Courts & Litigation Criminal Justice & the Rule of Law

‘Catch It and Kill It’: Opening Statements, Pecker Testimony, and a Contempt Hearing

Anna Bower, Tyler McBrien, Benjamin Wittes
Wednesday, April 24, 2024, 5:29 PM

A dispatch from the courtroom of Justice Juan Merchan in Donald Trump’s New York criminal trial.

New York State Supreme Court, Criminal Term, at 100 Centre Street on April 23, 2024. (Photo credit: Tyler McBrien)

Published by The Lawfare Institute
in Cooperation With

Previously on Trump New York Trial Dispatch: "And We Have a Jury—Faster Than Expected"

April 22, 2024

“We have a few housekeeping matters to take care of before we get started,” Justice Juan Merchan says to get the day and trial started.

The first housekeeping matter is a toothache—literally. 

One of the alternate jurors, Justice Merchan explains, had a toothache last week. She scheduled an emergency dental appointment for this afternoon. “I told her we can break at 12:30,” Justice Merchan explains. “That’s just something we have to do to make sure we don’t lose an alternate,” he says.  

Moving from (actual) toothaches to (metaphorical) headaches, the judge addresses the next housekeeping matter: “We received a call on Friday from Juror Number 9,” he says. The juror “wasn’t 100 percent sure she wanted to be here,” Merchan explains. He wants to speak with the juror in chambers to determine whether she “can continue to serve.” 

At that, counsel for former President Donald Trump, a gaggle of prosecutors, and the court reporter follow Justice Merchan through a door on the left side of the courtroom. They remain out of view—and out of earshot—for several minutes. But a transcript of the conversation reveals what happens next: 

“I understand that you called on Friday to express some concerns,” Justice Merchan says to Juror Number 9 when she arrives in chambers. 

In response, the juror explains that people “were figuring out” her identity based on press reports of jury selection. “I was a little concerned that it was posted that I live by myself,” she tells the judge. The juror says she began to wonder if she should be worried for her safety. 

How do you feel today? Justice Merchan asks. 

“I feel better today,” the juror tells him. “I, obviously, the gravity kind of set in and I just hope I can continue to stay as anonymous as possible.” 

Justice Merchan, in an apparent effort to reassure the juror, tells her that the jury was “the story last week” for the press. After the first day, he tells her, he spoke to the press from the bench to express his disappointment with “how much information got out.” Since that time, he continues, it’s been really different. 

The juror, for her part, says she has nothing else to tell Justice Merchan. It was just safety concerns, she says. 

And both the prosecution and defense seem satisfied with that explanation. “Anything anybody wants to put on the record about that?” Justice Merchan asks. “No,” both Todd Blanche and Joshua Steinglass reply. 

Minutes later the parties file back into courtroom 1530. “Juror Number 9 is going to remain with us,” the judge announces upon his return.

But before Merchan brings Juror Number 9—and the rest of the jurors—into the courtroom, there’s another housekeeping matter to take care of. Last week, he reminds those of us in the gallery, he held a Sandoval hearing to determine which “prior bad acts” the prosecution can question Trump about should he decide to take the stand in his own defense. At that hearing, Justice Merchan reserved ruling on the matter. Now, he announces, he will read his ruling from the bench. 

He begins by setting out the basic principles of law that apply when a judge must determine the scope of permissible questioning of a defendant who elects to testify. Citing People v. Sandoval, he explains that it’s within his discretion to limit the prosecution’s use of the defendant's history of “criminal, vicious and immoral acts” to impeach the defendant with cross-examination. In limiting the state’s questioning, Justice Merchan says, a judge must weigh the probative value of questioning the defendant’s credibility against the risk of unfair prejudice. And any perceived unfair prejudice, he explains, can be “alleviated” by instructing the jury that they are to consider the defendant’s previous conduct only in assessing his credibility and not as substantive evidence that he committed the crime of which he is accused. 

Applying these principles to the matter at hand, the judge explains that he will permit the prosecution to question Trump on facts involving four separate proceedings should he decide to take the stand. 

The first permissible line of questioning relates to Trump’s civil fraud case presided over by Justice Arthur Engoron. With respect to that case, Justice Merchan says he will allow the prosecution to elicit that Trump fraudulently misstated the value of his assets and that the court ordered him to pay penalties. What’s more, the prosecution will be allowed to elicit that Trump twice violated a court order related to Justice Engoron’s gag order in the civil fraud case.

Moving on to the next category of permissible questioning, Justice Merchan says that the prosecution will be allowed to elicit that Trump was twice found to have defamed E. Jean Carroll with actual malice and was assessed compensatory and punitive damages. 

Finally, the judge continues, the prosecution will be permitted to elicit that Trump stipulated to the dissolution of the Donald J. Trump Foundation to resolve claims by the New York attorney general’s office that he engaged in a pattern of self-dealing transactions. 

“I believe that takes care of all the preliminary matters,” Justice Merchan says as he finishes reading his ruling. 

He is ready to bring the jurors in. As Trump looks on, a dozen jurors and six alternates file into the jury box. 

Justice Merchan spends a good while offering the jury an overview of the trial process, which is not worth summarizing in detail. In short, it’s your garden-variety explanation of the trial process, what evidence is and is not. Merchan then discusses scheduling briefly. 

Now the moment has arrived for the prosecution’s opening statement.

Matthew Colangelo takes the floor for “the People.” 

This case, he declares, is about a criminal conspiracy and a cover-up. Trump, he argues, orchestrated a criminal scheme to corrupt the 2016 presidential election. Then he covered up that scheme by falsifying the business records of his company—over and over and over again. 

Trump declared his candidacy in June 2015, and the conspiracy began shortly thereafter, he argues. Trump invited David Pecker, who ran the company that owned and published the National Enquirer, to a meeting at Trump Tower—a meeting at which former Trump attorney Michael Cohen was also present. The three of them, according the Colangelo, “formed a conspiracy at that meeting to influence the presidential election by concealing negative information about Mr. Trump in order to help him get elected.” As part of that agreement, Cohen paid $130,000 to Stormy Daniels—an adult film actress—just before the 2016 election to keep her quiet about her alleged sexual encounter with Trump. “Cohen made that payment at the defendant's direction, and he did it to influence the presidential election,” Colangelo says.

After the election, Trump reimbursed Cohen, and he disguised his payments to him as payments for legal services pursuant to a retainer agreement. “But, those were lies,” Colangelo asserts. “There was no retainer agreement. Cohen was not being paid for legal services. The defendant was paying him back for an illegal payment to Stormy Daniels on the eve of the election. The defendant falsified those business records because he wanted to conceal his and others’ criminal conduct.” In total, he contends, Trump falsified 34 business records, as a result of which he has been indicted on 34 counts.

Colangelo now quotes the indictment’s first count: 

The Grand Jury of the County of New York, by this indictment, accuses the defendant of the crime of Falsifying Business Records in the First Degree in violation of Penal 1 Law Section 175.10, committed as follows: The defendant, in the County of New York and elsewhere, on or about February 14th, 2017, with intent to defraud and intent to commit or conceal another crime and to aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit: An invoice from Michael Cohen, dated February 14th, 8 2017, marked as a record of the Donald J. Trump Revocable Trust and kept and maintained by the Trump Organization.

