After four weeks in court, prosecutors signaled that the first-ever criminal trial of a former American president will be coming to an end.
Former President Donald Trump was charged by the Manhattan District Attorney with 34 counts of falsifying business records, normally a misdemeanor charge, but in this case prosecutors allege the records were created to cover up a scheme to influence the 2016 election and therefore constitutes a felony.
Testimonies got heated this week, and President Trump’s gag order is still in effect, preventing him from commenting on new allegations about his character. New York Supreme Court Justice Juan Merchan found no reason to narrow the gag order to allow President Trump to comment on testimonies, and the appellate division has yet to rule on an appeal of the gag order by the defense. The defense also moved for a mistrial twice this week based on a key witness’s testimony, and the judge denied both motions.
Case Is Wrapping Up
On May 10, prosecutors told the judge that they plan to call just two more witnesses.“I think it’s entirely possible that we will rest at the end of next week,” said prosecuting attorney Joshua Steinglass on May 10.
This means trial next week will likely feature more than one day of testimony by Michael Cohen, who made the original claims leading to the case. The falsified records alleged in the case are 11 checks Mr. Cohen received and their corresponding invoices and vouchers. The defense says Mr. Cohen was paid attorney’s fees, while prosecutors allege the legal expense categorization of these payments were falsified to cover up “hush money” payments.
Attorneys said in court on May 9 that prosecutors no longer plan to call model Karen McDougal as a witness. A lot of earlier testimony had focused on a non-disclosure agreement Ms. McDougal signed to hand over exclusive rights to her story about an alleged affair with Donald Trump to American Media Inc. That contract is not part of the charges in this case, but prosecutors set up the deal as a precursor to a deal signed by adult performer Stephanie Clifford, better known by her stage name Stormy Daniels, and Mr. Cohen that is central to the charges.
Weisselberg May Be Absent
Former Trump Organization CFO Allen Weisselberg’s role is significant, as he had authorized the $420,000 to be paid to Mr. Cohen as monthly payments throughout 2017.Prosecutors have entered into evidence a bank statement of Mr. Cohen’s that showed a wire of $130,000, and handwriting on the document that add various sums to the figure until it totaled $420,000. During opening statements, the prosecution argued this alleged hush money reimbursement to Mr. Cohen was written in Mr. Weisselberg’s own hand, and suggested the large increase from $130,000 to $420,000 was evidence toward a cover-up.
But Mr. Weisselberg is currently in prison on a five-month sentence for perjury in a civil case against President Trump that went to trial last fall.
Prosecutors sought to admit into evidence Mr. Weisselberg’s severance agreement with The Trump Organization, arguing that the confidentiality and non-disparagement agreement he signed is the reason he cannot testify for the government. Mr. Weisselberg is set to receive $750,000 in three payments this year as part of that severance agreement, and he would lose that if he violates the terms.
Defense attorneys opposed the admission of the agreement for that reason, arguing that Mr. Weisselberg’s absence was much more complicated, involving a perjury plea deal.
They also argued against the prosecution’s decision to no longer call Mr. Weisselberg as a witness.
“We’re not able to elicit testimony that would potentially impeach some evidence that’s been offered,” argued defense attorney Emil Bove on May 10.
“Right now it seems to me that we’re kind of trying to jump the gun. We’re trying to explain why he’s not here, without making every effort to get him here,” the judge said.
Justice Merchan suggested Mr. Weisselberg be put on the witness stand outside the presence of the jury so that the judge could go through and determine whether Mr. Weisselberg is unable to testify.Will Messy Testimony Hurt or Help Trump?
This week, Ms. Clifford testified over the course of two days. Attorneys and the judge all found her to be a “difficult to control” witness who frequently responded to questions with commentary that did not directly answer the question and often provided “unnecessary” details.Her testimony about her alleged sexual encounter with Donald Trump in 2006 was colored with descriptions of how fearful she felt and a power imbalance between them. Defense attorneys moved for a mistrial after her first day of testimony, arguing that her statements were “extremely prejudicial” and would influence the jury on issues far beyond the scope of the business record charges that the case is about.
Justice Merchan denied the motion, and faulted defense attorneys for not objecting more during the testimony. He pointed out that he had intervened himself, striking a “trailer park” comment Ms. Clifford alleged Mr. Trump made about her even though the defense did not raise an objection.
He said he “did not understand” why the defense did not object to some of the details Ms. Clifford shared.
After the second day of Ms. Clifford’s testimony, defense attorneys moved to narrow the gag order to allow President Trump to respond to new allegations Ms. Clifford made that the encounter may not have been consensual. The judge denied that motion, and the subsequent motion for a mistrial raised by the defense, again faulting attorneys for not objecting more and pointing out he had interjected himself.
He noted that because the defense did not object, prosecutors were allowed to pursue that line of questioning. Prosecutors had argued that some detail was necessary to establish Ms. Clifford as a credible witness telling a truthful story.
However, Ms. Clifford’s overly detailed testimony was also dotted with inconsistencies, and defense attorneys sought to highlight these. The defense aimed to cast Ms. Clifford as an opportunist who had altered her story and stance over the years to better monetize it. Ms. Clifford defended her change in statements as technically accurate.
Outside the courtroom, President Trump said it had been a “revealing” day in court after Ms. Clifford’s testimony. He ignored shouted questions from reporters of whether he was unhappy with his attorneys’ performance or thoughts on their failure to object to certain statements.
Instead, he referenced stacks of printed op-eds by legal scholars and commentators, saying the testimony in the case had sprawled far beyond the business charges, showing that prosecutors had “no case.”
Gag Order Appeal
Ahead of Mr. Cohen’s testimony, defense attorneys have also filed a motion in the appellate division over the gag order.The order prohibits President Trump from making statements about any witness, regardless of their profile. Defense attorneys have argued that Mr. Cohen does not need to be covered by a gag order, as he has sought out public attention and has persisted in posting and speaking publicly about President Trump and the case throughout the trial.
On May 10, defense attorneys asked Justice Merchan to impose a gag order on Mr. Cohen as well, arguing there was such a precedent for such an order.
Prosecutors said they had repeatedly instructed all witnesses not to make public statements, but “the fact is, we have no control over what they do.”
Justice Merchan asked prosecutors to tell Mr. Cohen that the court is asking him to refrain from public comments about the case, but stopped short of a formal order.
When Mr. Cohen testified last fall in a civil case against President Trump, the trial court judge had ordered him to refrain from speaking about his testimony to anyone after Mr. Cohen appeared in court.
President Trump has made constant reference to his gag order over the past week, as questions about testimony and witnesses are frequent.
A few times, he told reporters he would like to answer their questions, but could not.
“If I mention the wrong word, they'll take me out to jail someplace,” he said on May 10. “That’s the way it is with this judge because he wants to show how tough he is.”
The judge had found President Trump violated the gag order 10 times via social media and campaign website posts, which have since been taken down. After issuing $1,000 fines for each violation, he warned President Trump that it appeared the fines were no deterrent so he would be contemplating jail time if prosecutors requested it for further violations.
Further complicating matters is the fact that statements outside the courtroom are not all the gag order prohibits. On May 7, during Ms. Clifford’s first day of testimony, President Trump had made faces and comments to his attorneys while Ms. Clifford was on the witness stand.
During a sidebar with the judge, defense attorneys were told they should ask their client to refrain from doing so, as the judge could deem it witness intimidation in violation of the gag order.
If Mr. Cohen’s testimony in front of President Trump last fall is any indication, he is also likely to give colorful and unasked-for commentary during questioning on the witness stand, to which President Trump will not be allowed to respond.
