NY: Trump on Trial!

[Progressive Pessimist]

The Defense isn't required to do anything, but if they want to win they need to sow reasonable doubt if the prosecution has proven their case beyond a reasonable doubt.

That's what I meant.

[Badger]

The defense has been gobsmackingly bad on the procedural stuff. If you think the prosecution’s questions are salacious and irrelevant, just object to them during questioning!

Non-zero chance that Trump is just angling for an appeal on grounds of insufficient counsel.

Difficult though. While real, IAC tends to require substantial evidence of both legal malpractice and prejudicial effect on the defendant's case. Furthermore, appeals courts are very much inclined to find anything that could be remotely defined as trial strategy - even if upon first or even second and third glance appears to be an incredibly stupid plan - to not be ineffective assistance of counsel. I don't think that Trump lawyers would, or even can, finagle their way into reversing this on an IAC claim.

[Fmr. Gov. NickG]

I don’t actually think Trump is setting this up for an ineffective counsel appeal.
But I do think his lawyers may think his case is just stronger on an appeal asserting the prosecution failed to establish the crime as a matter of law than on genuinely disputing any fact questions for the jury.

[emailking]

I think they didn't object because they want to blame the prosecution for the salaciousness of the testimony (even though they brought up things like "orange turd" but whatever). But I'm sure Trump will try to use this to argue ineffective assistance because why not. Even OJ argued ineffective assistance in the robbery case and he had one of the best trial lawyers in the country.

[brucejoel99]

I think they didn't object because they want to blame the prosecution for the salaciousness of the testimony (even though they brought up things like "orange turd" but whatever). But I'm sure Trump will try to use this to argue ineffective assistance because why not. Even OJ argued ineffective assistance in the robbery case and he had one of the best trial lawyers in the country.

👀

Arthur Aidala — successful appeal lawyer for Harvey Weinstein, also representing Ghislaine Maxwell — is at the Trump trial today.

When I asked if he's taking up Trump's appeal for the hush-money case, he laughed and didn't answer.

[...]

Asked Arthur Aidala in the hallway again if he'll represent Trump on appeal.

"Anything's possible," he answered.

[brucejoel99]

https://twitter.com/lawofruby/status/1788910926915055859

[mjba257]

https://twitter.com/lawofruby/status/1788910926915055859

Next week I believe the trial is only 3 days (M,T,Th) so I wouldn't be surprised if Cohen's testimony takes the whole week. I know the prosecution has indicated they don't want to finish off with Cohen because of his various credibility issues and fears that could leave a bad taste in the jurors mouth going into the defense. So most likely they rest their case on the 20th or 21st.

How long do you think the defense will last? I'm guessing they will call Michael Avenatti as a witness. Verdict early-mid June?

[Meclazine for Israel]

Alina Habba (Bubba)

https://www.instagram.com/reel/C6rurDiOSj_/

One cute lawyer.

[brucejoel99]

So far, the prosecution has only even attempted to prove a very small part of their case, and at least for me, it was the part I was already most inclined to believe going in.  I really hope we get off the hush money payment stuff really soon and move on to making the case about records falsification and campaign finance violations.

FYI:

Up now for the prosecution:

— Daniel Dixon, another custodial witness who works as a compliance analyst AT&T

We're starting to see phone records.

Why are phone records important to this case? It's been clear since the case has been charged.

On Oct. 26, 2016, Michael Cohen opened his shell company to funnel a $130,000 home equity loan to Stormy Daniels' lawyer — "shortly after speaking on the phone" with Trump

From the exhibits, it's clear that the phone records have Cohen's name, but it's not immediately clear it's the same call.

We'll wait for the release of today's exhibits later.

On cross, Trump's lawyer Emil Bove presses the witness on alternative explanations for the records.

Q: You're familiar with the concept of a pocket dial, right?
A: Correct.

Q: There's a lot of data here, but the data has limits, right?
The witness says they are logs.

Justice Merchan: Cross?
Trump's lawyer Bove: The subscriber records are not redacted... Is Keith Davidson linked to this number?
Tomalin: Yes...
Bove: No further question.
Justice Merchan:  We'll break. [Jurors leave]
Bove: We object to 1999 statements

Prosecutor: In the 1999 video [not yet in evidence] Mr. Trump speaks of campaign finance laws going back to 1907, it's relevant
Justice Merchan: I'll rule after the break.

[They're back...
Justice Merchan: 1999, it's too attenuate.

Bove explains that one objection relates to a clip the prosecution intends to admit into evidence. It's apparently a clip of Trump on Larry King in 1999, talking about campaign finance law. The defense doesn't think a video from 1999 can speak to Trump's state of mind related to campaign finance laws nearly 20 years later.

