Apr.23

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Trump Legal News, Part I: The Trial (Day 5)

Yesterday's action was concluded by roughly noon ET, but there was still plenty of drama. Here are the most interesting storylines from the fifth day of Donald Trump's trial for criminal fraud:

• The Prosecution Opens: As we noted yesterday, the case being brought by Manhattan DA Alvin Bragg has two potential soft spots. The first is proving that Trump was aware of the illegal acts, and that they were not just undertaken by underlings. Bragg and his team will deal with this by having Michael Cohen and other people testify as to Trump's knowledge in this particular case, and his general approach to the spending of money (i.e., he would never approve an expenditure this big without knowing what it was for).
  
  The other soft spot is proving a second crime, in addition to cooking the books. The book-cooking is close to a slam dunk, but that alone is a misdemeanor. It takes the second crime to get to felony. There are three different ways that Bragg might work a second crime into the case. The most obvious is invoking the Federal Election Campaign Act, and arguing that in addition to committing financial fraud, Trump also violated federal election law regarding the reporting of campaign expenses. A problem here is that Bragg is a New York State employee prosecuting a New York State case, and invoking federal law might not pass muster. A second problem is that the statute of limitations for federal elections law violations is 5 years (though Bragg will argue that doesn't matter, because the other element of the crime is still within the statute). Incidentally, these problems are why Bragg's predecessor Cyrus Vance chose not to move ahead with the case.
  
  The second possibility is to go after Trump for violation of section 17-152 of the New York Election Law, which says: "Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor." The problem here is that it's not clear a New York State law can be applied to a federal election. Previously, Bragg has said he does not think it works.
  
  A third possibility is to go after Trump for double tax evasion. That is to say, he handled the payment to Cohen in a way that made Trump's state tax return fraudulent, but that also made Cohen's state tax return fraudulent. The problem here is that sticking Trump for a criminal act that was actually committed by Cohen could be a tall hill to climb.
  
  In his opening statement, Assistant DA Matthew Colangelo signaled that he is going with option one, which is the obvious choice, and one that Judge Juan Merchan has already deemed to be acceptable. Across 40 minutes, he told a story of a candidate who was scared witless after the release of the Access Hollywood tape, and who had a well-established habit of using money to make political liabilities go away. While that's not illegal, per se, it becomes so when you misrepresent the payments in your bookkeeping and in your reporting (or lack thereof) to the Federal Elections Commission. During this part of the discussion, the ADA made liberal use of the word "conspiracy."
  
  Colangelo also spent time on weak spot #1, pointing out that Trump is a "very frugal businessman" who stiffs contractors for far less than $360,000, and who would never allow the complicated payoff arrangement with Cohen without knowing all the details. The ADA also previewed some of the evidence that the jury would hear and see. The most interesting, at least among things that were not publicly known before yesterday, was a text message from Keith Davidson, the lawyer who negotiated the deals to "catch and kill" the Stormy Daniels and Karen McDougal stories with then-National Enquirer publisher David Pecker. The text message was sent shortly after it became clear Trump was going to win the election in 2016, and said: "What have we done?" This is pretty clear proof that the intent of buying the two paramours' silence was political, and not to protect Melania Trump's feelings.
  
  
• The Defense Opens: Because Merchan has already signaled that he approves of the DA's legal theory of the case, Todd Blanche and Susan Necheles aren't going to have a lot of luck arguing the law here. They can do so on appeal, but for now, they have to try to poke lots of holes in the story the prosecution is telling. Blanche's opening took a shotgun-style approach, sending buckshot in all directions. He decreed that Michael Cohen is an unreliable sleazeball, that Trump wasn't involved in paying Cohen for the scheme, that it's not illegal for a campaign to pay for people's silence, that everyone does the things Trump does and he's just being targeted because of his high profile, and that jurors should use their "common sense."
  
  
• Lead with your Pecker: Speaking of David Pecker, he took the stand yesterday as the first witness. However, he only testified for 20 minutes, largely about the nature of the tabloid business, before court was adjourned for the day.
  
  
• No Shows, Part I: There are one or two key players who will not be testifying. One of them is Trump Organization CFO Allen Weisselberg; the prosecution somewhat implied that his non-appearance is due to his being in the hoosegow right now. But the real reason is that he's a somewhat hostile and unreliable witness, and the prosecution already has excellent "testimony" from him in the form of handwritten memos.
  
  The other person who may not be present is Dylan Howard, who was editor-in-chief of the National Enquirer in 2016. Howard lives in Australia now and has spinal issues that make it hard for him to travel. Since his testimony would largely be redundant, it's not likely worthwhile to compel him to make the 20-hour flight that would necessitate.
  
  
• No Shows, Part II: Donald Trump took note of the high tensions at Columbia University, triggered by disputes between pro-Israel and pro-Palestine students (more below), and expressed concern about... how this was affecting him. He complained that there were no MAGA demonstrators outside the courthouse, and assumed they had been blocked from attending because of the lockdown-like conditions at Columbia University (about 5 miles from the courthouse). In fact, there actually were some MAGA demonstrators; Trump just didn't see them because they were so few in number. And the reason they were so few in number is not because of Columbia, but because there just aren't that many people interested in sitting outside a courthouse all day, 4 days a week, for 5-8 weeks.
  
  
• No Shows, Part III: Although Trump was distressed by the lack of MAGA fanatics outside, he should probably be more concerned that none of his family is coming to support him in court. In particular, given that a key part of his argument is that he made the payment to Stormy Daniels to spare Melania Trump's feelings, it would be helpful for her to be there and to put on a show of how close their marriage supposedly is. But she was nowhere to be seen, because she was very busy yesterday peddling her new line of jewelry. In fairness, if Melania was on trial, you know full well Donald would be out there selling golden shoes, or NFT cards, or Bibles.
  
  
• Wake Up: Trump continued to have trouble staying awake in court yesterday. That makes 4 of the 5 days where it was obvious that he had passed out. This is worth noting because it is not likely to make a good impression on the jury.
  
  
• Don't Do It: We've written numerous times that Trump would be a fool to take the stand, in part because he'd surely perjure himself or otherwise undermine his case, and in part because that would open him up to cross-examination designed to undermine him as a witness. Yesterday, in the interest of allowing the defense to make an informed decision, Merchan ruled that if Trump testifies, the DA would be allowed to ask about E. Jean Carroll and half a dozen other previous Trump legal cases, most of them involving fraud of one sort or another.
  
  
• Gag Me: During his usual post-court press conference/rant, Trump accused Michael Cohen of being a liar. This is a crystal-clear violation of the gag order, which says that Trump cannot attack the witnesses in the case. The gag order is going to be the first item of business today; the prosecution says the total number of violations now stands at 10. Whether there will be resolution on this point is not certain; Merchan has told the jury to report at 11:00 a.m.; if the gag order arguments are not completed by then, they'll be wrapped up on some future day.

There you have it. Today's session will end at 2:00 p.m. because of Passover (one of the prosecutors, Joshua Steinglass and one of the defense attorneys, Susan Necheles are Jewish), so maybe there won't be too much news tomorrow. That said, yesterday's session was even shorter than that, and clearly there was no shortage of stuff to talk about, so... (Z)