How to Defend or Prosecute Donald Trump

Donald Trump’s criminal trial in Manhattan is about adultery, greed, media manipulation, campaign laws, a porn star, a President—and, as we’ve recently come to learn, “The Apprentice.” “It was a very popular television show, right?” Susan Necheles, one of Trump’s attorneys, asked Rhona Graff, Trump’s former executive assistant, during a cross-examination last Friday. Trump has had some clownish lawyers over the years, but Necheles was dead serious. Graff responded, dutifully, “At the time, it was probably the most popular television show.”

Graff worked for the Trump Organization for thirty-four years. She recalls Trump fondly—on the stand, she described him as a “fair” and “respectful” boss—and she testified only because the Manhattan District Attorney’s office subpoenaed her. Trump is paying her legal fees. Under direct questioning, she had reluctantly acknowledged once encountering the adult-film actor Stormy Daniels in Trump Tower. “I have a vague recollection of seeing her in the reception area on the twenty-sixth floor,” she said. Graff was asked whether she had input Daniels’s cell-phone number into the Trump Organization’s contact list. “I believe I did,” she said.

Trump faces thirty-four charges of falsifying business records, which all relate to payments that he made to his former lawyer Michael Cohen, allegedly to repay Cohen for illegal hush money that the lawyer paid to Daniels during the 2016 Presidential election. When Trump has run into legal troubles with other women, he has opted for the Shaggy defense: It wasn’t me. I wasn’t there. I don’t even know this person. But Trump’s lawyers can’t deny that he knew Daniels. There are photos and testimony showing otherwise. Necheles, trying to put a decent spin on inconvenient facts, asked Graff whether she had ever heard Trump discuss the possibility of casting Daniels on “The Celebrity Apprentice.” “I vaguely recall hearing him say that she was one of the people that may be an interesting contestant on the show,” Graff said. Necheles then asked whether it was accurate to say that Trump had been interested in casting “controversial” people on “The Celebrity Apprentice.” Before Graff could answer, however, Susan Hoffinger, an Assistant District Attorney, rose from her seat at the prosecutor’s table and objected. “Can we approach?” she asked Judge Juan Merchan. He motioned for the lawyers on both sides to gather below his seat on the bench.

“This is going way beyond the scope of the direct,” Hoffinger complained. Why was so much time being spent discussing the defendant’s old reality-television show?

“I agree,” Merchan said, turning to Necheles for explanation.

“They asked on direct about Stormy Daniels coming up to the office,” Necheles said. And then she revealed a bit of strategy. “Our whole defense, or a lot of our defense in this case, is he was involved with Stormy Daniels over ‘The Apprentice,’ ” she said. “I have to talk about ‘The Apprentice.’ ”

Merchan seemed to accept this. “Get to it,” he instructed.

Daniels, who is expected to testify in the case, has said publicly that she met Trump in 2006, at a celebrity golf tournament in Nevada. She has said that they had sex in a suite on the top floor of Harrah’s Lake Tahoe. She has said that she once spanked him with a rolled-up magazine that had a picture of his face on the cover. “When Stormy Daniels showed up to Trump Tower to meet President Trump, you understood that she was there to discuss being cast for ‘The Apprentice,’ correct?” Necheles asked Graff. “I assumed that,” Graff replied. In the past year, Manhattan juries have awarded the journalist E. Jean Carroll nearly a hundred million dollars in civil judgments against Trump, in two lawsuits that delved into his long history of mistreating women and bragging about his sexual exploits. Now, in his first criminal trial, Trump’s lawyers want a Manhattan jury to buy that his interest in a porn star was strictly professional. After Merchan excused Graff from the stand, Trump stood up at the defense table and tried to shake her hand as she walked by.

In the lead-up to Trump’s hush-money trial, there were many questions about how both sides would present their cases in court. How could Trump deny having an affair with Daniels and still maintain credibility with the jury? How would prosecutors try to get jurors to brand the ex-President a felon for the relatively minor crimes alleged in the indictment? (The falsification of business records is a misdemeanor in New York, though the Manhattan District Attorney, Alvin Bragg, has tried to elevate the charges to a felony, by arguing that the misdemeanor was committed in order to conceal an underlying crime: influencing the 2016 election, among others.) Though the trial is still in early days, and neither the prosecution nor the defense has yet had time to fully argue its case, one can get a sense of where things are going by focussing on the lawyers’ sidebar conversations, which occur out of earshot of both the jury and the reporters in the gallery, but are taken down verbatim by the court stenographers, who sit directly below Merchan, and who include them in the daily trial transcripts released by the court.

While the defense is trying to paint a picture of a simple business relationship between Trump and Daniels, the prosecution is focussed on presenting jurors with the image of a sprawling election-interference scheme. Last Tuesday, Joshua Steinglass, an Assistant District Attorney, asked David Pecker, the former C.E.O. of the National Enquirer’s parent company, about negative articles that his tabloid ran about Trump’s opponents during the 2016 Republican primary race. (Examples: “Ted Cruz Sex Scandal—5 Secret Mistresses,” “Bungling Surgeon Ben Carson Left Sponge in Patient’s Brain!,” and “ ‘Family Man’ Marco Rubio’s Love Child Stunner!”) “Did Donald Trump tell you specifically what or even generally what he wanted you to do vis-à-vis Stephen Bannon?” Steinglass asked, mentioning one of Trump’s campaign officials, who had come to the campaign from the conservative-media ammo factory Breitbart News. “He said that he thought that both of us could work very well together,” Pecker said. “And then after Bannon reviewed the articles, he called me and he said that—” This time, Emil Bove, one of Trump’s lawyers and a former federal terrorism prosecutor, objected. Steinglass tried to ask the question another way: “Did Mr. Bannon ever pitch any articles to the National Enquirer?” Bove objected again. Steinglass tried a third time. “Did Stephen Bannon ever ask you to run any particular articles?” Bove objected once more—and asked for a sidebar.

