"Well, the case is a little unusual, because it charges what we in America call misdemeanors," said Judge Napolitano, who is currently a host of the "Judging Freedom" podcast on YouTube. "Those are low level crimes for which the maximum punishment in jail is less than a year. It charges them as having been committed in order to hide or mask a felony. Those are serious crimes for which the minimum penalty in jail is more than a year. The felony that the government claims Donald Trump was hiding was failure to pay income taxes on ordinary income and the use of corporate funds to pay a campaign or a personal debt."
On March 18, Donald Trump signaled that he expects to be arrested soon in connection with an ongoing investigation by Manhattan District Attorney Alvin Bragg concerning Trump's alleged 2016 payment of $130,000 in hush money to adult movie star Stormy Daniels via his former personal attorney, Michael Cohen. Trump's announcement caused a lively debate among US legal experts who referred to the fact that the federal authorities have repeatedly rejected the "hush money" case. The Federal Election Commission declined to pursue the Stormy Daniels case. Furthermore, Cyrus Vance, the predecessor to DA Bragg, made the same decision. US observers have also raised concerns about Bragg's political bias against the former president: the Manhattan DA, a registered Democrat, has a long record of partisan rhetoric targeting Trump and received campaign funds from George Soros, known for his enmity towards the former president.
When matters had largely calmed down, a 16-page lengthy indictment was unsealed on April 4, with prosecutors alleging a years-long plot to use "hush money" payments to suppress damaging information before the 2016 presidential election. The document reads that the former president "orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant's electoral prospects."
"The threat reached the Trump people in October of 2016, when Donald Trump was running against Hillary Clinton for president of the United States," recalled Napolitano. "If you recall that time period, a tape made by a television program called Access Hollywood caught Trump in an unguarded, candid moment in which he was acknowledging his aggressive sexual behavior towards women without mentioning any proper names. That tape, which was played incessantly for the American public, caused a lot of people, publicly, even Republicans, to denounce Trump, three weeks before Election Day. So the last thing they wanted was the Stormy Daniels thing to come out."
It is alleged that Team Trump agreed to pay Stormy Daniels $130,000 in return for her remaining silent about her supposed sex affair with then-presidential candidate. At the time, Cohen used his own money to pay Daniels and then sought reimbursement from Trump.
"It's not a crime to pay someone in America to remain silent," explained the judge. "It's unusual for the lawyer to pay the bail out of his own money. Very unusual, but not criminal. The crime came in when Trump reimbursed the lawyer out of corporation funds rather than out of personal funds. If Donald Trump had paid the lawyer back with his personal money, personal income on which he had paid income taxes, no harm, no crime. But because he paid him back with corporate funds and then recorded this in the corporate books as if it were a corporate expenditure, and then went through an elaborate deception using assumed names to pay him more than he was actually owed so that it would look like it was a legal bill – that was the crime. So keeping deceptive corporate books in order to mask a felony, two felonies, using corporate funds to pay a campaign debt in America is a felony."
Napolitano has drawn attention to the fact that it was not just one deceptive record but 34 unique discrete documents recorded in the books because Michael Cohen was paid in little snippets over 13 months. Each of them is a misdemeanor. Hence, Trump now has 34 felony charges against him.
Why Bragg's Case Against Trump is Really Strong
US legal experts argued that Trump's "hush money" case is based on shaky legal and ethical ground. Some suggested that the case is flawed if it is based on a state charge effectively prosecuting the federal election violation. The others expressed concerns about what they call "vagueness" in the charging documents, complaining that it may amount to breach of Trump’s Constitutional right to due process. Moreover, under New York law, falsifying your business records is usually considered a misdemeanor unless there is evidence that the falsification was made to either commit a crime or hide a crime that was already committed. One might wonder whether Bragg has enough evidence to prove it.
Nonetheless, Judge Napolitano deems that Bragg's case against the former president is a strong one.
"In most states in the union, in America and in the federal system, when the government brings a charge, it gives the defendant the evidence that it has," he said. "New York does not do that. New York has a slow, tedious process whereby the defense lawyers extract the evidence from the government. So we haven't seen all the evidence. But we understand from a document that Alvin Bragg filed shortly after he filed the indictment, which is called a statement of facts. In that statement of facts, he articulated the evidence. So the evidence that they have are Trump Organization financial records. Donald Trump's personal checkbook. Trump Organization, that's the name of his holding company, checkbook. Michael Cohen personal financial records. Michael Cohen law firm records. They also have the documents that this porn star whose stage name is Stormy Daniels, that Stormy Daniels signed and that Michael Cohen signed on behalf of Donald Trump."
When it comes to intent, Trump may say that he did it not because he was afraid of losing the presidential race, but because the alleged affair with Stormy Daniels could harm his marriage if it came out. However, even though this could potentially remove him from the campaign violation realm, it would put it into the tax avoidance realm, Napolitano continued, "because then it's a personal obligation, protecting my marriage, paid by a corporate check."
