The Daily - A Salacious Conspiracy or Just 34 Pieces of Paper?

Episode Date: April 23, 2024

The prosecution and the defense both opened their cases on Monday in the first criminal trial of Donald Trump.Jonah Bromwich, who watched from inside the courtroom, walks us through the arguments.Guest: Jonah E. Bromwich, a reporter for The New York Times covering criminal justice in New York.Background reading: An unprecedented trial opened with two visions of Mr. Trump.Read five takeaways from the fifth day of Trump’s criminal trial.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

It's 6.21 a.m. on Monday. I'm walking past City Hall, downtown. Just a couple blocks away from the courthouse where openings are going to begin today and Trump's trial. One thing that's really striking to me about today is that we've all known the story that's about to be told for a long time now. And I can tell you it gets a little dull writing the words stemming from a hush money payment to a porn star in each story. Stemming from a hush money payment to a porn star. But now, it's really happening. This is a case, a criminal case

against Donald Trump. And today it's going to be presented to a jury. It's gone from story to reality. From the New York Times, I'm Michael Barbaro. This is The Daily. Today, the prosecution and the defense lay out their case in the first criminal trial of Donald Trump. We turn once again to my colleague, Jonah Bromwich, who watched from inside the courtroom. It's Tuesday, April 23rd. Hello.

Oh, hello. You're wearing a courtroom tie. That's right. First day. Very handsome. Thank you. Okay. You ready? I'm ready. Okay. Well First day. Very handsome. Thank you. Okay. You ready?

I'm ready. Okay. Well, Jonah, welcome back. Thank you. I want to start with kind of credit where credit is due. You, last week, when you came and spoke about jury selection in this trial, predicted against all odds that it would take a single week, which I was pretty skeptical of. You were right.

And I wonder if you can just... Thanks, Michael. I mean, you know, sometimes we get it right, sometimes we get it wrong. When you get it right, you get some points. Just describe the final jury that we ended up getting, given, as you had told us, the huge importance of the jury to this case. Sure. So five of them are women.

Seven of them are men. They are from all over Manhattan, as we knew would happen. We also know that this is a really highly educated group. We've got a lot of advanced degrees. We've got people who work in technology, in business, in the law, very stereotypical white collar professions. And you'll remember when we talked last that we were talking about how being an interesting juror is a little bit of a downside if you want to get picked. Because if you're interesting, you probably posted something on Twitter or Facebook that meant that you weren't going to get on this jury. Yeah, that's exactly right. And that's what we saw happen is that the defense picked up on people who had old posts attacking Trump and they got them dismissed in any way possible. Right.

But that doesn't mean that jurors on this panel that we have seated don't have strong opinions about Trump. It just means we don't know. So, right, we got the uninteresting people now on this jury, and so, in a sense, their views are far more of a black box than the jurors who were dismissed. Black box is exactly right.

It feels like the speed with which this jury selection happened tells us something about the personality of the judge in this case. Is that right? That's exactly right. And I think it's a really key point here. So the judge is named Juan Merchan. He's 61 years old. He has presided over several trials involving Trump or his associates, most prominently the trial of the Trump Organization, Trump's company in 2022, in which the company was convicted of a crime.

Mershon knows that Trump's favored tactic is delay. He's dealt with it before. And he almost seems to be countering that by speeding the trial along as much as he can. So we saw that last week as he swore in groups of jurors whenever there was a free moment, it seemed like. And we saw it last week as he swore in groups of jurors whenever there was a free moment, it seemed like. And we saw it today too. How do we see it today? Today, we thought we were only going to go until 2 p.m. because of the Passover holiday. But early in the morning,

the judge gets onto the bench and he says, actually, a juror has a dentist appointment, so we need to stop even earlier. We need to stop at 1230. And those of us in the press look around and we say, oh, well, we'll be lucky to get even through opening statements today. Not only did we get through opening statements, prosecution and defense, but we also got our first witness today, David Pecker. So I want to start with the first thing that happened, which is the opening arguments from the prosecution. From, in this case, the district attorney's office in Manhattan. Tell us about that. Starting with opening arguments means starting with a guy named Matthew Colangelo. And we haven't seen him that much yet during jury selection. He's been pretty quiet overall.

