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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)
Trump Legal News, Part II: Money (That's What I Want)
There was one other bit of Trump legal news yesterday. There has been much fuzziness around the details of the "bond" that Donald Trump posted so as to forestall AG Letitia James from seizing his assets. Now we know that Trump put up cash, while Knight Insurance put up... well, basically, its name, so that the arrangement would look kosher, but so that Trump could continue to do as he sees fit with his cash.
Yesterday was the hearing in which Judge Arthur Engoron determined whether the arrangement was acceptable. And what he decided was that the brokerage account with the money had to be fully given over to Knight Insurance, for them to control and for Trump to have absolutely no access. Team Trump agreed to this, so it would seem the matter is resolved until such time that his appeal is heard. (Z)
Noem Does a Furious Tap Dance
Gov. Kristi Noem (R-SD) was on CNN's State of the Union this weekend, as part of her ongoing quest to get the heck out of South Dakota. And, given the salience of the issue, not to mention her home state's particularly draconian law, Noem was naturally asked about abortion access. She had to know that was coming, and yet, she basically wouldn't touch Dana Bash's questions with a ten-foot pole.
The South Dakota law is identical to the new Arizona law; it bans all abortions unless the life of the mother is in danger. Noem's position on that law is... um... well... something? On one hand, she said that abortion policy should be left up to the states. Since South Dakota effectively decided to outlaw the procedure, she should therefore be on board with that, right? Not so fast; she also made clear that she had nothing to do with the law, which was adopted "decades before I became governor." So, does that mean she wants to adjust the law to create, say, exceptions in cases of rape and/or incest? It would seem not. "I just don't believe a tragedy should perpetuate another tragedy," she said. So she does support the current law, then? Nope, she wouldn't commit to that, only that she will "make sure the will of the people is enforced."
This is our second reference to Noem in as many days, which is probably about two more than she warrants. She is only one of the contenders to be on the Trump ticket, a ticket that is more likely to lose than to win. And even if she does make the ticket and the ticket does win, she'll get out of the literal wilderness of the Dakotas, only to take up residence in the political wilderness that is Number One Observatory Circle.
That said, it would appear Noem has noticed something, and that something is interesting. Trump knows that abortion is an Achilles heel for him, and he hasn't come up with a great solution to that problem. It is probable that he is going to use his VP pick, in part, to try to help out on this front. So, if Noem wants the #2 slot, she has figured out she has to get right with Trump on abortion.
But here's the problem for her and the other wannabes: They can't know what position on abortion Trump actually wants in a running mate. That is to say, Noem clearly thinks that he wants a VP who's in lockstep with him, which is why she's suddenly a fan of the "it's a states' rights issue" position, and beyond that... mumble, mumble, mumble. And maybe that IS what he will be looking for. But remember that the last VP he chose was meant to "balance" the ticket by giving Trump a far-right running mate. So, what he might want—and we think this is probably the more likely possibility—is a fire-breathing anti-abortion fanatic. In that case, he can speak to the crowds who prefer moderation and can send the VP to talk to crowds who prefer a total or near-total ban. Of course, if that is what he wants, Noem has just staked out the wrong position. (Z)
Columbia Mess Turns Into a Political Football
Some of America's most notable college campuses are beset by tensions right now, thanks to conflict between pro-Palestine and/or Muslim students and pro-Israel and/or Jewish students. Harvard, Stanford and MIT were just given grades of "F" by the Anti-Defamation League for their policies to protect Jewish students from antisemitism on campus. Things have been rough at Berkeley for nearly the entire academic year. USC canceled the planned graduation speech from Muslim student Asna Tabassum, who is valedictorian, and then, to be "fair," canceled all of the various speakers scheduled for all of the various graduation ceremonies on campus this year.
But the campus that is really under the microscope right now is Columbia, which has become something close to a police state. Angry protesters, mostly on the pro-Palestine side, have made life on campus unpleasant to unbearable for their opponents. NYPD officers in riot gear are now a fixture on campus, with New York City Mayor Eric Adams (D), who is a shameless opportunist, constantly sending more. Professors are required to have an armed escort to their classrooms and offices. All classes, for the remainder of the semester, will be hybrid, so that students who feel unsafe can attend meetings from home. This is undoubtedly not what President Minouche Shafik, who used to run the London School of Economics, and has only been on the job at Columbia for about a year, signed up for.
At this point, speaking as academics, let us point out what the imperatives are for Shafik and the various other university administrators. First, they have to be worried about the politicians. As was the case in the 1960s, there are some politicians who are legitimately concerned about the conflicts on the nation's campuses, and there are some politicians who are looking to score cheap political points. A number of Jewish members of Congress toured Columbia yesterday; we suspect they are in the "legitimately concerned" camp. Several non-Jewish members held a rally/press conference just down the street from Columbia; we suspect they are in the "scoring cheap points" camp. In any case, whether well-intentioned or not, all of these politicians who are sticking their noses into university business are not helping to calm things down, and are more probably helping to heighten tensions.
The other imperative is the donors. And the fact is that there are a lot of well-heeled donors who are pro-Israel, and not so many who are pro-Palestine. In our experience, protests are rarely at risk of becoming violent. However, press coverage of those protests can cost a university millions, or tens of millions, in lost donor funds. For example, as if on cue, yesterday New England Patriots owner Robert Kraft yanked most of the funding he had pledged to Columbia.
