W hen former president Donald Trump’s “hush money” trial resumes in Manhattan on Thursday morning, if you know what you are looking for, you’ll get a real sense of how Judge Juan Merchan is orchestrating Trump’s conviction.
Prosecutors from the office of Alvin Bragg, New York County’s elected progressive Democratic district attorney, are expected to finish their direct examination of Keith Davidson. He’s the dodgy lawyer who, during the 2016 campaign, helped Playboy model Karen McDougal and porn star Stormy Daniels pressure — extort is such a harsh word — big paydays from Trump and his associates in exchange for maintaining their silence about extramarital affairs they claim to have had with Trump a decade earlier. Davidson will then be turned over to Trump’s lawyers for what media reports are predicting will be a tough cross-examination that may keep him on the stand for the rest of this week.
Now, if I were Trump’s lawyer seated at the defense table near the jury box, I’d be tempted to do crossword puzzles, play solitaire, and otherwise quietly convey to the jury that I didn’t have a care in the world about Davidson’s testimony because it wasn’t hurting my client.
Nondisclosure agreements, which is what Davidson negotiated for McDougal, with Trump pal David Pecker’s National Enquirer, and for Daniels, with Trump’s then-“fixer” Michael Cohen, are perfectly legal. Naturally, Bragg is drawing a lot of attention to the salacious aspects of the story to distract attention from the legality of NDAs — and, of course, to damage Trump politically, which is the main purpose of the prosecution. The best way to combat such a strategy is to act like this is all a sideshow so the jury knows it’s a sideshow.
Tough cross-examination? I’d consider asking no questions. But if I did ask a few, they’d be along the lines of querying Davidson about how many times he met with Bragg’s prosecutors to rehearse his testimony. I would also elicit from him whether Bragg had ever charged him or his clients with conspiracy to “promote . . . the election” of a political candidate by “unlawful means.” That is the misdemeanor offense, codified in §17-152 of New York’s election law, that Bragg claims may be — may be — the “other crime” that Trump was fraudulently trying to conceal by causing his business records to be falsified.
Prosecutors have been telling the jury that this “conspiracy” — which is neither charged in the indictment as the U.S. Constitution requires, nor included in the business-records statute under which Trump has been indicted (§175.10 of the penal law) as New York’s constitution requires — involved only Trump, Pecker, and Cohen. But that isn’t true.
Under Bragg’s theory, the silence of McDougal and Daniels were services provided to the Trump campaign; and Davidson schemed with his clients and Trump’s associates to conceal from the public that Trump’s campaign had paid for their silence. In fact, Davidson and Cohen worked out a pseudonym-laden nondisclosure contract in which Trump was referred to as “Dennis Dennison” (Davidson’s suggestion, using the name of a high-school hockey teammate) and Stormy was “Peggy Peterson.” This was done to help the Trump side hide that he, and derivatively his campaign, were behind the $130,000 paid to Daniels, which Bragg insists should have been disclosed under federal campaign-finance laws.
The lack of disclosure under federal law — which Bragg has no authority to enforce — is what prosecutors contend is the “unlawful means” by which the “conspirators” sought to “promote” Trump’s election, in violation of §17-152. So, I might just elicit from Davidson that Bragg never charged him, Stormy, or McDougal — or for that matter, Cohen, Pecker, or even Trump — with that conspiracy crime. Nor, of course, did the Justice Department or the FEC allege that Davidson and his clients violated federal campaign law by knowingly helping the Trump campaign conceal the nondisclosure payments.
Finally, I might ask how many nondisclosure agreements Davidson had negotiated in his career as a lawyer, and out of those, how many had resulted in fraud prosecutions. I suspect his answers would be many and zero, respectively.
That kind of very not-tough cross-examination would probably take about ten minutes.
So why is the media anticipating, correctly I suspect, that Davidson is in for a couple of days of tough grilling? Well, because Judge Merchan allowed Bragg’s lawyers to tell the jury that the payments to the women were illegal; that Pecker’s company had to pay a fine to the FEC and, to avoid criminal charges, enter a non-prosecution agreement with the Justice Department; and that Cohen pled guilty to federal campaign-finance felonies and went to jail over these payments.
In point of fact, NDAs are legal. NDA payments are technically not campaign expenditures under federal law. The states of mind of Pecker and Cohen are legally irrelevant to the question of whether Trump committed a crime. Moreover, evidence of deals cut by Pecker and the guilty pleas of Cohen should have been inadmissible evidence in a trial of Trump.
Nevertheless, because Merchan admitted the evidence and has allowed the prosecutors to frame the case for the jury as a “conspiracy” to steal the 2016 election by concealing damaging information in violation of federal campaign law, Trump and his lawyers are in an impossible spot. Instead of doing crossword puzzles and playing solitaire, they naturally feel like they must respond to the state’s evidence — otherwise it looks like they have no defense.
And how are they responding? In ways that will get Trump convicted.
Rather than just saying that none of this was illegal, Trump lawyers have taken the tack of blaming everything on Cohen. They stress that Cohen never, in so many words, told Pecker that Trump said to make a nondisclosure deal with McDougal — in fact, they’re saying Trump did not believe in NDAs because he figured the story always comes out anyway, so why pay? With Davidson, Trump’s lawyers will stress that all of his dealings were with Cohen, that Cohen avoided mentioning Trump’s name (i.e., Davidson was assuming Trump’s involvement but did not know for certain), and that Trump (or “Dennis Dennison”) never signed the NDA — for which Davidson and Stormy were paid by Cohen, not Trump.
That is, Trump’s lawyers, by their response, which has been forced by Judge Merchan’s rulings, are powerfully signaling to the jury that the NDAs — far from being legal — must be very bad. Hence, they must distance Trump from them.
This is not going to work. In fact, it’s laughable.
The NDAs were almost exclusively for Trump’s benefit — Cohen, who worked for and was paid by Trump, only indirectly benefitted from the NDAs to the extent his labors produced outcomes Trump wanted. The jury is going to hear from Cohen that he was acting at Trump’s direction — and while Cohen is a loathsome person, there is no doubt that he was working for Trump and that Trump used him precisely because he was willing to do loathsome stuff. And of course, Trump reimbursed Cohen for the Stormy NDA (the basis for the business-records falsification counts that actually are charged in the indictment). Trump, in addition, is heard, in a recording that will be played for the jury, discussing the McDougal NDA with Cohen.
By the end of the case, the jury is undoubtedly going to dislike Cohen. After all, jurors will have sat through hours of testimony about his perjury and fraud convictions, double-dealing, Trump sycophancy, Trump derangement, threatening manner, selective memory, and propensity to blame everyone but himself for his troubles. When they give their summation argument, however, prosecutors are going to tell the jury something along the lines of, “Michael Cohen was not here testifying because he is our guy; he was here because he’s the defendant’s guy. And all the things you understandably dislike about Cohen are exactly the things that made him useful to Donald Trump, who kept Cohen around for years — and whose ‘defense’ here is that Cohen was his lawyer, on whom he relied.”
Trump’s defense is playing right into Bragg’s hands. But never forget that it is happening because Judge Merchan has allowed prosecutors to tell the jury that legal conduct was illegal conduct. When the defense has objected, Merchan has sharply overruled Trump’s lawyers; that can only persuade the jurors that Trump’s defense, not the prosecution, is trying to pull the wool over their eyes.
That’s how you get Trump convicted.