And remember, listeners are not going to be able to hear from him at all because there's no recording in the courtroom. So we're just going to have to kind of retell you what he said and quote him as much as possible. And luckily, you're very good at that. Thank you. But he stands up, he walks to the podium, and he begins to explain to the jurors in very clear, precise language what they will see during trial. And what he describes is this fascinating tale of political conspiracy. He says that Trump met with his former fixer, Michael Cohen, and David Pecker, former publisher of the National Enquirer, and the three came to an agreement, a conspiratorial agreement, Colangelo says,

to promote positive stories about Trump and, more importantly, suppress negative ones. And so then Colangelo begins to talk about some of those stories. Such as what? So there are three stories at issue here. The first is from a former doorman in a Trump org building who was seeking to sell a story of Trump allegedly fathering a child out of wedlock. Which turns out not to be true. Yes, that one is not true. But nonetheless, the National Enquirer, to use a phrase that

people have been familiar with for a while now, they caught and they killed that story. They took that story, which was available for sale, and they made sure that no one would hear about it. By which we mean they paid somebody to give them the story that they then never ran. That's exactly right. The second of these transactions involves a woman named Karen McDougal, and she was selling a story of an affair with Trump. So again, the National Enquirer stepped in. They bought the story. The story never saw the light of day. And then finally, Colangelo describes something that's become very familiar to us, which is the hush money payment to Stormy Daniels, who also had a story to sell about having had sex with Trump. But in this case,

there's a wrinkle. The National Enquirer had an awful lot of trouble getting paid back for the Karen McDougal payment. Paid back by? Paid back by the Trump camp. Ah, they expected the Trump camp to basically reimburse them for the catch and kill. That's right. So when they had trouble getting paid, it increased their reluctance to get involved in yet another one of these catch and kill stories. And so when Stormy Daniels comes through with her story of having had sex with Trump, Michael Cohen himself, Trump's fixer, ultimately, after hemming and hawing a bit, goes and pays her himself. And then, importantly, Trump pays him back from the White House. And prosecutors say that Trump disguises those payments. There's 34 records of payments. And instead of saying, these are payments for a

hush money to Stormy Daniels, they say, legal services. These were for legal services, because we have Michael Cohen, he's a lawyer, he's working for Trump, and that's what he's getting paid for. Okay, well, what is the point of the prosecutor here laying out this conspiracy between Trump, the guy from the National Enquirer, and Trump's fixer, Michael Cohen? What's the kind of larger legal foundation he's building? I would say there's two things he's doing that are really, really important. What's the kind of larger legal foundation he's building? I would say there's two things he's doing that are really, really important. The first is, this is scintillating. It's payoffs. It's politics. It's porn stars. It's everything that makes this case as dazzling

and interesting as you could possibly imagine. And we see the jurors are taking notes, kind of frantic notes on what he's saying. Interesting. But legally speaking, what's important here is that you'll remember that Trump is charged with falsifying business records, not any of the stuff that we've just been talking about. Right. And the reason that the conspiracy that Colangelo is talking about is important is because falsifying business records is only a felony if it was undertaken to help commit or conceal another crime. The prosecutors here are focused on concealing a crime.

And for months and months, we've been asking, well, what crime was concealed here? Today, we get our specific answer. What Matthew Colangelo says in his opening statement is that they falsified business records to conceal the crime of entering a conspiracy to promote an election. And that the people who entered that conspiracy were Trump, Cohen, and David Pecker. I just want to recap this because it's used to conceal a different alleged crime, that alleged crime is an election crime.

And what the prosecutor is saying here is that all those conspiracies you just described, that is evidence of this second crime. That's how you get to felony charges. That's how you get to the very fact of this trial. That's right. This crime is like fusion, right? Falsifying business records fuses with something else. Now we see that that something else seems to be this state election crime, conspiracy to promote elections.

