With three weeks of witness testimony in the Trump criminal prosecution, the daily release to the public of the trial transcripts continues to provide a unique insight into the first criminal prosecution of a former U.S. president. The state court system also publishes on its website every exhibit admitted into evidence. These exhibits provide uncontested proof of Trump’s conspiracy to silence Karen McDougal, the former Playboy model, Stormy Daniels, the adult film star, and Dino Sajudin, the doorman.
Certain of the exhibits are also likely to be the only time the jury will hear Trump in his own words discussing the facts of the case. Trump is unlikely to testify on his own behalf. It is universally agreed he will make a terrible witness in his own defense. Yet, the exhibits include a tape recording of Trump speaking to his former lawyer Michael Cohen about reimbursing the National Enquirer for the McDougal hush money payment by buying the rights from the National Enquirer to McDougal’s story. (Exhibit 246.) There are also two campaign videos of Trump publicly denying he knew of any of the women who were accusing him of improper behavior after the release of the “Access Hollywood” tape. (Ex. 409A, 409B.)
One unusual snippet of testimony this past week was elicited by Trump’s attorney on cross-examination from former Trump Organization Controller Jeffrey McConney, whose legal fees are being paid by Trump. McConney testified that an attorney client retainer agreement can be verbal. (Transcript p. 2401.) That testimony is dead wrong. New York rules require lawyers to only have written retainer agreements with clients. This is significant because the invoicing from Cohen was pursuant to a retainer agreement, and the lack of a written retainer agreement between Cohen and Trump is further evidence that Trump’s payments to Cohen were not for legitimate legal fees.
The transcripts also show Daniels coming across as a highly credible witness on cross examination. From the start, the defense underestimated her intelligence and how well she had prepared to rebut and parry the defense’s attacks. (Tr. pp. 2718-21.) The cross examination began with the defense attempting to force her to admit she had rehearsed her testimony with the prosecutors, insinuating to the jury that she should not be believed because the prosecutors had suggested to her what to say. Daniels readily acknowledged that she had “met with the prosecutors on a number of occasions,” but forcefully stated her questioning by the district attorney was not a rehearsal but to provide the DA with “all of the facts.”
The defense’s cross examination continued to attempt to undercut Daniel’s key testimony, including her sexual encounter with Trump, with Daniels emphatically pushing back with one-word responses, “Bullshit” and “False,” (Tr. pp. 2792-93) and carefully answering each question so as not to adopt the defense’s narrative. (Tr. p. 2786.) At one point, Daniels accused Trump’s lawyer of “trying to trick me into saying something that’s not entirely true.” (Tr. p. 2816.)
The transcripts also reflect the prosecution’s overarching theme of concealment to explain to the jury Trump’s motive and intent for creating the alleged false documentation that is the crux of the crimes for which Trump is charged. This evidence includes the overall secret conspiratorial pact among Trump, Cohen and David Pecker, the head of the National Enquirer, to “catch and kill” stories detrimental to Trump’s 2016 presidential candidacy. For example, to maintain this secrecy, Cohen instructed Pecker that they should not speak “over a landline” but “should use Signal,” an encrypted telephone app that leaves no record of the calls. (Tr. pp. 1084-85.) Cohen also set up a bogus consulting company, Essential Consultants, to conceal the payment to Daniels. (Tr. pp. 1571, Ex. 379.)
The ultimate deals to buy the silence of McDougal, Daniels and Sajudin were all consummated with non-disclosure agreements that legally bound the silence of each individual. (Tr. p. 1692, pp. 1765-66, Ex. 154, 156, 276.) Even the reimbursement checks to Cohen, signed by Trump, were cloaked in secrecy. Rather than send the checks to the White House for Trump to sign, the Trump Organization sent the checks directly to Keith Schiller’s home address to avoid being recorded in the White House mail system. Shiller then worked at the White House and was Trump’s bodyguard. Ironically, he had also been instrumental in arranging Trump’s tryst with Daniels. (Tr. pp. 2935-36.)
Several days before the voting in the 2016 election, when the Wall Street Journal inquired about the payments to Daniels and McDougal, Trump instructed his press secretary Hope Hicks to deny he had ever had a relationship with either woman. (Tr. pp. 2196, 2199.)
This week Cohen’s much anticipated testimony is expected to break through the remaining veils of secrecy and detail what exactly Trump knew and when he knew it.
Akerman was formerly an assistant special Watergate prosecutor and an assistant U.S. attorney for the Southern District of New York.
