The Week Ahead

April 28, 2024

Trial doesn’t resume in Manhattan until Tuesday. But the District Attorney’s trial strategy is already taking place before our eyes. As a first witness, David Pecker outlined the scheme the People have charged Donald Trump with and began to put some flesh on the bones. Equally importantly, both he and Rhona Graff, Trump’s former long-time aide and apparently still friend—Trump is paying her legal bills although she no longer works for him—began the validation of what the jury will hear from Michael Cohen. The DA’s office understands the vulnerability of Cohen as a key witness and has begun the process of corroborating him before he takes the witness stand, drawing some of the sting out of the brutal cross-examination that is sure to follow his direct testimony. They are also establishing that some of the events he will testify to happened through other sources, to bolster his credibility out of the gate.

Pecker’s testimony laid the framework for the whole idea of catch-and- kill-to-elect-Trump. Yes, the National Enquirer had used catch-and-kill schemes before for others like Arnold Schwarzenegger, but never as Pecker did with Trump, in a way that was contrary to the Enquirer’s bottom line. Stories about Trump that would have generated profits were purchased and shelved, clearly a contribution to the campaign. And Graff, the then-keeper of Trump’s Rolodex, provided an important piece of corroboration when she testified that both Karen McDougal and Stormy Daniels were in Trump’s contact list. That’s important because it shows that rather than just women peddling fake stories about affairs, which is what Trump’s lawyers are likely to suggest, they were women whose contact information he wanted to hold on to. This punches a big hole in the suggestion Trump-world has floated that Stormy had approached Trump for a gig on the apprentice but he wasn’t interested.

Expect Cohen’s testimony to be sandwiched in between some of the essential but less marquee-quality witnesses the DA will need to put on to establish the elements of their case. Unless they’re feeling awfully confident about him, it would be a surprise to see him testify last, because that would mean his cross-examination would be one of the last things the jury would see. Recency matters as much to prosecutors as primacy does, and they’ll want to make sure they end their case on a high note.

I’ll be watching carefully to see where Hope Hicks ends up in the witness order. If she’s only there to confirm that the meeting Pecker testified to, the one at Trump Tower between himself, Trump, and Cohen, did, in fact, take place, she may be sandwiched in the middle. But if she has something more explosive to establish, if she, for instance, can confirm some of the details of that conversation because she overheard them and has decided to cooperate fully, she could be the final linchpin witness. One of the surprises of Pecker’s testimony was that he had a cooperation agreement with prosecutors. Nothing we know suggests Hicks has criminal exposure or had a change of heart that has caused her to abandon Trump, but it’s not impossible that there might be more unexpected revelations coming in the DA’s case.

Judge Merchan still hasn’t ruled on the People’s request that he sanction Trump for violating the gag order. Speculation about the reason for the delay is rampant. The Judge could rule anytime. He has also scheduled a hearing on Thursday over additional violations the DA’s office has brought to his attention. This is the third set of alleged gag order violations against Trump.

There is reporting the date for this hearing is now Thursday

This is it. Either Judge Merchan enforces the gag order or Trump knows he can continue to violate it with impunity. Or has the Judge forged a middle ground? It’s interesting that Trump’s conduct seems to have improved somewhat with the decision hanging over his head; none of his recent “truths” have been attacks on witnesses, for instance. The Judge may believe his best leverage to bring Trump into compliance exists in the period with the show-cause orders pending and no final decision. Because the Judge mostly just wants Trump to quit it so the trial can proceed with as little hassle as possible, he may have decided he now has the defendant where he wants him. We’ll learn more on Thursday, if not before.

In the Mar-a-Lago case, Wednesday brings the disclosure of a mostly unredacted version of Trump co-defendant Walt Nauta’s grand jury testimony. In July of 2023, when the affidavit used to obtain the search warrant for Mar-a-Lago was partially unredacted, we learned he was “Witness 5.” Subsequently, the government learned more about his conduct, and he became a co-defendant when the case was indicted.

Nauta wants to use the transcript of his grand jury testimony to support motions he’s been filing. He wants to file it publicly as an exhibit that will be available to anyone who wants to read it. This is the kind of thing the government typically resists, for understandable reasons like avoiding taint in the jury pool and protecting potential witnesses. It’s one thing to turn it over to the defendant and another to publicize it. The only comfort Judge Cannon has given the Special Counsel is an order that Nauta redact information that could identify other witnesses before he files the transcript.

In her order, the Judge directed Nauta to “a. Redact from the grand jury transcript (a) names of potential government witnesses and ancillary names, replacing those names as applicable with the anonymized labels provided in the Index … and (b) any personal identifying information … ; and b. Publicly file the grand jury transcript with the redactions described above as a separate entry on the docket,” but apparently, Nauta’s lawyers failed to follow that guidance and tried to file an unredacted transcript.