The remaining 33 counts, he argues, involve three different types of record falsifications for each of the monthly payments: There are invoices “falsely describing a request for payment for legal services rendered in a given month”; there are voucher entries in the Trump Organization ledger “falsely describing the payment as one for legal services”; and there are “payment checks with check stubs that also falsely describe the nature and payments.”

“All in all, the defendant disguised his payments to Michael Cohen through 11 falsified invoices, 12 falsified ledger entries, and 11 falsified checks for a total of 34 false business records in the books and records of his company, the Trump Organization,” Colangelo contends.

But the indictment, Colangelo concedes, is not evidence. So what will the evidence be? He lays out what the state intends to prove: 

At the August 2015 Trump Tower meeting with Pecker, Cohen, and Trump—at which they “conspired” to influence the 2016 election—the three men agreed to an arrangement consisting of three major parts. They would run positive stories about Trump in publications owned by Pecker’s company, American Media Inc. (AMI). They would run negative stories about Trump’s opponents. And Pecker would use his network of publications and sources as eyes and ears for the Trump campaign. Then, Pecker would alert Cohen to bad stories percolating about Trump so that Cohen could then act to head off their publication.

In the wake of the meeting, Pecker enlisted the help of Dylan Howard—editor-in–chief of the National Enquirer—and instructed him “to report directly to Pecker about this Trump Organization conspiracy.”

The National Enquirer followed through. For example, it ran “headline after headline that extolled the defendant’s virtues” at Pecker’s specific direction. “Many of those headlines and the stories behind them were even shown to Cohen and the defendant in advance before they were published so the defendant could review them, request changes, accept or reject publication stories, even cover art.”

The publication also attacked Trump’s Republican primary opponents, including Ben Carson and Ted Cruz. Such stories were published in specific pursuance of the agreement between the three men.

But the core of what Colangelo repeatedly calls “the conspiracy” was the catch-and-kill scheme—a plan to buy up and prevent the publication of any negative stories that might be harmful to Trump’s campaign. “Trump and Pecker and Cohen carried out three different catch-and-kill deals to help him get elected,” he says.

Colangelo promises the jury evidence of three different incidents in which the catch-and-kill component of the agreement snapped into action.

The first of these involved a man named Dino Sajudin, a former Trump Tower doorman who “was trying to sell information about an alleged out-of-wedlock child that Trump had fathered with one of his former housekeepers.” As the deal would have it, when Pecker learned that Sajudin was trying to sell this story, he notified Cohen, who notified Trump, who instructed Cohen to deal with it. He and Pecker then took action. 

“Pecker directed Howard, his editor-in-chief at the National Enquirer, to negotiate an agreement to pay $30,000 to Sajudin to buy the exclusive rights of that story. And the evidence will show that Pecker was not acting as a publisher; he was acting as a co-conspirator,” Colangelo says.

It was the first time Pecker had ever paid anyone for information about Trump, and he paid well above what he normally would for such a story—and without investigating Sajudin’s story first.  

Cohen was involved the whole time. For example, he “insisted that AMI amend the agreement with Mr. Sajudin after it was signed, to add a $1 million damages penalty fee if Sajudin violated the confidential agreement,” he notes. “So you have the candidate’s fixer actively colluding with a catch-and-kill deal with the media enterprise by adding deal terms to lock up the negative information even tighter to keep it from coming out before the election.” 

And when AMI ultimately determined the story was false? “Cohen told Pecker not to release Sajudin ... from his NDA until after the presidential election.”

The second incident involved Karen McDougal—a former Playboy model. Roughly five months before the 2016 election, a lawyer named Keith Davidson told Howard he had a “blockbuster Trump story” about a client of his: “Karen McDougal said that she had had a romantic and sexual relationship with the defendant while he was married that lasted nearly a year.” Howard responded by getting in touch with Cohen, who told Trump about the matter. “And the evidence will show that the defendant desperately did not want this information about Karen McDougal to become public because he was concerned about its effect on the election,” Colangelo promises.

A set of negotiations followed that led to AMI buying McDougal’s story for $150,000, at Cohen’s direction. McDougal was supposed to do all kinds of stuff in conjunction with AMI publications under the deal, but that was just cover. The real purpose of the deal was, simply, to shut her up. “David Pecker will also testify that $150,000 was way more than AMI would ordinarily pay for this type of story,”  Colangelo promises. “But he discussed it directly with Donald Trump and he discussed it with Michael Cohen, and he agreed to the deal on the understanding that Trump was going to find a way to pay AMI back.”

But as the weeks dragged on and Pecker wasn’t made whole, he started to get antsy, Colangelo explains. So Cohen recorded a conversation with Trump to calm Pecker down. “And on that recording, you will hear the defendant in his own voice. You will hear him ask Cohen: So what do we got to ... pay for this? One-fifty?” Colangelo promises: “You will even hear Mr. Trump suggest in his own voice, you will hear him suggest paying in cash.”

Instead, however, Cohen set up a scheme using shell companies to buy the rights to the McDougal story from Pecker by way of paying him back. But just before the deal was to close, Pecker consulted a lawyer and “got cold feet.”  He told Cohen that “AMI would instead eat the cost of paying off McDougal.”

This brings us to the third catch-and-kill incident. A month before the election, Colangelo says, the Access Hollywood tape—which features Trump making lewd comments about women—broke. The fallout was immediate and severe for the Trump campaign. 

It was the day after the Access Hollywood tape became public that Pecker learned from Howard that another woman had come forward: Stormy Daniels. Under the agreement, Howard informed Cohen and connected him to Daniels’s lawyer. Cohen briefed Trump, “who was adamant that he did not want the story to come out.” 

At Trump’s direction, Cohen negotiated a deal with Daniels and her lawyer: $130,000 to keep Daniels quiet. Colangelo notes that Trump, ever crafty, “directed Cohen to try to delay finalizing the deal, to delay making any payment as long as possible; while also at the same time preventing Daniels from publicizing the story. His hope was to delay it until after the election and then not pay at all,” Colangelo says. 

That part didn’t work out. And the deal hit another snag. Pecker, still feeling ornery as a result of getting stuck with the McDougal check, wouldn’t pay this time. So where was the money for Daniels going to come from?

Cohen met with Trump Organization financial chieftain Allen Weisselberg to discuss options. As Colangelo describes: “They agreed that Cohen would make the payment through a shell company to make it harder to track. But before putting up his own money, Cohen confirmed with Trump that Trump would pay him back.”

It is the payback scheme that, in Colangelo’s account, caused the entire escapade to turn criminal. To repay Cohen, Colangelo alleges, Weisselberg suggested a scheme to disguise the repayment as supposed payments for legal work. He and Cohen agreed to more than double the amount of the reimbursement, in part by way of disguising the payments as taxable income. They also added on some other money Cohen considered himself owed. And they scheduled payments from the Trump Organization based on a schedule of monthly payments. “And Allen Weisselberg wrote all of that down,” Colangelo says triumphantly.

Trump, for his part, specifically approved paying Cohen $420,000 to reimburse a $130,000 expense and a few other expenses, Colangelo notes. “You will hear evidence that the Trump Organization was not in the practice of paying people twice what they owed for anything,” he says to gentle titters from the audience.

The three men agreed to spread the payment over 12 checks over the course of a year. “So the defendant and Cohen and Weisselberg agreed that every month, Cohen would send a bogus invoice to the defendant through the Trump Organization, falsely requesting payments of $35,000 for legal services rendered in a given month of 2017 pursuant to a retainer agreement. That was a double lie.”

