Trump Gets a Ruling in His Favor: Bragg Barred from Proving Additional Alleged Acts of Sexual Misconduct

If you needed any more indication — beyond Rich’s column this morning — about what a farce the Trump “hush money” trial is, you got it this morning when even Judge Juan Merchan, who has gone Manhattan district attorney Alvin Bragg’s way on every important call, decided prosecutors were pushing things too far.

The trial is supposed to be starting with jury selection today. So far, though, it’s been mainly legal argument about admissible evidence (referred to as motions in limine — which I discussed here in connection with a different case). Prior to making opening statements to the jury, lawyers want to know what evidence the court is going to permit — you don’t want to promise a jury you’ll prove something only to have the judge suppress the underlying evidence, leaving jurors puzzled about why they never heard about the matter again.

This morning, Judge Merchan rebuffed the request by Bragg’s prosecutors that they be permitted to prove various instances of alleged sexual improprieties by Trump besides the ones claimed to be central to the trial; as I related here, these are the extramarital affairs alleged by Stormy Daniels and Karen McDougal (who were paid for their silence), and a story about another possible affair sourced to a Trump Tower doorman (Dino Sahudin) — for which the National Enquirer paid $30,000 to silence Sahudin before concluding that the story was untrue.

Mind you, this is a case of business-records falsification, not sexual assault.

You may recall that in the civil case in which journalist E. Jean Carroll sued Trump, she was permitted to introduce the testimony of two other women who claimed that Trump got sexually aggressive with them (groping and kissing). As I explained at the time, this was a controversial ruling by Judge Lewis Kaplan. Courts are reluctant to permit so-called propensity evidence (the idea that the accused must have committed the act charged because on other occasions that are not charged, he engaged in similar conduct). There is now a presumption in favor of such evidence in sexual-assault cases; nevertheless, Trump will surely argue on appeal that a reviewing court may decide that this “similar-act” proof that Kaplan admitted overwhelmed the claims of Carroll, which had sparse evidentiary support.

The criminal case currently on trial, however, has nothing to do with sexual assault. It’s about how Trump, in his business records, booked the 2017 installment payments to Michael Cohen — to reimburse him for paying for Daniel’s silence in a legal 2016 nondisclosure deal. It would be one thing if prosecutors were asking to prove other alleged instances of Trump cooking his books; instead, they rationalized that they should be permitted to prove other alleged instances of sexual misconduct besides the three mentioned above, in order to show that Trump was worried, as a 2016 candidate for president, that various unsavory stories about him could come out.

That is ridiculous. In fact, of the three instances Bragg is apparently being permitted to prove, only one of them — the Stormy Daniels tryst in 2006 — is directly related to the 34 charges in the indictment. Yet Merchan is letting Bragg prove the other two in support of Bragg’s theory that (a) starting in 2015, Trump was engaged in a conspiracy with his employee, Michael Cohen, and with the Enquirer’s David Pecker, to suppress unflattering information, and (b) it was out of that conspiracy that the Stormy payment and Cohen reimbursement arose. Bragg’s problem, of course, is that it is not a crime to try to suppress negative information, much less to conspire to do so.

Nevertheless, Merchan is letting the state prove the McDougal and Dino-the-doorman episodes, even though — to repeat — the 34 charges relate only to Stormy. In this way, Bragg will try to hoodwink the jury into believing that Trump’s conduct affected the 2016 election, even though the conduct charged occurred in 2017, after the election was over.

Merchan is enabling Bragg to do this, but the state’s attempt to prove other sexual misconduct even farther afield from the actual charges in the indictment than are the McDougal and Dino episodes was too much. The judge suppressed it.

How big a victory this is for Trump is debatable. Merchan is already permitting Bragg’s prosecutors to describe for the jury the infamous Access Hollywood tape — in which Trump boasts about routinely being sexually aggressive with women. In an exercise of wannabe Solomonic wisdom, His Honor ruled today that prosecutors may not play the actual recording but that they will be permitted to tell the jury what Trump said. Obviously, it’s Merchan’s way of giving Bragg a victory while feigning evenhandedness. In any event, if Bragg wants to argue that, when it came to revelations of indecorous conduct, Trump had a lot more than Stormy to worry about, his statements on the tape (along with the McDougal and Dino proof) will give the state plenty of ammo.

Again, I think this would be fine if suppressing information were a crime and Trump were charged with conspiring to do it. But it’s not, and he’s not. By invoking federal campaign-finance laws, Bragg is trying to present the trial as if it involved such a conspiracy case; but Trump didn’t violate those laws either, which is why the federal agencies with enforcement jurisdiction didn’t prosecute him. (Bragg has no such enforcement jurisdiction — but why let a little inconvenience like that get in the way?)

Under these circumstances, I think Bragg’s real reason for trying to prove uncharged instances of sexual assault is sinister: He was intentionally injecting unfair prejudice. The idea is that if the jurors think the former president is a lowlife molester, they’re more likely to convict him, even though the business-records charges are unrelated to alleged sexual assault.

For once, Merchan stopped Bragg. Still, I expect we’ll see much more of this sharp-elbowed play. Trump stole the election . . . Trump is a serial sexual predator . . . The point of Bragg’s dire framing of the case is to distract the jury’s attention from how trivial the actual charges are.