So fusion of conspiracy to promote election and falsifying business records. Before we move on, I want to ask you potentially a slightly annoying question. You mentioned that the second concealed crime here might be a violation of a state law surrounding the promotion of an election. How do you violate that law? And do the prosecutors say how Trump violated it? So this is what's so interesting

about what prosecutors did today. They don't actually have to prove it. Why? They've gotten to the stage of their case where it's just baked into the charges. They are felony charges. And so all they have to do to win is to convince the jury that their story makes sense

and that Trump falsified business records. And so on the front end, if they show you that he was trying to win the election by suppressing these stories, then on the front end, if they show you that he was trying to win the election by suppressing these stories, then on the back end, once they show you the records being disguised, they say that the jury will be persuaded of why they said he did it. Okay, now that that complicated legal business is squared away, what else should we know about the prosecutor's opening statement? Colangelo then just walks the jurors through each witness they're going to hear from and how the jurors through each witness they're

going to hear from and how it builds back into the case they're trying to make. Got it. One of those witnesses is Michael Cohen, of course, who was a prominent member of what prosecutors said was a conspiracy. And one of the things that Colangelo does is he kind of cleans up for the prosecution what Cohen is going to be like. What do you mean? He says that you can expect that the defense lawyers will say Cohen is not credible and that he can't be trusted because he's this guy who's been convicted of federal crimes. Which is true.

Who's changed his story many, many times. And what Colangelo says is, look, this is a guy who worked with Trump. And his story makes sense when, as a whole, you look at how Trump operated. He needed someone like this to go around and fix his problems. And so Cohen is, in fact, regardless of what the defense might say about his credibility, the exact type of person you'd expect to see in Trump's orbit. And he says that Cohen, by telling the truth now, when he used to work for Trump and tell lies, is redeeming himself, is redeeming himself

in a way that the defendant has not. I'm curious if you think this tactic seemed to kind of work in the moment, in the room, to try to preemptively defend against the attacks the prosecution expects will be leveled against a star witness, Michael Cohen. It's a pretty common tactic, so I think there's a reason prosecutors do it.

And prosecutors have a really difficult task with Cohen. They have to make him look like a criminal too, but they also need him to testify for them. So they need to hold him close and hug him tight while also making him look like the kind of guy who would have made a payoff to a porn star to keep her silent. Right. All of this suggests that prosecutors are going to be very reliant on Michael Cohen and his testimony. How much of what they hope to get from him and his problematic background is also available to them in the form of documents and other corroborating evidence? That's exactly how

Colangelo transitions away from talking about Cohen. He says the phrase extensive paper trail. He's saying exactly what you're asking, Michael. They do have documents. They have a recording with Trump on it talking about one of the hush money deals. They have things that will make Cohen's story add up, is what he says. Got it.

So how does the prosecution ultimately end this opening statement? Colangelo comes back to the beginning. He says again, quote, this case is about

a criminal conspiracy and a cover-up. He acknowledges the bigness of the case. He encourages jurors to tune out the noise. You mean the media, this conversation, all of it. Exactly. And then he looks at them and he says, quote,

we are confident you will have no reasonable doubt that Donald Trump is guilty. And he's done. And he sits down. And it's time for the defense. We'll be right back. So Jonah, tell us about the defense's opening arguments, because as you hinted at, the prosecution's case is kind of familiar. The defense's arguments all feel much more novel.

The defense's opening statement is delivered by Todd Blanche, who's defending Trump not only in this criminal matter, but in some of the other ones, too. He's a former federal prosecutor, and he gets up to the podium. You'll remember that we said that the last words that Colangelo spoke were, Donald Trump is guilty. Well, Blanche's first words are, President Trump is innocent. So what is Blanche's central defense? I think the defense opening statement can be split into two separate parts. Okay. The first is no crime here. There's nothing to see. They say that a candidate trying to promote himself to win a presidential election is not a crime and that everything Trump did that prosecutors have just described. The conspiracy.

Exactly. It's part of the normal course of running for office. One meets with publishers. One promotes stories about oneself. One perhaps tries to put out opposition research to promote negative stories about one's opponent. This is standard practice, the defense says, for a presidential candidate. Okay, here, I just want to point out that it does not seem to be, traditionally speaking, normal standard practice to try to catch and kill and potentially even reimburse a media company for a catch and kill when it comes to the story of a sexual affair, right? I mean, I think we should just be clear about that. Yeah, I nodded frantically while you said that because you're 100% right. This is an unusual situation for a presidential candidate.