We do not know what the best way to deal with these protests might be, but we do have a pretty firm grasp on what the worst way is. Once you start arresting protesters (which Columbia has done, en masse), and once you start having police in riot gear patrolling the campus, you create the circumstances in which a protest CAN turn violent. This sort of behavior generally serves to substantially heighten tensions, while re-affirming the resolve of the protesters, and often winning new converts to their banner. Oh, and there's also the Streisand effect: Once you start siccing law enforcement on 20-year-olds, you absolutely guarantee you're going to become national news. Have Shafik and her peers never heard of Mario Savio?
The story has now reached the point that every politician in America is being asked for comment, including Joe Biden. After delivering a speech yesterday, he responded to reporters' questions: "I condemn the antisemitic protests. That's why I have set up a program to deal with that. I also condemn those who don't understand what's going on with the Palestinians." He was asked a follow-up question about whether Shafik should resign, and said: "I will have to find out more about that." In other words, he took a position on the situation... without really taking any position at all.
Shafik probably will end up having to resign; she's botched this so badly that there's no recovery. Meanwhile, it speaks to how difficult it is going to be for Biden to solve the "many young voters are angry about the situation in Israel" issue. Most schools are going to break for summer in the next few weeks, and they won't be back in session until August. Maybe that will help to calm things. (Z)
A Tale of Two Polls
A recent story from Mediaite is headlined: "Harvard Poll of Young Voters Finds Biden with Wide Lead Over Trump, But Just 9% Think Country Is Moving in Right Direction." The story notes:
President Joe Biden holds a wide lead over Donald Trump among registered young voters, according to a new Harvard poll.
The biannual Harvard Institute of Politics Youth survey was released Thursday, first shared with Politico, showing Biden pulling 50% support among voters 30 years or younger compared to Trump's 37%. Among voters most likely to vote in November, Biden leads with 56% compared to Trump's 37%.
Biden easily topped Trump in support in the survey, but the data also showed young voters are not happy with the direction of the country.
Meanwhile, a recent story from Politico is headlined "Trump cuts into Biden's lead among young people, poll finds." The story explains:
Former President Donald Trump is cutting deeper into President Joe Biden's lead among young voters, according to a new poll.
Biden leads Trump, 45 percent to 37 percent, among people ages 18 to 29 in a Harvard Youth Poll released Thursday, with 16 percent undecided. That 8 percentage point margin is much smaller than at this point in the 2020 election. At that time, Biden was leading Trump by 23 percentage points among young people.
So, is Biden doing pretty well with younger voters, or not so well at all? It becomes even more confusing when you take note that both stories are about the exact same poll.
We pass this along, in part, because it's a very good reminder of the old line about "lies, damned lies, and statistics." It's relatively easy to massage poll results to tell a story, or to tell a near-opposite story. Mediaite used the numbers for registered voters (Biden gets 50%) and likely voters (Biden gets 56%). Politico used the numbers for all voters (Biden gets 45%). Needless to say, if you have to choose, then likely voters is going to be the most instructive of the three. And if you do that, then Biden's lead over Trump is 19 points, which is statistically indistinguishable from the 23-point lead Biden had over Trump at this time 4 years ago. Put another way, if you use the most relevant of the three numbers, then the entire angle of the Politico story vanishes into thin air.
The other reason we pass this along is that there are really no polls right now that are all that useful, since the election is still pretty far away, but there are some polls that are particularly un-useful. And we would have a hard time thinking of a more un-useful poll than this Harvard Youth poll. First, young people are the single most unpredictable demographic when it comes to whether they will vote or not, which means we're way, way, too far out to be polling them. Second, the Israel-Palestine situation (see above for more) is a massive wild card that could profoundly impact the youth vote in one direction or another. Until we know how that works out (or we know that it's not going to be worked out prior to the election), then polls of young voters are not much more meaningful than putting on a blindfold and picking numbers out of a hat.
On top of that, as if to seal the deal, the pollster asked the "right direction" question. This is the foremost example of a question that seems to convey useful information, but that actually tells us absolutely nothing when it comes to the election. For example, could someone believe: "This country is moving in the wrong direction, and the only solution is to elect Donald Trump, who will get these immigrants under control and will Make America Great Again"? Yes, they could. Could someone believe: "This country is moving in the wrong direction, getting closer and closer to a fascist takeover, and the only solution is to reelect Joe Biden, who is the only candidate who believes in democracy?" Yes, they could. So, absent a bunch of follow-up questions (which virtually never happens), the "right direction" question produces results that are absolutely meaningless.
Note that, on the whole, we like polls. Heck, they're the raison d'être for the site. But man, there's a lot of crap out there right now. (Z)
Today's Presidential Polls
We're not sold on either of these polls. Joe Biden and Hillary Clinton both won New York by 23 points; hard to accept it's now a 10-point state. And as to North Carolina, maybe Republican gubernatorial nominee Mark Robinson really is bad enough to drag down the whole ticket. But Meredith is a pretty mediocre pollster, so we'd want more data before we started believing that. (Z)
| State | Joe Biden | Donald Trump | Start | End | Pollster |
| North Carolina | 39% | 41% | Apr 11 | Apr 17 | Meredith Coll. |
| New York | 47% | 37% | Apr 15 | Apr 17 | Siena Coll. |
Click on a state name for a graph of its polling history.
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