This happened 12 times, and the accounting staff at Trump Tower processed the invoice and produced a check each time, creating false business records. 

Those false records make up the charges in the case. 

Colangelo now pauses to say a few words about Cohen, whose credibility he knows to be a problem. He has “made mistakes in the past,” he tells the jury. He has lied to protect Trump. He has a criminal record. He pleaded guilty and went to prison over the payments to McDougal and Daniels. And yes, Colangelo concedes that Cohen has “publicly committed to making sure the Defendant is held accountable for his role in this conspiracy”—which is a very polite way of saying he has a major-league ax to grind.

That said, the prosecutor argues, there are witnesses who corroborate Cohen’s testimony. There are mountains of documents and records. And there are Trump’s own words on tape and in public.

Colangelo concludes:

Tune out the noise. Focus on the facts. Focus on the logical inferences that follow from those facts. Focus on the evidence. Listen to the testimony. Read the documents, the emails, the text messages, the bank statements, the handwritten notes, all of it.

And, after all of that evidence is in, we’ll have a chance to speak to you again during closing arguments. My colleague, Joshua Steinglass, will go through all of that evidence and explain that it, inescapably, leads to only one conclusion: Donald Trump is guilty of 34 counts of falsifying business records in the first degree.

It is a compelling opening statement: polished, organized, and narratively compelling. 

One thing it isn’t, however, is new. There are barely any facts in it that aren’t familiar.

The prosecution, after all, a year ago issued a statement of facts, along with the indictment, that sketched out the story Colangelo just told. It has had to explain and justify its theory of liability in a number of contexts since. So Colangelo is rehashing golden oldies; the tunes may not be familiar to the jury, but they are certainly familiar to anyone who has followed the case with any care.

Colangelo’s formulation deemphasizes the tawdry side of the case and tells the story as though it were a case about Russian election interference—only involving domestic actors.

Notably, while Colangelo does not present this case as though it were the crime of the century, he’s not defensive about it either. He’s not trying to shock the jury. The overall message seems to be this: I’m sure you’ve heard some stuff about this case, but I’m going to reteach it all to you—fact by fact, personality by personality, act by act—and when I’m done, you will convict Trump because the facts are actually not all that complicated, and they’re very compelling. 

Now it’s Blanche’s turn for the defense. 

This promises to be the most interesting event of the day. Unlike the prosecution’s account of the case, the defense’s is not familiar. We have actually never heard it before. Trump has called the case a witch hunt and made all kinds of assertions about it, but we have never really gotten a good look at the case the defense would present at trial. What is the story Trump’s lawyers will tell?

He opens: “President Trump is innocent. President Trump did not commit any crimes.”

His skills as a lawyer have received their fair share of criticism, but this is the speech of a professional.

Blanche does a very nice job setting up a counternarrative, and it’s a surprising one in a number of respects. He doesn’t deny key elements of the story or try to cast them in an especially different light. He doesn’t deny, for example, that there was a “catch-and-kill” agreement between Pecker and Trump and that Cohen orchestrated hush money payments to Daniels and others under it. And notably, he doesn’t offer what one might call the John Edwards defense—the contention that the hush money payments were not efforts at election influence but instead efforts to disguise Trump’s infidelity from his spouse.

Blanche gestures at this only briefly and incidentally: “He’s not just our former President. He’s not just Donald Trump that you’ve seen on TV and read about and seen photos of. He’s also a man. He’s a husband. He’s a father. And he’s a person, just like you and just like me.”

But it’s very much a sub-theme. The actual Trump defense, as articulated by Blanche, has three major themes.

First, Blanche really leans in on the legitimacy of hush money payments. What the prosecution treats as a corrupt scheme to interfere with and influence the election, Blanche treats as normal electioneering. There’s nothing illegal about hush money payments, which he calls “non-disclosure agreements.” There’s nothing illegal about trying to influence voters by managing what information they receive; Blanche calls this “democracy.” And there’s nothing illegal either about a campaign coordinating with friendly media entities, which he calls totally normal.

Second, Blanche argues that the witnesses jurors will hear from to translate this normal behavior into a criminal scheme are liars. Both Cohen and Daniels hate Trump. Both make a living off of their Trump hatred, he argues. Both are obsessed with taking Trump down. And Cohen, at least, is a perjurer who has lied under oath in court before. So don’t believe their spin on events.

Third, sometimes a legal bill is just a legal bill. The key to the defense’s argument is that the payments to Cohen were not, in fact, reimbursements for his payment to Daniels. They were—just as labeled—payments for legal fees by a man who was, in fact, Trump’s personal lawyer.

In other words, there is no connection—in Blanche’s account—between the payments to Cohen by the Trump Organization, on the one hand, and the arrangement with Pecker and AMI to catch and kill negative stories about Trump and the resulting payment made to Daniels by Cohen, on the other.

Blanche begins by reminding the jury that it is the prosecution that bears the burden of proof. Trump is presumed innocent. He is “cloaked” in innocence, Blanche says. The prosecution, he argues, presents what seems like a clean, simple case. 

But, in fact, it’s not so clean or simple. 

For one thing, most of the documents are from 2015, 2016, and 2017, the pre-COVID era of long ago. 

More importantly, the story the jury just heard from Colangelo is just not true. At the end of the trial, there will be plenty of room for reasonable doubt. 

Trump was a businessman, and when he became president, he separated from his business. Some of his employees kept running it. Cohen assumed the role of Trump’s personal lawyer. Every month he did his work and billed the Trump Organization $35,000 for legal services rendered. And every month, the Trump Organization employees paid his bills. Blanche asks: Where on Earth is the crime? 

Thirty-four counts are just 34 pieces of paper, he says. 

He mocks the prosecution, noting that the People’s theory of the case is that Trump would pay back $420,000 on a $130,000 debt. Blanche asserts that the jury is going to learn that these payments were not, in fact, a payback. Cohen was actually Trump’s personal lawyer. You’ll see that in documents, he tells the jury. You’ll see it in his signature block. 

The prosecution talked about the Trump Organization “ledger,” but “ledger” is just a fancy word for describing how the employees kept track of expenses going in and out. They processed the bills that came in. And then-President Trump had nothing to do with either ledger entries or checks being cut. He had nothing to do with any of the records at issue in any of the 34 counts—except that he signed the checks. 

That’s not a crime. 

Here Blanche turns to the first of his major themes. You will hear, he tells the jury, a lot about how this was all a scheme to influence the 2016 election. “I have a spoiler alert. There is nothing wrong with trying to influence an election. It’s called democracy.”

The prosecution makes it sound sinister, he argues, but there is nothing wrong with paying Daniels $130,000 for not talking. Entering a non-disclosure agreement is not illegal. Executives and companies do this sort of thing all the time.

But here’s what was sinister: when Daniels threatened to go public with a false story immediately before the election. It was close to extortion, he says, provoking an objection the judge sustains. “It was sinister. And it was an attempt to try to embarrass President Trump, to embarrass his family.”

There are objections as Blanche tries to make the argument that Trump did nothing illegal and that Daniels was engaged in extortion, and these break up his flow. At one point, as Blanche underscores that there’s nothing illegal about hush money payments, he tells the jurors that they’ll hear evidence that Daniels’s payoff was “negotiated by lawyers.” 

