Day Five: A Guide to Opening Arguments

The prosecution narrative begins with the 2015 “Trump Tower Conspiracy”.

Could Trump face jail for contempt? For my eyewitness report on that, you’ll have to wait until tomorrow’s post. (I’m a day behind — Sorry!) First, here’s a recap of Monday’s developments:

With the 12 jurors and six alternates selected last week, the trial began in earnest, with important rulings, opening statements, and the beginning of David Pecker’s testimony, which is critical to the prosecution’s case.

The morning began with a security delay. Those of us with reserved seats in the courtroom were held for more than an hour and a half under the scaffolding outside 100 Centre Street.

That gave me a chance to talk to some interesting folks in line, including Norm Eisen, the indefatigable lawyer and former ambassador to the Czech Republic, who has already cranked out a useful book about this case, and Rachel Maddow, my longtime MSNBC colleague (We go back together more than 15 years to when she out-argued me on Keith Olbermann’s MSNBC show), who borrowed an MSNBC pass to come inside for the day and predicted Trump would soon cut his losses and plead guilty to a misdemeanor rather than endure more weeks of this hell. I don’t agree. George Grasso, a retired New York judge and one-time police officer, stopped by to say hello. He’s skeptical of the argument that a guilty verdict in this case would hold up if Trump is back in the White House. He predicted that “Attorney General Todd Blanche” (if he doesn’t get fired first) would move for an injunction — and get one — that would sideline Trump’s sentencing. Ugh. More stakes.

The plan for today was to let the new jury go home at 2 p.m. for Passover (though it’s not clear there are any Jews on the jury), but a juror with a severe toothache whose dentist moved her appointment changed the court’s schedule. I mention that to remind everyone that this is, in many ways, an ordinary jury with ordinary exigencies. But it wasn’t ordinary when another juror told Judge Juan Merchan that she wasn’t sure she could handle the media pressure, the third time this has happened. After a private audience with the judge and attorneys, she agreed to resume her duties.

As the trial began in earnest, Merchan, responding to yet another repetitive motion from the defense, ruled yet again that the Access Hollywood tape could not be played in court but could be quoted from. When this first came up a month ago in pre-trial motions, I wrongly thought that this was because he didn’t want the word “pussy” used in his courtroom.

While still opposed to playing the “salacious” tape, the judge reiterated that using any part of the transcript was OK. So less than an hour later, Matthew Colangelo, laying out the prosecution’s case, read from the transcript in a matter-of-fact tone that might be more persuasive than the 898th hearing of Trump’s voice.

When Colangelo came to “grab them by the pussy,” there was no audible gasp or reaction of any kind I could discern in the jury box. It was as if jurors thought to themselves, “Oh, yeah, I remember that. It’ll be interesting to see how it relates to this case.”

I had a good angle of vision on the jurors, and to a person, they seemed extremely attentive, with 10 of them asking to take notes that are to be left at the courthouse each day and will be destroyed at the end of the trial. That means the books they write afterwards about their historic roles will have to be written from memory.

The morning started with the judge’s Sandoval rulings about which of Trump’s past interactions with the judicial system can be raised during cross-examination if he testifies. Merchan ruled that while prosecutors cannot bring in Trump’s frivolous lawsuit against Hillary Clinton and a few other brushes with the law, they can question him about the way he slandered E. Jean Carroll and lied about ripping off his charity to fund his campaign. As I wrote in my New York Times Opinion piece, only a foolish megalomaniac would take the stand under such circumstances–so perhaps he will.

In most trials, the bailiff says, “All rise” as the jury enters the courtroom. I was struck by the democratic sight of a contemptuous former president rising as ordinary people who held his fate in their hands walked directly past him. That’s the sovereignty of the people that America is supposed to represent.

Merchan’s introductory remarks to the jury were fairly standard — don’t talk about the case either with fellow jurors or when you go home; unlike what you see on TV and in the movies, lawyers can’t comment on testimony — but his warning of “serious consequences” for breaking the rules and two of his other comments struck me as unusual.

The judge noted that “delays are inevitable for a multitude of reasons” but explained that in his courtroom, time is a precious commodity:

“I never take it for granted, and I never want to waste it.” I noticed from behind Trump’s golden mane that he seemed fully awake for that one. His delaying games won’t work.

The other unusual thing the judge said related to his standard instructions about the prosecution carrying the full burden of proof and the definition of reasonable doubt. Twice, he told jurors that if they were convinced of the defendant’s guilt beyond a reasonable doubt, “you must find the defendant guilty of the crime.” This suggests that he will make it clear in his instructions that he’s not cool with Trump’s best hope for jury nullification—a stealth juror who causes a hung jury, whatever the evidence.

