Let me focus on one specific aspect of this that hasn’t gotten enough attention.
Andy has written another great two-parter on the evidentiary bait-and-switch that Judge Merchan has used in the Trump hush-money trial to allow prosecutors to tell the jury about guilty pleas and settlements for federal campaign-finance-law violations. The prosecution wants these before the jury for the purpose of convincing the jury that the payments to Stormy Daniels were illegal under the federal campaign-finance laws, and thus that Donald Trump knew he was covering up those crimes when he engaged in falsifying business records.
In fact, these are egregious abuses of the rules of evidence, under which guilty pleas are not proof of a crime — much less of a crime committed by someone other than the defendant who pleaded guilty. Judge Merchan then pretended — Andy explains the pretense — that this stuff wasn’t actually being introduced for any purpose but to impeach the credibility of Michael Cohen and David Pecker . . . by the prosecution who called them as witnesses. We’ll see if the prosecutors actually restrain themselves from using this in their summations, which they’d have to if they thought Judge Merchan took his own cautionary jury instructions seriously.
But let me focus on one specific aspect of this that hasn’t gotten enough attention. Part of the testimony on this issue came from Pecker, formerly of American Media, Inc. (“AMI”), then the publisher of the National Enquirer, which helped kill a story about a second woman, Karen McDougal, by paying her off. Now, I’ve argued since the outset of this prosecution that all of the evidence about AMI should have been thrown out as irrelevant to the case because the business records at issue recorded payments from Trump to Daniels through Cohen; none of them related in any way to AMI, Pecker, or McDougal. The records had no capacity to defraud anybody about what AMI did, they did nothing to conceal anything AMI did, and indeed they were never designed to be seen by anyone who would be in a position to do anything to AMI. Judge Merchan simply bulldozed the normal rules of evidence to get this stuff into the case — primarily on the theory that this was all part of a conspiracy, which might have had some legal relevance if Trump had been charged with a conspiracy, which he was not.
Pecker testified to two supposed legal admissions of guilt. One was a non-prosecution agreement between Pecker and the Justice Department, which was premised upon the theory that AMI paying McDougal was a campaign expense of the Trump campaign and should have been reported as such. Note that this was not even a formal admission of guilt, let alone a judicial precedent on the highly debatable legal theory that the payment was covered by the federal campaign-finance laws.
The other thing Pecker testified about was a fine paid by AMI to the Federal Election Commission. But here’s the key fact: It wasn’t Pecker who decided to pay the fine. He had already left the company. It was the AMI board that made that decision. It did so for business reasons anyone could understand: The company was trying to sell the Enquirer, and businesses routinely pay all manner of settlements to get legal controversies out of the way (even bogus ones) when they’re trying to do a merger or sale of a business. I once worked on a case where a company paid six times the statutory maximum fine — six times what it could possibly have been forced to pay if convicted at trial — just so it could get a merger done.
Why does it matter that Pecker wasn’t involved in that decision? Because the decision to pay the fine was evidence used against Trump at his criminal trial. That, in practical effect, made AMI a witness against Trump. The prosecution was effectively using Pecker to admit, on behalf of AMI, that AMI broke the law. But Pecker can’t be cross-examined about something he didn’t do. Neither AMI as an entity, nor its board, was called as a witness, so Trump was denied the right to cross-examine AMI about why it paid the $180,000 fine.
That’s a violation of Trump’s rights under the Sixth Amendment’s confrontation clause. Since Crawford v. Washington (2004), the Supreme Court has cracked down on the use of out-of-court statements by people who aren’t called as witnesses, because the Constitution guarantees the right of the accused in every criminal case “to be confronted with the witnesses against him.” That has specifically curtailed the use by prosecutors of guilty pleas as evidence unless they call the person who pled guilty — ending the prior prosecutors’ trick of obtaining such pleas, deferring sentencing, and then declining to grant immunity so that the guilty-pleading defendant would assert a Fifth Amendment right of self-incrimination against testifying. Now, the cost of that maneuver is to lose the plea as evidence. Moreover, Crawford has particular significance when it’s a corporation that pleads guilty or reaches a settlement, because corporations can’t really be cross-examined unless there is an authorized corporate representative on the stand or someone who can testify about why they made the decision to plead guilty — and that person may not have had any personal knowledge of the underlying crime.
Introduction of AMI’s decision to pay the fine therefore violated Trump’s Sixth Amendment rights under the confrontation clause. It did so in a way central to the case against him, because one of the crucial weaknesses of this prosecution is the tenuousness of its theory that there was a campaign-finance-law crime to cover up. All by itself, that’s a reversible error and should result in any conviction being thrown out by the courts on appeal.