Opinion New York judge’s ruling on evidence couldn’t have gone worse for Trump
Trump, for example, moved to exclude testimony of former fixer Michael Cohen on the grounds Cohen is “a liar.” The court rebuked this desperate move: “This Court has been unable to locate any treatise, statute, or holding from courts in this jurisdiction, or others, that support Defendant’s rationale that a prosecution witness should be kept off the witness stand because his credibility has been previously called into question.” Trump’s lawyers can cross-examine Cohen at trial.
Trump also tried to keep back evidence of his intent to influence the 2016 election (a material part of Bragg’s case) and his intent to defraud. Having already ruled on these issues, Merchan scolded Trump’s counsel: “Rearguing this Court’s prior rulings in this manner is procedurally and professionally inappropriate and a waste of this Court’s valuable resources.” These motions were denied.
Trump also wanted to exclude evidence regarding a meeting in which Cohen, Trump and David Pecker (onetime head of American Media Inc.) discussed the “catch and kill” scheme to keep evidence of Trump’s sexual transgressions from voters. Since this evidence is directly germane to the issue of Trump’s intent to defraud, this motion also failed.
Merchan rebuffed Trump’s attempt to block the testimony of two people with damaging stories to tell about him. While excluding any of the lurid details of Trump’s interaction with them, Merchan nevertheless found: “The steps taken to secure the stories of [Dino] Sajudin and [Karen] McDougal complete the narrative of the agreement ... stemming the flow of negative information that could circulate about Defendant before it reaches the public eye.” He continued, “Locating and purchasing the information from [Stormy] Daniels not only completes the narrative of events that precipitated the falsification of business records but is also probative of the Defendant’s intent.” Evidence of Daniels’s polygraph test was excluded (although there is no indication Bragg intended to use it).
Likewise, the judge rejected Trump’s effort to exclude evidence including the “Access Hollywood” tape (the scandal that precipitated Trump’s effort to silence other women), Trump’s violation of federal campaign finance law (one rationale for elevating the crimes to felonies), Cohen’s guilty plea (although it cannot be used to prove Trump’s intent) and classification of the hush money as “promotional” expenses for AMI. Merchan also rejected Trump’s attempt to reargue that he and his organization were distinct entities.
Most important, Merchan refused to exclude more than 100 Trump statements since these can be classified as “admissions against interest.” Despite Trump’s plea, he will also allow in Allen Weisselberg’s notes, if the prosecutor shows they are business records.
In sum, the lion’s share of the evidence that Trump views as damaging will be heard by the jury. This underscores the quantity and strength of the facts that implicate Trump. It surely explains why he has been desperate to avoid trial.
Even worse for Trump, the judge granted the prosecutor’s key motions to exclude evidence and arguments that Trump hoped would sway the jury in his favor. Merchan knocked out most of Trump expert Bradley Smith’s potential testimony. “The People’s motion is granted to the extent that Smith may not testify as a lay (fact) witness; offer opinion testimony regarding the interpretation and application of federal campaign finance laws and how they relate to the facts in the instant matter, nor may Smith testify or offer an opinion as to whether the alleged conduct in this case does or does not constitute a violation of the Federal Election Campaign Act.” (He can testify generally about what the law does.)
In addition, Trump will not get to introduce evidence that the Southern District of New York prosecutors and the Federal Election Commission declined to bring charges against him. Nor will he get to air his complaint about “selective prosecution” (a favorite excuse from Trump, who whines he is singled out by left-wing prosecutors). He will be barred from offering hearsay evidence about federal prosecutors’ opinions about Cohen’s credibility and from presenting evidence in support of a “reliance on counsel” (or “presence of counsel”) defense. The judge reserved for later the determination as to whether to admit evidence of Trump’s efforts to intimidate and harass witnesses as “consciousness of guilt.”
It is hard to see how the proceedings could have gone any worse for Trump (although some issues regarding “prior bad acts” were reserved for trial). Although commentators critical of Bragg knocked his case as “novel” or doubted he could introduce evidence of violation of federal campaign, Merchan found otherwise. Merchan’s orders confirm that this in many ways is potentially a traditional white-collar crime, in which falsification in furtherance of other crimes elevates the charges to felonies. The upshot is that Bragg will get to put on his case with evidence he thinks will support a guilty verdict. The jury will not hear some of Trump’s familiar excuses.
Merchan showed himself to be a serious judge who will not indulge Trump’s antics nor allow the trial to devolve into a spectacle. The case will be tried on straightforward law, and on the mound of evidence Bragg has accumulated. Based on these rulings, Trump should be quaking in his boots.
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