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This shall be an unusually lengthy publish as a result of my outdated good friend and co-author, Cliff Sloan, a Georgetown Legislation professor who has argued many instances within the Supreme Court docket, agreed to imagine the grim obligation of telling you a number of stuff you won’t have examine Thursday’s SCOTUS oral arguments on Donald Trump’s declare that he’s immune from prosecution for making an attempt to stage a coup. See beneath.
Within the meantime, I’m holding down the fort inside what is going to very doubtless be Trump’s solely prison trial this 12 months—or presumably ever.
Given the miserable show in Washington, let’s begin with one thing inspiring from New York.
In most trials, jurors saunter in, joking with one another en path to and from the jury field. Right here, they march out and in like troopers with a silent sense of obligation, eyes straight forward as they go simply three toes from Trump, who has been compelled to face and honor these peculiar residents whose impartiality he assaults exterior the courtroom on an virtually each day foundation. Few, if any, steal even the briefest look sideways in his course. It’s as if he’s not there.
Nearly all of Day Seven was consumed by the direct examination of David Pecker, the Trash Collector, who turned out to be a star witness for the prosecution. Pecker’s testimony will not be straight related to Trump’s law-breaking; hush cash will not be unlawful, and he by no means paid his outdated mistress, anyway. However the man who printed bullshit turned out to be a truth-teller on the stand. With the reminiscence of an elephant, he detailed instance after instance of Trump’s prison intent and contextualized the prosecution’s case concept.
I anticipated Choose Juan Merchan to rule Thursday on the prosecution’s contempt of courtroom movement. As an alternative, the DA added 4 extra counts after Trump clearly violated the gag order once more by going after a witness. And never simply any witness, however the one on the stand now. Earlier than the courtroom convened, Trump instructed reporters, “It is a message to Pecker: Be good.”
Certain sufficient, when Pecker wrapped up on direct, he described Trump as “my mentor” and instructed a flattering story about how within the aftermath of 9/11, he needed to shut his Florida headquarters after an anthrax assault that killed an worker. He stated Trump was the primary particular person to name him in assist and helped him with the insurance coverage declare. “Despite the fact that we haven’t spoken [since 2019], I nonetheless contemplate him a good friend,” Pecker stated with evident sincerity.
My first thought was that Trump had intimidated Pecker, and this was unhealthy for the prosecution. Then a few legal professionals instructed me that Pecker’s clear affection for his outdated good friend truly made his testimony all of the extra devastating. Pecker spent the day primarily pre-corroborating a part of the story that Michael Cohen will inform however with out the malice of Cohen, who shall be ripped on cross-examination for, amongst different issues, entitling one in every of his books, Revenge.
If Tuesday was about Dino the Doorman, Thursday (there’s no courtroom on Wednesdays) revolved round Karen McDougal, the mannequin and former Playmate of the 12 months who instructed Pecker’s American Media Worldwide (AMI) that she didn’t wish to be “the subsequent Monica Lewinsky.”
In September 2016, Dylan Howard, AMI’s chief content material officer, and Pecker’s deputy, discovered of her ten-month affair with Trump in 2006-07 from one in every of his highest sources, Keith Davidson, a well-connected Beverly Hills lawyer who additionally occurred to be the lawyer representing each McDougal and Stormy Daniels. We’ll be listening to rather a lot about—and from—this man Davidson within the weeks forward.
Dylan Howard reported to Pecker that ABC was providing McDougal a spot on Dancing with the Stars. Nonetheless, Pecker knew that ABC didn’t follow checkbook journalism and, due to this fact, wouldn’t pay for the intercourse story. He was certain that rumors a few Mexican group providing her $1 million for her story had been virtually actually false.
Pecker concluded that he must purchase the story to guard Trump as he had promised. “I believed the story was true, and it might be very embarrassing to him and to his marketing campaign,” Pecker testified.
Trump positioned an pressing name to Pecker, who was attending a enterprise assembly in New Jersey. “Mr. Trump stated to me, ‘I spoke to Michael. Karen is a pleasant lady. Is it true a Mexican group is trying to purchase the story for $8 million?’” ($7 million greater than the unique rumor). Pecker stated no. Trump requested, “What do you assume I ought to do?” Pecker testified that he stated, “I feel you can purchase the story and take it off the market.” Trump replied that he doesn’t purchase tales as a result of the story all the time comes out, anyway.
