Day Eight: Pecker Survives Cross-Examination at Trump Trial

We may look back at the second Friday of the Trump Trial as one of the most significant days of the entire case. That’s when Emil Bove—arguably Trump’s best defense attorney—failed to break David Pecker on cross-examination. But I’m going to start my Day Eight report with the story of my great view of Donald Trump’s scalp. Here’s how it happened:

The 58 reporters credentialed to be in the courtroom do not have assigned seats. It’s roughly first-come-first-seated after the onerous clearance of both 1st-floor and 15th-floor metal detectors (twice a day) and a forced march of the favored reporters into Room 1530 of the decrepit Manhattan Criminal Courthouse. Arriving early helps, but the seating also depends on which of the two aisles—left or right—the jumpy court police arbitrarily lead you down. No switching seats allowed.

After wolfing down my brown bag lunch on another floor of the courthouse, I was early at the metal detectors, caught a lucky aisle break, and found myself with one of the best seats in the house—the third row on the left side. This was two rows in back of the Secret Service and one row behind where the defendant’s family would sit if any of them showed up. 

So far, none have. Before court, Trump was at “the pen”—the camera position in the hallway—and wished Melania a happy birthday. Then he spent the day enduring hours of testimony about Karen McDougal, whose affair with Trump overlapped with his wife’s 2005-06 pregnancy with Barron. Judge Juan Merchan responded to a pretrial motion by allowing practically everything about McDougal into evidence except a reference to Melania’s pregnancy, which he found prejudicial.

Today, the row reserved for family and close friends contained only one person—Boris Epshteyn, the abrasive Moscow-born lawyer, political operative, and former Sinclair Broadcasting commentator who, for the last four years, has been in Trump’s inner circle. A few Trump lawyers have quit after being ordered around by Boris. I knew him from the MSNBC green room and noticed that he was much fatter than when I had last seen him at the 2016 Republican Convention in Cleveland. Whether his girth was an unconscious homage to the boss, I cannot say.

Inside what, in a sign of our times, was then the Quicken Loans Arena and now the Rocket Mortgage Fieldhouse, Boris and I had what diplomats call a “full and frank exchange of views” (an argument) on the subject of Vladimir Putin. You will not be surprised to learn that Boris liked him a lot. In court, he seemed to have forgotten our jousting and pleasantly shook my hand.

For the next three hours, I was sitting about 12 feet directly behind Trump. Full disclosure: I’m a follicularly-challenged man at work on a political biography of Julius Caesar, who was frequently derided in the Roman Senate as “the Bald Adulterer.” As we know from busts, Caesar had a combover—arguably the first in recorded history. He was also a dictator for more than one day, though only a dictator in perpetuo (for life) for a month before that power grab helped get him assassinated—an event that made things much worse for the doomed Roman Republic. 

Trump is no Orange Julius. He is not fit to hold the toga of Caesar, a brilliant and enormously accomplished leader. But there is also this difference: Caesar had a comb-forward while Trump—as everyone knows—has a comb-back. Until now, the only people who could report on what the back of Trump’s head looks like were the MAGA cult members seated behind him at his rallies. As far as I know, none have dared mention what they saw.

So here I was, perfectly positioned for what may be the very first eye-witness report: 

On the upper left side of the back of his head, the meticulously coiffed souffle and industrial-strength hairspray mostly did their comb-back job covering evidence of the truth. But by peeking through peachy strands, I could clearly see the pink-as-a baby’s-bottom scalp beneath. We’re talking cue-ball here and almost certainly present higher, lower, and to the right, with not a sprout to be seen.

I should add in Trump’s defense that he deserves a break—for today, at least—on the charge of napping. Not once did I see any of the tell-tale head bobs we witnessed in earlier days of the trial—slow nod down, quick jerk up, a snoozing ex-president in airplane mode. I could also see Trump from the front on the overhead video monitor. On Friday, he merely closed his eyes during dull portions of cross-examinations, a misdemeanor.

Trump probably should have been paying closer attention to how Bove—while intermittently effective at scuffing up Pecker—did not discredit him.

