Prosecutors push boundaries in Trump hush money trial

Prosecutors are limited in how they may reference Michael Cohen’s past guilty pleas during former President Donald Trump’s hush money trial, but these restrictions have not stopped them from finding ways to tie Trump to Cohen’s crimes in front of the jury.

Judge Juan Merchan expressly ruled that prosecutors are not permitted to use Cohen’s guilty pleas for two campaign finance violations in 2018 as evidence that Trump committed a crime, but the judge did provide leeway on the matter, and Manhattan District Attorney Alvin Bragg has used it.

Cohen, who is expected to testify in the trial, was Trump’s attorney and fixer in 2016 amid the presidential election, but Cohen has since pleaded guilty to numerous crimes and has become openly hostile toward his former client in the years since his plea.

Cohen’s crimes are one example of the topics around which prosecutors and defense attorneys must navigate restrictions during the weekslong trial. Merchan also carved out some of Trump’s past legal battles as inadmissible, while others are admissible, should Trump decide to testify.

Bragg’s ‘mendacious’ Cohen remarks

Matthew Colangelo, one of Bragg’s leading prosecutors, outright said in his opening statement that he expects Cohen, Bragg’s star witness in the trial, to testify about how Cohen pleaded guilty for his role in arranging hush money payments to former Playboy model Karen McDougal and porn star Stormy Daniels. Both women alleged they had affairs with Trump.

“Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff,” Colangelo told the jury.

Conservative legal analyst and former federal prosecutor Andy McCarthy called the remarks “breathtakingly mendacious.”

“Colangelo was not properly admonishing the jury that Cohen is a witness of dubious credibility. He was signaling to them that the NDA payments to McDougal and Daniels — for which he had just blamed Trump in an extensive narrative — were crimes for which Cohen ‘went to jail,’” McCarthy said in an op-ed. “In reality, Cohen was sentenced to prison because of his lucrative fraud crimes, not the [Federal Election Campaign Act] charges. The SDNY never charged Trump, and it almost certainly wouldn’t have charged Cohen if he hadn’t agreed to plead guilty.”

Later, prosecutors called upon witnesses to testify about Cohen and steered them to condemn Cohen as an aggressive dealer and a “jerk” and to confirm how Cohen urgently secured a loan under false pretenses to pay Daniels to help Trump’s campaign.

Merchan ruled in an order in March that he agreed with Trump’s defense attorneys that if prosecutors introduced evidence of Cohen’s guilty pleas for the campaign finance matter, then they will have “opened the door” for Trump’s attorneys to introduce evidence about how the Department of Justice declined to prosecute Trump in the same case. But Merchan cautioned that witnesses could talk about Cohen’s crimes.

“This Court agreed with Defendant that the People cannot argue at trial that Cohen’s guilty plea to FECA violations is probative of Defendant’s guilt in the instant matter,” Merchan wrote in March. “However, this Court also ruled that testimony about the underlying facts of those guilty please will be accept[ed], provided the proper foundation is laid.”

Katie Charleston, a California-based former prosecutor, said she believed Bragg’s prosecutors were “walking the line.”

“I think that the use of those plea agreements is rather a strategic and manipulating move to either confuse the jury into concluding that because Cohen pled guilty, Trump must be guilty,” Charleston said. “The plea agreements themselves are highly prejudicial in this case and completely irrelevant in my mind for the prosecution’s purpose.”

Former U.S. Attorney John Fishwick of Virginia said he thought prosecutors were strategizing to distance themselves from Cohen, who has a slate of credibility problems from his past charges.

“It appears the prosecution tried to deal with the Michael Cohen problem by encouraging Stormy Daniels’ lawyer [witness Keith Davidson] to take shots at him,” Fishwick said. “That way the prosecution has less ownership of Cohen when he finally testifies.”

The Harvey Weinstein factor

Trump has repeatedly said he will testify in the case, but another recent ruling by Merchan about what is admissible during the trial presented a dilemma for the former president.

Merchan ruled prosecutors could ask Trump, if he chooses to take the stand in his own defense, about the former president’s past legal troubles, including his recent civil fraud trial and certain aspects of his court battles with writer E. Jean Carroll. This would give prosecutors the opportunity to chip away at Trump’s credibility in the eyes of the jurors.

The Fifth Amendment of the Constitution protects Trump from being required to testify, but if the former president declines to take the stand, jurors could be left with questions about Trump’s side of the story.

Some legal experts have indicated prosecutors and the judge may have placed Trump in an “untenable” position to defend himself. While Trump maintains he wants to testify, he must weigh his right to defend himself against the notion that prosecutors will cross-examine him about legal entanglements that are not part of the current trial.

“Trump could argue that his right to testify has been ‘chilled’ — that he has been given a strong disincentive to exercising this constitutional right,” former prosecutors Jim Walden and Deanna Paul wrote in a CNN op-ed. The pair of former prosecutors explained that is essentially what happened in the case of Harvey Weinstein, who last week had his felony sex crimes conviction overturned by a 4-3 ruling at the New York State Court of Appeals.

Weinstein’s trial court judge, Justice James Burke, also ruled that prosecutors could cross-examine Weinstein about a host of acts unrelated to his criminal case, including bullying and tantrums against employees and other business associates.

Walden and Paul wrote that the judge in Weinstein’s case “took the same bait” as Merchan, contending that Burke’s ruling to allow those lines of questioning against Weinstein “undercut his right to testify in his own defense” even though Weinstein never took the stand.

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The pair added it would be a “mistake” for Merchan to continue to allow such broad cross-examination options and called on Merchan to reverse his own ruling in the event that a jury does vote to convict Trump.

“If he does not, Trump could get a conviction overturned while the ink hasn’t yet dried on the jury’s verdict,” the former prosecutors added.