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Now it's time for another

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Guy Benson Show. Benson Bite.

0:19

Where we bring you the

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day's most interesting interviews in

0:23

a bite-sized package. For the

0:25

full episode, visit guybensonshow.com or

0:28

wherever you listen to podcasts. We

0:32

begin with Andy McCarthy,

0:34

Fox News contributor, longtime federal prosecutor,

0:36

also a best-selling author. Andy, we

0:38

so appreciate you making time for

0:40

us. I know that demands on

0:42

your time are myriad. So

0:45

welcome back and thank you. Guy,

0:47

thanks so much. It beats having a real job,

0:49

so I can't complain too much. All

0:52

right, you used to be in

0:54

the courtroom prosecuting cases. Now you're

0:56

watching this all play out and analyzing

0:58

what's happening in lower Manhattan. This is

1:00

former President Trump, this now weeks-long

1:02

trial about the hush money

1:04

payments involving a porn star and the way

1:07

that they were categorized on the books. Alvin

1:10

Bragg has decided to do something that his

1:12

predecessor in the office declined to

1:14

do, that the feds declined to do, which is to

1:16

say, yep, this was a crime and not only a

1:18

crime, not just the

1:20

misdemeanor, which has lapsed, it's a

1:22

felony. In fact, it's dozens of felonies and we

1:24

can put them in prison for a very long

1:27

time. And the theory of the

1:29

case we'll come back to because I'm admittedly

1:32

mystified by this, Andy. I

1:35

want to start, though, with some of the testimony

1:37

over the last few days. Hope

1:39

Hicks, the former Trump aide, she

1:41

took the stand. Her testimony

1:44

was widely described as emotional. What

1:46

do you think the actual impact

1:49

of her testimony was, like the

1:51

big takeaways? Yeah, I

1:53

really don't think, if you look at

1:56

just what the charges are in the indictment,

1:58

I think her testimony is It's

2:01

helpful to Trump in

2:03

the sense that she

2:07

said some things that would be helpful for

2:09

him to argue that he wasn't

2:12

concerned about the campaign finance laws. I

2:15

doubt, actually, that Trump was even thinking

2:17

about the campaign finance laws. What

2:20

he was worried about is whether these

2:23

alleged sexual relationships

2:26

that he had, extramarital

2:28

affairs in 2006, that the

2:30

publicity about them, whether they

2:32

happened or didn't, he denies

2:34

they happened, that

2:37

that would be embarrassing for his family.

2:39

And that was what he was focused

2:41

on. And she gave some testimony that

2:44

was helpful in that regard. But

2:46

she had—you know, I thought the most telling thing

2:48

guy was the last question she was

2:50

asked on last Friday afternoon, which

2:52

is, when you were

2:54

down in Washington working in

2:57

the White House, did you

2:59

have anything to do with the

3:01

management and the keeping of the

3:03

Trump organization's business records 200-plus

3:05

miles away in New York

3:07

City? And she, of course,

3:09

said she didn't, and the question was

3:11

asked precisely because after

3:14

two weeks of testimony, that was the first time

3:16

any witness was asked about

3:18

what the case is actually supposed to be

3:20

about, which is, did Trump falsify his business

3:22

records in 2017? Right.

3:26

And now we have Stormy

3:29

Daniels and details coming out,

3:32

sordid personal sexual

3:34

allegations. Talk about

3:36

this. I mean, it feels like what

3:39

the prosecution—again, this is just my impression.

3:42

What the prosecution wants to do is

3:44

get 12, in

3:46

their mind, hopefully Democrats like them, into

3:49

a jury box and say, look at

3:51

this guy, Donald Trump, you don't

3:53

like him. We don't

3:55

want him to win again. That's sort

3:57

of the unstated part. He's not a

4:00

good person. person, his character is bad,

4:02

let's not believe him on the affairs, and

4:06

just trust us, there's a crime here, let's

4:08

just do the thing. That

4:10

seems to be what they're, shorthand,

4:12

what they're getting at here. Bad

4:14

guy, we're going to tell you

4:16

there's a crime, just convict because, you know, gut

4:19

instinct, we all know he's probably guilty

4:21

of something. Maybe

4:24

that's overstating things, but

4:27

what else is the purpose of really going

4:29

through in really gruesome detail

4:31

some of the alleged sexual acts,

4:34

for example? There's

4:37

no proper purpose in it. To

4:39

remind your listeners, a guy

4:42

that could be charged in the indictment

4:45

is that Trump falsified

4:48

his business records in

4:50

2017, fraudulently, Bragg

4:54

says to cover up his commission

4:56

of another crime which he

4:58

alleges to be a federal campaign finance

5:01

violation. Now, even

5:03

if you credit Bragg's version of

5:05

what happened here, whether

5:08

or not Trump had a

5:10

sexual encounter with Stormy Daniels

5:13

is utterly irrelevant to

5:16

the charges in the indictment because whether

5:18

he did or he didn't, what the

5:21

case is about is

5:23

how they booked his reimbursement

5:26

of Michael Cohen for a $130,000 payment

5:28

that Cohen undoubtedly, inarguably made

5:35

to Stormy Daniels, which was for a

5:37

non-disclosure agreement that silenced her

5:40

and would have silenced her regardless of whether

5:42

what she was saying was true or untrue.

