Opening Statements: Catch-and-Kill to Elect Trump

For starters, some important news: The state of New York will make daily transcripts of the trial available. They announced each day’s transcript would be available by the end of the following day. You can also find key pleadings and orders at the link. Bookmark it and you can follow up on any specific parts of the day’s proceedings that interest you.

Today, the gag order hearing will certainly catch a lot of attention. We discussed the Judge’s option under the law Monday night, in the “Week Ahead” edition of the newsletter (scroll down to paragraph 17). Today, there was more. Donald Trump walked out of the courtroom and violated the gag order again. This statement was a clear violation of the gag order: “When are they going to look at all the lies that Cohen did in the last trial … He got caught lying. Pure lying. When are they going to look at that?” The gag order prohibits Trump from talking about witnesses’ involvement in the investigation or the trial. The violation is plain.

Then, Trump moved on to an interview on Real America's Voice, Steve Bannon’s network, where he reportedly said, "That jury was picked so fast. 95% are Democrats. The area is mostly all Democrat. You think of it as a purely Democrat area. It's a very unfair situation that I can tell you." The gag order also prohibits him from making comments about “any juror.” Perhaps, in true Trumpian fashion, he’ll claim the comment was directed towards the whole jury, not any individuals. That’s all he has left, some sort of appeal to a hypertechnical reading of the gag order to claim he didn’t violate.

We’re at the point we began to discuss weeks ago where Judge Merchan will have to either show Trump the gag order has teeth or concede that it’s meaningless and that Trump can do whatever he wants. Like he did today. Judge Merchan being a thoughtful, experienced jurist, I expect we’ll see him begin to enforce it tomorrow. That means we’re in for a day of Trump’s theatrics and an appeal to his base. But the Judge has a case to try in front of a jury, and if that jury is going to avoid both prejudice and threat at Trump’s hands, the Judge will have to act decisively tomorrow.

As for today, we got opening statements from both sides and a few minutes of testimony from the first witness who, as expected, turned out to be David Pecker. We’ll leave his testimony for tomorrow, when we’ve seen more of it, and focus first on the opening statements.

Before they began, Judge Merchan gave the jury the same instructions that jurors receive in every criminal case. But they had a fresh resonance here with Donald Trump in the dock. He instructed them that a defendant is not required to prove he is not guilty and that it is up to the people to prove each element of the charged crimes. The Judge instructed jurors that if they were not “convinced beyond a reasonable doubt” that Trump is guilty, then they must find him “not guilty.” But, he told them, if the government proves its case beyond a reasonable doubt, “you must find him guilty.”

Proof beyond a reasonable doubt isn’t proof beyond “all possible doubt.” The Judge will undoubtedly instruct the jury on this further before they deliberate. A frequently used example is that proof beyond a reasonable doubt is the level of proof you would need to act on an important issue in your own personal affairs. It’s not proof to a moral certainty. This leads to an important point about criminal trials: jurors aren’t deciding whether a defendant is guilty or innocent. They are only deciding whether he has been proven guilty or not been proven guilty. 

The People

Prosecutor Matthew Colangelo's first line: "This case is about a criminal conspiracy and a cover-up."

He told jurors that Donald Trump tried to corrupt the 2016 election, then he covered up that conspiracy by “lying in his New York business records over and over and over again.” This is the statutory charge that Trump created false business records to aid in the commission of or conceal another crime.

Colangelo walked the jury through the origins of the scheme with an August 2015 meeting Trump invited David Pecker to at Trump Tower, where they were joined by Michael Cohen. The catch-and-kill conspiracy was hatched shortly after Trump announced his candidacy. There were several successful catches and kills. One involved Playboy model Karen McDougal, who had a story about a long term affair with Trump. Colangelo previewed the evidence for the jury, telling them that, “Cohen went to the defendant and the evidence will show that the defendant desperately did not want this information to go public and he was worried about the effect on the election.” Apparently, Cohen made a tape of the call where they set up the scheme to catch and kill McDougal’s story, and the jury was promised they would get to hear it.

Then, the Access Hollywood tape was released. Colangelo told jurors, “the impact of that video on the campaign was immediate and explosive.” That led to the payment to Stormy Daniels, because of concerns that anything else would topple the campaign. He read the jury some of the now-notorious language Trump used in the Access Hollywood tape, including “grab them by the p*ssy,” explaining that as a result, endorsements of Trump were withdrawn, and the Republican National Committee considered whether they were too late to replace their nominee.

Colangelo called Trump’s scheme with Pecker and AMI “a planned, coordinated, long-running conspiracy to influence the 2016 election” by silencing people with something bad to say and doctoring the records. “We’ll never know, and it doesn’t matter,” Colangelo said, “if this conspiracy was a difference maker in the close election.” 