Mangold, for the prosecution, says that the prosecution disagrees. She says that the relevant corporate contribution limits pertinent to this case were enacted in 1907. So Trump saying to King that "nobody knows more about campaign finance than I do.." in 1999 is relevant.

Justice Merchan, for his part, says he'll rule on the matter after the morning break.

Judge makes a rare ruling against the Manhattan DA. He won't let them show a 1999 TV interview Trump did with Larry King, where the business mogul said he's very familiar with campaign finance laws.

Judge said it's a stretch to think he'd still know them 17 years later in 2016.

[emailking]

Prosecution says they could rest at the end of next week!

[brucejoel99]

So far, the prosecution has only even attempted to prove a very small part of their case, and at least for me, it was the part I was already most inclined to believe going in.  I really hope we get off the hush money payment stuff really soon and move on to making the case about records falsification and campaign finance violations.

FYI:

Paralegal Georgia Longstreet, who works for the Manhattan DA’s office, is back on the witness stand. Previously (last week? Last month? What day is it?) Longstreet testified about her extensive review of Trump’s social media posts.‬

‪Today, ADA Rebecca Mangold brings up a 2018 tweet by Trump, in which he accuses NYT and reporter Maggie Haberman of making up stories in an effort to destroy his relationship with  Michael Cohen and get him to flip. Trump says he has always liked and respected Cohen.‬

‪"Sorry, I don't see Michael doing that despite the horrible Witch Hunt and the dishonest media," Trump says.‬

‪Later that year....‬

‪"If anyone is looking for a good lawyer, I would strongly suggest that you don't retain the services of Michael Cohen!" he says.‬

This Trump tweet [apparently showing Trump's knowledge of the system of reimbursements at the center of his criminal charges], which his legal team tried to keep out before trial [on the theory of immunity that posting it was an "official act" of his presidency], has been entered into evidence.

[The language of Trump's tweet is especially significant because the indictment alleges that Cohen's monthly invoices and checks were falsely marked as "retainer" payments — and the ledger entries falsely given a code of legal expenses.]

‪The DA's paralegal reads it into the record. ‬

‪Recall:‬

‪During opening statements, Trump's lead attorney Todd Blanche explicitly denied his client reimbursed Michael Cohen. ‬

‪He claimed they were legal fees.‬

‪"President Trump did not pay Mr. Cohen back $130,000. President Trump paid Michael Cohen $420,000." ‬

‪Now, the jury has at least three of Trump's admissions to the contrary before them: (1) this tweet, (2) a conflict-of-interest form, and (3) testimony about a court document with such an admission.‬

Longstreet steps down. Another paralegal for the Manhattan DA's office, David Jarmel-Schneider, is up to talk about more phone records.‬

‪Ok the phone records stuff was above my pay-grade, but Jarmel-Schneider also did this neat chart which ties the 34 counts of falsifying business records in the indictment to each specific document at issue in this case. That's handy.‬

The big phone call is b/t Cohen and Trump. Bove for some reason just said that. The DA hadn't yet revealed it

Bove saying the recording cuts off -- it seems to be an AT&T hiccup of some sort-- but trying to suggest maybe Trump didn't answer.

END OF EXAM. END OF DAY. END OF WEEK.

[Fmr. Gov. NickG]

Prosecution says they could rest at the end of next week!

Wow, it’s really hard for me to see how the prosecution is going to be able to establish their case with only three more days of testimony.  They’ve spent an inordinate amount of time establishing that the hush money payments happened and what they were for, but almost no time establishing how any of what Trump did is actually illegal.

[emailking]

But it is illegal and they can explain why to the jury in closing arguments.

[I spent the winter writing songs about getting better]

It won't take a whole day to explain why Trump's actions violated the law. Establishing what Trump did takes way more time, how those actions were illegal could probably be summed up in about 10 minutes.

[brucejoel99]

Prosecution says they could rest at the end of next week!

2 more substantive witness + Weisselberg likely being bussed in to plead the 5th:

Trump's attorney Emil Bove notes that one of them isn't Allen Weisselberg, whose "absence" from this trial raises a "very complicated" question.‬

‪Bove wants to keep out their separation agreement as prejudicial hearsay. ‬

‪Prosecutor Christopher Conroy says it's needed to show: "Mr. Weisselberg’s interests here are very aligned with the defendant’s."‬

‪During closing arguments, Conroy says, the defense is likely going to raise questions about Weisselberg's absence. ‬

‪The prosecutor says the agreement explains his absence.‬

‪Bove says Weisselberg is absent "because the DA's office initiated perjury prosecution in the leadup to this case."‬

‪"It's just a rabbit hole that I think is unnecessary," he says.‬

‪Judge notes, without saying it this way, that there's no reason an incarcerated witness can't testify. ‬

‪"Has anyone attempted to get him to come in, by serving him with a subpoena or some other way?" he asked.‬

‪Neither side has.‬

Bove points out the defense has no burden, and he resists some sort of negotiated stipulation informing jurors that Weisselberg is in jail for perjury.

