Day Six of the Trump Trial: A Bench Slap and Pecker on the Stand
Even lawyers familiar with sharp language from the bench were stunned by it—a calm, reasonable judge giving the lawyer for a former president of the United States a thorough tongue-lashing.
Day Six of the Trump Trial was mostly devoted to the first full day of direct examination of David Pecker, the former head of American Media International (the parent company of the National Enquirer) and a star witness for the prosecution. But it began with a contentious—and fascinating—hearing over whether Judge Juan Merchan should grant the prosecution’s motion to hold Donald Trump in contempt of court.
Prosecutor Chris Conroy outlined ten alleged violations of the gag order that Judge Juan Merchan imposed on Trump to stop insulting jurors and witnesses—eight posts on the former president’s social media site, Truth Social, and two on official campaign websites.
Conroy was spot-on when he said Trump’s violations of the judge’s admonitions “pose a very real threat to the integrity of criminal proceedings.” He noted that the 45th president had “willingly and flagrantly” violated the protective order—a nicer way of describing a gag order. Witnesses, jurors, family members— “nobody is off-limits to the defendant.”
Under normal circumstances, violating the gag order would mean jail time. But the prosecution isn’t asking for it, and not just because it would let Trump wear a jumpsuit the color of his hair and play the martyr. Jailing Trump for contempt would also interrupt the trial and open the door for time-consuming appeals. Instead, prosecutors want the defendant to be fined. At $1,000 for each count (the amount specified by law), Trump would owe $10,000 if held in contempt on all counts.
Defense attorney Emil Bove argued that Trump was allowed to respond to political attacks under the gag order, which is aimed at protecting witnesses and the jury. He didn’t mention that the defendant is also allowed to viciously attack the judge and prosecutors, which he does daily.
The question for Merchan was which of Trump’s social media posts were largely political responses and which crossed the line into intimidating witnesses and jurors or the jury pool.
Most social media posts covered in the motion are attacks on Michael Cohen, the key witness in this case. Trump thanks federal inmate Michael Avenatti for “revealing the truth about two sleaze bags”—namely Cohen and Stormy Daniels (whom Avenatti ripped off when representing her.) Another time, Trump quoted from and linked to an article by conservative law professor Jonathan Turley in the New York Post with the headline: “A serial perjurer will try to prove an old misdemeanor against Trump is an embarrassment to the New York legal system.”
The judge repeatedly pressed defense attorney Todd Blanche to explain which political attacks Trump was responding to: “You’ve presented nothing. I’ve asked you eight or nine times to show me the exact post he’s responding to. You haven’t been able to do that even once.”
That’s partly because the fur has been flying so fast between Trump and his henchman-turned-mortal enemy that it’s hard for anyone to keep track of who is launching attacks and who is responding.
For that reason, I have no idea how Merchan will rule on the counts involving Cohen. But he is likely to hold Trump in contempt for going after Stormy Daniels and certain to do so on Count 10, which involves a post by the loathsome Jesse Watters of Fox News.
How certain? En route to the men’s room during a break, I asked retired New York judge George Grasso, a spectator at the trial, about the chances of a contempt citation on Count 10. “99.999 percent,” the judge replied.
You may recall my reporting on how the execrable Fox News host went after Juror #2—who later left the jury, thanks to all the publicity— for saying during voir dire that “no one is above the law.” Watters claimed this was proof that she could not be fair to Trump.
It turns out that Watters promoted his show with the line, “Catching undercover liberal activists lying to the judge.”
This post became so important because Trump did not simply re-post it, which would have been bad enough. He added: “in order to get on the Trump jury.”
Remember, Blanche’s argument is that Trump was merely responding to political attacks or reposting content, not willfully defying the gag order. But here was Trump in the middle of jury selection, warning potential jurors that they had better not try to get on the jury by saying they could be fair and impartial. This tampered with the jury pool and directly violated the gag order.
Conroy, the prosecutor, argued that “This goes to the defendant’s willfulness…He added to it and posted it.” The judge appeared to agree and reamed Blanche for failing to cite any case law to back up his claims that it is permissible to re-post or otherwise disseminate content that violates the gag order.
“Reporting an article from a news source— we don’t believe [that is] a violation” of the gag order.
“Case law,” the judge demanded. “You’re not giving me anything to hang my hat on…Suppose someone’s holding a placard that says terrible, terrible things about the jury, and your client picks it up. [Are you] saying that he’s done nothing wrong?”
Blanche, sounding like a schoolboy pleading with the principal, said it was “just common sense” that re-posting dangerous attacks on jurors is permissible.
