A Quick Trial Update

We got opening statements and some spicy testimony.

Hey everyone. The Jackal is playing it fast and loose with releases these days to cover Donald Trump’s trial in New York, while also taking a look at the immunity arguments at SCOTUS (which are happening tomorrow). So, you will get this one today while the New York trial takes a break¹ and then you’ll get another one this weekend to wrap up the immunity case.

This was a reader submission and it makes me so happy. I love Colorado so much but New York is a special place.

So, we have a jury.

Justice Merchan runs a tight ship. Last week, I speculated that jury selection would take 1-2 weeks with his streamlined rules and he did, in fact, get it all done in the first week. Kudos.

So far we have gotten opening statements and some testimony from David Pecker, owner of the National Enquirer. The opening statements and Pecker’s testimony both give us an idea of where the prosecution wants to go.

Before we get into that, I should say we have no audio or video of this case and will have to rely on transcripts (or the reporters in the room). New York has graciously made the transcripts available for free, which is a break from the norm (thank you to the New York Daily News for pushing for it). From the transcript itself, you can see how Alvin Bragg is framing the case:

• Trump committed business fraud by altering his books to conceal the payments to Michael Cohen.

• Trump did this explicitly to hide all evidence of the agreement between himself and Cohen, and to conceal its effect on the 2016 Election.

Then, in the first round of testimony from David Pecker, we got a lot of details about how Pecker would engage in a “catch and kill” scheme to keep any bad news for Trump out of the headlines.²

Basically, the National Enquirer would track down people who had bad news stories related to Donald Trump and would pay those people for their silence. Pecker testified that one of those people was a doorman who said Trump fathered a child out of wedlock (Cohen has said this was a false story), and he was paid off by the Enquirer to keep the story out of the press.

Bragg’s team argued that Trump would use these tactics - involving both Cohen and Pecker - to control narratives about him leading up to the election, and the most important ones were related to Stormy Daniels and Karen McDougal. After the Access Hollywood tape was released, Trump’s team was doing a full court press on keeping nasty sex stuff out of the news. Trump’s team basically argued that these were ultimately just things that happened in politics: “It’s called democracy,” was the argument from Trump’s attorney.

That part of the argument isn’t all that convincing. Where Trump’s dog may hunt in this case was another argument: That Cohen was doing this mostly on his own and Trump - who was in the White House at the time - was just signing checks. As President, he could not be bothered to understand all the details of this case. Maybe that will convince the jury, although the prosecution pretty clearly showed that Trump was engaged in a conspiracy with Cohen and Pecker prior to the November election.

As a reminder: Cohen has already engaged in a crime related to this, and New York does not have to prove that Trump engaged in it too. All it has to show was that his falsification of business records was done with the intent to conceal the election crime. So, that is why we’ll be seeing the prosecution put a heavy emphasis on why Trump falsified his business records.

Trump’s defense attorneys are pretty good.

Trump’s attorney, Todd Blanche, gave the opening statement and I think he did pretty well. It is a reminder that his legal team in the criminal cases (Blanche is also defending him in the Mar-A-Lago case) is pretty serious.

There were a few things that stood out to me though. For one, there has been speculation that maybe Trump’s team would just cop to the business falsification and simply argue that it cannot be proven it was done with an intent to conceal Cohen’s crime. This would allow Trump to be found guilty of a misdemeanor and lose the felony element of the case. This would have to be decided on appeal, but it’s possible that a higher court would throw the whole thing out because a misdemeanor conviction would violate the statute of limitations on business fraud.

Blanche instead is arguing against everything, which may hint that he (or Susan Necheles) think the argument isn’t that strong. After all, Bragg already has two convictions under his belt with the exact same charges as Trump: A misdemeanor business fraud violation ramped up to a felony because it concealed another crime that was not charged.

I suspect that they are keeping it in their back pocket, but it sounds like their tactic will instead be to discredit Cohen and paint him out to be someone who simply wants revenge on Trump. That would come down to whether or not the jury believes Cohen or not and, in fairness, Cohen did write a book about Trump called, “Revenge.” He has also lied under oath. I remember talking to a former prosecutor years ago about Cohen’s testimony before Congress, and the prosecutor said he would never want to rely on someone like Cohen.

Another thing that stood out to me from the prosecution’s opening statement: They focused heavily on election interference as the crime Trump tried to conceal, and steered clear of any possible tax fraud. There has been speculation that New York would eventually state that Trump also committed tax crimes when he entered into his “agreement” with Cohen, and that would also escalate his misdemeanor to a felony. It doesn’t sound like they will be taking that route.

OK, whatever. When is Trump being held in contempt and going to prison?

There was also a separate contempt hearing yesterday and…it did not go well for the defense. At one point, Justice Merchan told Blanche that he was, “losing all credibility.” Ouch.

It sounded to me like Merchan is planning to find that Trump violated the gag order place on him, and will similarly find some sort of sanction to place on Trump. If you are thinking this will constitute jail time, you are dreaming. They are not marching Trump off to Riker’s to have him sit and think about what he did.

Is this unfair? Yes. Would he be punished if he were any other defendant? Of course. But he’s also a former President and, like it or not, it comes with some perks. Others have speculated that Trump will be sentenced to home confinement and I find that hard to believe too. I would ultimately expect a fine and not much else.

One of the reasons I have for this (and this is just a theory) is related to appealable actions in Trump’s cases. If you remember Trump’s civil fraud trial, Justice Arthur Engoron gave Trump a lot of latitude when it came to his actions in court. He chastised Trump occasionally, but would not enact super harsh punishments.

I think Engoron did so because Trump ultimately wants to fight these things on appeal, and court punishments (in general) tend to be reduced in higher courts (at least in New York).³ And if they are found to be excessive, it could send a case back. So, I think Engoron and Merchan are hyper-conscious of that and are trying to avoid it. It’s worth noting that when it came to sentencing, Engoron dropped the hammer, and that tends to be less successful on appeal. Maybe Merchan is planning to do the same.

Should-Reads:

• I thought this piece by David Axelrod was great.

• George Conway had a recap of the first few days of the trial.

• Michael A. Cohen has a jarring piece on the denialism of what happened on October 7th. Cohen wrote it in The Atlantic but I’m linking to his Substack here because he has other stuff in there too.

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So, there is the plan going forward: Try to do wrap-ups of the trial at some point during the week, and then do more general pieces at some other point. Does this mean there will be two Jackals a week? Maybe. But it definitely means that the schedule will be a little wild for the next few weeks. Buckle up. We crazy.

1. Justice Merchan has other duties on Wednesdays, so he has said the court won’t meet those days, but that could change if they fall behind.

2. Pecker is engaged in a non-prosecution agreement, which is more or less a form of immunity, but it’s not blanket immunity.

3. We got a preview of that when the appeals court in New York lowered Trump’s bond in his civil fraud case.