Opening Statements in Trump's Trial Are Expected Today

Now that a jury of twelve (seven men and five women), plus six alternates, has been chosen, Donald Trump's "hush money" trial starts in earnest today. The trial is not really about "hush money" at all. If Trump had paid Stormy Daniels $130,000 out of his own pocket to buy her silence, it would have been perfectly legal. But he didn't. He used company money and then covered it up by falsifying company records to show the payment as "legal services rendered" to his go-between, Michael Cohen. Falsifying business records is a crime in New York. What Manhattan DA Alvin Bragg has to prove to the jury is that Trump caused the records to be falsified, and that he did it for political purposes. It is not necessary that Trump actually typed "For services rendered" into the computer himself. If he instructed someone else to do it, that is enough. Prosecutor Joshua Steinglass will tell the jury: "If a man hires a mobster to murder his wife, he is as guilty as the man who pulled the trigger."

Unlike in his civil trials, Trump actually hired two top-rate attorneys, Todd Blanche and Susan Necheles. Blanche used to be a federal prosecutor—and he worked with none other than Alvin Bragg. He then worked for New York's oldest law firm, Cadwalader, Wickersham, & Taft, before leaving to start his own law firm. Necheles, a graduate of Yale Law School, is a highly experienced New York defense attorney and has her own firm. She has represented politicians, real estate developers, and mobster "Benny Eggs." Judge Juan Merchan has repeatedly become frustrated with Blanche, so it wouldn't be surprising if at some point Necheles said to Blanche: "The judge really dislikes you; I'd better take over now."

Bragg has a lot going for him. The crime (cooking the books) is easy to understand, the motive is plain as day, there are multiple insider witnesses who will testify, hard evidence (including canceled checks) abounds, and the jury pool is about as good as any prosecutor dare dream about. Nevertheless, there are a few weak spots where the prosecution can be attacked. Here they are:

• Cohen's Credibility: The key witness is Michael Cohen. He is the one who actually paid off Daniels. He was reimbursed by Trump for the payment and Trump recorded the reimbursement on his company's books as "legal services rendered," which is a lie. Although Cohen is a lawyer, he did not do any legal work for Trump in this matter. The problem is that Cohen is a convicted liar and served prison time for it. The defense is going to harp on this endlessly, saying: "How can you believe a word from a guy who is a convicted liar?" It could work.
  
  But maybe not. The judge has now ruled that if the defense attacks Cohen's credibility, then the prosecution may introduce Trump's tweets attacking Cohen. This might show the jury that Trump is completely unhinged. However, although the cheese stands alone, Cohen doesn't. The prosecution has corroborating witnesses. David Pecker, who used to run the National Enquirer, can testify that Trump paid him to buy stories that reflected badly on Trump and kill them. This establishes a pattern of Trump's buying people's silence, so one more was hardly exceptional. Pecker has never been in prison and is a credible witness. Hope Hicks was one of the closest people to Trump during the 2016 campaign. She can testify that Trump was very worried about the Daniels story leaking out and sinking his candidacy. This strengthens Cohen's story. There may be other surprise witnesses who also corroborate Cohen's tale.
  
  
• What Was Trump's role?: Trump's lawyers are likely to say that CFO Allen Weisselberg dumped a bunch of checks on Trump's desk every morning and asked him to sign them, which he did, without even looking at them, because he trusted Weisselberg. And that it was therefore Weisselberg, or someone else, who falsified the business records without Trump's knowledge.
  
  The prosecution will try to rebut this with witnesses who will say that Trump was a micromanager. The company couldn't buy a box of paperclips without Trump's explicit approval. They will say it is absolutely inconceivable that anyone within the company, even Weisselberg, would pay a porn star (via a go-between) $130,000 without Trump's clear approval. Actually, the amount on the books is more than $130,000, since Trump had to pay Cohen enough that after paying federal and state income tax on that amount, he had $130,000 left over. In addition, Trump's signature is on all the checks, and a defense of "I didn't know what all these checks I signed were for" is probably not going to convince many jurors.
  
