It is hard to assess what is going on in a trial when one is not in the courtroom. But with the caveat that I, like most of us, am relying on real-time media reports of the proceedings, I have to confess that I don’t really understand what former President Trump’s lawyers are doing in their cross-examination of David Pecker.
I would be concerned about two things in particular: Is Trump lawyer Emil Bove (a) conveying the impression that Trump has been badly hurt by Pecker’s testimony about killing stories that could be damaging to Trump, (b) playing into district attorney Alvin Bragg’s hands in eliciting testimony about Pecker’s 2018 non-prosecution with federal prosecutors?
As the first prosecution witness, Pecker appeared by the close of Thursday’s trial session to have been a net-plus for Trump. His testimony indicates that Trump had far less involvement in the plan to bury negative stories about Trump than did Michael Cohen. In fact, Pecker testified that (a) in general, Trump said he did not believe in buying negative stories because, in the end, the stories always become public, and (b) in particular, Trump was not enthusiastic about buying former Playboy model Karen McDougal’s story about the affair she credibly claims to have had with Trump shortly after Trump married Melania.
Nevertheless, the salient point here is that it is not illegal to purchase the rights to an embarrassing story so it does not see the light of day. If that is the case – and it is – then it makes no difference whether Trump was for or against buying McDougal’s story.
In his cross-examination of Pecker, Trump lawyer Emil Bove appears to be contesting aspects of the McDougal arrangement — for example, urging that it was less about burying her story than trying to jump-start her modeling career, showing that it was not a mere catch-and-kill arrangement but, rather, that McDougal got real benefits out of it including a photo layout in one of the National Enquirer’s sister publications and the publication of some articles (apparently ghost-written for her). But who cares? If it wasn’t illegal to cut a nondisclosure agreement (NDA) with her, then what difference does it make, in terms of criminal liability, what the details of the arrangement were?
By quibbling over these details, and stressing Trump’s ambivalence about NDAs, as Bove is reportedly doing, he runs the risk of suggesting to the jury that it would be really bad for Trump if he and his associates were trying to bury embarrassing stories and if he personally was more involved in the deal.
Just to put a finer point on it, Pecker testified that after Trump expressed reluctance about buying McDougal’s story, he didn’t say, “Don’t do it”; he said he’d talk to Michael Cohen about it. Subsequently, Pecker related that Cohen told him to go ahead and buy the story. Clearly, Cohen is going to testify that Trump ordered him to tell Pecker to buy the story. Even if the jurors are convinced that Cohen is an inveterate liar, they may well believe Trump gave that directive to Cohen in light of the context provided by Pecker’s testimony. But that is damaging only if making the NDA with McDougal was illegal. If it was lawful, what sense does it make to distance Trump from it when a jury might rationally conclude that he was complicit?
Then there is Pecker’s non-prosecution agreement. This raises the same issue I described in some detail in connection with Michael Cohen. Until Judge Juan Merchan excluded the evidence, Bragg was apparently planning to introduce Cohen’s guilty plea to two federal campaign-finance violations. To repeat what I said last week, it is a
rudimentary criminal-law principle that Defendant A’s guilty plea to a charge is not evidence that Defendant B is guilty of that charge, even if A claims that he and B supposedly committed the crime together. A is permitted to testify to the actions he and B took, but his claim that he is guilty is an irrelevant (and in this instance, incompetent) legal conclusion; as fact testimony, it is irrelevant. A “statement of facts” — outlining what prosecutors represent they will be able to prove at trial — has no business relying on such a guilty plea; transparently, Bragg included that detail for the improper purpose of intimating that, since Cohen pled guilty to federal campaign crimes, Trump must also be guilty of them.
Analogously, David Pecker’s state of mind regarding whether the McDougal NDA may have violated federal campaign-finance law is not proof of either Trump’s guilt of federal campaign crimes or of Trump’s state of mind. Hypothetically, if Pecker had heard Trump say, “We need to be careful, this NDA probably violates federal law,” that would be admissible evidence of Trump’s knowledge and intent. But there is no such evidence. What Pecker was thinking regarding his own potential liability under federal campaign-finance laws is irrelevant in a trial at which Trump is the only defendant and the sole germane mens rea question is: What was Trump’s state of mind? To have evidence of that, we’d need proof of what Trump himself said or did.
This would be true even if the Trump and Pecker stood in the same position vis-à-vis the campaign laws. But they didn’t: Trump was a candidate with no contribution limit. Pecker and his business would have been subject to contributor limits, so he might have harbored concerns that Trump did not have. That’s even more reason why proof of his state of mind is not merely irrelevant but unfairly prejudicial.
Reportedly, Bove cross-examined Pecker about whether he entered a non-prosecution agreement not because he was concerned about criminal liability but because AMI (of which Pecker was CEO) was trying to sell the National Enquirer – i.e., putting concerns about the investigation behind him would increase the sale prospects. Probably so, but Pecker’s concerns are not relevant to whether Trump had criminal intent.
A non-prosecution agreement is similar to a guilty plea in this respect: The fact that A agrees to cooperate with the government in exchange for a guarantee against prosecution for a certain offense — here, a potential federal campaign-finance crime — is not evidence that B committed that same offense, even if B collaborated with A in the relevant conduct. Other than that, a non-prosecution agreement — unlike a guilty plea — is not even an admission of guilt. Many innocent people enter such agreements because they want to be spared the anxiety and expense of being criminally investigated and possibly prosecuted. As it relates to Trump, then, Pecker’s non-prosecution agreement is even less probative than Cohen’s guilty plea, which Merchan properly excluded.
In sum, it seems to me, based on the reporting, that Trump’s defense could be counterproductive in two ways. First, it may be intimating to the jury — however inadvertently — that any agreement Trump may have had with Pecker and Cohen to purchase and then suppress McDougal’s story amounted to a crime.
Second, Bragg is surely going to argue that Pecker’s belief that the purchase of McDougal’s story might subject him to criminal liability, and his subsequent entry into a non-prosecution agreement with the federal government, prove that Trump and his associates knew they had violated federal campaign law; ergo, when Trump caused his business records to be falsified, he did so with the fraudulent intent to conceal the campaign-law crime — the charge in the case in all 34 counts.