The afternoon before, Bove, a white-collar criminal defense attorney and former federal prosecutor, had started strong. He scored points on certain shakier parts of Pecker’s direct testimony, including the publisher’s admission that tabloids had used source agreements like the ones negotiated with Dino Sajudin and Karen McDougal “hundreds of thousands of times” over the years. 

This was a gross exaggeration that nonetheless played well for Trump. Pecker mostly responded to Bove’s effective rat-a-tat-tat with a quiet “yes,” as if he was Grandpa sheepishly agreeing that the long story he just told at the dinner table was not entirely accurate. Bove’s handiwork may have left an initial impression with the jury that the arrangement with Trump discussed in June 2015 at Trump Tower—on the eve of his presidential announcement—was not a “conspiracy” (as the prosecution would have it) but just business as usual in “checkbook journalism.”

Then, shortly before adjournment on Thursday, Bove made two significant mistakes. He strongly implied to the jury that Pecker had been improperly coached on his testimony. Before long, he began badgering Pecker on whether Hope Hicks, Trump’s press secretary during the 2016 campaign, had been present at an important Trump Tower meeting. He pointed to apparent contradictions between Pecker’s direct testimony and his testimony before the grand jury. Nailing this point looked like a twofer: scotching any corroboration from Hicks of Michael Cohen’s forthcoming testimony and making Pecker look like a dissembler.

To drive it home, Bove rudely handed Pecker a document to “refresh his memory.” Pecker appeared confused, a bad look for the jury. But when the prosecution objected, it turned out the document was essentially a prop that mentioned Hicks but was not about the narrow question at hand. “If there wasn’t anything in that document, it’s misleading,” Judge Merchan told Bove.

The judge was unhappy with the defense’s distracting gambits and said he would rule on both matters the following day.

On Friday morning, Merchan summoned jurors and instructed them that speaking to a witness before testimony “is a normal part of preparing for trial” and that any impression to the contrary should be disregarded. He then made Bove eat serious crow. 

Referring to his document stunt, Bove told the jury that there was “some confusion in testimony” the previous afternoon that was “my fault” and “I wanted to apologize” for any misunderstanding and for the entire line of questioning about Hicks. 

This left Bove on his back foot when he needed to lean into his cross-examination, which he managed to do. Bove scored some points by showing that the attacks on a few of Trump’s rivals for the 2016 GOP nomination—Ben Carson, Ted Cruz, and Marco Rubio—were based on reporting recycled from The Guardian and other sources. 

“You would have run those stories whether you were in contact with Trump or not, wouldn’t you?” Bove asked.

“Yes,” Pecker answered on that and almost every other question. Yes, said the 72-year-old, his main aim was to make money, not to get involved in politics, and he regretted covering up a story about Arnold Schwarzenegger’s mistresses that then exploded in the Los Angeles Times; yes, there was no explicit reference to the phrase “catch-and-kill” at any 2015 Trump Tower meeting, and he never used that term; yes, he reiterated that there were “hundreds of thousands” of source agreements going back decades; yes, there was another motive for paying doorman Dino Sajudin $30,000 for his phony Trump lovechild story, which was that Sajudin was threatening to go to the competition and that would be” too big a loss.”

Bove walked Pecker through catch-and-kill tales about Schwarzenegger, Mark Cuban, Tiger Woods, and others. This is a transactional celebrity nether-world where agent Ari Emanuel helps kill a steamy story about his brother Rahm Emanuel, just before his 2011 Chicago mayoral bid. The defense didn’t seem to care whether these stories were actually true. The point was to show the jury that Pecker’s deals pumping birther conspiracies about Barack Obama in 2012 when Trump was considering a presidential race, or cutting a deal with Schwarzenegger, or buying off Sajudin and McDougal were just business as usual, thereby undercutting the importance of catching and killing the McDougal story. 

Bove seemed at first to have done a good job of undercutting the prosecution’s efforts to link the McDougal and Stormy Daniels cases:

“You did not consider the Stormy Daniels story to be part of any agreement in 2015, correct?” Bove asked.