  
• Legal issues: This is where it gets hairy. Falsifying business records by itself is a misdemeanor. It only becomes a felony if it is done to cover up an underlying crime. What crime is Bragg going to claim Trump was trying to cover up? There are a lot of possibilities, each with pros and cons from the DA's perspective. He could shoot for violations of federal or state election law, or tax evasion, or financial fraud. This is weedy enough that we'll have an item tomorrow running it down in more detail. For now, just know that this is probably the toughest hurdle for Bragg to clear.
  
  Even if Bragg makes a compelling argument for an underlying crime, he's not home free. This is an area the jury is going to have trouble with unless the judge gives them clear instructions. If the jury doesn't understand the second crime, it is possible that they just convict Trump of the misdemeanor of falsifying business records, with no underlying crime. That would be a huge victory for Trump. This is where the two lawyers on the jury could come in. If the jurors don't really understand the judge's instructions, the lawyers could explain them in simpler language.
  

In an interview a few weeks ago, Cohen said that there will be some surprises during the trial, but he refused to elaborate further as to what they might be. In 6-8 weeks, we should know.

Gov. Kristi Noem (R-SD) took advantage of the trial to do a bit of campaigning yesterday—for vice president. On CNN's State of the Union, she called the trial ridiculous and said: "It's the way that Democrats are fighting these days, using the judicial system and activist judges to do so." Score three brownie points for the governor. She really, really wants to get out of South Dakota. (V)

Many Key Parts of the Trial Are Hidden from the Public

Despite the roughly 24/7 coverage of Donald Trump's trial, a large amount of what is going on is hidden from the public. Not intentionally, but still hidden. The problem is that the New York State court system operates in the 20th century... no, make that the 19th century. The digital age has not hit the NYS courts. Motions are filed on paper, rulings are made on paper, and nothing is online. If a reporter wants to find out what is going on, he or she has to visit the clerk's office in Lower Manhattan and ask for specific documents to view. In many cases, no one even knows that there are motions and rulings. Even when they do come to light, it is often days after the matter was handled. Some websites that follow legal news, like Lawfare, have created their own shadow dockets where they post the documents they can scrounge up. Remember, the judge's job is not providing copy to the media. It is to run a fair trial, respect the defendant's rights, and follow the law.

One aspect of the case that is 21st century is that Merchan does use e-mail to contact both the prosecution and the defense. We are not sure if the court system has discovered e-mail yet, so maybe the judge just created a gmail account for this purpose. Or maybe he has a private server created by his underlings so that he can negotiate the sale of uranium to Russia. You just never know with these things. In any event, a lot of information is going back and forth and is not on the public record. In addition, all documents are redacted before making them public in any form, to protect the rights of everyone involved. This introduces delay in the system.

In some of the other cases that have not begun yet, the situation is even worse. Merchan allows the reporters in the courtroom and in the overflow room to use their smartphones to live blog what is going on. In Judge Aileen Cannon's courtroom, electronic devices are forbidden, requiring reporters to take notes by hand and enter them in their company's computer by hand afterwards. Georgia is better, since Judge Scott McAfee allows his trials to be televised live. In Georgia, it is the judge's call whether to allow live TV and McAfee is a big fan of transparency, so he usually allows it. However, although Georgia has an online system for filing and viewing documents, it was hit by a cyberattack and is out of service now. (V)

The Pundits Are Getting the Trial All Wrong

As Donald Trump's first criminal trial is getting started, pollsters and pundits are revving up. The former are already providing some data and the latter are already misinterpreting it. For example, Irena Li at ABC News wrote: "About half of Americans think he's guilty. That likely won't matter in November." There are plenty more like this.

First of all, the actual trial hasn't even started yet. Who knows what kind of evidence will be introduced and how compelling the witnesses will be. At the very least, people's memories about the events that led to Trump's indictment will be refreshed. It is very hard to predict how people will react once they realize the actual charges don't relate to what Trump did with Stormy Daniels, but to his falsifying his business records, for which there is incontrovertible evidence.

A number of pundits cited a Quinnipiac University poll that showed that only 29% of the voters would be less likely to vote for Trump if he is a convicted felon. But none of those are dyed-in-the-wool Trump supporters, who will stick with their man through thick and thin. We don't know how many of those 29% are people who voted for Trump but are not fanatical supporters. We do know that in 2020, Georgia was decided by 0.23%, Arizona was decided by 0.30%, Wisconsin was decided by 0.63%. Pennsylvania was decided by 1.33%, North Carolina was decided by 1.34%, Nevada was decided by 2.39%, and Michigan was decided by 2.76%. After looking at those numbers, 29% is an awfully big number. In fact, even one-tenth of that—2.9%—is a seriously large number.