The prosecutor resists subpoenaing him and putting him up there "cold," in light of his restrictive Trump Org agreement.

‪

Court: would be helpful to my decision if I knew efforts were made to get him here.‬
‪Haven't tried to subpoena him, and he's subject to subpoena.‬

‪DA: we could subpoena him, but agreement seems to preclude his talking to us [at the risk of losing 700K severance pay] or our talking to him.  so would have to do it cold.‬

‪Court: we could put him on the stand outside of the presence of the jury.  and we could find if he is unavailable. ‬

‪DA: still have to put him on before jury w/o having spoken to him‬

‪Court; But then I would see that.‬

‪Court: done w/ some frequency.  have to put them on the stand on the record and under oath‬

‪so sounds as if they will bring Weisselberg to our out of presence of jury and see if he'll take fifth (as he probably will).  more drama there.

‬

‪

Merchan: We could do this out of the presence of the jury. He could have counsel here, but we could put him on the stand and see if he's going to talk or take the Fifth. That will allow me to find that he's unwilling to testify.‬

‪Bove says that Weisselberg has never been on the DA's witness list. He seems to be arguing that it wouldn't be fair for Weisselberg to suddenly testify when the defense never expected him to do so. ‬

‪Unclear how Merchan will resolve this, but we move on to the next matter.‬

[brucejoel99]

It won't take a whole day to explain why Trump's actions violated the law. Establishing what Trump did takes way more time, how those actions were illegal could probably be summed up in about 10 minutes.

And it looks like they could be resting their case with a banger:

As w/ yesterday, a final few legal housekeeping matters turn into something important and provocative, probably the most electric part of the day. Weisselberg now will have to invoke 5th; and court is coming very close to ordering Cohen to stop talking

‪Another important part of that final argument: DA said that jury will be hearing more about Weisselberg.‬

‪Note that lots of people, inc me, expected DA to call Cohen in broad middle of case, to have cross a distant memory when they rested. But they're not doing that--calling him Monday, there will be a significant, probably multi-day cross exam, and then just 1 more witness.

Keith Schiller is on witness list. The DA would only call him if they spoke with him but he could be a spectacular final witness. If he remembers Stormy being in the hotel suite, destroys Trump's entire story, which has been his become the key credibility battle in trial.

Has been, & remains a question, whether Schiller would be a non-cooperative witness like Weisselberg; but if he tells just the bare truth, he's a killer final witness for the DA. And won't put him on otherwise. And hard pressed trying to think of another equally dramatic witness.

[emailking]

and court is coming very close to ordering Cohen to stop talking

I think this happened, or sort of. The judge told the prosecution to ask Cohen not to make any statements about the case.

[brucejoel99]

and court is coming very close to ordering Cohen to stop talking

I think this happened, or sort of. The judge told the prosecution to ask Cohen not to make any statements about the case.

Technically something for sure!

https://twitter.com/stewartbishop/status/1788999752954110368

[mjba257]

How long you reckon the defense will take? A week? Two? At this pace, I expect a verdict early June.

[brucejoel99]

How long you reckon the defense will take? A week? Two? At this pace, I expect a verdict early June.

Maybe 2 wks. for the defense, followed by the People's rebuttal witnesses, Merchan resolving any outstanding jury instruction issues before charging them, & closing arguments. I can see the trial going to the jury in early Jun. & then we could see a verdict rendered after anywhere from just a few hours or less to over a week's worth or more of deliberations (dependent on how long Merchan would need to call mistrial).

[Fmr. Gov. NickG]

It won't take a whole day to explain why Trump's actions violated the law. Establishing what Trump did takes way more time, how those actions were illegal could probably be summed up in about 10 minutes.

I don’t see how this can be true.  The case involves several very complicated and thorny issues of statutory and regulatory intepretation, constitutional rights of the criminally accused, and state versus federal jurisdiction that even progressive election law scholars are thoroughly divided on.  I’m a progressive election law scholar myself who has been skeptical of these charges from the outset, and the prosecution has done almost nothing the address my concerns.

[emailking]

Even so, they can't exactly narrate to the jury right now. All they can do is ask questions of witnesses, and I don't think calling legal experts as a witness to explain the law is particularly common. But they can do all of the explanation in Opening Statements (and they did some) and Closing Arguments. Some of this also gets covered in jury instructions.

