Courting Disaster

Over the weekend, Donald Trump called for the arrest of Jack Smith, the Special Counsel who has indicted him in both the election interference case in Washington, D.C., and the classified documents case in the Southern District of Florida. Trump posted, “ARREST DERANGED JACK SMITH. HE IS A CRIMINAL,” on Truth Social late Friday. Then, at a closed-door retreat for Trump donors over the weekend, he called Smith “an evil thug,” “deranged,” and as reported by the Washington Post, a “f***ing a**hole.” Trump said Democrats were “running a Gestapo administration.”

All of this is sadly consistent with Trump’s plans for his second term, which we’ve been discussing for the last week here and here. Trump’s plans include fully weaponizing the Justice Department to engage in revenge politics. Prosecuting the prosecutors, and touting it in advance, captures what we’ve seen reading Project 2025 and Trump’s comments together. There is no pretense that Trump would take office as anything other than an authoritarian leader, unconcerned by the rule of law. It’s a stern reminder that we are being realists, not alarmists, when we talk about how devastating a second Trump presidency would be.

Judge Merchan held Trump in contempt, again, today. As expected, he did not jail him today, since this violation, the one where Trump claimed the jury pool was full of Democrats trying to get onto his jury, occurred before the Judge issued his contempt order last week, where he said future violations could result in jail time. “Could” is not absolutely will, though, which is disturbing because any other defendant would have faced that more serious sanction by now. But it’s apparent that the Judge faces the reality of what it would look like to jail a former president, even for a brief period of time. The Judge told Trump he didn’t want to have to jail him.

But it’s clear that the Judge is not giving Trump a pass. He noted that Trump “not only called into question the integrity, and therefore the legitimacy of these proceedings, but again raised the specter of fear for the safety of the jurors and their loved ones.” He called what Trump did “a direct attack on the rule of law,” and, acknowledging that the fines were insufficient to rein in Trump’s behavior, reflected that it was his responsibility to protect the trial process.

Trump is on notice—if the Judge assesses any future violations as “appropriate and warranted,” they are “punishable by incarceration.” The prosecution estimates it will take them about two more weeks to finish their case. We’ll see if Trump can keep his composure for that long, especially when Michael Cohen takes the witness stand and if Stormy Daniels does.

Trump’s response was predictable—an “all hands on deck” call for fundraising. It’s always about the grift.

As the trial in Manhattan continues, it’s increasingly clear that this case isn't about any one witness. No one can testify to everything the government has to prove, but each witness has offered one or more essential pieces. And today, we got to the documents themselves, the checks bearing Trump’s signature and the invoices reflecting the delivery of legal services that were never delivered.

The documents that the jury saw today—the invoices, the checks/check stubs, and the ledgers—are the star witnesses. Former employee Jeffrey McConney authenticated the invoices as Trump Organization business records. That has to happen before they can be admitted into evidence. They purport to reflect payment for legal services pursuant to a retainer agreement with Michael Cohen. Prosecutors maintain that’s what makes them false, because they were really repayment to Cohen for his outlay to pay off Stormy Daniels. Trump Organization accounting department employee Deborah Tarasoff also took the witness stand—she’s been with Trump for 24 years and is a current employee. She, too, authenticated some of the documents that are relevant for each of the indictment’s 34 counts.

Where were we at the end of the day? In addition to the technical stuff necessary to prepare for formally introducing the documents that are essential to the case into evidence, the People have done a pretty good job of establishing they were false business records. As Andrew Weissmann pointed out, even Trump’s lawyer, Emil Bove, in an apparent slip, managed to elicit testimony—from McConney—that the payments to Cohen were “reimbursement,” even though they reflected payments to Cohen for legal services.

That’s partway there. Still to come is the People’s formal proof of the crime the records were intended to aid the commission of or conceal, and Trump’s knowledge of the scam. The fact that the payment to Cohen, disguised as income, had to be “grossed up” beyond the $130,000 owed to Cohen to make sure he didn’t go into the hole on taxes is one clue to where the prosecution is headed, as well as the fact that there are campaign finance implications to a deal like this.

The best explanation of the amount of the payments to Michael Cohen and how they work comes from the federal indictment of Cohen in the Southern District of New York. There is also a $50,000 payment requested by Cohen, apparently to reimburse him for paying for poll rigging. Cohen ends up being paid $420,000 in monthly increments, well over the $130,000 plus $50,000 he submitted for. Trump’s lawyers have yet to suggest an innocent explanation for that, or any explanation that contradicts the prosecution’s theory. And Weisselberg added on a $60,000 bonus. Trump is cheap, there has been testimony he told employees to negotiate his bills. All of this reinforces the prosecution’s theory.

There are still miles to go. The defense continues to effectively confirm that the witnesses so far haven’t been able to connect Trump to the scheme. But the prosecution is doing a good job of supporting Cohen’s credibility in advance of his testimony, so that much of what he will testify to has been corroborated in advance, and the inevitable cross-examination hammering of him for lying may not be as impactful as it would have been if it had happened straight off the top. Trump’s lawyers are still looking for the one or two jurors who will refuse to convict, as the prosecution continues to lay down compelling evidence.

An interesting side note: It was Jeffrey McConney’s son Justin, fresh out of film school, who was Trump’s first social media manager. Before he arrived on the scene, Trump didn’t know how to use social media. In 2013, Trump posted his first tweet, an innocuous thank-you to someone who complimented him publicly. After leaving the company in 2017, Justin McConney said, “The moment I found out Trump could tweet himself was comparable to the moment in ‘Jurassic Park’ when Dr. Grant realized that velociraptors could open doors. I was like, ‘Oh no.’”

We’re in this together,

Joyce