In other words, it isn't necessary for 30%, or 20%, or even 10% of the people who voted for Trump to give up on him for the trial to do real damage. About half a dozen states were won by under 3%. Even a shift as small as that could have a huge effect.

Other polls have other numbers about whether people would vote for a convicted felon. A YouGov poll shows that 57% of Americans feel that falsifying business records to conceal a payment to a porn star is serious. A Morning Consult poll shows that 53% of respondents will not vote for Trump if he is a convicted felon. We suggest taking all these numbers with one or more barrels of salt. It's all hypothetical now. If Trump is actually convicted, then people will start thinking about this seriously and the polls may mean more.

What effect will the trial have on the "double haters" and people who don't normally pay much attention to politics? If anything gets their attention it could be this trial—at least assuming they consume some media other than Fox.

And the polls certainly don't take into account what could happen if Trump—against the advice of his (quite competent) attorneys—decides to testify and is torn apart on the witness stand. In short, pundits gotta pundit, but you don't have to take them at all seriously until the trial is actually over and we see what comes out during it. You may feel free to continue taking us seriously, however. (V)

Greene Continues to Threaten to Force a Vote on a Motion to Vacate

On Fox yesterday, Rep. Marjorie Taylor Greene (R-GA) got an extra 15 minutes of fame by saying that she is serious about introducing a motion to vacate the chair—that is, to fire Speaker Mike Johnson (R-LA). She says there are three Republicans who will vote to vacate, so bingo, he's history.

Not so fast, Marge. She is counting on all the Democrats also voting to vacate the chair. That may not be the case. No doubt there have been numerous discussions between Johnson and House Minority Leader Hakeem Jeffries (D-NY) recently. Surely, one topic of discussion was the quid pro quo for Johnson agreeing to fund aid to Ukraine, Israel, and Taiwan. We imagine that Johnson asked for a promise that enough Democrats would vote against the motion to save his job. Other concessions may also have been made back and forth. Welcome to coalition government.

As evidence that there was a deal made, yesterday progressive Rep. Ro Khanna (D-CA) told ABC's Jonathan Karl: "I disagree with Speaker Johnson on many issues, and I've been very critical of him. But he did the right thing here and he deserves to keep his job until the end of his term." That does not sound like an "aye" vote on the MTV. Khanna is surely not the only Democrat who thinks like this. What is surprising is that it took Johnson so long to make a deal with the Democrats. It was obvious months ago that was the only way to save his job.

If Greene finally pulls the trigger and the motion fails due to Democrats bailing Johnson out, the Freedom Caucus will have been neutered. They will, in a manner of speaking, cut off a different Johnson than the one they intended. It will be extremely painful for the FC's members because it will mean that its power to throw a monkey wrench in the works whenever it wants to is gone. There will be a lot of noise, many idiots, much sound and fury, signifying nothing. (V)

Democrats Are Setting Up Billboards about Abortion in North Carolina

Although North Carolina tends to get less attention than some of the other swing states, as you can see from the numbers above, it was almost as close as Pennsylvania and has almost as many EVs (16 vs. 19). It is surely going to be closely contested. As an added benefit, it is a lot closer to both candidates' home bases (D.C. and Florida, respectively) than Nevada, Arizona, Wisconsin, or Michigan, so they can get there easily. With Trump required to spend 4 days a week in a New York courtroom, the logistics of campaigning have suddenly become a very big deal.

As we have mentioned a couple of times, the subject of abortion is going to come up once or twice this year. The Democrats have put 1 and 1 together and come up with an ad campaign in North Carolina where they have put up 16 billboards in Charlotte and Wilmington hitting Trump on his opposition to the procedure. This is the most billboards in any state. They are in English and Spanish.

