televised. You know, I don’t think much of Merchan, but I think to his credit, first of all, I’m not in favor of televised trials to being with, but I think he is worried about getting a jury, and that does make it more difficult.

HH: Now you brought me to what I want to get to – jury selection. If this gets underway on the 25th and is not stopped by an interlocutory appeal of something or other, the jury pool will come in there. Manhattan voted about 80/20 for Hillary over Trump, and Biden over Trump, excuse me, for Hillary over Trump and for Biden over Trump. What are the chances that a Trump voter makes it through to the jury?

AM: You know, it’s pretty, it’s a 12-person jury, so you know, 20% of 12?

HH: Well, don’t they use their voir dire to kind of figure out, let’s get rid of the people that are wearing MAGA hats?

AM: Well, they try to, but the thing is that you know, the defense gets more ticks than the government does, so the chance of them getting a favorable juror, it’s not, you know, I don’t want to, I guess I’m a little, I’m pushing back, Hugh, because I tried a lot of cases in New York, and I found the juries were very fair. Now I agree that’s a million years ago and New York has changed. But I’m also a New York conservative, so they are out there.

HH: And now we do have to have the former President at the table. I believe I’ve heard you say that as a condition of his bail…

AM: Correct.

HH: He’s going to have to be there every day, which is in the middle of the election. I can’t believe we’re doing this, but he’s going to be there every day. What’s your advice to the President about demeanor throughout the trial?

AM: He should just, I mean, it’s hard to advise President Trump, because he thinks he knows better. And you know, there’s a trail of lawyers who’ve tried to give him advice that it’s in his interest to sort of rein his routine in. I think, however, that to be fair to Trump, this, he’s approaching this as he did with the E. Jean Carroll case as political combat, not legal combat. I think he thinks the legal result, like you do, and I think like I do, is kind of baked in the cake. He’s very, very likely to be convicted here of at least something. And as we’ve described the stacking of counts, the logic of the case is that if you convict him on one, you probably convict him on all 34. So I think he’s going to fight this as part of the campaign, and it not going to be terribly interested in some young lawyer telling him, you know, look, if you don’t rein your routine in here, the jury’s going to hate you and you’re going to get convicted.

HH: Should he, if you were advising him, should he use the opportunity that will daily present itself outside of the courtroom to speak to the American people about election interference? I mean, if I were him, I would get one message, and I would repeat it 34 times. This is a show trial. This is a sham. This ought not to happen in America. I’m the nominee of the major political party, and this is a Democrat elected who ran on running this show trial, and don’t be deceived. What do you think?

AM: Yeah, I would do that with this client uniquely, because as far as like getting him to stop speaking, that ship has sailed. He’s made so many statements about all this that they have plenty if they want to try to use it against him. And in the meantime, I think at this point, especially given what happened with the state trials and the E. Jean Carroll trial, Trump’s got a very good message that this is New York against Donald Trump. And one of the things I would point out, Hugh, is that you and I are from the federal system…

HH: Correct.

AM: …where people are appointed, and at least nominally they get vetted by the Senate to make sure they’re not going to abuse their authority. In New York, for the most part, even the judges are elected. Now Merchan happens to have been appointed, but they have a mixed bag of appointed and elected judges. And obviously, this district attorney, much like the state attorney general, Letitia James, he ran bragging, pardon the pun, that he had sued Trump more than any other New York state lawyer in his prior life as a lawyer for the AG’s office.

HH: Will Trump be able to introduce the fact that Cyrus Vance passed on this case, the predecessor to Alvin Bragg?

AM: Yeah, I would say good luck trying to stop Trump from getting in front of the jury anything he wants to get in front of the jury.

HH: All right.

AM: So I’m sure that the judge may try to suppress that, but if Trump testifies, I imagine that’s going to come out.

HH: I don’t think he’s going to testify. Do you?

AM: Well, it would be a bad look if he’s going to do a press conference in front of the courtroom twice a day and then not make the walk to the witness stand and testify.

HH: Oh, geez. We will have to talk about that during the break after I talk about how does one discredit Michael Cohen and Stormy Daniels, who are going to be, I imagine, the only witnesses. I don’t think this is going to be a long trial, but I’ll ask Andy, who’s actually a real trial lawyer as opposed to me, who’s done it three times. Stay tuned. America. Andrew C. McCarthy on the specifics of the Alvin Bragg Vs. Donald Trump knockdown that begins, slated to begin on March 25th in Manhattan criminal court.