The problem with that statement—as Blanche would have been well aware—is that Justice Merchan specifically barred Trump from introducing an “advice of counsel” defense at trial. Now, as Blanche attempts to inject an “advice of counsel lite” defense into his opening, it elicits an objection and a long pause in the proceedings as the parties huddle in front of the bench, out of earshot of the jurors. Merchan ultimately sustains the objection and orders Blanche’s comment stricken from the record. 

Back before the jury, the bottom line, Blanche argues, is that there were all kinds of salacious allegations floating around and Trump fought back to protect his family, his reputation, and his brand. There is nothing illegal, he argues after objections, about entering into an NDA. Period. 

Blanche now turns to his second theme: the key witnesses against Trump. 

He focuses first on Cohen, who—he says—served as Trump’s personal attorney for many years. Cohen wanted a job in the administration but didn’t get one. He was loyal for many years. He defended Trump. But unbeknownst to Trump, he was also a criminal. He cheated on his taxes. He had a problem with some taxi medallions. And in 2018, he got caught. He made a decision at that point, Blanche argues, to blame Trump for all of his problems. 

He has been disbarred. He is a convicted perjurer. And he is obsessed with Trump even today. On his podcasts, on X, and on television, he rants about Trump. He has talked extensively about his desire to see Trump and his family go to prison. He has misrepresented key conversations in which the only participants were him and Trump. 

He cannot be trusted.

On multiple occasions, Blanche contends, Cohen has lied under oath. There’s an objection, and Blanche tries again. He has walked into a courtroom “very near here,” raised his right hand and swore to tell the truth, Blanche says. “And now he will tell you, I expect, that he was lying.” Another objection. There’s a bench conference before Blanch tries again. Cohen has pleaded guilty to lying under oath, he says in reference to Cohen’s 2018 guilty plea for making false statements to Congress. That means he raised his right hand, swore to tell the truth, and then lied anyway. This time, it gets through.

You cannot make a serious judgment against Trump based on Cohen, says Blanche. 

Blanche makes a similar argument about Daniels, whom he describes as also biased against Trump. They met back when Trump was doing “The Apprentice” and had discussions about her being on it. It didn’t work out, and since then she has been obsessed with Trump. She has monetized the matter consistently. She got her payment from Cohen. She has a book. She was paid for her participation in a documentary. The courts have sided with Trump against her, and she owes him something like $600,000. 

But there’s something else important too about Stormy Daniels, he argues: She has no idea about anything related to the records of the Trump Organization. So her testimony, while salacious, does not matter. 

Blanche now has a few words to say about the catch and kill scheme. The People call this a “conspiracy,” he contends. But in 34 counts, there is no reference to a conspiracy. There’s nothing illegal about a “scheme” to do this sort of thing. Listen to Pecker, Blanche urges, and whether his testimony lines up with what the People say the goal of the scheme was. 

Please listen to the evidence, he says; this is old evidence. Does this have the ring of truth? Listen to the people who work at Trump Tower about whether what they say has anything to do with what the People call “catch and kill.” 

We trust you to do that, Blanche says. And if you do that, there will be a very swift not-guilty verdict. 

Blanche is done. 

It’s a compelling opening statement—exactly as compelling as Blanche’s ability to back it up proves to be as the trial progresses. And it sets up the key prosecutorial burden over the next few weeks. The defense is not going to fight hard over the contours of the catch-and-kill scheme or its operation, merely to argue that there’s nothing wrong with such a thing. The fight is going to be about whether the jury should accept Cohen’s explanations of why he did what he did in furtherance of that scheme and, critically, about whether the prosecution is convincing that the payments to Cohen were not, in fact, legal fees but were connected to that scheme.

But the day isn’t over. The day ends with an introduction to our first witness: Pecker, the former celebrity tabloid publishing executive. 

Pecker, a 72-year-old man with a mop of silver hair and a walrus-style mustache, raises his right hand as he swears to tell the whole truth and nothing but the truth. 

Steinglass, on behalf of the prosecution, begins Pecker’s direct examination by asking him to describe his work as a tabloid publisher. Pecker tells Steinglass that he was previously employed as the chairman, president, and CEO of AMI, the parent company of tabloids including the National Enquirer, In Touch, Star, and Us Weekly. 

As the publisher of these magazines, Pecker says he had “final say” over which stories would or would not get published. 

It’s “checkbook journalism,” Pecker explains. “We pay for stories.” But even checkbook journalism has its limits. During his tenure at AMI, Pecker says, any story that would cost more than $10,000 to publish would need to be “vetted” for approval by Pecker. 

Steinglass asks Pecker to recall the last four digits of several phone numbers he’s used over the years—presumably because prosecutors intend to proffer phone records as evidence at some point during the trial. At one point, as Pecker struggles to remember the last four digits of his phone number, Steinglass assures him that this “isn’t a quiz.” This elicits a loud, distinctive cackle from the witness. 

He testifies for less than half an hour before the court adjourns. He hasn’t said all that much yet, other than to describe his business and cackle at prosecutors’ questions. But there’s a juror with a toothache and an emergency dental appointment, which means that we’re done for the day. Pecker will resume his testimony tomorrow morning. 

April 23, 2024

At 9:33 a.m., “all rise” as Justice Merchan takes the bench, and the prosecution and defense make their introductions. 

It’s another short day here at 100 Centre Street; we’re set to adjourn at 2:00 p.m. for the Passover holiday. Knowing the judge’s penchant for punctuality, it’s likely that we’ll stick to that cutoff. 

For today’s abbreviated session, there are two items on the agenda: a contempt hearing and the continuation of testimony from Pecker.

The hearing originated from an April 15 motion filed by the government urging  Justice Merchan to hold Trump in contempt of court for allegedly violating a gag order that the judge issued on March 26 and subsequently clarified and expanded on April 1

Though Justice Merchan issued the gag order on April 1, unfortunately for Trump, there’s no such thing as the “April Fool’s Defense.” 

After that initial filing, which alleged three violations, the prosecution tacked on seven additional allegations in an April 18 supplemental affirmation to its motion

Prosecutors will try to persuade Justice Merchan to hold Trump in contempt of court for those 10 alleged violations—and impose sanctions if he does. These include a fine of $1,000 for each of his transgressions—the maximum penalty allowed under New York state law §§ 750(A)(3) and 751(1)—as well as the ordered removal of the offending posts and an expansion of both the gag order and the protective order that established an anonymous jury to include “an additional restriction on speech with respect to prospective and sworn jurors.”

In its filings, the district attorney’s office argues that the violations were willful (see Trump’s many posts about the gag order) and that Trump “has recent experience in New York courts” with respect to gag orders. The judge in Trump’s recent civil case, for example, found him to be in civil contempt of court (though a different statute is at issue in this case).

But before we get into it, Steinglass immediately asks to approach the bench.

Trump, having waived his right to be present at sidebars last week, remains seated at the defense table, alone. He sits silently, a slight frown affixed to his face, and he closes his eyes occasionally during the sidebar. 

After about six minutes, the sidebar, the purpose of which remains a mystery, ends. 

“The purpose of this hearing is to find out whether the defendant, Mr. Trump, should be held in contempt of court for one or all of these alleged violations,” Merchan says. “I believe it is the People’s burden. I will hear you.”

