New York District Attorney Alvin Bragg and his prosecution team have not established beyond a reasonable doubt that there was an underlying crime involved in charging former President Donald Trump with business records violations, retired New Jersey Judge Andrew Napolitano said Tuesday on Newsmax.
"I was not in the courtroom, and my knowledge of what happened in the courtroom is based on others [who have been there], but from my perception of what I've seen, the government has not proven its case because it has not established beyond a reasonable doubt and to a moral certainty what the underlying crime was," Napolitano said on "Newsline."
Under the government charges, he said, there were "34 deceptive recordings" of why payments were being made to Trump's former attorney, Michael Cohen, concerning hush money payments that allegedly were made to adult film actor Stormy Daniels, who has claimed to have had a sexual tryst with Trump, which he denies.
"The government not only must prove that the 34 deceptive payments were recorded inaccurately, but that they were done in order to mask an underlying crime," Napolitano said. "The government hasn't, in my view, presented that beyond a reasonable doubt. It's just suggested what it might be."
However, he did say that he, like trial Judge Juan Merchan, would have sustained an objection made during Trump attorney Todd Blanche's closing arguments about Cohen, with Napolitano saying that Blanche's arguments included that the government "put him up there intending to have him commit perjury."
"He has an ethical obligation as the former president's chief lawyer to make the closing as strong as possible," said Napolitano. "It is one thing for him to say Michael Cohen lied under oath. Cohen has admitted that he lied under oath. It's quite another to say the government put him up there intending to have him commit perjury."
Napolitano said judges often don't permit objections during closing arguments, but Blanche "went over the line when he suggested that the government knew that Cohen was going to commit perjury."
"I would have objected as well, and if I were the judge, I would have sustained the objection," said Napolitano.
However, Blanche's point was made and he got it across to the jury, so "You can't unring the bell," he added.
Meanwhile, Napolitano said he has been reticent to criticize Merchan, and he's waiting until he hears his instructions to the jury to give an opinion on whether he spins them to favor the prosecution.
"They will be published soon and then I can tell you if there's a fertile ground here for an appeal," Napolitano said. "This is a typical fertile ground for appeal.
"It's where a lot of judges make mistakes. ... He knows that he's got to be very careful. He must not only be fair and neutral, he must be perceived as being fair and neutral."
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Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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