Trial Prep: Manhattan

Tuesday, Manhattan District Attorney Alvin Bragg filed his response to Trump’s motions in limine, which are mostly about what evidence can be admitted for the jury to consider when the case goes to trial on March 25. Trump wants to prevent the DA from making key arguments and offering evidence from important witnesses. There are eleven separate arguments. Tonight we take up the most important ones. You can read the DA’s 41 page response in full here.

Argument One: Trump wants to keep Michael Cohen from testifying.

What does a defendant do when he’s scared of a witness’s testimony? If it’s Trump, he tries to keep him off the witness stand. The DA characterizes Trump’s argument like this: “In an argument that reads more like a press release than a legal filing, defendant makes the obviously unsupportable request that the Court preclude one of the People's witnesses from testifying at trial on the ground that defendant anticipates that he will disbelieve the witness's expected testimony … The Court should reject this unprecedented argument.”

The whole point of a trial is letting the jury hear the evidence, consider whether witnesses are believable and determine where the truth lies. It should go without saying that a defendant in a criminal case doesn’t get to dictate who is believable and who isn’t and what evidence a jury should hear. But this is Trump, and, of course, he believes the usual rules don’t apply to him. He’ll lose this one. Whether or not Cohen, who carries the burden of a prior federal conviction, can be believed is up to the jury and not Trump. And while Trump argues Cohen also committed perjury at the recent civil fraud trial brought by the New York Attorney General, the DA’s office points out that the Judge in that case, Arthur Engoron, who was sitting as the “finder of fact” because it was not a jury trial, concluded Cohen testified believably in that case and “told the truth.”

Foreshadowing what we can expect at trial, the DA advises the court that it not only expects that Cohen’s trial testimony will be truthful, it will also be “corroborated, including by extensive documentary evidence, the testimony of other witnesses, and defendant’s own statements.” With his prior criminal history, Cohen is not a witness who can be relied upon as a sole source for critical findings the jury needs to make. It was entirely predictable the case would include careful corroboration of his testimony, and the DA confirms that will be the approach here.

Argument Two: Trump wants the court to prohibit the DA from arguing that he tried to improperly “influence” the outcome of the 2016 election by paying Stormy Daniels to keep her from revealing their sexual relationship.

This is an important legal argument that is essential to understanding the seriousness of this case and why it is a felony matter, not a misdemeanor one. The DA explains that “The crime of falsifying business records in the first degree requires the People to prove, among other things, that defendant acted with intent to defraud that ‘includes an intent to commit another crime or to aid or conceal the commission thereof.’” In other words, the DA has to prove that when Trump hid the true nature of the reimbursement payments he was making to Michael Cohen for Cohen’s hush money payments to Stormy Daniels—they went on the books as legal expenses—he did it with the intent to commit/conceal another crime.

The Judge has ruled previously that the necessary intent to defraud that the DA has to prove could be established by showing Trump violated the Federal Election Campaign Act (FECA) with the “intent to influence the 2016 presidential election.” Whether it does exist is another issue for the jury to decide. The argument the DA is making here is that there is no reason for the court to prevent the prosecution from putting its evidence in front of the jury and letting them resolve the issue, which, again, is why we have jury trials in criminal cases.

Argument Three: Trump wants to prevent the jury from learning that Trump worked with David Pecker and American Media, Inc. (AMI) in 2015 and 2016 to pay off other women and suppress stories that would have damaged his campaign. Trump also wants to keep the Access Hollywood tape, where Trump talked about grabbing women by the p*ssy, out of evidence.  

The prosecution’s key argument is that this evidence is part of the res gestae of the case. Res gestae refers to facts that are part of the entire story of the crime the defendant committed and that are essential to understanding it. And often—the DA alleges this is the case here—evidence is admissible not only because it’s part of this essential set of facts, but also because it’s relevant to other material issues in the case. Here, the DA argues the evidence is admissible to prove Trump’s motive and his intent, among other things.

At trial, evidence has to be relevant to be admissible. And even if admissible, the judge can exclude it if it would be unduly prejudicial. But the key word there is “unduly” because all good evidence is going to be prejudicial, in the sense that it will tend to establish that the defendant is guilty. It is only when it is unfair in some way that it should be excluded, and while a decision about what evidence the government can offer the jury is left to the trial judge’s discretion, here, it’s hard to see how all of this evidence would be excluded.

Trump also wants to prevent the DA from discussing “catch and kill.” You’ll recall this was the phrase used by Trump’s buddies at the National Enquirer, who purchased the rights to stories from women who alleged abuse at Trump’s hands or relationships with him and then prevented the stories from seeing the light of day. The DA argues that "There is nothing inherently prejudicial, much less unduly or unfairly so, about the phrase 'catch and kill' when referencing the term of art used in some sectors of the publishing industry."