Billboards are not exciting, but they are relatively cheap and if placed in well-traveled locations, get plenty of views. Some of them are mobile. The choice of Wilmington was not accidental. Trump was supposed to speak there on Saturday and the DNC wanted to make sure everyone knew about Trump's views on the subject. However, bad weather forced Trump to cancel his appearance. Still, this could start a trend (mobile billboards about abortion, not bad weather): Wherever Trump is speaking, a truck with a mobile billboard about abortion will circle the venue to call everyone's attention to the subject. (V)

Kennedy's Former Colleagues Are Running an Ad Attacking Him

Robert F. Kennedy Jr. used to work as an environmental lawyer. Now almost 50 people who worked with him are running an ad attacking him, saying: "Honor our planet, drop out." This is significant because one of the things he is running on is his record as an environmental lawyer. But if his former colleagues think he is running in bad faith, that isn't going to help. The ad is a full-page print ad running in newspapers in six swing states. Here is the body of the ad:

Separate from this ad, a dozen other environmental organizations have posted an open letter denouncing Junior and his views on the environment. It says that by rejecting science, he is as bad as Trump.

Many prominent individuals who have worked on fighting climate change are also going after him. Gina McCarthy, who was EPA administrator under Barack Obama, said: "If folks remember him as an environmentalist, he is no more. He's against science, he's against vaccines, he talks jibber jabber on climate."

Allies of Trump think Kennedy may damage Biden more than he damages Trump, so they are pushing him as some kind of environmental hero. Steve Bannon is quite open about it: "The path to victory here is clearly maximizing the reach of these left-wing alternatives." Not so fast, Steve. A new NBC News poll has Trump ahead of Biden nationally by 2 points in a head-to-head poll, 46% to 44%. Yet when Kennedy, Jill Stein, and Cornel West are thrown into the hopper, the result is Biden 39%, Trump 37%, Kennedy 13%, Stein 3%, and West 2%. The poll specifically asked who switched. It turns out that 7% of the Biden voters jumped to Kennedy when he was an option, but 15% of the Trump voters jumped ship.

This is just one poll, but it shows that while Republican politicians may have been rooting for Kennedy initially, he may end up being more of an anchor on their team than on Biden's in the end. And the Democrats have yet to start ratfu**ing, and running ads talking about RFK Jr. as the best candidate for anti-vaxxers (who tend to be Trumpy, or at least right-wing).

Kennedy is now the official nominee of the Natural Law Party, which puts him on the Michigan ballot. The Natural Law Party is an offshoot of the Transcendental Meditation Movement. Kennedy is also on the ballot in Utah and Hawaii so far. He is trying to get on the ballot in all 50 states. (V)

Republican Senate Candidates Have a Bad Week

Republicans often pick extremely wealthy (and frequently carpetbagging) candidates for the Senate. That saves the NRSC money, since the candidates are able and willing to spend tens of millions of their own dollars on the campaign. But this strategy sometimes comes back to bite them in the rear, especially when the candidate has various skeletons in their closet that come out or the candidate is caught lying or misleading voters. When the Republicans run House members or governors for the Senate, this doesn't happen as much because the candidates have already been vetted. But when they are new to politics, surprises happen. Consider these faux pas from just last week:

• Tim Sheehy (Montana): As we have noted, Sheehy visited Glacier National Park in Oct. 2015. He took his Colt .45 revolver with him in case he met a bear who was a Democrat. His Colt .45 revolver may or may not have fallen to the ground by accident and shot him in the arm. He did go to a local hospital and was treated for an injury he claimed was caused by the gun, which went off by accident, lodging a bullet in his arm. Law enforcement was called and he paid a $525 fine for discharging a firearm in a National Park.
  
  The Washington Post did some investigative reporting about this and confronted him with the findings. He now says that was all a lie and he took the bullet while in Afghanistan and it may have been from a friendly fire ricochet during a firefight. His new story is that the injury in 2015 was due to a fall while hiking. Sheehy now claims he made up the accidental shooting to protect his former platoonmates and he paid a fine for a discharge that never took place. In 2015, he lied to the officer the hospital called, which is a felony. The whole story is murky—except the part about Sheehy saying that he faked the incident and lied to the officer.
  
  Telling the honest truth is not Sheehy's strength. He has bragged about how he grew up in rural Minnesota. Actually, he grew up in a suburb of Minneapolis only 15 minutes from the center of the city. Now that has come out as well. Not a great week for Tim or his reputation as a truth teller.
  