What does the defense lawyer have to say about this concept that what Trump was doing was trying to essentially keep essential information from the public, paying off people to deny voters essential information. He doesn't wade into that territory deeply enough to have to counter each and every of the prosecution's points. And this is a classic defense thing. You seize on the stuff that makes sense to seize on, and you kind of try and shush away the elements that you don't want jurors to focus on. Because think about it. If you were a juror and you were listening to this case, and you just heard Todd Blanche say he was trying to run for president, how can it be a crime to try and run for president? Especially if you were sympathetic to Trump, you might think,

well, that makes sense. And what the defense hopes will happen is that these little seeds will stick in jurors' minds. And when it comes to deliberations weeks and weeks from now, the jurors will get stuck on one of the points that they made. And the biggest of all these seeds seems to be Blanche's argument that when you run for president, you do almost anything you can to try to win. Right. They want to make what the prosecution is describing look a lot more normal and a lot less seedy than prosecutors want them to think. And so the other example of that, the other kind of not crime here, according to the defense, is the falsification of business records. The defense says these business records weren't

falsified. Michael Cohen was a lawyer for Trump. He was repaid by the Trump Organization for legal services, aka his job. Trump had nothing to do with it anyway. And Todd Blanch looks at these documents, these all-important documents, the prosecution's case, and he just dismisses them as quote-unquote 34 pieces of paper. Hmm. So in their telling, even reimbursing Michael Cohen for paying off Stormy Daniels potentially can be legally construed as him performing legal services. That's right.

Todd Blanche wants the jury to believe that this repayment was just the normal course of business. Nothing to see here. Again. What, if anything, does Trump's lawyer here have to say about the witnesses the prosecutors plan to call, especially, of course, Michael Cohen? Todd Blanch has a lot to say about Michael Cohen.

And I had thought that Blanch would maybe try and slow walk his criticism of Cohen, because there's a little bit of danger here. You don't want to seem so embittered and so angry that you convince the jury that you're the one who has an ax to grind. But Blanche ramps up pretty quickly. He calls him a criminal. He calls him a liar. He accuses Cohen of being completely obsessed with Trump. He says, quote, he's obsessed with President Trump even to this day. Cohen is out for revenge, wants to see Trump in prison. And Cohen actually

had given the defense a real gift because as recently as last night, the defense said he had called Trump a, quote, despicable human being and said he wanted to see the former president convicted. Wow. So if Blanche is trying to argue to jurors, hey, this guy Michael Cohen hates my client, Michael Cohen helpfully chimes in for the defense and says, hey, I hate President Trump. And I want to see him go to jail. And I want to see him convicted. Hmm. So like the prosecution, the defense is putting a lot of emphasis on Michael Cohen, reinforcing the idea that he's very essential to this trial. Yeah, I think there would be no dispute between the prosecution and the defense

that Michael Cohen has the key story here. Okay, so how does his defense end its opening argument? Blanche ends in a very simple, straightforward way. He asks the jurors to use their common sense, and he says that if they decide the case based on the evidence, jurors to use their common sense. And he says that if they decide the case based on the evidence, there'll be a very swift, not guilty verdict. And he sits down. And at this point, it's just before noon. And we're all looking at each other thinking, oh my gosh, opening statements in this trial are already done. We're going to get a witness. Okay, so take us into this very first witness. So as you might imagine,

witness sequence is incredibly important. You're trying to tell the story you told in your opening through the testimony of others. And this is the prosecution witness. So this is the first prosecution witness, and it's David Pecker, the former publisher of the National Enquirer. And what is Pecker's testimony?

Pecker doesn't get too far into his story, but he does start to lay out the way that the National Enquirer worked. And one thing he says, and I think this is a bit of a problem for the defense, is he says that the National Enquirer operated through quote-unquote checkbook journalism. And just explain that. Which is a neat way of saying they paid people for stories. But remember, we talked about this jury is highly educated. There's a good chance they're quite media literate, media savvy. They're going to know that this is not the way that normal newspapers operated. And so this is a great thing for the prosecutors,

and this is why it's their witness. Already, David Pecker is laying out a modus operandi at the national inquirer that just isn't that normal and the day ends shortly after that but we can already see where pecker is going when he returns to the stand on tuesday he is going to describe how this form of quote-unquote journalism this checkbook journalism mattered to trump and mattered in Trump's campaign. And that's the way that prosecutors will begin to illustrate the story that they told with opening statements. And eventually, what they hope that they'll have is this cast of characters, these witnesses, who will bring the conspiracy that they accused Donald Trump of participating in to vivid life.