Christopher Conroy stands for the prosecution and distributes documents to the defense and up to the bench. The pages, numbered one through 10, document each of the alleged violations. Eight of the “violative posts” are on Trump’s Truth Social account, and the remaining two are from the former president’s official campaign website. 

“Defendant has violated this order repeatedly and he hasn’t stopped,” Conroy says, as he begins to allege an 11th violation. “I just want to note for the record that yesterday, here in this building right outside those doors, in a pen setup from which he has daily conducted press conferences on his way into and out of the courtroom, the defendant violated the order again on camera. He did it right here in the hallway outside.”

Conroy reads a transcript of Trump’s words from yesterday, which included an accusation that Cohen “got caught lying” at “the last trial”—an apparent reference to Cohen’s testimony in Trump’s civil fraud trial. According to Conroy, the prosecution will be filing another motion to show cause for this alleged 11th violation. 

But Conroy has plenty to discuss vis-a-vis the first 10 counts, which Trump carried out “willfully and flagrantly,” according to the government. “No one is off limits to the defendant and he can attack and seek to intimidate anyone he wants to in service to himself,” Conroy says. 

We start with the first violation: an April 10 “repost” on Trump’s Truth Social account from Michael Avenatti, former lawyer to Daniels, to which Trump added “thank you to Michael Avenatti for revealing the truth about two sleazebags who have with their lies and misrepresentations cost our country dearly.” 

Conroy moves onto the second post, but Justice Merchan cuts in. 

“Can you make the connection between that post and the conditions of the gag order specifically?” the judge asks. 

“Clearly Stormy Daniels and Michael Cohen are known or reasonably foreseeable witnesses here,” Conroy answers dutifully. “And by calling them sleazebags, by going after their credibility,” Conroy says, it’s the defendant conditioning his followers. He also points to the timing of the post—or, rather, repost—just five days before jury selection. 

Justice Merchan thanks him and warns that he’ll be asking the same question for each of the 10 counts. 

Conroy works his way through the list of allegations, adding context and drawing explicit connections to the wording of the gag order, per Justice Merchan’s promised repeat question. 

The defendant has one of the most famous social media accounts in the United States—if not the most famous—so the posts are well known to the press in the overflow room. “Imagine loving posting this much,” a reporter muses aloud as Conroy makes his way through each of the alleged violations. This is quite the statement coming from a journalist. 

Finally, Conroy arrives at the 10th and final alleged violation, which the prosecutor calls a “very troubling post.” On April 17 at 5:46 p.m., Trump posted a segment from Fox News host Jesse Watters, who said “they are catching undercover liberal activists lying to the Judge in order to get on the Trump jury,” which Trump quoted. 

Conroy adds that the very next day Juror 2 asked to be excused, which is “precisely what this order was designed to prevent.” He adds that we know the posts in question relate to the criminal proceeding because of their proximity and their words. 

“I am not sure how there could be a straight-faced argument that these posts, all within the last 12 days or so ... relate to anything other than this criminal proceeding,” Conroy says, though that’s precisely the argument he will soon hear from a straight-faced Blanche. “Throwing MAGA into a post doesn’t make it political. It may make it more ominous.”

Conroy now changes tack, from the list of allegations to an assault on Trump’s anticipated argument, which is that the gag order forbids the former president from responding to attacks by witnesses Michael Cohen and Stormy Daniels. The defense “repeatedly cited to a line in which the Court does say that the defendant can respond to political attacks and try to morph them into a massive exception to the order,” says Conroy—a ploy that the court should wholly reject. 

“[Trump] says whatever he needs to say to get the results that he wants,” Conroy continues, calling it “tortured, at best,” before turning to another one of the defense’s, shall we say, more online arguments regarding so-called “reposts.” Despite Trump’s best efforts to carve out reposts from the order, Conroy says, “New York Defamation Law has made clear for over a hundred years that one who repeats or otherwise republishes a defamatory matter is subject to liability as if he had originally published it.”

Conroy turns at last to the penalties the prosecution seeks or, rather, what they don’t yet seek, which is jail time. “The defendant seems to be angling for that,” Conroy says. Instead, he asks the court to impose a $1,000 fine for each finding of contempt, order the removal of the posts, and issue another warning “that this conduct will not be tolerated and remind him that incarceration is an option should it be necessary.”

With that, Blanche steps up to deliver his rebuttal.

“Just to set the record very straight and clear, President Trump does, in fact, know what the gag order allows him to do and not allow him to do,” Blanche begins. There is no dispute, he says, that Trump is facing a “barrage of political attacks from all sides,” including from Daniels and Cohen. Blanche stretches out the phrase “political attacks” when he arrives at it for extra emphasis. He seizes on the unjust asymmetry, the “hypocrisy of the gag order,” at play here, and says, “The witnesses themselves can constantly comment on whatever they want. They are not gagged and President Trump, in theory, cannot respond.” 

Blanche begins to talk about a few of Trump’s responses to political attacks, as Blanche characterizes them, but Justice Merchan cuts him off. “We’re gonna take one at a time, otherwise it’s going to get really confusing,” the judge says to Blanche. He wants to get the timeline of these posts, reposts, and replies clear.

The defense clarifies the timing of a few posts but then talks about them collectively again. Cohen and Daniels, Blanche says, can “do TV interviews, post on social, make money, have documentaries, all while talking about President Trump,” who “is gagged and threatened with jail if he responds.”

But Justice Merchan wants to take them one by one. “Let’s stick with what was actually said,” he says. “I don’t want to get into interpreting things.” We start back at the top, with the first violation. 

For the prosecution, the judge had wanted to see the explicit connection between each post and the gag order. Now from the defense, he seems to ask what makes each post political in nature. 

In addition to the mention of a pardon, Blanche says of Avenatti’s post that “we have to be able to have some inference for what Mr. Avenatti means when he is saying that.” 

Justice Merchan feels no such obligation to inference. “Have you spoken with Mr. Avenatti about what he means?” he asks.

“No. Of course, no,” Blanche replies. 

“How can you interpret what he means when you haven’t spoken to him?” asks Justice Merchan, as tension begins to build, if ever so slightly. He then tries to sum up Blanche’s argument: “You believe that everything that Mr. Avenatti said does not relate to the trial, but that the use of the word ‘pardon’ by Mr. Cohen does make it political and, in a sense, authorize your client to respond?” 

“Not just the word, pardon, but yes, the word ‘pardon’ too,” Blanche says, somewhat paradoxically. “But, Judge, it just—it's everything. It just can’t be a single word. When Mr. President Trump is responding to these attacks—”

But Justice Merchan cuts him off sharply. “When your client is violating the gag order, I expect more than one word,” he says. Tension builds. 

Blanche attempts to defuse the situation by clarifying that no, absolutely not, he does not think the use of the word “pardon” by a witness authorizes Trump to then violate the gag order by attacking that witness. 

We go back to the drawing board. “I am going to be asking you, in the same way I asked the People for each one of their exhibits, to explain to me what made it political,” Justice Merchan says to Blanche. Tension begins to recede. “I am going ask you, after each exhibit, what precisely, is it that your client is responding to? Lead me to the attack he is directly responding to in each one of these.”

But instead of supplying specificity, Blanche continues to deal in generalities, referring to repeated attacks by the witnesses and other patterns of behavior. 