However he did need AMI to purchase it. Because the take care of Davidson progressed, Pecker was below the misimpression that he can be reimbursed for the $150,000 “lifetime rights” contract that Davidson negotiated, which stipulated she may say nothing about “any relationship with a then-married man.” In trade for preserving her mouth shut in regards to the affair, McDougal can be allowed to place her title on ghostwritten articles for Form and different AMI health and sweetness magazines and presumably anchor red-carpet occasions for Radar journal.
Pecker thought all of that was value $25,000 and that Trump would owe him $125,000. Pecker tried to elucidate to Cohen “why it was so necessary to be reimbursed…He [Cohen] principally stated on the finish of every dialog, ‘Why are you anxious? I’m your good friend. And the boss [Trump] will deal with it.’”
After all, the boss by no means did as a result of that’s how he rolls. His deadbeat MO goes not less than way back to his repeated follow of stiffing contractors and distributors within the Nineteen Eighties, as Hillary Clinton identified within the first 2016 debate. However having shelled out $150,000, Pecker was decided to get many of the a refund.
In keeping with Pecker, Michael Cohen grew alarmed when Pecker, on the recommendation of an AMI lawyer, instructed him that the dummy companies he and Cohen had put collectively to launder their transactions and the switch of McDougal’s life rights to Cohen had been too dangerous. They had been violating marketing campaign finance legal guidelines prohibiting giant unreported in-kind or circuitously-routed contributions.
Pecker was proper to be getting chilly toes. After the scandal broke in 2018, he signed a non-prosecution settlement stipulating that he broke the legislation between August 2015 (the primary funds to Dino the Doorman) and October 2016; that McDougal was paid “considerably greater than AMI would have in any other case paid for the story”; and that he sought to “suppress the mannequin’s story to forestall it from influencing the election.” He did all of this at Trump’s instruction, which is highly effective proof of prison intent—a key factor of the case.
We nonetheless don’t have a very good rationalization for why the feds went after Cohen and Pecker however not Trump. One of the best guess is that even after Joe Biden gained, the DOJ hesitated to prosecute Trump out of worry that it may lose at trial, as prosecutors did in a superficially related case involving former Senator John Edwards. However Pecker’s information that he was doubtless breaking marketing campaign finance legal guidelines is extremely related. Trump is on trial for falsifying enterprise information with intent to interrupt different legal guidelines, together with these regulating marketing campaign spending. This is without doubt one of the three aggravating offenses, bumping the costs as much as felonies. (The others are tax fraud and conspiracy to intervene in an election). Intent is the important thing. Below New York state legislation, Manhattan District Lawyer Alvin Bragg didn’t have to indict Trump on these offenses to convey them into his case.
We discovered on Thursday that Trump’s curiosity in AMI went past “catch and kill.” He instructed Cohen to ask Pecker to ship containers stuffed with outdated editions of the Nationwide Enquirer and different tabloids to verify outdated tales didn’t come again to hang-out him earlier than the election. Cohen “referred to as me continuously in September to evaluation and ship these containers to his workplace.”
Cohen instructed Pecker: “The boss stated if I [Pecker] bought hit by a bus or the corporate was offered, he didn’t need another person to probably publish these tales.” Trump was already upset that somebody had posted an outdated Nationwide Enquirer headline on Radar On-line depicting him as “the Playboy Man.”
Pecker’s testimony helped the jury perceive the case’s chronology. On October 8, 2016, someday after the discharge of the Entry Hollywood tape that briefly crippled the Trump marketing campaign (earlier than James Comey’s resurrection of Hillary’s emails bumped it out of the information), Pecker was having dinner in Greenwich, Connecticut, along with his spouse. He took an pressing name from Dylan Howard telling him that two of his greatest supply, Davidson and Gina Rodriguez, an agent, had been making an attempt to promote a narrative about Trump having intercourse with a porn star named Stormy Daniels.
Howard wished AMI to purchase the story for $120,000. Pecker instructed him, “I don’t need the Nationwide Enquirer to be related to a porn star…It could be unhealthy at Walmart…I stated we already paid $30,000 to the doorman and $150,000 to Karen McDougal. I’m not a financial institution. We aren’t paying any extra.”