"In America, corporations, as you know, don't pay taxes on their ordinary reasonable expenses. So if you can claim that a personal debt was an ordinary, reasonable corporate expense and get away with it, you've saved yourself the income tax on that amount of money. So at Trump's tax rate, which in New York is 59%, he saved himself 59% of $130,000. Do the math, $75,000, not a large amount of money, but because it was done repeatedly, consistently, systematically and deceptively, and because he's Donald Trump, the government is going after him," the judge emphasized.
However, the good news for Trump is that even if he's convicted of all these, he won't go to jail, according to the veteran legal expert. "This is not something that you go to jail for," the judge remarked. "The fines could be heavy even for a man of his wealth, but it's unlikely that he will go to jail because of no prior record."
Still, the bad news is that the former president is facing further indictments that are far more serious and do mandate jail time should he be indicted and convicted on those.
'Show Me the Man and I'll Find You the Crime'
There's no doubt that the "hush money" case and other emerging cases have been heavily politicized against Donald Trump, as per the judge.
"There are more crimes to be prosecuted than there are resources in the DA's office with which to prosecute them," Napolitano said. "So they really have to engage in what we call prosecutorial discretion, decide which crimes really hurt society and need to be prosecuted and which we can dispose of in a non-prosecutorial way, which is a slap on the wrist. Not all prosecutors would have put this case in the area of criminality that requires prosecution."
In fact, the US legal system is capable of finding felonies with any person if there's a political incentive to go after someone, thus evoking a strong memory of a Soviet-era phrase attributed to Lavrentiy Beria, Joseph Stalin's chief of secret police: "Show me the man and I'll find you the crime."
"The view that America is a land of personal freedom is essentially a myth," the judge continued. "A friend of mine who is a brilliant legal scholar named Harvey Silverglate, wrote a book called 'Three Felonies a Day' in which he argues that he could find three felonies that any person in America, any adult person in America has committed. There are 5500 federal crimes. The American Constitution only authorizes two. But the Congress has written 5500. There is no person in America familiar with, conversant with all 5500. And the vast majority of them criminalize behavior, which is essentially harmless. But they are on the books and they're available as tools for the prosecutor. States are just as aggressive. The 50 states, we'll say 51 because the District of Columbia, though not a state has its own jurisdiction, have tens and tens of thousands of crimes for which they can pick whichever one they want, if they want to go after someone. Beria was speaking truthfully. Silverglate is speaking truthfully. This is the dark side of the criminal justice system in America. Just as it was the dark side of the prosecutorial system in the old Soviet Union. But it's true."
Do Democrats Want Trump to Become the GOP Nominee?
As per Napolitano, the Democrats are well aware of the conservative being irritated by what they call a partisan persecution against Trump, who announced his 2024 presidential bid last year. Apparently they also understand that it may give the former president additional political points and pave the way to his Republican nomination in 2024. The crux of the matter is that the Democrats want Trump to become the GOP nominee, Napolitano believes.
"The Democrats want Trump to be the Republican nominee because President Biden's stewardship of the federal government has been so poor," he said. "The only way, this is what the Democrats believe, I'm not a Democrat, but I happen to agree with them, the only way President Biden can get reelected is if he runs against Trump. And then the issues in the campaign will not be President Biden's stewardship of the government. It will be Trump's character, Trump's personality and Trump's criminality. And on those issues with the full American electorate, not just the Republican Party, which is a minority party here, but the full American electorate, on those issues Trump will lose."
The Democrats don't have much choice but to play those political games despite growing distrust from Trump supporters and many Americans for US institutions, for Congress, for the Pentagon.
"You know, they have a president who will be 82 years old when running for reelection, who's candidly mentally challenged," Napolitano explained. "Whose administration is foolishly and illegally bringing us into a war with Russia. Under whom the economy is crazy with inflation. All of these things are indefensible to the American public. And if he wants the Democratic nomination, the history and custom in America is to give it to an incumbent president even with these defects. Democrats have two chances. One is that Trump is the Republican nominee. The other is that Biden decides not to run for reelection, and then they nominate somebody who's not affiliated with Biden's administration and who doesn't have the burden of having to defend the indefensible."
Advice to Donald Trump
When asked what legal advice he would have given to Trump if he was his lawyer Napolitano said: "Talk about whatever you want, you're running for president. Talk about why you should be president. Keep your eyes and your words focused on the future, not on the past." The judge warned the former president against lambasting the people investigating him in the federal system. According to Napolitano, this is very, very bad practice to keep doing this and all of this is going to come back to hurt him.
"Begin the process of extracting evidence from the government, file a lot of what we call motions to the judge, force the judge to make rulings, because the way you appeal a conviction is when the judge makes an erroneous ruling," Napolitano continued. "So you want him to make many, many, many rulings so that a few of them will be erroneous and taken in the aggregate, that will deny the client a fair trial. You have to force the judge to make mistakes, so to speak."
And, to cap it off: "In an American courtroom it only matters what the jury hears and sees in the courtroom," the judge concluded.