Colangelo delivered the prosecution's opening statement. He’s a seasoned federal prosecutor and former senior Justice Department official who handled New York Attorney General Letitia James’ civil case against Trump. His experience showed in his deft narrative for the jury.

Colangelo opened by explaining that his case is about “a criminal conspiracy” in which Trump ”orchestrated a scheme to disrupt the 2016 election” and “lied about his business records over and over again.”

He called it “the Trump Tower Conspiracy,” a reference to a key meeting in August of 2015 where Trump, Michael Cohen, and David Pecker “formed a conspiracy at that meeting” to “conceal information” with “intent to defraud and intent to conceal another crime.”

Under the strange New York State law on falsifying business records, prosecutors are not obliged to identify (much less indict on) that additional crime or crimes; they are only required to show that the defendant intended to break other laws, in this case, on taxes, campaign finance, and election interference.

Colangelo didn’t discuss matters of law, which the judge will handle at the end when he instructs the jury. He was busy telling a riveting story about a conspiracy and a coverup.

As the story got juicier, the clicking sound of 58 reporters tapping on their laptops sounded like the cicadas we’re going to hear this summer in different parts of the country.

The prosecution’s case is an unlikely mix of salacious tales and mundane documents  about the scheme to cover up the hush money payments to Stormy Daniels by calling them part of a bogus “legal retainer.” Colangelo told the jury, “You will need to keep in mind that Cohen’s testimony will be backed up” by “an extensive paper trail.” And the testimony of David Pecker and Keith Davidson (the lawyer for both Karen McDougal and Stormy Daniels) will be “backed up by Donald Trump’s own words,” including in his own speeches.

Snooze alert: I may not be writing as much when the trial turns to detail the 34 counts of falsifying business records, which include 11 falsified invoices, 12 falsified ledger entries, and 12 checks from Trump, several signed in the Oval Office, all of which will have to be individually introduced into evidence. That adds up to 35, not 34, and I pledge to get to the bottom of this shocking discrepancy. (I’m sure an innocent explanation is forthcoming).

In previewing the case, Colangelo explained how Pecker got tired of paying for catch-and-kill stories and Cohen told Trump that he would create a company to buy Stormy Daniel’s silence and set up a complex reimbursement structure. Those of you scoring at home already know there’s audiotape. “You will hear him [Trump] ask Cohen, “So what do we have to pay for it? $150?” Trump meant $150,000. The prosecution says Allen Weisselberg’s handwritten notations and figures will corroborate Cohen’s account.

Prosecutors have Trump cold on falsifying business documents. It’s the rest of the case that had me scratching my head during Colangelo’s opening statement. “It was election fraud. Pure and simple,” he said.

But was it that simple? “Calling it ‘election fraud’ is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet,” Boston University Jed Handelsman Shugerman wrote in The New York Times. Shugerman predicts that any conviction would be overturned on appeal on the grounds of selective prosecution.

Maybe, but that seems premature. While I expected the prosecution to lay out its legal predicate in its opening statement, it was under no obligation to do so. This quirk in the statute covering the falsification of business documents gives the prosecution the element of surprise. Rumor has it that the DA plans to employ a little-known New York statute that bars conspiring to interfere in an election.

One advantage for the prosecution is that Trump’s lead lawyer, Todd Blanche, is neither experienced nor effective. His opening statement was short and bumpy (with objections sustained).

It wasn’t clear if Blanche wanted to elevate Trump (as his client no doubt demands) or shrink him to human scale. “You’ve seen him for years and years and years…he’s in some ways larger than life,” Blanche said. “He’s also here in this courtroom doing what any of us would do: defend himself.” The defense will call him President.

Trump throughout “out of respect for the office,” but Blanche wanted jurors to know, “He’s not just Donald Trump…he’s a man, he’s a husband, he’s a father, he’s a person like you and me.”

Really? This sounded to me like a lame effort to prepare a Melania Defense — that he wanted what he claims are the false stories about his sex life killed to protect his family. The only problem with this approach is that we will hear testimony that he tried not to pay Stormy Daniels on the theory that after the election, it wouldn’t matter if the stories came out.

Blanche also previewed an implausible argument that Trump “put up a wall” between himself and his business when he was elected. Please.

The defense will argue that “a man who pinches pennies” would never pay $420,000 to repay a $130,000 debt.” It does sound uncharacteristic of Trump — if you haven’t seen the paper trail.

Blanche closed by arguing: “Use your common sense. We’re New Yorkers. That’s why we’re here….You said you would put aside” your views of Donald Trump. “If you do that, there will be a very swift verdict of not guilty.”

In private, Trump’s attorneys see that as a pipe dream. They’re gunning for a hung jury, not an acquittal.

Coming tomorrow: David Pecker takes the stand.