Pecker agreed that the story can be “very damaging” on the heels of the Entry Hollywood story. In spite of everything, “Seize ‘em by the pussy” was not taking part in effectively with voters on the eve of the election. “It must be taken off the market,” Pecker instructed Howard. “If anybody had been to purchase it, it must be Michael Cohen and Donald Trump.”
When Cohen requested Pecker to purchase it, Pecker instructed him, “I’m not buying this story. I’m not going to be concerned with a porn star.” Cohen “stated the boss can be livid with me.”
Pecker then predicted that Trump’s ire would quickly be directed at Cohen. “I stated my suggestion to you is you can purchase the story and take it off the market as a result of if you happen to don’t, the boss shall be very offended with you.” That’s when the convoluted “no fingerprints” fraud scheme went into excessive gear.
When Trump—by way of Cohen—tried to stiff Stormy Daniels, Davidson and Rodriguez complained to Howard. “Michael Cohen goes to make you look very unhealthy with [your] two prime sources,” Pecker instructed Howard, who didn’t want the reminder. “You recognize what it means if you happen to renege.” Reneging, in fact, would imply that these nice sources would cease offering AMI with tales.
It appeared as if Trump spent the final month earlier than his election chasing down rumors about his former mistress. His physique man, Keith Schiller, referred to as Pecker to say, “The boss heard that Karen was chatting with ABC Information.” It turned out to be an unfaithful rumor. Then, on November 4, with early voting already underway, The Wall Road Journal printed a narrative saying that AMI had paid McDougal to not speak earlier than the election. With no audio tape or slam-dunk proof that the story was true, it didn’t make a big effect. Actually, I had forgotten about it till now. The Nationwide Enquirer serving to Trump was not precisely stop-the-press information.
Trump was “very upset” on the cellphone, Pecker stated. He was “saying, ‘How may this occur? I believed you had this below management. Both you or your folks have leaked this story!” Trump hung up with out saying goodbye. Pecker was assured the leak got here from the McDougal camp: “I didn’t know if she went off the reservation.” Davidson reported that she was in Arizona and never taking any calls.
Pecker determined to amend McDougal’s supply settlement from 90 days to “in perpetuity.” He defined, “I wished to increase the contract so..she wouldn’t make further feedback about AMI and Mr. Trump.” McDougal didn’t like the brand new deal, so she ultimately sued. In 2018, AMI let her out of her contract.
All day, Pecker sketched the sample of the conspiracy by detailing the McDougal payoff—a prelude to the true present—and connecting Trump on to Stormy Daniels.
A month after the election, Pecker went to Trump Tower, the place Trump was assembly with—a blast from the previous—Reince Priebus, Sean Spicer, Mike Pompeo, and James Comey. Cohen instructed Pecker privately that he “hadn’t been reimbursed on the cash owed to him on Stormy Daniels” and hadn’t acquired his bonus. Cohen requested Pecker if he would converse to Trump about it.
Trump got here into the room and began speaking to Pecker as soon as extra about all of the outdated Nationwide Enquirer information. Pecker requested if he may stroll the president-elect again to his workplace.
“I stated Michael Cohen could be very involved about his bonus this 12 months. I need you to know he’s very loyal, would throw himself below a bus for you,” Pecker testified. “Trump stated Michael Cohen has a number of flats in my constructing. He has 15 taxi medallions value one million a bit. He stated don’t fear about it.”
Trump requested after McDougal, the girl he now denies having had any relationship with.“How’s our lady doing?” he requested. Then he instructed Pecker, “I wish to thanks for dealing with the McDougal scenario” and “the doorman scenario.”
Simply in case there was any misunderstanding about his testimony, Pecker added, “He was thanking me for getting them and never publishing any of the tales and serving to the way in which I did…He stated the tales might be very embarrassing.”
Embarrassing for whom? “I believed it was for the marketing campaign,” Pecker instructed prosecutor Joshua Steinglass in a second that went straight at Trump’s intent. Trump stated, “It could be very damaging to his marketing campaign and election.” Then, in a light tone, he went additional. “His household was by no means talked about,” Pecker stated, by both Cohen or Trump.