[Former Dean Phillips Supporters for Haley (I guess???!?) 👁️]

I don’t see how this can be true.  The case involves several very complicated and thorny issues of statutory and regulatory intepretation, constitutional rights of the criminally accused, and state versus federal jurisdiction that even progressive election law scholars are thoroughly divided on.  I’m a progressive election law scholar myself who has been skeptical of these charges from the outset, and the prosecution has done almost nothing the address my concerns.

Typically the job of juries is to decide "questions of fact," whereas it is the job of judges to decide "questions of law." This is partly because most jurors are non-lawyers and are not expected to be able to decide, or to decide, questions about things like statutory interpretation (although funnily enough, this particular case has 2 lawyer-jurors).

Juries are typically thought to be supposed to take the judge's interpretation of law as a given, and to follow the instructions given to them by the judge as to what the law is.

https://www.law.cornell.edu/wex/question_of_law

A question of law is an issue that is always resolved by a judge, not a jury, including:

    A question regarding the application or interpretation of a law
    A question regarding what the relevant law is, if there are two or more mutually exclusive laws, a judge determines which law is relevant
    A question that has been authoritatively answered by law, or
    A question of fact that nevertheless has been reserved for judges, not juries, to resolve

Questions of law are distinct from questions of fact, which are questions for a jury in a jury trial or a judge in a bench trial when acting as the factfinder. Mixed questions of law and fact are also often resolved by juries.

The judge's interpretation of the law can be debated, but if so, that is normally a matter for an appellate court to deal with, not a jury.



Of course, the distinction between questions of law and questions of fact is not exact and cannot always be cleanly separated. But at the same time, it is not like there is no distinction that can be made most of the time for practical purposes. Bottom line, it is not really the jury's job to wade into the sorts of questions that "legal scholars" worry about.



For example, suppose you have a murder case. The jury is supposed to decide if the defendant is guilty or not guilty of murder, after the judge explains to them what exactly murder is and what facts they would need to find to find the defendant guilty. On the other hand, the jury is not supposed to sit there and say, "but hey, I am reading the text of this murder statute with my fine-toothed comb, and under my interpretation it looks like murder is not a crime at all in the first place."

Juries can do that if they want in extreme circumstances and they can't be stopped if they choose to do so because of double jeopardy etc, but that is effectively jury nullification.

[Former Dean Phillips Supporters for Haley (I guess???!?) 👁️]

How long do you think the defense will last? I'm guessing they will call Michael Avenatti as a witness.

The biggest thing the defense has going for them in this case is the likelihood that Avenatti will deliberately perjure himself in the hopes of securing a pardon from Trump if Trump wins the election.

https://en.wikipedia.org/wiki/Michael_Avenatti

Avenatti currently has about 20 years left on his federal prison sentence. He is 53 years old, so with no pardon, and if not released early, he could easily be 70+ years old by the time he is released. Effectively, that is pretty close to a life sentence for much of the rest of his remaining life, depending on how long he ends up living.

As such, he has a powerful incentive to lie if it has a chance to get his prison sentence eliminated as a result of currying favor with Trump.

Avenatti probably figures that Trump has about a 50% chance of winning.

So if Avenatti perjures himself and simply makes up a bunch of un-verifiable he-said/she-said fake conversations designed to be helpful to Trump, this could instill doubt in the jurors and lead to Trump being acquitted. Meanwhile, as long as he is careful to make his lies be impossible to disprove (by ensuring the only counter-evidence can be another person's he-said/she-said memory), it will not be possible to successfully prosecute Avenatti for perjury.

Therefore, if Trump wins, Avenatti can perjure himself and expect a full pardon from Trump as his reward, a get out of jail free card.

Meanwhile, if Biden wins, Avenatti won't serve any longer in prison than he is already sentenced to serve, because it won't be possible to convict him for perjury even if he lies, if he is careful about how exactly he lies.



This is one of the reasons why it should not be legal for Presidents to make pardons in matters that have any relation to cases against themselves personally. It is an obvious and enormous conflict of interest.

[Former Dean Phillips Supporters for Haley (I guess???!?) 👁️]

--snip--

Up now for the prosecution:

— Daniel Dixon, another custodial witness who works as a compliance analyst AT&T

We're starting to see phone records.

Why are phone records important to this case? It's been clear since the case has been charged.

On Oct. 26, 2016, Michael Cohen opened his shell company to funnel a $130,000 home equity loan to Stormy Daniels' lawyer — "shortly after speaking on the phone" with Trump

From the exhibits, it's clear that the phone records have Cohen's name, but it's not immediately clear it's the same call.

We'll wait for the release of today's exhibits later.

On cross, Trump's lawyer Emil Bove presses the witness on alternative explanations for the records.

Q: You're familiar with the concept of a pocket dial, right?
A: Correct.

Q: There's a lot of data here, but the data has limits, right?
The witness says they are logs.

--snip--

Thanks for posting in this format, it makes it a LOT more readable.