“That is correct,” Pecker answered.

And like most defense attorneys on cross, he pushed hard on apparent inconsistencies, in this case between FBI notes of an interview with Pecker in which he didn’t mention that Trump thanked him for his help with Dino the Doorman and McDougal, and how—in an especially damning moment for Trump—he testified to that on direct.

“I know what I said yesterday happened,” Pecker said. “I can’t reconcile.”

But just when Bove seemed to be getting somewhere, he said the kind of thing that jurors might have rolled their eyes at if they didn’t know a bunch of reporters were looking at them:

“I’m not trying to put you on the spot.”

Sure you aren’t, counselor. Suddenly the cross-examination on the discrepancy with the FBI notes lost steam, as did one volley implying Pecker only cooperated with the initial federal probe of Trump that ended without an indictment because the publisher needed another part of the Justice Department, the Antitrust Division, to approve a pending business deal. This long section of cross, trying to establish that Pecker had a financial motive, did little or nothing to taint his credibility.

At one point, Bove realized he had wandered into the weeds. “I’m not going to make this a law school exam,” he told the witness. “Sorry about that.” That was his second apology of the day.

Pecker, who had been docile during cross, perked up when Bove tried to confuse the jury about tabloid practices by drawing a distinction between buying stories and selling leverage to celebrities.

“Selling and purchasing are the same,” he said.

If Trump’s defense lawyers thought they could turn a sleazy publisher into a sleazy liar, they were mistaken. By the end of his cross-examination, Bove seemed out of ammo. When he mentioned that The Washington Post had suppressed stories related to Bill Clinton’s accuser, Paula Jones, during the 1992 presidential campaign, Judge Merchan sustained an objection from the prosecution that this was irrelevant. 

On re-direct, Josh Steinglass of the Manhattan DA’s office reinforced some key pieces of evidence that the jury might have missed in all the tawdry testimony. He reintroduced exhibits proving the existence of a dummy corporation to launder the hush money from Trump to McDougal before Pecker pulled the plug on the scheme. And he got Pecker to repeat that the beauty and fitness contract that American Media International signed with McDougal was “to give AMI plausible deniability.” The jury heard that its real purpose, in the dry but impactful words of Pecker’s non-prosecution agreement with the government, was to “suppress the model’s story to prevent it from influencing the election.”

Most importantly, Steinglass established on re-direct that the deals with Sajudin and McDougal were not business as usual at AMI. He drove home that AMI’s largest prior payment to kill a story was $20,000 (compared to $150,000 for McDougal), and the standard checkbook journalism payment to sources was $500.

“Is a $1 million liquidated damage clause [the amount Sajudin would be required to pay if he spread the Trump lovechild story] standard operating procedure?” Steinglass asked.

Pecker explained why it wasn’t.

“Is it standard operating procedure having a presidential campaign’s person [Cohen] weighing in on what parts of the [McDougal] contract ought to be amended?” Steinglass asked, his voice rising.

Pecker said no, and explained why these deals were different from the “hundreds of thousands” of other NDAs and source agreements he had stumbled over earlier.

“On how many of those NDAs did the CEO of AMI coordinate with a candidate for president?” Now Steinglass was harshly crossing Bove’s cross.

“That was the only one,” Pecker said before repeating his damning testimony that,” I said after paying for the doorman story I wasn’t going to pay anything further, and I wasn’t a bank,” and when Trump and Cohen tried to get him to pay off Stormy Daniels, he told them, “I didn’t want to have anything to do with a porn star.”

Bove had one final shot on re-cross and botched it. At what must have been Trump’s direction, he argued that Trump is a family man. Pecker wasn’t buying it. When Bove said, “And you understand that [some of what you testified to] was stressful to his family,” the prosecution objected. 

After Merchan sustained it, Bove quit while he was behind. He stepped away, silently indicating that he had finished with his cross-examination. The judge told the witness that he could step down. 

His testimony complete and largely intact, David Pecker now entered American history as a credible chronicler of the tawdry and corrupt life of Donald Trump—more credible than many of the magazines he once published.

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