Sunday afternoon, Judge Cannon ordered them to file a properly redacted version by Tuesday.

It’s unclear what happened here—it could have been an inadvertent error. It would be enormously unusual to publicly identify government witnesses before a realistic trial date has even been set. This case clearly isn’t on track for the May 20 date that remains on the Judge’s calendar. Given the gag order debacle in Manhattan, anything that could serve to focus public attention, especially that of Trump’s followers, on potential witnesses seems like a truly bad idea and something we would expect a jurist to avoid at all costs, especially when it’s neither required by the rules or the typical practice, as here.

In the second of E. Jean Carroll’s defamation cases against Donald Trump, Judge Kaplan last week denied Trump’s motion for a new trial or to direct a verdict in his favor. The clock is now ticking on the time Trump has to take an appeal to the Second Circuit Court of Appeals. The case has to move through the layers of appeal before the judgment is final and Carroll can collect, but this judgment, at least, seems to be fully secured.

The uncertainty around the timing of the Supreme Court’s decision in the presidential immunity appeal, taken in the Special Counsel’s election interference case but possibly impacting other cases that involve conduct Trump engaged in while in office, will hang over us until the Court issues its opinion. That could come at any time now, but the practice on the Court is to give those who write in dissent whatever time they need, and unless dramatic changes took place in conference following the argument, based on what we heard the Justices expressing in Court last Thursday, this does not look like the kind of 9-0 opinion that could be released quickly.

There is a lot of talk among prosecutors about the disturbing revelation from oral argument that some of the conservative Justices are far more concerned about the theoretical prospect of a rogue prosecutor than they are with the reality of Trump’s actual conduct. It’s not clear what that means. Have they bought Trump’s narrative that the prosecutions brought against him are politically motivated? Justice Gorsuch, for instance, insinuated that prosecutors could indict anything—and there is some force to that since defendants don’t get to present a case before the grand jury. But any lawyer who has spent time at DOJ understands there are strict rules around grand jury practice designed to prevent this possibility. In Georgia, the special grand jury proceedings are meant to prevent any sort of abuse. But more troubling, given the common trope that prosecutors could indict a ham sandwich, is the stunning lack of confidence in the remainder of the judicial process this reveals. Prosecutors don’t control the outcome in cases. Juries do that, with the trial judge as a check. There is also the appeals process, that Supreme Court Justices sit at the pinnacle of.

Does the conservative faction of the Court really believe that the work they are engaged in is meaningless? That prosecutors are free to corrupt the process? If so, how can they permit prosecutions in any case to go forward? It’s hard not to read into those questions a certain sense that there are Justices on the Supreme Court who believe Trump is the victim he always claims he is. It’s ludicrous that Trump’s lawyers can claim he could order a political rival killed and that some of the Justices would nod in agreement. Presidential immunity is antithetical to democracy. As we wait, all we can hope is that common sense and good judgment prevails, lest they sacrifice all accountability for future presidents in order to protect this failed one.

Yet there was Justice Alito, turning democracy on its head and asking the Special Counsel’s lawyer, “I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election — even a close one, even a hotly contested one — leave office peacefully, if that candidate is the Incumbent.” The response was, “Of course.” Then this astonishing comment from the Justice, “All right. Now, if an incumbent who loses a very close hotly contested election, knows that a real possibility after leaving office is not that the President is going to be able to go off into a peaceful retirement, but that the President may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destablilizes the functioning of our country as a democracy?”

I have questions for Justice Alito:

• Since the premise is that someone who loses an election should leave office peacefully or we are no longer a stable democracy, why not hold Trump accountable? He’s the one who tried to avoid leaving office.

• How does ending accountability under the law for all future presidents to protect only those who aren’t committed to the peaceful transfer of power make any sense? Trump is the only president to interfere with the transfer of power; why not deal with that directly instead of cowering in fear to future Trumps? Pretending political prosecutions will become rampant ignores centuries of our history. Trump is being prosecuted because he committed overt crimes.

• Why does Alito think all future presidents will co-opt the Justice Department so political prosecutions will become the norm? Biden has been careful to avoid any pressure, or even appearance of pressure, on DOJ. No prior president has used the Justice Department to prosecute his predecessor for political reasons. Why not hold the one guy who has committed crimes accountable instead of theorizing that if we do, other presidents might engage in misbehavior akin to his? Isn’t prosecution the best deterrent?

I have so many questions about how Justice Alito arrived at this position. It doesn’t make any sense. I hope Justice he reconsiders or is in the minority on this one. If presidents are kings, we become a democracy in name only.

We’re in this together,

Joyce