The scheme on the coronary heart of the fees in opposition to Donald Trump in New York is well-known: To maintain allegations of an affair with the adult-film actress Stormy Daniels from changing into public, Trump is accused of agreeing to pay her $130,000, camouflaged as funds to Michael Cohen for authorized companies. It’s within the camouflaging that Trump is charged with committing the 34 felonies at difficulty earlier than a jury beginning Monday.
However the jury, and the nation, are going to listen to a whole lot of proof of Trump’s different allegedly wrongful acts — and a digital avalanche of such proof ought to the defendant resolve to testify. That can paint a broader and extra damning portrait of Trump, who’s reportedly already on tenterhooks about Daniels’ anticipated testimony, giving him much more alternatives to complain that he’s the sufferer of a no-holds-barred railroading by the hands of Manhattan Dist. Atty. Alvin Bragg.
Bragg’s group can introduce details about Trump’s different alleged misconduct below New York’s guidelines of proof, which mirror the federal courts’. Identified in New York as “Molineux proof,” after the case that outlined it, it’s usually thought of a bonanza for prosecutors and a bane of defendants.
It’s an axiom of legal legislation that jurors ought to assess guilt or innocence primarily based on the defendant’s conduct within the case earlier than them. Meaning they shouldn’t make their determination primarily based on judgments concerning the defendant’s character — for instance, that the defendant is a “dangerous individual” who, having achieved dangerous issues prior to now, in all probability did them once more. So it could be improper to introduce the truth that an alleged financial institution robber beforehand robbed a financial institution to point out that he’s a “bank-robbing type of individual” and subsequently seemingly dedicated the financial institution theft he’s now charged with.
New York’s rule usually prohibits the prosecution from counting on “character” or “propensity” proof to induce conviction. But it surely’s riddled with exceptions that allow prosecutors to supply proof of prior dangerous acts for a lot of functions aside from character, together with to point out “motive, alternative, intent, preparation, plan, data, id, absence of mistake, or lack of accident” — roughly something aside from the forbidden character inference.
One instance in Trump’s case, greenlighted by the courtroom over his vigorous objections, considerations a “catch and kill” scheme by which the Nationwide Enquirer agreed to purchase after which bury embarrassing tales concerning the then-candidate. That’s not what occurred in Daniels’ case, however Choose Juan M. Merchan agreed to let the prosecution current it to the jury. His rationale was that it’s a part of the identical “narrative of occasions that precipitated” the alleged falsification of data and will assist show Trump’s purported intent to hide allegations of affairs from voters.
Merchan likewise dominated that the prosecution could introduce a transcript of the infamous “Entry Hollywood” tape by which Trump boasted of sexually assaulting girls. The choose discovered that the feedback might assist present Trump’s motive for concealing the alleged Daniels affair as a result of the revelation of the tape was a disaster for his marketing campaign.
For related causes, Merchan is allowing testimony from mannequin Karen McDougal concerning the affair she says she had with Trump and the Enquirer’s suppression of her story. Likewise, the courtroom accepted a restricted presentation of proof concerning the alleged buy of knowledge from a Trump Tower doorman, Dino Sajudin, to the impact that Trump fathered a toddler with a housekeeper.
The courtroom will instruct the jury to treat the proof just for its permissible functions — for instance, to reveal intent — and to not infer that as a result of Trump could have achieved one thing dangerous earlier than, he in all probability did so once more. However trial attorneys perceive that inferring acts primarily based on character is human nature; it’s very arduous in observe to stop jurors from indulging the impermissible inference.
Furthermore, if Trump takes the stand — as he has flatly asserted he’ll — that will allow the district lawyer’s group to unleash a torrent of further proof of prior dangerous acts. That’s as a result of the previous president could be placing his personal credibility at difficulty, enabling prosecutors to introduce extra proof associated to that query.
On Monday, Merchan dominated that prosecutors could use a number of noxious episodes from Trump’s previous to question his testimony if he takes the stand. They embrace New York Atty. Gen. Letitia James’ profitable fraud case in opposition to Trump’s enterprise and the author E. Jean Carroll’s victorious lawsuit for sexual assault and defamation.
Such testimony would seemingly appall jurors who have already got some notion of Trump’s important sleaziness. It’s one in all a number of causes that however his bombast, we should always not count on him to testify. Trump’s extra seemingly position in courtroom over the approaching weeks will likely be to sit down nonetheless and seethe silently.
Harry Litman is the host of the “Speaking Feds” podcast and the Speaking San Diego speaker sequence. @harrylitman