“This is entirely hearsay,” Bove said, once he was safely under Merchan’s craned neck. The judge had Steinglass explain why he was asking Pecker about Bannon. “These are people who are at the defendant’s behest,” Steinglass said. “That is part of the whole scheme here.” The sidebar got so involved that Merchan asked Pecker and the jury to leave the room so that he could hear more from the lawyers. “There is no conspiracy charged in the indictment,” Bove argued. “There’s also been no notice that the government considers Mr. Bannon to be a co-conspirator in this case.” But Steinglass countered that the case was in fact a conspiracy case, offering us a window into the prosecution’s strategy. “Falsifying business records in the first degree requires an intent to defraud. That includes the intent to commit or conceal another crime,” he said. “The primary crime that we have alleged is New York State Election Law Section 17-152.” The statute holds that any two or more persons who conspire to influence an election through “unlawful” means are guilty of a misdemeanor, something that another Assistant District Attorney, Matthew Colangelo, alluded to during the government’s opening statement. “The evidence at trial will show that this was not spin or communication strategy—this was a planned, coördinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people,” Colangelo said. “It was election fraud, pure and simple.” This question—of whether Trump committed crimes on his way to the White House, and whether, if he did, he deserves to be held accountable—was, until recently, a theoretical debate for pundits and law professors. Soon it will be in the hands of the jury.

During the first two weeks of what’s expected to be a six-week trial, in between the prosecutors’ arguments and the defense lawyers’ parries, an overarching question has hung over the proceedings: have Americans spent so long arguing about the 2020 election that they’ve forgotten how crazy 2016 was? Already, jurors have heard about the Trump 2016 campaign’s dealings with tabloid publishers, excitable lawyers, and alt-right crusaders. Pecker testified that, in January, 2017, he went to meet President-elect Trump at his office in Trump Tower, and found him huddled with the then F.B.I. director, James Comey; the Republican National Committee chairman, Reince Priebus; the incoming White House press secretary, Sean Spicer; and the incoming C.I.A. director, Mike Pompeo. “Here is David Pecker,” Trump said, introducing his old friend to his new brain trust. “He’s the owner, the publisher of the National Enquirer, and he probably knows more than anybody else in this room.” Keith Davidson, a Los Angeles lawyer who represented both Daniels and the former Playboy Playmate Karen McDougal—another woman who says she had an extramarital affair with the ex-President—read aloud a series of texts from a conversation with the National Enquirer’s editor, Dylan Howard, in the wake of the “Access Hollywood” tape coming out. “He’s fucked,” Davidson texted Howard, in October, 2016, talking about Trump. Daniels was trying to go public with her story right after people around the world heard Trump brag about grabbing women “by the pussy.” If she were to come forward, Davidson and Howard agreed, it would be the “final nail in the coffin.” During the next few weeks, Davidson and Cohen promptly worked out the deal that bought Daniels’s silence.

Trump’s lawyers have argued that there is no crime here. After the sidebar, Pecker described his interactions with Bannon—the tabloid mogul once sent a box full of Enquirer issues containing stories about Hillary Clinton to Bannon’s apartment on the Upper West Side—which Bove went on to characterize as “very normal, standard campaign work.” Several times, the defense has deployed the phrase “standard operating procedure” to describe conduct that prosecutors have asked witnesses about. All candidates are concerned with their images and reputations. All candidates go to great lengths to protect them. But the former President has not just denied the charges against him—he has attempted to paint himself as the victim in this whole sordid affair. Last year, before the charges were announced, a spokesperson for Trump argued that Daniels had, in fact, extorted him. His lawyers have started to suggest as much in court. “What does the word extortion mean to you?” Bove asked Davidson on Thursday. “You were concerned about avoiding creating evidence of extortion, correct?” Meanwhile, Trump has been storming in and out of the courtroom, and bad-mouthing the judge and the prosecutors to reporters in a hallway just outside. He has no desire to dwell on 2016, even though 2016 is the election he actually won. But perhaps he’s interested in doing a short stretch in jail, if he thinks it might help his 2024 campaign. On Tuesday, Merchan found Trump in contempt of court for violating his gag order by posting online about Cohen and Daniels, who are expected to be witnesses in the trial, and about the jury. He fined Trump nine thousand dollars, although he noted that the size of the fine would perhaps not be enough to “compel” Trump to stop posting, given his great wealth. If Trump continued to flout the court’s orders, Merchan wrote in an order, “jail may be a necessary punishment.” In 2016, Trump was willing to pay hundreds of thousands of dollars to keep people quiet. How much will he pay, in 2024, to keep talking? ♦

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