Alvin Bragg’s Legal Strategy Faces Serious Hurdles Under Questioning By Defense

Jurors heard many details about the inner workings of former President Donald Trump’s circle on Thursday, the first full day of witness testimony in Manhattan District Attorney Alvin Bragg’s case.

But it remains to be seen whether they will conclude it amounts to a “conspiracy” as prosecutors allege.

Former National Enquirer publisher David Pecker, who briefly took the stand during a shortened Tuesday trial day, answered questions Thursday about the deal to purchase former Playboy model Karen McDougal’s story of an alleged affair with Trump — one of three so-called “catch and kill” operations prosecutors pointed to in order to demonstrate a “conspiracy” to illegally influence the 2016 election between Pecker, former Trump attorney Michael Cohen and the former president. While the prosecution spent hours painting a detailed picture of the process, it took Trump’s defense attorney minutes to unravel a central unstated premise: this deal was nothing special.

In actuality, Trump attorney Emil Bove pointed out, the business model of Pecker’s publication meant Trump’s story was far from the first he had purchased and suppressed. He’s done the same for other politicians and had a relationship with Trump that predated the 2016 election by over a decade.

On paper, Trump faces 34 felony counts for allegedly falsifying business records in connection to reimbursing Cohen for $130,000 paid to porn star Stormy Daniels. Bragg charged the offenses as felonies by arguing they were done to conceal or commit another crime, which he did not name in the indictment, though prosecutors revealed Tuesday in court was a violation of state election law.

The law makes it a misdemeanor for any two or more people to “conspire” to influence an election using “unlawful means.”

To this end, prosecutor Joshua Steinglass spent much of Thursday’s questions drawing out the nuances of the McDougal deal, seeking to establish its place in the broader “conspiracy.”

Pecker spoke on his concern about being reimbursed after purchasing McDougal’s story. He said Cohen represented to him that Trump would reimburse him, but he didn’t think Cohen had authorization to disburse any funds.

“I always paid when we went out for lunch,” Pecker observed.

Steinglass had Pecker walk the jury through the technical details of proposed transactions to reimburse Pecker’s American Media (AMI) for purchasing the McDougal story, which Pecker said he did not follow through with.

The transaction would have routed a $125,000 reimbursement through Investor Advisory Services rather than AMI. Cohen, meanwhile, created a company called Resolution Consultants to receive the rights to McDougal’s story.

After he backed out, Pecker said Cohen told him “the boss” — a reference to Trump — “is going to be very angry.”

Jurors later learned that Pecker wanted nothing to do with the Stormy Daniels story. Being associated with a porn star would be bad for the magazine, Pecker said, and he had already paid for a doorman’s false story of Trump fathering an illegitimate child and McDougal’s story.

They also heard about Pecker’s cooperation agreements with various law enforcement agencies, starting in 2018 with the U.S. Attorney’ Office for the Southern District of New York.

Some of Steinglass’ questions seemed pointed at closing off potential escape hatches for the defense: did Trump seem more concerned about his campaign or his family when he desired to purchase stories to suppress them? Pecker said it was about his campaign.

Was Pecker ever concerned about the legality of paying to kill the story of a political candidate? Pecker says he consulted with an election law attorney about the McDougal deal, noting he previously had an issue when purchasing a story for Arnold Schwarzenegger while he was running for governor.

Still, Bove’s rapid fire questions to Pecker toward the end of the day quickly cast doubt on the prosecution’s isolation of the McDougal deal. What prosecutors claimed was a piece of a conspiracy, Bove demonstrated, was “standard operating procedure” for the tabloid magazine.

Running stories about Trump was profitable. Buying stories of celebrities to suppress them could be used as leverage.

It’s just business.

Moreover, providing Trump with a heads-up on potentially bad stories was something Pecker had done for 17 years, Bove noted.

Bove also pressed Pecker on his recollection of events, highlighting an inconsistency in dates. He pointed out that these events happened a while ago and noted prosecutors refreshed Pecker’s memory with documents to give him a sense of when things happened.

A certain question in service of this point earned him an objection from prosecutors — and left things on a somewhat sour note with Judge Juan Merchan, who called Bove’s inquiry misleading. Bove had suggested Pecker gave different answers on former Trump aide Hope Hicks’ presence at a 2015 Trump tower meeting to different sets of prosecutors.

Pecker, for his part, remained calm on the stand throughout the day.

The defense is expected to continue its cross-examination on Friday. Whether Bragg’s theory will continue to hold up — and convince the jury — remains to be seen.

Thursday’s proceedings ended with the matter of Trump’s ten alleged gag order violations unresolved, though prosecutors introduced four more alleged voitions before Pecker’s testimony started. Merchan scheduled another hearing for 2:15 p.m on Wednesday.