Colangelo rehearsed the details of how Cohen paid Stormy Daniels and was reimbursed, the core of the crime Trump is charged with. The people will offer both testimony and documents to prove their claims. Because he’s central to much of the story, prosecutors would have undoubtedly liked to have Trump’s CFO Allen Weisselberg as a witness. But second best is the damage he’s done to himself if he tries to testify for Trump—he’s currently serving a misdemeanor sentence for lying to protect him.

Of course, Cohen, too, is a convicted liar. But his story is different. He pled guilty, came clean, and has told a consistent story, corroborated by others, since then. The people will acknowledge Cohen is deeply flawed. “Cohen has made mistakes in his past … Michael Cohen has a criminal record,” Colangelo told the jury. But look for the prosecution to hammer home in their closing argument who picked Michael Cohen as a witness in this case: Donald Trump.

Everything Cohen says will be corroborated. Colangelo tells the jury that his backup will come from witnesses like David Pecker and Keith Davidson. They’ll also see emails, texts, phone logs, business documents, and, "Donald Trump’s own words on tape, in social media posts, in his own books and in videos of his own speeches”

Colangelo gave the jury a road map that will help them understand the evidence as it comes in and a framework for evaluating the crimes the people have charged. That’s the prosecution’s job in opening statement. It’s nothing flashy. It’s laying a solid foundation to build a case on, and they did a stellar job today.

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The Defendant

Trump’s lawyer, Todd Blanche, started with this: “President Trump is innocent. President Trump did not commit any crimes. The Manhattan District Attorney's Office should never have brought this case.”

Blanche’s job in opening was different than the prosecution’s. Instead of building a base to develop, he’s looking for one or more holdout jurors and hoping to give them a strong narrative they can hold onto, to refuse to convict. While there’s a chance the defense might be able to exploit some technical flaw in the prosecution’s case and seek a true acquittal, that would be unusual. Having two lawyers on the jury who may be in tune with technicalities, though, means that the prosecution will have to be extremely thorough. It’s as likely that Blanche was talking to those jurors as to anyone else when he began to set the table for a “not guilty” narrative.

There was an awkward moment when Blanche tried to present his client as just a regular guy. “He's not just Donald Trump that you've seen on TV and read about and seen photos of. He's also a man. He's a husband. He's a father. And he's a person, just like you and just like me.” Blanche also focused, perhaps at the request of his client, who repeated the same theme to the press as he exited the courthouse, on the idea that the conduct in this case occurred years ago: “Most of the documents are from 2015, 2016, 2017, years and years ago, pre-COVID. And you're going to hear witnesses talk about conversations, meetings, people they met with from 2015.” Perhaps this will become a subtle effort at jury nullification, with the argument being that this conduct is too old for jurors to care about. Legally, that’s irrelevant, and Trump’s team has been prohibited from arguing that this is a political prosecution, which is where this would seem to be headed. But this theme is worth keeping an eye on, but it seemed to be a focus.

The real question is whether Blanche overpromised. It’s one thing to dig away at the government’s proof and say there are questions about whether it’s adequate. Blanche went beyond that, “The story that you just heard, you will learn, is not true.”

But he did seem successful at flagging some potential areas for the jury to play close attention to. Blanche suggested that invoices were processed and records were made in ledgers by people who weren’t Trump, that he signed the checks because he was the signatory on the account, not because he was aware of the true nature of the transaction. It’s the same defense that kept Trump from being indicted when Weisselberg and the Trump Organization were convicted on criminal fraud charges. This is the reasonable doubt argument—Trump was just signing off on what looked like legitimate legal bills to him.

If prosecutors can make good on their promise that they have first-hand conversations, backed up by other documents that establish Trump’s knowledge and participation, this dog won’t hunt (as southern prosecutors say). Blanche’s promise to the jury was that “You'll learn President Trump had nothing to do with any of the 34 pieces of paper, the 34 counts, except he signed on to the checks, in the White House while he was running the country. That's not a crime.” That sounds good, but there’s no reason to believe prosecutors have overclaimed their evidence—that would be a foolish strategy, and these are not foolish prosecutors. In the end, it may well be Blanche and by extension, his client that the jury holds accountable for broken promises.

The defense theme in opening statement was that Donald Trump is not responsible for what Michael Cohen did. Trump’s problem is that the people appear to have receipts.

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One final thought: Defendant Trump could survive a trial without the risk of going to prison if he is acquitted or if even one juror refuses to convict because they are convinced the people haven’t proved their case against him. But Candidate Trump needs more. He needs to be able to walk away and credibly claim that he’s actually innocent. That’s unlikely here. This case is far more likely to come down to the amount of proof, not some mysterious revelation that Trump did nothing wrong leading to exoneration. Absent some tale of innocence it’s likely that Trump will try to burn down the legitimacy of the legal system to save himself.

How the story of the case is told to the public will be critical, especially since it’s not televised. Having transcripts is great, but reading them every day is a major commitment. We know that people who aren’t following along will get much of their news from trusted sources, people who are close to them. So make sure you stay up to speed and talk with people around you. Make sure you share what you’re seeing, reading, and thinking.

We’re in this together,

Joyce