Here’s the background: In December 2018, AMI, the parent company of a number of publications, including the National Enquirer, admitted they used “catch-and-kill” to help Donald Trump become president. For instance, they acknowledged paying Playboy model Karen McDougal $150,000 for her story about an alleged affair with Trump. AMI killed the story, which didn’t become public until after the election.

The Federal Election Commission (FEC) fined A360 Media, a successor company that purchased AMI, $187,500 in June 2021 for suppressing McDougal’s claims. The FEC ruled that “AMI’s payment to Karen McDougal to purchase a limited life story right combined with its decision not to publish the story, in consultation with an agent of Donald J. Trump and for the purpose of influencing the election, constituted a prohibited corporate in-kind contribution,” to Trump’s campaign. The company agreed not to dispute that finding.

The DA’s assessment is that Trump doesn’t offer any authority that suggests the court should prevent the term “catch and kill” from being used at trial.

Prosecutors want to admit the Access Hollywood tape because it helps jurors understand why Trump would have been so desperate to prevent the public from learning about his relationship with Stormy Daniels. They will argue that the release of the tape "caused a panic within the campaign" before the election and "ultimately served as the catalyst for consummating the Stormy Daniels payoff."

Trump also argues that any testimony from Daniels “should be categorically excluded as ‘unduly prejudicial.” Trump speculates—that’s the DA’s characterization of his argument—that any testimony from Daniels would be irrelevant or prejudicial. The DA points out that there is no reason to believe the judge can’t limit any testimony from Daniels that might cross the line, that Trump doesn’t dispute that the payments to Daniels are relevant to the charges against him, and that Daniels “has personal knowledge of evidence regarding those payments.”

Other Arguments

Trump makes a series of technical legal arguments related to the FECA and other matters. Because calls about evidence are within the judge’s discretion, prosecutors typically expect the court will permit them to introduce essential evidence but may limit them if the evidence becomes repetitive, referred to as “cumulative,” on the same point or crosses the line into the unduly prejudicial. That will likely be the case here, but Trump’s arguments that are designed to prevent the government from offering evidence that is relevant and essential to meeting its burdens of proof will almost certainly be rejected.

For instance, Trump wants the court to prevent prosecutors from introducing evidence of false entries in AMI’s books. But the court has already held that this evidence is relevant to the defendant’s intent to commit or conceal another crime, one of the elements the prosecution has to establish, which means they’re entitled to offer this evidence at trial. Trump’s arguments are essentially that he’s not guilty because he says he isn’t, so the jury doesn’t need to hear any of the prosecution’s evidence that would establish his guilt. I don’t expect this type of argument to get much traction.

Argument VIII is particularly intriguing

This argument is about whether handwritten notes from an individual who isn’t named will be admissible. Anytime we see these redaction boxes in a document, we always wonder what’s behind them. Here, the DA is likely protecting the identity of a witness from the public for as long as possible. If they weren’t already aware, discovery would have revealed the identity to Trump’s team.

The DA’s argument here is a standard one: business records are admissible once they’re shown to be authentic, even though they are hearsay—out of court statements offered for the truth of the matters contained in them. But the hearsay rule is Swiss cheese, full of many exceptions, and the one for business records is frequently used. So this seems standard.

That is, until we get to this paragraph:

I’ll be awaiting this witness’s testimony with great interest!

Concluding Matters

The DA advises the Judge there is no need to rule on whether statements made by Rudy Giuliani about the payments are admissible, even though they maintain they are since Giuliani was an agent of Trump’s, because they don’t intend to offer them. It’s a sad commentary on the fate of the former mayor and U.S. Attorney in Manhattan, who is now deemed to have so little credibility that the DA won’t even tender him as a witness or offer his statements into evidence.

Trump also wants to keep his own out-of-court statements out of evidence. Trump has argued they are “irrelevant, stale, and cumulative,” and maybe not even his. But the law is clear that a defendant’s admissions always come into evidence (unless made in violation of Miranda, which requires warnings to a defendant who is in custody and isn’t the case here—these are Trump’s public statements in press conferences and speeches, and they were completely voluntary).

What Happens Next

Defendants are entitled to, and in fact, their lawyers are obligated to, vigorously pursue their defense, including by trying to limit the evidence the prosecution can offer at trial. Often, there can be close calls. But for the most part, Trump’s motions simply disagree with well-established legal principles or prior rulings made by the Judge in a manner that comes off as petulant and whiney.

The Judge will rule in advance of the start of the trial later this month. Expect most of the calls to go the prosecution’s way. This is a judge with a reputation for being fair and calling the balls and the strikes so the parties can try their case. Trump’s lawyers didn’t have a lot to work with here, and it’s unlikely they’ll succeed in excluding any evidence essential to the DA’s case.

So, tonight, a little good news in a criminal case. Like always, thanks for being here with me at Civil Discourse.

We’re in this together,

Joyce