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HH: I am back with Andrew C. McCarthy, former Southern District of New York prosecutor, the man who brought the Blind Sheik to justice. You read about him in National Review every week where Andy has a column. The McCarthy report is a fabulous podcast, which I greatly enjoy, Andy. But I don’t think enough people actually spent enough time talking about the specifics of the particular cases, so I really wanted to drill down on the Manhattan one. What do you see happening in terms of what will A) it’s not Bragg. I’m not sure who the career prosecutor is going to be that’s going to lead the case. What will they lay out first? What witnesses will they introduce, do you expect? And how best to discredit those witnesses when they come forward?

AM: Well, as far as the witnesses are concerned, Hugh, I think they’ll have a gold mind, the Trump defense will, of impeachment material. There’s very heavy reliance here on Michael Cohen, who is like a key figure here. And he has been not only convicted of various fraud cases, but when he tried, when he first fed this story to the federal prosecutors, who by the way rejected doing a criminal case on Trump before Cy Vance did, so it was the state rejecting it only after the feds had rejected a case on Trump. He was trying to sell himself as a cooperator to the Southern District. They didn’t take him, because he had too much baggage. He ended up doing a three-year sentence. I don’t know how much of it he actually ended up doing. But since he’s been out, all he’s said is that he was double-crossed by the Southern District. So now he even claims that he didn’t commit the crimes that he pled guilty to. So I think they’re going to have a lot of fun cross-examining Cohen. And a big part of the reason, again, that Cy Vance turned this case away in the Southern District is because you have to rely on Cohen to make it. Stormy Daniels’ testimony will be necessary, and it will, it’s not as important, but as far as atmospherics is concerned, it would probably draw the most attention. But again, I don’t think it’s as important to the scheme that’s charged as Cohen’s testimony.

HH: And when Ms. Daniels is on the stand, do you want to ascertain whether she signed NDA’s for any other people?

AM: I don’t know that I’d go there unless I was sure it helped me. But I would draw out from her the fact that she didn’t just refuse to talk about this affair with Trump. She actually affirmatively denied that it happened. Now the way that you have to, you have to worry with her that you could get clobbered, because she has since gone with a story that she was extorted, that somebody basically came up to her and told her to shut up about Trump when she was in the presence of, I think, her young daughter, if I’m remembering the story right. So I don’t think there’s corroboration for that, but she does say it happened. So if you go there, that’s going to be the comeback. But she has publicly asserted that she never had any romantic involvement with Trump.

HH: So we have two problematic key witnesses. Are there any other, Andy? We’ve got five minutes left. You’ve got a hit on Fox that you’ve got to make, so I want to make sure we get your estimate of whether or not he’ll be convicted, and where most of the defense team have got to put their pressure.

AM: Yeah, I think the extortion that’s going on now is there’s speculation about whether Allen Weisselberg, the CFO at the Trump Organization, will testify. He’s just been convicted. He’s prosecuted a second time in 18 months by Bragg on perjury charges, and I think that was really just a shot across the bow to people who might otherwise testify favorably to Trump, to signal to them what they’d be in for if they try to do that.

HH: So your prediction?

AM: He gets convicted.

HH: And 34 counts?

AM: On most of the counts, if not all. Well, I just think the logic of the case, to the case there has logic to it, is that if you get him on one, you get him on all 34, because what he’s done is he’s taken one thing and turned it into 34 things.

HH: So now I go into the realm of the political. I’ve written this and I believe it. I think this is going to help Trump, because it is so baldly a political prosecution. What do you think, Andy?

AM: I agree, and the reason, and I think the biggest reason for that is the thing we haven’t talked about much, Hugh, and that is Alvin Bragg. There’s serious crime being committed in New York, including in Manhattan, and his default approach as like the paragon progressive prosecutor is either not to prosecute it or to plead it down from felonies to misdemeanors. Here, he’s taking nonsense that I think shouldn’t even have been charged as a misdemeanor and turned it into 34 felonies. And the only difference in the two situations is this is his political nemesis as opposed to his job.

HH: It’s a real test of the rule of law. I don’t, people, I hope people understand the stakes here. Now like you, I think the obstruction case is Trump’s serious problem, and we’re not going to get there before the election. But this is a political prosecution. I think Jack Smith’s in D.C. is as well. The one in Atlanta is falling apart. But this one really should offend any American who believes in the rule of law. Andy, you are always great to talk to. Thank you for walking through this. Good luck. You’re going to be in high demand for the next month, buddy. So get some rest, and I appreciate you taking the time with me.

AM: Thanks so much, Hugh. Appreciate it.

HH: Bye bye.

End of interview.