‘Hush money’ is not a crime, and Bragg has no case against Trump
Opening statements get underway in Manhattan Monday morning in Donald Trump’s “hush money” trial — the first-ever criminal trial of a former American president and, indeed, of a de facto major-party presidential nominee.
It got me to thinking: Why do we call it the “hush money” trial?
Well, sure, the media-Democrat complex loves the salacious overtones of that spin. But that’s not the real reason. If Trump had robbed a bank or, as he once famously put it, shot someone on Fifth Avenue in broad daylight, we’d be talking about Trump’s bank robbery trial or his murder trial. That is, we’d be talking about the crime.
The problem that Democrats and their note-takers have, the problem that the elected progressive Democratic prosecutor Alvin Bragg has, is that what they want to accuse Trump of is not a crime.
Yes, of course, Bragg has indicted Trump for a nonsensical business-records falsification offense — a mere misdemeanor that he has abusively tried to inflate into 34 felonies. But that’s not what he and Democrats are really alleging.
What they want to say, instead, is that Trump stole the 2016 election. Only they can’t do that. After all, that would make them election deniers — just like Trump.
They’ve spent nearly four years telling Americans that Trump is the most profound threat to our constitutional order in history because, to this day and even as he seeks the Oval Office yet again, he will not admit that he lost the 2020 election fair and square. Yet, boiled down to its essence, Bragg’s indictment accuses Trump of stealing the 2016 election. It is not the former president but the district attorney who is the election denier.
But more to the point, Bragg’s elaboration of Trump’s supposed criminal scheme — laid out in a Statement of Facts, so-called, that he penned and published when the indictment was unsealed — elucidates that what he is accusing Trump of is not a criminal conspiracy.
That is why Democrats and their journo allies have to say “hush money” trial. It sounds sinister, and when you don’t have a crime and you’re about to commence a criminal trial, you’d better sound sinister.
In its curtain-raiser, the Democrats’ house organ, the New York Times, tells readers that in their opening statement, “Prosecutors from the Manhattan district attorney’s office are expected to say that Mr. Trump orchestrated a scheme to suppress stories that could have damaged his 2016 campaign.”
Follow The Post’s live blog for the latest updates on Donald Trump’s “hush money” trial
That’s probably right. There’s just one tiny glitch: It is not a crime to suppress damaging information.
Politicians do that habitually. The Clintons and their cronies notoriously ran a “bimbo eruption” war room in the lead-up to Bill’s 1992 election, squelching revelations by women who credibly claimed to have had trysts with the then-Arkansas governor.
Come to think of it, who among us doesn’t have some skeletons we’d prefer were left in the closet? Unless there is a legal obligation to disclose, it is not a crime to suppress embarrassing details.
What are pejoratively described as “hush money” deals are actually legal and commonplace. They are less promiscuously described as non-disclosure agreements. Far from being unlawful, NDAs are a staple of civil litigation settlements in the United States.
Look, if scheming to suppress information were a crime, Bragg’s case would be very simple: He would have charged Trump with scheming to suppress information.
And if Bragg had evidence that Trump had actually stolen the 2016 election, that would be simple too: He would have charged Trump with crimes that were committed in the lead-up to the 2016 election.
Instead, Bragg has charged business-records falsification on the absurd theory that the way Trump booked NDA payments violated federal campaign laws — even though Bragg, a state prosecutor, has no authority to enforce federal law; and even though the NDA payments were technically not campaign expenditures, which is why the feds did not bring enforcement action against Trump.
And since he doesn’t have an election-theft crime, Bragg has ludicrously charged as felonies the booking of NDA installment payments that occurred from February through December 2017. You are being asked to suspend common sense and believe that Trump stole an election in 2016 by committing crimes that didn’t happen until the following year.
That’s why they call it the “hush money” trial. From the perspective of Bragg and Democrats, to accurately describe what they’ve alleged would be to see it laughed out of any court that isn’t a kangaroo court.
Andrew C. McCarthy is a former federal prosecutor.
