Fox News judicial analyst Andrew Napolitano, a former judge, told Fox News on Wednesday that a tape of President Donald Trump talking about paying hush money to a former Playboy model appears to be like evidence of a crime.
While speaking to Napolitano on Wednesday, Fox News host Bill Hemmer noted that Trump attorney Rudy Giuliani claimed that the tape of Trump talking about paying off Karen McDougal is “no indication of any crime.”
“There doesn’t appear to be any indication of any crime but I think that’s the wrong analysis,” Napolitano said. “There is an indication of a fraud. And the significance of that is, if the client and the lawyer discuss the commission of a crime or discuss the commission of a fraud, there is no attorney-client privilege in that conversation, meaning the tape can be used by anybody.”
According to the former judge, McDougal or special counsel Robert Mueller’s investigation could use the tape against Trump in court.
“What’s the fraud?” Napolitano continued. “The discussion is about paying National Enquirer to pay McDougal $150,000 to buy her story and to lead her to believe that the National Enquirer is going to publish her story. But the real aim here is to bury the story by duping her into selling to them and then not publish it.”
“That failure to be truthful to her and the involvement of Donald Trump and Michael Cohen in that decision is the fraud,” he added.
Napolitano explained that in his scenario, it looks like Trump committed civil fraud, not criminal fraud.
“Civil fraud is when you dupe somebody out of cash for some other purpose” than personal enriching oneself, he remarked. “The other purpose here was to keep the story from being put in the press by lying to her and telling her, ‘We’ll pay you $150,000, you don’t talk to anybody else and we’ll publish your story’ — when they never intended to publish it.”
Napolitano also said that campaign finance laws may have been broken “but that is up to Mueller.”
“[Trump attorney] Rudy Giuliani is right in the fact that there is not a criminal violation,” he observed. “He is incorrect by not addressing the fact this is a fraud because he knows that crimes and fraud both vitiate the attorney-client privilege.”
“There is no crime. It hurts the president in that there is fraud,” Napolitano concluded.