Andrew McCarthy, former chief assistant U.S. attorney for the Southern District of New York, predicted in a recent column that Manhattan District Attorney Alvin Bragg will have a hard time convicting former President Donald Trump of a felony, or even anything, judging by the charges he is expected to bring.
McCarthy wrote Tuesday on FoxNews.com that Bragg is expected to charge Trump with the New York state crime of falsification of business records, which is typically a misdemeanor, but the DA is expected to seek to upgrade it to a felony by saying Trump falsified business records to hide another crime. That second “crime” is expected to be a federal campaign finance violation.
McCarthy called that expected attempt to upgrade a misdemeanor to a felony “specious.”
He said when New York penal law refers to “another crime,” it obviously means another New York crime, while the campaign finance violation would be a federal crime. “New York has election finance laws, too, and it has been suggested that Bragg may rely on them to try to prove the felony. But those laws apply to statewide offices, not the presidency,” McCarthy wrote.
Furthermore, McCarthy said it is “highly unlikely that Trump violated federal campaign finance law, and that even if he had, such violations – which have involved significantly higher money amounts – are typically settled by fines paid to the Federal Election Commission, not by criminal prosecution.
McCarthy noted that in New York, campaign finance violations are routinely disposed of by the imposition of fines. He pointed out that New York City’s mayor, Eric Adams, is currently facing likely fines for “accepting illegal campaign contributions, improperly accounting for them, and then contemptuously ignoring requests for documentation by state election authorities.”
He noted that former NYC mayors Bill DeBlasio and Mike Bloomberg also ran into trouble with state election officials, with DeBlasio fined and Bloomberg cited for violating “the spirit” of the laws in connection with a dubious $1.2 million contribution. There were no criminal prosecutions, McCarthy said.
As former U.S. Attorney Brett Tolman recently pointed out, the FEC merely fined Hillary Clinton’s campaign and the Democratic National Committee for mischaracterizing payments to an opposition research firm for the infamous pee-dossier on Trump as legal expenses — which is essentially what Bragg would be arguing Trump did in mischaracterizing alleged hush-money payments to porn actress Stormy Daniels as legal expenses.
McCarthy also wrote that in order to upgrade the misdemeanor to a felony, Bragg would have to prove beyond a reasonable doubt that Trump falsified business records but did it because he knew he had committed the second “crime” of campaign finance violation.
“Given that lawyers are having a hard time even hypothesizing what this other crime may be, it is hard to imagine that Trump, a non-lawyer, knew about it,” McCarthy wrote.
And Trump could argue, McCarthy said, that he falsified business records because he wanted to hide the alleged hush-money from his wife and voters, not because he was trying to cover a campaign finance violation.
McCarthy said if Bragg cannot successfully argue that the misdemeanor should be upgraded to a felony, the case should be dismissed as time-barred.
“In New York criminal law, the statute of limitations for most non-violent felonies (including the one applicable to falsifying business records) is five years; for misdemeanors, it is just two years,” he wrote.
He said Bragg could argue that New York law suspends the statute of limitations for the time that the defendant is out state, but said that provision was intended to enable the state to prosecute fugitives who try to evade apprehension.
“Obviously, until we see the indictment (assuming the grand jury returns one), we will not know what other crime Bragg may allege Trump was supposedly concealing. But it would be truly shameful if this elected progressive Democrat district attorney, who is best known for downgrading felonies to misdemeanors (or dismissing them outright) is trying to inflate a misdemeanor into a felony by applying – to a national election for federal office – state campaign laws that are not even enforced criminally in New York,” he said.
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