New York District Attorney Alvin Bragg is apparently planning to indict Donald Trump on a charge that he must know won’t stick. He dropped this very case a few months ago and is only reviving this turkey of a case because of political pressure.
Andrew McCarthy, former Assistant United States Attorney for the Southern District of New York, writing in the National Review, explains why Bragg cannot possibly win this case.
It is based on a payment of hush money to Daniels and a non-disclosure agreement (NDA) to prevent her from speaking in public.
But McCarthy points out: “a tryst and the non-disclosure agreement do not constitute the crime. Marital infidelity is a moral wrong but not a criminal one. And while hush-money is a pejorative term, and the details of this one are sleazy, NDAs per se are perfectly legal and common in civil-law settlements of claims.”
Were Trump to be indicted, it would be for the more prosaic crime of falsifying business records. But for that to be criminal, prosecutors will have to prove something that is obviously not true — that the records were falsified in order “to conceal another crime.”
Obviously, any falsification was motivated by a desire to avoid political embarrassment and publicity. It is absurd to claim that there was another crime lurking in the shadows.
So, why is Bragg bringing this case? We can only speculate on his real motivation.
But here’s my opinion: He is setting a trap for Trump hoping to so push his buttons and to so anger him and his supporters that they riot and create a January 6th situation and he can be accused of fomenting a riot.
The Democrats are desperate. The House committees are closing in on the Bidens — Joe, Hunter, and the whole family. They need to change the subject, to drive the China payoff scandal off the front page. So, Bragg is indicting Trump.
Only a desperate throw of the dice can save the Democrats — and this indictment is it.
America will see that any case based on Stormy Daniels is just a political ploy to try to stop Trump. But everyone knows he won’t be stopped. So Bragg figures that the next best thing would be to provoke a riot.
But Trump and his supporters won’t bite. Trump will go out of his way to call for peaceful protests and prayers for our democracy,
Which brings us to the statute of limitations. McCarthy explains that the statute for a felony crime of falsification is five years, while a misdemeanor expires after only two.
It is arguable whether five years or only two have lapsed since Trump paid off Daniels. But, to avoid the two-year statute, which has clearly lapsed, prosecutors face the same stumbling block: proving that the falsification was motivated by a desire to cover up another crime.
For the five-year statute to toll, prosecutors would have to prove that it did. Otherwise, their prosecution is barred by the statute of limitations.
McCarthy concludes: “This is a really dumb case and Bragg, who has already dropped it once only to be mau-maued into resuscitating it, has not crossed the Rubicon yet.”
And he might drown if he tries.
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