Pecker was invited to the inauguration, however neither he nor his spouse went. He did settle for Trump’s invitation to a thank-you dinner on the White Home, however his spouse —who’s clearly no fan of Trump—begged off.
After Pecker visited the Oval Workplace, Trump requested if he wished to stroll with him to dinner. As they handed the Rose Backyard, Trump requested once more about McDougal. “I stated she’s doing effectively,” Pecker stated. “Every thing is nice.”
In early 2018, Trump’s thoughts was nonetheless on his outdated mistress. “Donald referred to as, and he stated to me, ‘Did you see the Anderson Cooper interview with Karen McDougal…I believed you had—and we had—an settlement with [her] that she will’t give any interviews or be on any tv exhibits.’”
Pecker replied, “I stated sure, however I amended it to let her converse with the press. He bought very aggravated and couldn’t perceive why.”
Tomorrow, I’ll clarify how Pecker dealt with cross-examination.
Cliff Sloan’s tackle the SCOTUS oral arguments
One level that must be harassed is that it appears doubtless that the Supreme Court docket will (a) reject Trump’s most excessive positions however (b) ship them again to decrease courts to find out what’s official and what’s non-public. The issue now could be the timing — if that occurs, it’s just about unimaginable that the case will go to trial earlier than the election. This downside is fully of the Supreme Court docket’s making.
SCOTUS may have and will have taken the case in December when Particular Counsel Jack Smith sought to go straight there earlier than the Court docket of Appeals continuing. That might have left loads of time for these proceedings. By the use of comparability, the Supreme Court docket determined a demise penalty case in January 2021 earlier than the Court docket of Appeals dominated in order that it may ensure that the federal prisoner was executed earlier than Biden took workplace. It exhibits that the Court docket considered this problem as much less necessary.
Even after ready for the Court docket of Appeals, the Supreme Court docket may have moved rather more rapidly—each in deciding to take the case and scheduling it for oral argument.
It’s remotely doable {that a} mixture of the three liberal justices (Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson) plus Amy Coney Barrett plus Chief Justice John Roberts may go for a fast choice, saying there are sufficient non-public actions (as conceded by Trump’s lawyer) to maneuver forward to trial. However Roberts appeared very inclined to have the decrease courts take the primary crack at that and type it out.
And the separate writings of dissenting justices will take some time to play out. Roberts may crack the whip, however he gained’t.
One attention-grabbing level I haven’t seen talked about is that Justice Brett Kavanaugh dumped all around the unbiased counsels who investigated Reagan, Bush, and Clinton—although he was a outstanding a part of the Workplace of Unbiased Counsel investigating Clinton.
John Dean makes a very good level:
“Legal professionals used to chortle once they heard Nixon’s evaluation throughout Frost/Nixon: “When the president does it, which means it’s not unlawful.” Listening to the arguments earlier than at this time’s Supreme Court docket, it seems the Republican Justices are all in with Richard Nixon. American democracy could also be unraveling rapidly.”
It was exceptional—and telling—that Trump’s lawyer, John Sauer, waived rebuttal after Michael Dreeben’s argument on behalf of the federal government. That nearly by no means occurs. It exhibits that he acknowledged that, although the Court docket wasn’t shopping for his sweeping arguments, he was doubtless to reach getting what they most wished —delay and a drawn-out continuing. He took a knee and let the clock run out relatively than threat a turnover.
It’s mind-boggling that a few of the Justices (comparable to Neil Gorsuch and Kavanaugh) appeared all in favour of Trump’s new argument that no prison statute applies to the president except he’s particularly named. Leaving apart the truth that you’re ordinarily not permitted to boost new arguments within the Supreme Court docket, this goes approach past immunity. It could create a brand new “law-free zone” for the President as a result of only a few statutes (and only a few prison statutes) point out him particularly. It appears unlikely {that a} majority will coalesce round that precept, however even a concurrence by one or two justices alongside these strains can be alarming.
I’m struck that Sauer’s reiteration to the Court docket that the assassination of a political rival could be immune is getting little or no discover. It’s the traditional Trump MO —say one thing outrageous, it will get consideration for twenty-four hours, after which it’s normalized. Folks barely shrug.
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