Justice Merchan asks impatiently if we can move on to Exhibit 2. The tension returns. Exhibit 2 refers to a Truth Social post from Trump’s account. It’s a photo of an apparent signed statement from Daniels in 2018 denying an affair with the former president, to which Trump captioned, “LOOK AT WHAT WAS JUST FOUND! WILL THE FAKE NEWS REPORT IT?” Blanche launches into a discussion about the post, but Justice Merchan heads him off: “This was a response to what specific attack?” 

The judge continues that surely “there must have been a very recent attack to cause [Trump] to pull out a document that’s six-years old and was going be used at trial.” Blanche clarifies that it’s a “public document,” but Justice Merchan is unmoved. “It says, ‘Look what was just found.’” 

Justice Merchan, his voice a bit frayed around the edges, notes for the record that he never got an answer to his question on Exhibit 2. Blanche responds that, again, Exhibit 2 is in response to “repeated” attacks, but the judge won’t hear it. “Give me one,” he directs Blanche. “That’s not specific.”

Blanche begins to respond with rhetorical questions, and a visibly and audibly irritated Merchan fires back, “I’m asking the questions. I’m going to decide whether your client is in contempt or not. So please don’t turn this around.” He mentions that it’s almost 10:30 now, and jurors will be here at 11:00.

Irritated now by Blanche’s nonspecificity and the late morning hour, Justice Merchan’s ire does not abate. And things only unravel for the defense from here.  

On Exhibit 3, Blanche mentions that Trump is “responding to the fact that he is extremely frustrated with the two systems of justice that are happening in this courtroom.” This only pokes a bear that has been poked too many times already. 

“Two systems of justice in this courtroom—is that what you’re saying?” Justice Merchan asks with the tone of a parent who says, “You better not be saying what I think you’re saying.” 

Blanche changes tack once again, pointing to a few of Trump’s reposts that the prosecution has not complained about, noting the inconsistency in enforcement. But this, again, pokes the increasingly grouchy bear. “That suggests that somehow because the People or the Court do not take action for every single violation that the Gag Order is waived; that’s just silly,” Justice Merchan says. 

One of the present authors will later liken this defense to arguing for the legality of three murders if an earlier fourth murder goes uncharged. 

“That’s absolutely not what we’re saying,” responds Blanche. It’s almost as if a man is caught poking a bear, and, when caught, says, “I’m not poking the bear.” He continues to argue that Exhibits 3 through 10, all reposts, do not violate the gag order. “It’s not making a mockery of the gag order, your Honor,” Blanche says. “It’s a close call.”

Justice Merchan wants to discuss the mechanics of posting versus reposting. In essence, reposting requires some sort of action—it’s not passive. Nevertheless, Blanche says that Trump did not believe he was violating the gag order when reposting, but when Justice Merchan asks him whether he is testifying under oath that that’s his client’s position, Blanche backtracks. 

“I’m just telling you that you have presented nothing,” says the judge. “I have asked you 8 or 9 times, show me the exact posts that he was responding to, and you have been unable to do that even once.”

It’s not going well. Unless you consider a train wreck as going well.

We jump to Exhibit 10, the Watters segment repost to which Trump had “manipulated”—Justice Merchan’s word—a quote from the Fox News host and added it as a caption. Despite Blanche’s characterization just moments ago, the judge clarifies that, in fact, this is not a repost at all but, rather, “something that was said on TV and your client had to type it out.” He adds some visual language for us. “He had to sit there, use the quotation marks, the shift key and type everything out,” says Justice Merchan, scoring a few chuckles from the press room.

After the bruising of the preceding 20 minutes or so, Blanche gathers himself and attempts to end on this point: “President Trump is being very careful to comply with your Honor’s rules.” 

If credulity is a muscle, Blanche has badly strained it—to the point of breaking. “You, Mr. Blanche, you are losing all credibility,” Justice Merchan says sharply. “I have to tell you that right now. You are losing all credibility with the court.” An audible gasp from the press lingers over the room. 

Blanche, undeterred, attempts to make one more argument. If litigating doesn’t work out, Blanche might think about taking up boxing. He certainly knows how to take a beating and keep on going.

He wants the court to “make crystal clear” what the gag order means with regard to reposts. Justice Merchan, while stating that it’s not ambiguous, offers an analogy to help the defense understand. He likens a repost to Trump grabbing a sign from someone outside, one that says horrible things about the witnesses or jury, and walking around with it. What Blanche should have done, says Justice Merchan, is say, “My client is thinking of reposting things, but it’s not really clear in the gag order, so Judge Merchan is that allowed?” But, says the judge, you didn’t do that.

“Look, your Honor—” says a battered Blanche, but Justice Merchan has heard enough. He says he’ll reserve judgment on this, and we take a break until 11:00 a.m.

At 11:03 a.m., both sides are back at their respective tables, as we wait for Justice Merchan to return to the bench. 

Trump is discussing something with Emil Bove, now to his left, having swapped seats with Blanche, who also chats with the former president periodically. 

It’s 11:13 a.m., and the bench remains empty. It’s not clear what the holdup is from the usually punctual judge. The press speculate as to whether he is getting ready to rule from the bench on the contempt motion, or whether another juror contacted the court asking to be excused. Prediction may be the lowest form of journalism, but it’s also one of the most fun. 

At 11:19 a.m., Justice Merchan returns. Our predictions will have to wait, because by 11:24 a.m. the jury is “present and properly seated,” and the previous day’s witness, Pecker, takes the stand to resume examination from the prosecution. 

Before we continue, Justice Merchan clarifies the schedule for next week. No meeting Monday, and Tuesday will be a full day. With those housekeeping matters behind him, he cedes the floor to Steinglass for his continued direct examination of Pecker. 

Steinglass asks the former publishing executive about his relationship with Trump. Pecker says he knows Trump. 

Do you see him today in the courtroom, can you point him out? asks Steinglass.

Pecker points a finger in the direction of the former president of the United States. “He’s wearing … I think it’s a dark blue suit,” Pecker says as he peers at Trump, squinting his eyes to make out the color of his suit. 

Trump smirks in recognition. 

Pecker recalls that he first met Trump at Mar-a-Lago in the late 1980s, when he was brought to the beach club by a Trump business associate. 

“I have had a great relationship with Mr. Trump over the years,” Pecker says. As Pecker tells it, his personal and professional relationship with Trump began to grow after the men launched a magazine called Trump Style, which was distributed at Trump’s hotels and casinos. Following the launch of the magazine in 1997, Pecker continues, he began to meet with Trump once a quarter. 

According to Wikipedia, Trump Style is just one of four now-defunct Trump-branded magazines. In fact, the phrase “Trump magazines” has its own Wikipedia entry, and it includes “Trump Style” (1997–2002), “Trump World” (2002–2003), a “Trump World” revival (2004–2006), and “Trump Magazine” (2006–2009). The entry’s photo is a 2006 cover of Trump Magazine featuring a photo of, you guessed it, Trump, with the headline “ON TOP OF THE WORLD”.

While Trump Style magazine would eventually cease distribution, Pecker’s 1999 purchase of the National Enquirer brought him closer to Trump. The next year, Trump debuted  “The Apprentice.” It was “an instant success,” according to Pecker. Trump, he continues, was “kind enough” to send Pecker show ratings and other content, which Pecker then published in the National Enquirer. 