5:44

So the encounter is not

5:46

relevant to the charges, and

5:49

it's not enough to say that because

5:51

the testimony that came out today was

5:53

basically a minute-by-minute

5:56

description of how the

5:58

sexual encounter occurred. heard, where

6:01

the only concession prosecutors made

6:04

was that they wouldn't elicit

6:06

testimony about her description of

6:08

his genitalia. But everything else

6:11

was fair game. And

6:13

it was so bad that Judge

6:15

Murchand, who allowed all of it

6:17

to happen over the strenuous objections

6:21

of Trump's lawyers,

6:23

then sent the jury out of the

6:25

room and admonished the prosecutors for doing

6:28

what Murchand allowed them to do. So

6:31

it's just mind-boggling. Why

6:33

would he do that? Just to kind of make

6:35

it seem like he's somewhat fair-minded? He knew what

6:37

he was doing when he greenlit this. Yeah,

6:40

exactly right. The reason he's doing

6:42

it is it's so obvious to

6:44

anybody who knows this neck

6:46

of the woods that commentators and appellate

6:49

tribunals are going to look at this record and

6:51

say, how did the judge let that in? And

6:54

he'd rather have some seeds in the record

6:56

that he's on to say that maybe the

6:58

prosecutors misled him. But I think you're

7:00

exactly right. Everybody knew what

7:02

she would say. This is not the first

7:05

time. This is Stormy Daniels herself, by the

7:07

way, right? Stormy Daniels on the stand. And

7:09

he said this publicly, and

7:11

now she's saying it under oath.

7:13

Could the argument maybe be, Andy?

7:15

And I don't know how things

7:17

are sometimes deemed relevant and pertinent

7:19

or not based on

7:22

a certain prosecution of the case, or

7:24

however the judge views things as being fair

7:28

or not. But could the

7:30

argument be that you

7:32

need her on the stand to

7:35

describe these sexual encounters because

7:37

Trump insists that they didn't

7:39

happen, and so to

7:42

discredit his honesty

7:46

and to impugn his credibility on

7:48

other matters, you are proving to

7:50

the jury that he's lying about

7:52

the sex? Could that be

7:55

the reason behind this? That would be one

7:57

argument in favor of it. The

8:00

problem that the argument has, if you're going to

8:02

follow the law accurately, is that

8:04

when a question like that comes up, guy, what

8:06

a judge is supposed to do

8:08

is weigh the probative value of

8:10

the testimony against the potential

8:14

prejudicial impact of it. And

8:18

here, the government has a ton

8:20

of evidence to go after Trump

8:22

on his credibility, if that's what

8:24

their intention is. Can

8:27

I just kind of say, maybe there

8:29

are Trump supporters out there who believe

8:31

him when he says this didn't happen.

8:34

But I think almost everyone absolutely

8:36

believes that Donald Trump had sex with

8:39

Stormy Daniels and then paid her not

8:41

to talk about it because he paid

8:43

her a huge sum of money that

8:45

he would have no other reason in

8:48

that NDA context to

8:50

be giving someone her line of work in the

8:53

pornography industry. So

8:56

like you can say, oh, he's

8:58

lying about this. It's

9:00

like an obvious lie, a politician lying about sex,

9:03

which I know we were told for a long

9:05

time didn't matter if there was a D next

9:07

to the name of the president, for example. But

9:10

in this case, I think

9:12

it's almost just stipulated by

9:14

nearly everyone that

9:16

this happened, which is why the payment

9:18

happened in the first place. That is

9:21

a completely different question than anything

9:24

criminal happening, which seems

9:26

like it should be the whole point of

9:28

a criminal trial. Yeah.

9:31

See, guys, the thing is, what you

9:33

just articulated, the key part of that

9:35

is everybody

9:37

knows this happened. Nobody believes

9:39

Trump that it didn't happen

9:41

because the payment happened. Right.

9:44

And the thing is, there is

9:47

no dispute that the payment happened, and

9:50

therefore, whether the sex happened

9:52

or not is irrelevant because the question

9:54

in the case is how they booked

9:56

the payment. So Well

9:59

as the next thing. Tales is yeah,

10:01

it's all gratuitous for like

10:03

purpose of. Getting. The jury

10:05

to be like yeah, see, that's a bad guy

10:08

and you might say hey, it's wrong. To.

10:10

Go have sex with a porn star than pay or off

10:12

with the hush money. A. Lot of

10:14

people would be offended. Their values

10:17

would not align with that. obviously.

10:20

That. Is still? you don't have a

10:22

bunch of sort of razzle dazzle look

10:24

at this bad guy stuff in the

10:26

context of what actually should be an

10:29

issue in the trial which is more

10:31

laws broken. Let alone

10:33

felony laws broken. And

10:35

can you prove it? Because. At.

10:37

Least from where I sit as just a civilian.

10:40

Following the trial so what? Closely it seems

10:42

like they haven't really come close to that.