“This gag order—we’re trying to comply with it…President Trump is being very careful to abide by your rules.”
Then, Judge Merchan delivered his unforgettable smackdown from the bench: “Mr. Blanche, you’re losing all credibility with this court.”
My guess is that when Merchan rules on contempt, Trump will owe the court $5,000-$7,000. The judge has already shown an instinct to split the difference, which helps him avoid reversible error on appeal.
Late on Tuesday morning, David Pecker returned to the stand after brief testimony the previous afternoon. Pecker is a tabloid editor with a reputation as a tyrant in the office and a jerk-about-town. I’d call him a disgrace to journalism, but that would imply that he is in journalism, which he is not. He’s in the trash business.
But after helping wreck the country by doing as much as anyone to elect Trump, Pecker is now trying to get him convicted. He is testifying under subpoena, but nothing in his plea agreement requires him to remember every detail and spin every answer against Trump.
And yet that’s what he’s doing, from hatching “The Trump Tower Conspiracy” shortly before Trump announced for president in 2015 to corroborating key parts of Cohen’s story to describing Trump as a “detail-oriented…micromanager” who communicated about “catch and kill” largely through Cohen but called often and was very much in the loop of the conspiracy.
Pecker even explained why his number two, Dylan Howard, who managed “catch and kill” and other parts of what Pecker calls the Enquirer’s “checkbook journalism,” could not be present to testify—a question that will no doubt occur to the jury. Howard is back in Australia, suffering from a spinal condition that prevents travel. Or so we’re told by Trump’s old pal, who—like all of Trump’s transactional “friends”—eventually ceased to be one.
After watching Trump glare at Pecker from across the courtroom, I asked Michael Wolff, the author of monster bestsellers on Trump and his inner circle, why Trump and Pecker, who have so much sleaze in common, are no longer close. He said that all of Trump’s friends eventually sour on him. It’s just a matter of time.
Pecker detailed the Trump Tower arrangement: “They asked me what can I do and what my magazines could do to help the campaign…. I said I would publish positive stories about Mr. Trump and I would publish negative stories about his opponents. And I said I would be your eyes and ears because I knew the Trump Organization had a very small staff…. I said that if I hear anything negative about yourself or if I hear anything about women selling stories, I would notify Michael Cohen as I did over the last several years, and he would be able to kill negative stories.”
Not long after, the Enquirer began savaging Trump’s 2016 rivals for the GOP presidential nomination with in-kind contribution headlines like these:
TED CRUZ SHAMED BY PORN STAR
TED CRUZ SEX SCANDAL—FIVE SECRET MISTRESSES
FAMILY MAN MARCO RUBIO’S LOVE CHLD STUNNER!
There were non-sex stories about malpractice and Dr. Ben Carson when the surgeon briefly led in the polls in 2015, and a notorious lie about Ted Cruz’s father being connected to the JFK assassination.
“Michael Cohen would send me information about Ted Cruz or about Ben Carson or Marco Rubio, and that was the basis for our story. We would take it from there,” Pecker testified. He continued: After Republican primary debates, “I’d receive a call from Michael Cohen, and he would direct Dylan Howard on which way the coverage should go.” Around the same time, Trump introduced Pecker to Steve Bannon, who collected all of the Enquirer’s pre-2016 attacks on Hillary Clinton for use by the campaign. There would be more to come shortly before the general election.
The first “catch-and-kill” that stemmed from the Trump Tower arrangement involved Dino Sajudin, also known as Dino the Doorman. Sajudin gave the paper a tip about Trump fathering a child with a Trump Tower maid.
“I thought if the story was true and I published it, it would be the biggest sale of the National Enquirer since the death of Elvis Presley,” Pecker testified.
But for all of Pecker’s love of newsstand sales—all his love of more money in a down market for the company he owned—Trump’s political fortunes took precedence.
Even after the publication learned that the story was false, Sajudin was paid $30,000—much more than the Enquirer’s usual tip rate. The point was to ensure the doorman didn’t talk before the election. If he did, under the terms of the non-disclosure agreement, he would owe Pecker’s company $1 million. After the election, Sajudin was released from the terms of the agreement.
Beyond that important evidence of election intervention, I was interested in various ancillary details. Pecker testified that from the start, Cohen was adamant that the story was untrue. Trump would take a DNA test. Cohen told Pecker: “He is German-Irish, and this woman is Hispanic, and that would be impossible.”
Will Hispanic voters care that there is no chance under any circumstances that Trump could have had sex with a Latina? Enquiring minds want to know.
You can find Jonathan Alter’s previous hush money trial diaries here.
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