"Beginning of the end": Law professor says first hush-money witness set up case to "bury Trump"

Ex-American Media Inc. David Pecker spent the week divulging the intricacies of the catch-and-kill deals he made on behalf of Donald Trump and their relationship while on the stand in the former president's New York hush-money trial — and his testimony, legal experts say, could spell the "beginning of the end for Trump" in the case. 

Pecker, who was on the stand for four days this week, described in detail his work with Trump and his former lawyer and "fixer" Michael Cohen to "catch and kill" negative stories about the former president, while publishing negative stories about Trump's political rivals.  

The former National Enquirer publisher said AMI paid Playboy model and actress Karen McDougal, whose allegations are not a part of the current case against the former president, $150,000 to keep her quiet about her alleged affair with Trump. His later decision not to purchase the story of an alleged sexual encounter with Stormy Daniels, the adult film actress whose hush-money payment is at the center of the Manhattan district attorney's case, led Cohen to ultimately foot the $130,000 bill, Pecker said, according to CNN

Pecker's testimony was "really critical" to the "important foundation" the prosecution is trying to establish with the jury as it presents its case, David Schultz, a Hamline University professor of political science and legal studies, told Salon. 

"The foundation is to establish the fact that Trump and the National Enquirer were regularly — to use the phrase here — catching and killing stories, stories, for our purposes here, that could potentially impact somebody's career or more importantly a political career," Schultz explained. "And what I think is trying to be established here is the foundation for the predicate crime."

Manhattan District Attorney Alvin Bragg, who brought the case, has charged Trump with 34 felony counts of falsifying business records to cover up hush-money payments to Daniels made to keep her from going public with their alleged affair ahead of the 2016 presidential election. In order to elevate what would normally be misdemeanor charges to felonies, prosecutors would need to prove the falsification predicated an underlying crime, Schultz said.

Prosecutors have argued that the cover up served to influence the 2016 presidential election, and Bragg put forth a few legal theories for what the underlying crime could be in a November court filing, according to Lawfare: violations of federal campaign finance law under the Federal Election Campaign Act, violations of New York election law section 17-152, and violations of federal, local and state tax law. 

While the prosecution hasn't yet finished articulating those theories, it's currently carrying out what is almost "a mini trial" to convince the jury that Trump's alleged scheming with Cohen and Pecker "wasn't just because Trump was personally embarrassed" or sought to conceal the alleged extramarital affairs from his wife but instead because Trump wanted to protect his presidential campaign, Schultz explained. Prosecutors, then, could establish the predicate crime by showing the payments were therefore made to hide the information and influence the strength of the campaign. 

From there, Schultz continued, the prosecutors could make the case about the structure of the payment records amounting to a form of fraud under New York state law and the records concealing a crime elevating the counts to felonies. 

But the district attorney's failure to clearly outline in the indictment the specific elements of the underlying crime Trump is charged with and the way he is alleged to satisfy those elements could also come back to bite the prosecution by way of Pecker's testimony, Syracuse University College of Law professor Gregory Germain told Salon, likening the lack of specificity to "getting pulled over and given a ticket for violating the traffic code." 

"You have a right to know what you did — you were speeding, or ran a red light. We don't let the prosecutors say that you violated the traffic law and make you guess what you have to show to defend yourself," he explained, noting that the district attorney can state multiple crimes and would only need to prove one but didn't so in the charging document. 

Though Pecker appeared "truthful and credible" on the stand, his testimony "has very little" to do with the charges in the indictment because Trump is not being charged with "conspiring with Pecker to commit an election crime," he argued. Because the former AMI exec only referred Daniels' story to Cohen and wasn't involved in Daniels' payment or its documentation, Trump could "argue on appeal that the Court should not have admitted evidence of the unrelated Pecker crimes" should he be convicted, he explained.

"The judge allowed Pecker and [will allow] MacDougal to testify, even though the potential crimes they were involved with had nothing to do with the charges in the indictment," Germain said. "The Court of Appeals just overturned Harvey Weinstein's conviction because the trial court allowed the admission of evidence of prior acts that had nothing to do with the charges, and I think the DA's attempt to introduce evidence from Karen MacDougal that will be prejudicial to Trump but has really nothing to do with the document charges in the indictment will create additional problems for the DA on appeal if he is successful in obtaining a conviction."

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"The DA has to prove that the reason for Trump's characterization of the Cohen payments as attorney fees was to commit a fraud and independent crime," he added. "That should have been the focus of the DA's case, instead of ancillary wrongdoing that has not been charged.  We haven't seen any real evidence yet relating to the charges."

Schultz argued, however, that the prosecution is setting up "a pattern for the predicate offense" that establishes Daniels' payoff is part of a "broader process" that was regularly carried out to hide embarrassing information, and "the fact that Trump knew that process, through Mr. Pecker being his friend."

To that end, "Pecker was the perfect lead off for the prosecution," argued Bennett Gershman, a former New York prosecutor and current Pace University law professor, emphasizing that Pecker made it "crystal clear" the case is about a plot to "illegally influence the 2016 election." From Pecker's testimony, the jury could "reasonably connect" him and Trump as the "sleazy publisher and a sleazy politician" duo and "clearly find" that the catch-and-kill effort was for the election. 

Pecker also testified Thursday that, at least during the 2016 presidential campaign, he understood Trump's concerns undergirding the hush-money scheme to revolve around "the impact it would have upon the election."

"The prosecution [has] now set up the case effectively and every subsequent witness will connect the dots, reinforce the sleazy plot, and likely bury Trump," Gershman said, arguing that Pecker's testimony will bring about "the beginning of the end for Trump, at least [in] this case."