"Cross-examination is the greatest legal engine ever invented for the discovery of truth."
Those words by legendary lawyer John Henry Wigmore in 1923 are derived from the Sixth Amendment. A defendant has the right to confront his accusers; to shine light on false statements by witnesses and dark distortions by overzealous prosecutors who hide the truth. It’s an effective method to test the veracity of evidence.
It was tested on Friday, and Manhattan DA Alvin Bragg failed. But that won’t stop him in his dogged pursuit of former President Donald Trump in a legally perverse case.
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Defense attorney Emil Bove vigorously cross-examined the prosecution’s first witness, David Pecker, the ex-publisher of the National Enquirer. Prosecutors sat uncomfortably, as important truths met sunlight.
Under questioning, Pecker confessed that his tabloid routinely suppressed negative stories and promoted positive ones involving candidates for political office because it was financially profitable. The witness agreed that other, more mainstream news organizations did the exact same thing. Paying for stories and sometimes killing them was commonplace at the Enquirer, he admitted, especially when celebrities were involved. It was not unique to Trump.
This was something that Bragg and his team of prosecutors spent the better part of a week concealing from the jury on direct examination. The irony —and hypocrisy— is obvious. Bragg accuses Trump of suppressing information to win an election. But the D.A. suppressed vital testimony to win his case against Trump.
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Pecker also revealed on cross-examination that Trump did not want to buy the salacious story peddled by former Playboy Playmate Karen McDougal that she once allegedly had an affair with Trump. Then-candidate Trump said that such scandals always come out.
On its own, the National Enquirer eventually doled out $150,000 to McDougal, but Pecker insisted that "cash wasn’t the primary focus of the agreement." Instead, she was hired to compose advice columns, blogs, and other articles for the tabloid.
Bear in mind that the entire McDougal saga has nothing to do with the criminal charges against Trump. He paid no money to her. Yet, prosecutors convinced Judge Juan Merchan to allow it under the theory of what’s called "similar bad acts." Translation: let’s smear Trump with irrelevant and prejudicial information. It’s the same dubious tactic that triggered this week’s reversal of Harvey Weinstein’s sex conviction.
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Over four days on the witness stand, Pecker offered no direct evidence that Trump ever told him to kill stories. But even if he did, where is the crime in that? It may seem tawdry, but it’s not unlawful to quash stories. Nor is it illegal to pay someone for their silence.
Moreover, whatever money that was exchanged did not qualify as a campaign expenditure under relevant election laws, which makes a mockery of Bragg’s claim that Trump tried to influence an election by "unlawful means." That term is drawn from a state statute that is a mere misdemeanor and has no application to a federal election. But assuming for the sake of argument that it does, where is the unlawful act? There isn’t one.
Prosecutors have been shameless in tossing out incendiary words like "conspiracy" and "fraud." But as I argued in an earlier column, Trump is not charged with either. Bragg and his Assistant DAs are intentionally trying to hurl mud to fool the jury by implying otherwise. Predictably, the biased judge, Juan Merchan, is letting them get away with it.
Which brings us to the original 34 charges that Trump falsified business records, all of which are expired misdemeanors. Pecker, McDougal, and Stormy Daniels have no knowledge of the private bookkeeping. Yet, they have been at the center of Bragg’s three-ring circus during the first week. Shady dealings by a tabloid do not equal crimes committed.
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It’s a clever subterfuge. Confuse the jury with jargon and create the appearance of illegality that doesn’t actually exist. It’s an unconscionable breach of ethics and a violation of a prosecutor’s principal duty to see that justice is done fairly and impartially. Sadly, too many prosecutors think their job is to gain a conviction, by hook or by crook. Bragg stands as the poster child for amoral ruthlessness.
Years ago, the FBI and prosecutors pressured Pecker. They dangled in front of him a non-prosecution agreement in exchange for his cooperation in testifying about payments to McDougal and Stormy Daniels. Out of fear and intimidation, he signed it. However, his signature on that document conceding there was a campaign violation was not a legal admission that there really was such a violation. It was simply a means to relieve the undue pressure.
Naturally, Bragg’s prosecutors misrepresented that document in front of the jury. That’s a dirty trick because any admission of wrongdoing by one person —even a faux admission like this— does not dictate the guilt of another person. It’s irrelevant and prejudicial. In a normal case, no responsible judge would permit it. But Judge Merchan is presiding over a parody of a trial.
Adversarial cross-examination, which has long been the centerpiece of our justice system, has so far proved useful for the defense in the Manhattan D.A.’s absurd case against Trump. Deceptions have been disassembled and distortions exposed.
But the question remains, can the jury wade through the ugly muck of the prosecution’s case and see the light of truth? At this early stage, it’s impossible to know.