“It was a mutually beneficial relationship,” Pecker says. 

That mutually beneficial relationship further evolved when Trump launched “The Celebrity Apprentice” around 2003, according to Pecker. Trump began to give Pecker exclusive information about the show, such as whether a contestant “was gonna get fired or terminated.” That helped the magazine, Pecker explains, because the audience of the National Enquirer “loved Mr. Trump as a major celebrity and followed it, followed him religiously.”

By 2015, Pecker says that he began to consider Trump a “friend.” Pecker began to see Trump more frequently, and they spoke on the phone every couple of weeks. Pecker would sometimes communicate with Trump via his assistant, Rhona Graff, and his bodyguard, Keith Schiller, though infrequently.

Having elicited the basic contours of Pecker’s close personal and professional relationship with Trump, Steinglass asks Pecker about Trump’s business practices. As a businessman, Pecker says he would describe Trump as “knowledgeable,” “detail oriented,” and “almost a micromanager.” As for his approach to money, Pecker describes Trump as “very cautious” and “very frugal.” 

Pecker also recalls his observations of Trump’s business practices during a meeting he attended in Trump’s office. During that meeting, he says, Trump’s assistant brought in a batch of invoices and checks for him to sign. Pecker observed Trump review the invoices and checks before signing them. In his recollection, each check was stapled or otherwise attached to the corresponding invoice reviewed by Trump.

The exchange is a good reminder of how central documents and records are to this case, a feature that prosecutors said during jury selection might be a “slog.” The charges, after all, involve 34 alleged instances in which Trump falsified business records, including invoices and checks. But if the jurors find this line of questioning a “slog,” they aren’t showing it. In the jury box, the jurors appear to be listening intently. Some lean forward, while others scribble notes in their court-issued jury notebooks.

Now Steinglass turns to Pecker’s relationship with a key witness in the case: Cohen, Trump’s former “fixer” and personal attorney. 

“I met Michael Cohen at a bar mitzvah in early 2000,” Pecker says—a sentence that will be immediately recognizable to many Jewish members of the press corps, who have likely also uttered this exact sentence at some point in their lives, though about different Michael Cohens and about different bar mitzvahs. 

Seven years after the bar mitzvah, Pecker explains, he was reintroduced to Cohen during a meeting with Trump at his office. At that time, Trump told Pecker that he should contact Cohen directly “if there were any rumors in the marketplace about Mr. Trump or his family” or “any negative stories that were coming out.” By 2015, Pecker says, he was in contact with Cohen approximately once a month. After Trump announced his candidacy for president, this frequency increased to weekly, sometimes daily communications with Cohen. 

In 2015, Pecker testifies, Cohen invited him to Trump Tower for Trump’s announcement unveiling his presidential campaign. Cohen invited him via email, Pecker explains. At this, Steinglass displays an exhibit that shows a June 2, 2015, email invitation Cohen sent Pecker. “No one deserves to be there more than you,” Cohen wrote. 

A couple of months later, in August 2015, Pecker received a call from Cohen, who said that “The Boss” wanted to see him. Pecker clarifies that Cohen would simply refer to Trump as “The Boss.” With apologies to our New Jersey readers, this was not a meeting with Bruce Springsteen.

Pecker didn’t know the purpose of the meeting, but he went to Trump Tower to meet with Trump and Cohen. Hope Hicks, then Trump’s communications director for his presidential campaign, was also present for portions of the meeting. “She was in and out,” Pecker recalls. 

As to the substance of the meeting, Pecker says that Cohen and Trump asked Pecker what he and his magazines “could do to help the campaign.” “I said what I would do is I would run or publish positive stories about Mr. Trump and I would publish negative stories about his opponents,” Pecker recalls. 

But Pecker also had another idea about how he could help Trump: He could serve as Trump’s “eyes and ears.” He told Trump and Cohen that if he heard anything negative about Trump or “about women selling stories” then he would notify Cohen so that they would be able to have the stories “killed.” The purpose of this aspect of the plan, Pecker explains, was that Cohen could purchase the negative stories so that they wouldn’t be published.

Steinglass next asks if Bill and Hillary Clinton came up during the meeting.

Yes, Pecker replies. At the time, he explains, Hillary was running for president and Bill’s “womanizing” was a best-selling topic. Pecker suggested that he could continue running negative stories about the Clintons—a suggestion that apparently “pleased” Trump. 

Pecker testifies that this arrangement was, for the most part, a “mutually beneficial” one for both Trump’s campaign and Pecker’s magazine business. In writing positive stories about Trump and negative stories about his opponents, it would increase newsstand sales of the National Enquirer for Pecker and help Trump’s campaign in the process. 

But Steinglass focuses his direct examination on one aspect of the arrangement that had no apparent benefit for the National Enquirer: the catch-and-kill scheme. How was buying up negative information about Trump going to boost sales of the National Enquirer? Steinglass asks. 

Pecker, in response, admits that that part of the plan didn’t help the National Enquirer. The purpose of that component, he says, was to benefit the campaign. 

Pecker says that the plan devised during the Trump Tower meeting was never put into writing. It was an “agreement among friends.” Pecker did, however, describe the meeting to Howard, then the editor-in-chief of the National Enquirer. According to Pecker, he told Howard that the “concept and agreement” discussed during the Trump Tower meeting must be kept “highly, highly confidential.” “We’re going to try to help the campaign, and to do that I want to keep this as quiet as possible,” Pecker says he told Howard.

Steinglass asks if Pecker did, in fact, carry out the first component of the agreement reached during the Trump Tower meeting: to publish positive stories about Trump. Yes, Pecker replies.

Now Steinglass proffers several exhibits, which display a series of glowing tabloid headlines about Trump. A few choice examples:







(Editor’s note: Lawfare could take a lesson or two in engaging headline writing here.)

Here’s how it would work, according to Pecker: Cohen would say to Pecker, we’d like to run a negative article on, let’s say, Ted Cruz, Ben Carson, or Marco Rubio, then Cohen would send Pecker information about them. That information would become the “basis” of the story, and the National Enquirer would “embellish it from there.” 

Steinglass wants Pecker to clarify the use of the first person plural. When Cohen said “we,” the witness assumed that meant Cohen and Trump. Cohen would repeatedly tell Pecker that he wasn’t part of the campaign—he was simply Trump’s “personal attorney.” 

Still, Pecker understood Cohen to have at least some relationship to the campaign. “I thought that—,” Pecker pauses, looking down at his hands to gather his thoughts. “Michael was physically there in every aspect of whatever the campaign was working on, at least at the Trump Organization, at the Trump Tower .... He wasn't part of the campaign, but I think he may have heard things informally, or he injected himself into it.” 

We turn to Exhibits 153A, B, and C, and a National Enquirer headline blazes on the screen: BUNGLING SURGEON BEN CARSON LEFT SPONGE IN PATIENT'S BRAIN! The headline and accompanying photo get a few laughs from the press. 

There’s no objection from Bove to admit these exhibits into evidence, as long as Justice Merchan offers a limiting instruction, which he will continue to offer at various points in Pecker’s testimony. These headlines and others, the judge says, are “being admitted for the limited purpose of demonstrating that the article was published on or about a certain date, and to provide context for the other exhibit,” but it “is not evidence for the truth of the matters asserted.”