Jonah, we haven't talked much about Trump. He's in the room this entire time. He's sitting there at the defense table. I'm curious if you or our colleagues captured any notable reactions from him. I mean, after all, he's beginning the process of watching those he once entrusted

with helping him get elected turn on him. I've become used to seeing Trump minimized in the courtroom because he's just there day after day because he's not the center of attention. And I think that was really true today. I can describe a couple of reactions. For instance, he shook his head when prosecutors said he was guilty. That was one of the main things that he did that caught our attention. And then the thing that caught my eye is finally we're done for the day and Trump stands up and he looks really angry. He looks really, really angry.

President Trump, I'm going to the air. And he walks out of court. I get indicted. I'm the leading candidate. I'm beating Biden. I'm beating the Republicans now. I have the nomination. And this is what they try to take me off the trail for. And he gives an angry speech. But they call the payment to a lawyer a legal expense in the books.

They didn't call it construction. They didn't say you're building a building. With a familiar kind of language. And when are they going to look at all the lies that Cohen did in the last trial? He got caught lying in the last trial. Attacks on people, attacks on Cohen. Because the public understands that it's a witch hunt. Thank you very much. And then he gets in his SUV and he leaves the day in which prosecutors accused him essentially to his face of committing 34 felonies. Right. Jonah, it would seem very hard to draw a lot of meaningful impressions from just oral arguments. But in this single day, you have the prosecution and the defense lawyer standing up and developing a rapport with the jury and introducing what they would regard as the strongest versions of their case. And I'm kind of curious, as a longtime court reporter, if you felt after today a strong sense of which team seems like it's a little bit more on top of their game and is presenting a stronger version of events to the jury,

or if it's just too early to say. What I'll say is the prosecution has a very clear, very structured narrative. The defense has a lot of things to say about that story, and they're picking off little elements. They're saying, well, Cohen's a liar. Stormy Daniels is an opportunist. And by the way, there's no crime here. There's no crime in terms of trying to win the election. There's no crime in terms of falsifying any documents. So those kind of individual blows that they're trying to land, one of them can work or many of them could work. What the defense didn't seem to have today was an alternative narrative. And so, of course, their burdens are different. The defense is just trying to seed reasonable doubt. The prosecution has to prove their case.

But the prosecution is telling a story, and the defense is saying, that story's not quite right. The defense is not necessarily telling a competing story. Got it. I wanted to just end, Jonah, with a reminder of the stakes of this case, which I think tend to get lost in the day-to-day coverage of it.

There are, as we've been talking about, 34 felony charges. And this is the first criminal case to go to trial before the election. And we think perhaps the only criminal case to go to trial before the election. If Trump wins this case, it's quite clearly a huge vindication for him. And he can go around saying as much. If he loses, what are the actual legal consequences? So the legal consequences, those are easy to talk about. It's an indeterminate prison sentence, but we know it could be up to four years.

But the political consequences, which I think are of great interest to a lot of people, are very, very difficult to talk about. When Trump was indicted, his poll numbers actually went up. Right. And this was the first indictment. That's right. And so there's no clear indication that being convicted here would necessarily hurt him politically. I think a lot of people who dislike Trump were hoping that these criminal cases would just kind of take them out of the picture. But we don't know that that's going to happen. And so even as we start to get into the heart of this case and to hear the evidence and hear the testimony and to see what

the jurors are seeing and try and predict whether Trump is going to be found guilty or not guilty, we still have no idea what a conviction would actually mean or how it would affect the election. Jonah, thank you very much. Of course. Thanks for having me. We'll be right back. Here's what else you need to know today. During oral arguments on Monday, a majority of the Supreme Court appeared ready to uphold a series of local laws

that allowed Grants Pass, a small city in Oregon, to ban homeless people from sleeping in public spaces. The case, which was covered on Friday's episode of The Daily, has sweeping implications for how the entire country deals with the growing crisis of homelessness. And tensions over the war in Gaza are escalating on the campuses of several elite universities. At Yale and New York University, police on Monday arrested dozens of protesters who defied orders to disperse. At Harvard, administrators said they planned to close Harvard Yard to avoid unauthorized demonstrations. And at Columbia, where protesters have set up a large encampment,

the university's president faced calls to resign from all 10 House Republicans from the state of New York. In a letter, the Republicans wrote, quote, anarchy has engulfed the campus. Today's episode was produced by Will Reed, Aastha Chaturvedi, and M Zaydi. It was edited by Lexi Diao, with help from Paige Cowan. Contains original music by Dan Powell, Marion Lozano, and Brad Fisher, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.