The Results of the Sandoval Hearing: Cross-Examining Trump?

Quick Programming Note: To avoid another monster post like last night’s, I’ll try to break it up and address discrete issues, like the Judge’s ruling here, as stand-alones where possible, so you can get your trial updates in bite-sized pieces. This is a quick note closing the loop on Judge Merchan’s Sandoval rulings. Tonight we’ll move on to opening statements.

On Friday we talked about the Sandoval hearing, which involves the Judge’s rulings on what prior crimes and bad acts Trump can be cross-examined about if (and that’s a big “if”) he takes the witness stand. This morning, as promised, Judge Merchan issued his decisions before opening statements began.

We reviewed the prosecution’s requests (find the chart showing all of them here) last week. They wanted permission to ask Trump about 13 incidents related to six different cases, including the New York AG’s civil fraud case where five of the requests came from. Judge Merchan ruled that if Trump takes the stand, prosecutors can ask him about six of those incidents, coming from four separate proceedings, including the two cases brought by E. Jean Carroll:

• The New York AG Civil Fraud Case:

The Court found Trump falsified business records.

Trump violated the gag order by failing to remove an untrue post about the Judge’s clerk and was fined.

Trump continued to violate the gag order by continually attacking the clerk and was subjected to increasing fines.

• The E. Jean Carroll Defamation Cases:

Trump defamed E. Jean Carroll by making false statement

The false statements were made with actual malice—Trump knew they were false and made them anyway

• The New York Attorney General’s successful case against the Trump Foundation, which resulted in its dissolution and a finding, the Foundation engaged in repeated and willful self-dealing, like the purchase of an expensive six-foot-tall portrait of Trump. Interesting fact: Michael Colangelo, who opened for the people today, ran this case against Trump in a prior position with the New York AG’s office.

This would be enough to keep most defendants off the stand. Cross-examination usually takes the form of yes or no questions, and the prosecution will ask the Judge to direct the witness to answer the question without more—no spouting off. Trump won’t be able to throw around his usual spate of accusations. He won’t be able to accuse prosecutors of being out to get him. The prosecution will ask, for instance, “did a jury conclude you made false statements about E. Jean Carroll and that you knew they were false and made them anyway?” Trump will have to answer, “Yes.” If he doesn’t, the Judge will instruct the jury to ignore any stray remarks and tell Trump to answer. You can imagine this rapidly going downhill.

Trump’s lawyers really don’t want him on the stand. There are a number of obvious reasons—his tendency to lie and make mistakes like identifying E. Jean Carroll as his second wife Marla Maples after saying she wasn’t his type. But facing cross-examination over his prior lies and fraudulent behavior will be chief among them.

They have a good out. Trump’s legal team can push hard to keep him off, telling him that their strongest argument is that the government failed to meet its burden of proving Trump committed crimes beyond a reasonable doubt. If Trump takes that advice, it gives him the public out of saying the government’s case was so weak it wasn’t even necessary for him to take the stand. Look for him to do that when we get to that point!

A couple of notable exclusions in the Judge’s ruling. Prosecutors can’t ask Trump about the jury verdict in the E. Jean Carroll case that concluded he had sexually assaulted her. They can’t go into Trump’s lawsuit against Hilary Clinton, where he was sanctioned for bringing a “completely frivolous” case and the Judge described him as a sophisticated litigant. Nor can prosecutors inquire about the successful criminal case against the Trump Organization that did not include Trump himself.

During the Sandoval hearing on Friday, lead prosecutor Matthew Colangelo argued to the Judge that, “There is a particular need for the people to introduce evidence to assess the defendant’s credibility,” if Trump testifies. He told the court the people would “make witness credibility the centerpiece for the trial” if he did.

Here’s a rare prediction from me: If Trump takes the witness stand it will be gory. And it will end with a quick vote to convict from the jury. I don’t think he will, but with Trump, one can never be certain.

We’re in this together,

Joyce