10:44

Yeah, let me ask you them. Related

10:47

Li. I've heard a

10:49

number of analysts talk about how

10:52

there's like a second crime here

10:54

that the prosecution hasn't even. Explicitly

10:57

laid out yet is that.

11:00

Is. That correct? How is it possible?

11:02

For. Their to be a second crime

11:05

which would be essential to proving you

11:07

know that the larger case against Trump

11:09

if. The public. Or

11:12

the defense? Or if everyone involved hasn't really

11:14

been made aware of what it is yet,

11:16

is it? Is it being overly simplified it

11:19

described that. Wait, what's that about? Know

11:21

it's suit your exactly the way

11:24

you described as accurate and. The

11:26

reason people laugh with wonder you know,

11:29

how is that possible is because in

11:31

the United States under the Fifth Amendment,

11:34

If they want to indict you have the

11:36

with the prosecutors one would die due for.

11:39

A money. They.

11:41

have to get an indictment from

11:43

a grand jury with indication in

11:45

the indictment that the jury the

11:47

grand jury found probable cause of

11:49

every element of the crime which

11:51

means the indictment has to explain

11:53

to you put you on notice

11:55

of exactly what it is the

11:58

government has george he was And

12:00

even more fundamentally,

12:02

under New York constitutional law, a

12:05

statute, if it's going to be used

12:07

as a criminal statute, has to include

12:10

all of the things that you need

12:12

to do to be guilty under the

12:14

statute. In other words, in New York,

12:17

they don't allow what's called incorporation by

12:19

reference. You're supposed to, in

12:22

a statute, lay out everything that is

12:24

necessary to put somebody on notice. So

12:27

this is not supposed to happen

12:29

in New York, or America, but

12:31

that's exactly what's happened. The indictment

12:33

charges falsification of

12:36

business records to commit another crime,

12:38

but Bragg does not say what

12:40

the other crime is. And he's

12:42

hedged even to this point. How?

12:46

How is the defense supposed to defend

12:49

against a crime that isn't

12:51

being revealed by the people

12:53

bringing the case? The

12:55

judge has allowed them to do it. What

12:58

Bragg has said is the New York statute

13:00

says another crime, which means any

13:03

other crime I can think of

13:05

can be the crime that Trump

13:07

was trying to commit or conceal. And

13:10

he says that he doesn't have to

13:12

tell them what it is. He's

13:14

got three different theories of what it could

13:16

be. And what he hopes

13:19

is that at the end, the jury will

13:21

be instructed on those possibilities. So he just

13:23

throws it out there like, well, it might

13:25

be this other crime, or it might be

13:27

that other crime, or maybe this other one.

13:30

In your mind, whichever one it needs to stick

13:33

to get to guilty, you just come

13:36

up with that jury. Like, that is

13:39

crazy. Is this one of the obvious grounds

13:41

for appeal? I think

13:43

it's the most obvious ground for appeal. There

13:47

are a number of other ones. But

13:49

I think the indictment, as I said

13:51

when it was returned, the indictment fails

13:53

as an indictment. In the United States,

13:55

an indictment is supposed to describe for

13:57

the defendant what he's charged with. And

14:00

the indictment in this case doesn't do that. Are

14:03

they violating Trump's constitutional

14:07

rights here? Forget the

14:10

gag order, which he's complaining about. You might have

14:12

a fair point there. Are

14:14

his constitutional rights as a

14:16

defendant being violated just by what you've

14:18

just described? Yes. You have

14:20

a right under the Fifth Amendment to

14:23

be indicted by a grand jury. In other words,

14:25

in our country, a prosecutor can't

14:27

just sit down and write a charge against

14:29

you and then take you to trial. They

14:32

have to prove in the grand jury that

14:34

there's probable cause of all the elements of

14:36

a criminal offense. Right, and then they've got

14:39

to give it to you and to your

14:41

counsel so you can defend yourself against the

14:43

crimes that they're alleging that you've committed. But

14:45

in this case, they're like keeping one of

14:48

them secret, basically, for the purposes

14:50

of this whole scheme. I

14:53

mean, I am not

14:56

a Trump defender reflexively. It

14:59

is hard to look at this thing other

15:01

than an absolute sham from top to

15:03

bottom, this case. And it's the

15:05

one that's going first, Andy, and we only

15:07

have like less than a minute left. All

15:10

it takes is one juror, right, to say

15:12

enough. This is preposterous. Yeah,

15:14

that's exactly right, Guy. And

15:17

to your point, this is why a lot

15:19

of smart, honest Democrats have looked at

15:21

this and said this case is a

15:23

joke, and it actually

15:25

will help Trump undermine

15:27

the more serious cases against him, because

15:29

in the public mind, this is the

15:32

face of lawfare. Well,

15:34

what a way to start this Tuesday here

15:37

on The Guy Benson Show. Andy McCarthy, former

15:39

federal prosecutor, current Fox News contributor with us.

15:41

Andy, thank you. Thanks, Guy.

15:45

That was yet another Benson

15:47

bite. For full episodes of

15:49

The Guy Benson Show, go

15:51

to guybensonshow.com or wherever you

15:53

get your podcasts. The

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