Steinglass asks Pecker to provide some context around the Carson brain sponge exposé, and he says that it was published when then-candidate Carson began to ascend in the polls.  

We repeat the process with two more of Trump’s opponents for the 2016 Republican presidential nomination. For Cruz, we see two headlines, “TED CRUZ SHAMED BY PORN STAR” and “TED CRUZ SEX SCANDAL—5 SECRET MISTRESSES,” which Steinglass submits without noting the irony. When another headline about Cruz and JFK’s assassin hits the screen, a reporter whispers, “I remember that one.” Pecker clarifies the editorial process again. Before publication, Pecker would send PDFs of articles to Cohen for comment and additions. Steinglass asks whether Cohen would share these headlines with “The Boss” prior to publication, but Pecker can’t recall. 

Next, Steinglass asks about Steve Bannon, whom Trump introduced Pecker to in October 2016. 

Trump said he believed Pecker and Bannon “would get along very well.” Bannon liked the articles very much so far, and so Pecker boxed up some issues of the National Enquirer and sent them to Bannon’s apartment on the Upper West Side. 

“Did Bannon pitch articles to the National Enquirer?” asks Steinglass, getting an objection from Bove—overruled.

Yes, says Pecker. After some more back and forth, Bove objects and requests a sidebar, after which Justice Merchan calls for a short break.  

Bove explains the objection: The government is eliciting hearsay statements from Bannon; there’s been no notice that the government considers Bannon to be a co-conspirator “in connection with the so-called conspiracy to influence the election”; and, anyway, there’s no conspiracy charged in the indictment. These are just statements by a campaign staff member “doing normal campaign work,” says Bove.  

Steinglass offers several counterarguments. First, the prosecution is eliciting what Bannon asked Pecker to do; it’s not a statement being offered for the truth, but rather a “verbal act.” 

But more important, Steinglass wants to address “a misperception about the law and what this case is about.” It’s true, he says, that there’s no conspiracy charge on the indictment, but falsifying business records in the first degree requires “an intent to defraud, that includes the intent to commit or conceal another crime.” The “primary” crime that the prosecution alleges is New York state election law § 17-152, which reads, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” In other words, even though it’s not charged in the indictment, a conspiracy has always been alleged to be part of this case. 

“The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016,” Steinglass says. 

Merchan agrees, but he is concerned that the district attorney didn’t give any notice to the defense that they would be eliciting this information from this witness.

Steinglass doesn’t think there’s a requirement to do so, and anyway, Bannon’s name is all over discovery documents. 

“There are 11 million pages of discovery, so the fact that someone’s name is on a page” is not adequate notice, Bove fires back. Merchan says we’re moving on, but he agrees with the government and references the three legal theories he will allow the prosecution to pursue. The judge calls for a brief recess. 

We’re back at 12:53 p.m., and Steinglass hands a USB thumb drive to Pecker, now back on the stand. Holding the tiny thumb drive between the fingertips of both his hands, he confirms that he reviewed the files contained within because it has his signature and the date he looked at it. 

“Does the name Dino Sajudin mean anything to you?” Steinglass asks. Pecker explains that Sajudin was a doorman at Trump Tower, whom he learned about from Howard. Sajudin was “in the market,” selling a story that Trump had fathered an “illegitimate” girl with a maid at Trump Tower. 

When Pecker learned about it, he “immediately called Michael Cohen,” told him what he learned, gave him Sajudin’s name and the name of the housekeeper, and asked him to verify that name in the Trump Organization’s payroll. Though Cohen said it was “absolutely not true,” he’d check it out.  

Pecker clarifies that he had notified Cohen about Sajudin’s story as part of the agreement in the August 2015 meeting.

Cohen called Pecker back to tell him he verified the two names were on payroll and asked Pecker to vet the story, who called Cohen back after he did and told him that the National Enquirer would have to “go forward with the story.” Pecker negotiated a price of $30,000 with the source, Sajudin, for exclusivity. When Cohen asked who would pay for it, Pecker said he would pay for it himself. 

“The Boss will be very pleased,” Cohen said, thanking him. 

Pecker says that he knew that Cohen had spoken to Trump about this story, because Cohen said that Trump would be willing to take a DNA test to disprove it, which Pecker didn’t think necessary. He says he bought the story for two reasons: (1) he didn’t want Sajudin to shop the story around to other outlets “in the marketplace,” and (2) if true, this story had big potential. “It would be probably the biggest sale of the National Enquirer since the death of Elvis Presley,” Pecker says, though clarifying that he had planned to wait until after the election to publish it.  

Trump sits with his eyes closed.

Steinglass displays a series of exhibits, including a source agreement between Pecker and Sajudin for $30,000, payable upon publication, and an exclusivity period of three months. During that time, Sajudin couldn’t take the story elsewhere. An amendment to the agreement, now on screen, changed the payable date to five days after the signing of the amendment, extended the exclusivity period in perpetuity, and added a $1 million liability should Sajudin break the terms.

Pecker mentions that a few things about this agreement were unusual. First, AMI had finished vetting the story, and discovered it was “100 percent false.” But, still wanting to “lock it up,” had offered a sum that far exceeded the normal rate, even for a “bigger celebrity.” One million dollars was also an atypically large sum for damages, but Pecker had added it in based on conversations he had with Cohen. More exhibits show a wire payment to Sajudin and an AMI invoice for the payment. 

Eventually, Pecker found the doorman “very difficult to deal with,” so, despite having already paid him, Pecker eventually released Sajudin from the agreement because the story wasn’t true anyway. 

Steinglass asks about Karen McDougal, who Pecker identifies as a “Playboy model,” who was “trying to sell a story about a [romantic] relationship she had with Donald Trump for a year.” Trump’s eyes remain closed as Pecker says this.

Repeating a similar process to the Sajudin tip, Pecker called Cohen when he learned about McDougal. Cohen didn’t even let him finish his story when he cut him off, calling it “untrue.”  

“We shouldn’t be talking like this over a landline—we should be using Signal,” Cohen once told Pecker, referencing the secure, encrypted messaging app. 

The McDougal story proceeds in a similar fashion to the Sajudin story, until Pecker describes a phone call he had with Trump. 

“I spoke to Michael,” Trump told Pecker. “He told me about Karen.” After Pecker told Trump that he thought he ought to buy the story—to catch it and kill it—Trump replied, “I don’t buy any stories. Any time you do anything like this, it always gets out.”

Still, Pecker says they proceeded with vetting the story, and Howard agreed to travel to Los Angeles to interview McDougal. During this time, Cohen repeatedly called Pecker to find out about the progress. Cohen was “very agitated” and seemed like he was under a lot of pressure to get the answer right away. Pecker theorizes that the pressure came from Trump himself. 

At 1:59 p.m., the ever-punctual Justice Merchan asks if this is a good time to break, and Steinglass agrees.

It’s a wrap on a day filled with more checkbook journalism, catch-and-kill schemes, a Playboy model, an illegitimate daughter, and a lying doorman.

“Damn, today was juicy,” a reporter whispers as the press packs up to head home. 

Out in the hallway, Trump talks to reporters. He calls the courtroom “totally freezing” and the gag order “totally unconstitutional.”

Today is, after all, totally Tuesday. 

Read the next Trump New York Trial Dispatch, "'Standard Operating Procedure' Sure Seems Criminally Sleazy"

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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