  
• Eric Hovde (Wisconsin): Another rich carpetbagger running for the Senate is Eric Hovde in Wisconsin. He owns a bank in Utah but lives in California. His bank was recently sued because a senior living facility it owns in part apparently has problems with elder abuse, negligence, and wrongful death. Hovde argues that the bank is not responsible for managing a property it seized in a foreclosure in 2021. The other side is probably going to argue that 2021 was 3 years ago. If the bank wanted to keep the property as an investment, it should have put in place a manager who could run it properly and if it didn't want to be in the senior care business, it should have sold it long ago. The suit might not have been relevant to his Senate campaign had he not boasted that owning a senior care facility made him an expert in, well, senior care.
  
  Oops. There is more. Hovde has also said that residents of nursing homes have a five- or six-month life expectancy, so there is no need for them to vote. Until Senator Hovde introduces a bill to deprive nursing home residents of the right to vote, gets it through Congress, has the president sign it, and convinces the Supreme Court to say: "Yup, good point," they can still vote in Wisconsin, and may even do so in large numbers this year. Against Hovde.
  
  
• David McCormick (Pennsylvania): Connecticut resident David McCormick, who is challenging Sen. Bob Casey (D-PA), claimed that he grew up on a family farm in Pennsylvania. He said he grew up poor and his parents were teachers. The New York Times did some digging into his past and that's not exactly true. His family did own a farm in Bloomsburg, PA, but they weren't farmers. His father was president of what is now called Bloomsburg University and they lived in a large house on campus that the school provides to its president. His mother did use the farm—for her hobby of raising Arabian horses. So he certainly did not grow up poor. There is no rags-to-riches story here, as he portrays it. It is more upper-middle-class-to-riches, so he had a pretty good start in life. His folks were not dirt farmers at all. Maybe if he'd written a book called Pennsyltucky Elegy, he'd be able to get away with the phony blue-collar shtick, but he didn't.

There is a fourth rich Republican businessman running for the Senate this year: Bernie Moreno in Ohio. We didn't include his scandal about (apparently) signing up on an adult website looking for "Young guys to have fun with"—because that came out earlier than last week. Plus, we already wrote about it.

By November 6th or 7th, we'll have a pretty good idea of how the plan of running (out-of-state) rich businessmen for the Senate works. But even if all four go down, we don't think the Republicans will abandon the idea. Not having to pay for their campaigns is enormously valuable, and if they win, not having to tell them that cutting taxes for rich people is a priority smooths their transition into the Senate. (V)

Could Trump Pardon Himself in a Second Term?

It is a given that if Donald Trump is elected president, he will either have all federal charges against himself dropped, or if it is too late for that, just pardon himself. After all, Art. 1 Sec. 2 contains the text "... and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." There is no asterisk with a footnote explaining "except." So, the only exception is impeachment. Seems simple, no?

Maybe not. This article points out that maybe it isn't so easy for Trump. In Burdick v. United States, in 1915 the Supreme Court ruled that President Woodrow Wilson could not pardon a newspaper editor in order to eliminate his Fifth Amendment right not to testify before a grand jury. More generally, when two sections of the Constitution are in conflict, the courts can determine which one has priority. For example, Congress has the power to regulate interstate commerce. Would a law that made it a crime for The New York Times to mail the paper across state lines be considered constitutional based on the commerce clause? Probably not, because that would be in conflict with the First Amendment and most likely the First Amendment would win.

The Supreme Court has ruled in the past that the president has the "power to commute sentences on conditions which do not in themselves offend the Constitution." What kinds of conditions does the Constitution de facto place on the president's use of the pardon power? Perhaps these four:

1. Placing the president above the law.
2. Undermining the Bill of Rights.
3. Violating federal criminal statutes, including those relating to bribery and obstruction of justice.
4. License lawbreaking on the part of the president when his own interests are implicated.

If Trump were to pardon himself, that would run afoul of his oath to faithfully execute the law. The Supreme Court has repeatedly held that "no man can be a judge in his own case." When Richard Nixon was contemplating a self-pardon during the Watergate crisis, his own Justice Department invoked this principle to shut it down. In fact, the first article of impeachment against Nixon accused him of suborning perjury by dangling pardons in front of people he wanted to keep quiet.

These arguments may not stop Trump from trying it, but if he does, the case would end up in the Supreme Court. An issue would be who would have the standing to sue, but the case could get that far and then the Court would have to address both the standing issue and the self-pardon issue. (V)

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