Opinion: Even if Trump can’t stay awake this week, the jury will have reason to
(CNN) — Welcome to week two of the Trump 2016 election interference trial.
Last week was dominated by the drama of star witness David Pecker, the former National Enquirer publisher who brought to life for the jury the “catch-and-kill” schemes that prosecutors say were intended to benefit Trump’s campaign. But after he finished his testimony Friday afternoon, we settled into what is likely to be the next phase of the case: getting all the evidence in. That means some less dramatic intervals are ahead. But because the narrative and the stakes were made so clear in week one, week two is likely to sustain the interest of the jury and all of us – even if it may not stop the defendant’s penchant for napping.
Those of us who spend time in courtrooms know trials can’t always be “Law & Order,” in which prosecutors elicit damning testimony – and sometimes even outright confessions – from witnesses every time one takes the stand. In the real world, lawyers also have to prove every element of their case. And the case Manhattan District Attorney Alvin Bragg brought is, at heart, a documents case – Trump has been charged with 34 counts of felony record falsification, actions allegedly taken to cover up hush money payoffs connected to the 2016 election. So the prosecutors will need to take the time to present all the documentation to prove that the allegedly illicit payments were made and that the allegedly criminal false documentation was filed.
But as demonstrated by longtime Trump assistant Rhona Graff’s testimony Friday afternoon, the methodical nature of the testimony and evidence doesn’t mean it will be dull for the jury. Juries adapt to the ebb and flow of a trial, and this jury was attentive to Graff’s words about maintaining contact information for two of Trump’s alleged paramours who prosecutors say received secret payoffs to benefit the Trump campaign: Karen McDougal and Stormy Daniels. Some jurors took copious notes and others listened closely.
Pecker had introduced them to a starry world of celebrities and sex scandals, and an alleged backroom deal with a presidency in the balance. Now we are building the details out, piece by piece. So if last week evoked primetime soaps such as “Dallas” and “Dynasty,” this week promises to be “Columbo”– a police procedural putting together all the clues needed to solve the mystery.
This type of testimony, though technical, is essential: Prosecutors can’t just stand up and assert certain payments were made, or present to the jury a document that has not been authenticated and introduced as evidence. The DA has to establish every factual element, and they will do that through the reams of documents that will be introduced into evidence this week. That proof will also help corroborate the testimony of future witnesses, like former Trump attorney Michael Cohen, who arranged hush money payments, and payoff recipient Daniels. And any omissions or misrepresentations in documents also help show the intent to cover up the payment scheme to benefit the campaign.
The testimony of Gary Farro, Cohen’s onetime banker, is emblematic of what we are likely to hear from other witnesses this week. Farro began testifying on Friday after Graff, and the prosecution had him corroborate various bank records related to the formation of the limited liability companies that Cohen created as part of the alleged scheme to bury damaging stories during the presidential campaign.
For example, Assistant District Attorney Rebecca Mangold had Farro verify one record in which Cohen offered a detailed description of the purpose of the limited liability company that he had created to facilitate payments to McDougal, one of those who claimed to have had an affair with Trump – but Cohen omitted any mention about acquiring the rights to her potentially damaging story. Mangold also had Farro verify a bank record for the LLC that Cohen had created to facilitate the payments to Daniels on which Cohen affirmed that the entity was not associated with political fundraising. Prosecutors allege the entity was formed to do the exact opposite: make a payoff to influence an election.
Something that separates good lawyers from great ones is how they handle the less juicy bits of a trial. The Manhattan prosecutors trying this case have already proven their mettle – and I expect they will march through these documentation witnesses thoroughly but expeditiously, keeping things moving so that the jury’s attention does not wander too far.
Trump’s lawyers are also competent, so expect them to get what they can from the witnesses. When defense counsel elicited from Graff on cross-examination that Trump was a good boss, she became a free character witness. And while it’s true that, after her testimony concluded, Graff politely rebuffed Trump’s attempt to shake her hand, that alone won’t undermine her positive character testimony (even if it might strike jurors as odd).
Sometimes the defense will stipulate – that is, simply agree with the prosecution – to much of this evidentiary work in an effort to get it over with. It’s coming in to evidence anyhow if prosecutors are competent (which these certainly are). But that doesn’t seem to be happening here. Trump and his counsel are the masters of delay – trying to squeeze every moment of postponement out of the process that they can. After all, the longer this case goes, the further away they can push the scheduling of any other of the criminal trials against him. Accordingly, Team Trump appears to be forcing the DA team to go step by step.
So the jury may be dealing with a relatively more mundane set of topics on and off over the next few days – but they seem up for seeing it through and even interested. And while the odds that Trump may fall asleep again remain high, he would be wiser to remain alert as prosecutors build their case piece by piece.
The-CNN-Wire
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