Prosecutors Are Finally Revealing Their Strategy Against Trump
Read our ongoing coverage of Donald Trump’s first criminal trial here.
Way back in April 2023, when a grand jury in Manhattan filed the first criminal indictment of a U.S. president in the country’s history, the 34 felony counts of falsifying business documents charged against Donald J. Trump landed with a thud. The grand jury deliberations had been essentially kept secret, so there were all sorts of elaborate theories about the case that District Attorney Alvin Bragg might be building. Would Trump be charged with financial crimes for his alleged misdealings with large banks? Or maybe tax crimes? Or perhaps something even more exotic that the public didn’t know about yet?
Nope. Instead, Bragg charged Trump with filing false business documents in relation to the Stormy Daniels hush money scheme that had already been exposed and combed over from seemingly every possible angle a full five years prior. Trump complained that this anti-Trump Democratic prosecutor was reviving a “zombie case” in order to “get” him. And a perhaps bored press corps was clearly somewhat let down, too. We already knew about this particular drama!
To make matters worse, legal analysts noted that Bragg refused to offer in his indictment or in his press conference a single detail about what crime Trump had allegedly committed alongside the false documents charge that might elevate the misdemeanor charge to a felony. Speculation that Bragg didn’t have the goods grew.
Now, those charges are the first ones to make it to trial. Trump has been in court since last Monday. And Bragg’s prosecutorial team has finally started laying out how they are going to sell this complex case to jurors: not by pitching it as a specifically illegal paperwork misfiling, but by boiling it down to a criminal “conspiracy” to illegally manipulate voters and win the 2016 election.
The word “conspiracy” was not a prominent feature of Bragg’s pretrial legal filings. But it came up again and again in the first two days of presentation to the jury this week. The idea of a “conspiracy” was so central to the prosecution’s case—and maybe so ominous-sounding—that Trump’s defense team even tried to get prosecutors to stop using the word.
It’s understandable why they’d do that. Taking part in a “criminal conspiracy” sounds a lot worse than allegedly violating Byzantine campaign finance laws that nobody really understands and that might not normally even be enforced properly anyhow.
That alleged conspiracy goes something like this: Trump, in concert with, among others, Michael Cohen and David Pecker, who is the former CEO of American Media Inc., the National Enquirer’s parent company, formed a scheme to cover up potentially damaging stories for Trump as he campaigned for the Republican nomination and the general election. The resulting scheme served as an illegal in-kind donation to his campaign that was never reported. As part of the alleged conspiracy, Cohen paid off Stormy Daniels to not tell her story about an alleged affair with Trump, at Trump’s behest and to benefit the campaign. Trump filed false documents when he reimbursed Cohen. Cohen has even already served a prison sentence after admitting to this as a campaign finance violation! In other words, this isn’t unimportant or overzealous—it’s already criminal.
Prosecutor Matthew Colangelo’s opening arguments focused heavily on an August 2015 meeting among Trump, Cohen, and Pecker, who has also been the prosecution’s first witness against Trump. During this, the word “conspiracy” came up more than a few times. “The defendant, Donald Trump, orchestrated a criminal scheme to corrupt the 2016 presidential election,” Colangelo argued. “Then he covered up that criminal conspiracy by lying in his New York business records over and over and over again.” Colangelo said “conspiracy” more than a dozen times during that opening argument. Colangelo described that August 2015 Trump Tower meeting among Trump, Cohen, and Pecker as the lynchpin of the scheme. “Those three men formed a conspiracy at that meeting to influence the presidential election by concealing negative information about Mr. Trump in order to help him get elected,” Colangelo said.
Trump attorney Todd Blanche’s opening argument took direct aim at this fresh labeling of Trump’s alleged crimes. “You will hear and see that there are 34 counts in this indictment. ‘Conspiracy’ is not one of them,” Blanche argued, pointing back to the wording in that initial, vanilla indictment. “President Trump is not charged with any ‘conspiracy.’ ”
The problem for Trump’s legal team is that it may not matter what Trump was initially charged with, because a business records felony requires proof of another crime—and in this case, that crime seems like it’s going to be an alleged conspiracy to violate election law. (Though, this seeming vagueness could very well be a problem for prosecutors and a boon to Trump on appeal, too.)
At one point in the testimony on Tuesday, the prosecution tried to add that 2016 Trump campaign chairman Steve Bannon also may have conspired with Pecker. Defense attorney Emil Bove objected, and complained to the judge that the “whole line of questioning” about co-conspirators should be inadmissible because conspiracy was never charged, meaning the defense was resultingly not given fair notice about who might be considered a co-conspirator.
But prosecutor Joshua Steinglass stepped in to argue that “there is conspiracy language” in one of the election statutes charged, which makes his team’s use of the word fair game. Justice Merchan agreed. The problem for the defense is that “conspiracy” sure sounds worse than friends working together to “influence” an election.
That’s exactly how it played out during Pecker’s testimony. Much of the introductory testimony felt boring or repetitive—prosecutors needed to lay the groundwork for why Pecker’s testimony matters. But then prosecutors presented a series of opening exhibits demonstrating some of the fruits of the “conspiracy,” including National Enquirer headlines praising Donald Trump and trashing Trump’s primary opponents. Pecker confirmed in his testimony that he ran these headlines by Cohen for input, and that Cohen even directly fed him other headlines. Those headlines? They’re somewhat startling and frankly mostly about sexual indiscretions: “Bungling Surgeon Ben Carson Left Sponge in Patient’s Brain”; “ ‘Kinky Sex’ Actress: Ted Cruz Shamed By Porn Star”; “Ted Cruz Sex Scandal—5 Secret Mistresses”; “Donald Trump Blasts Ted Cruz’s Dad for Photo With JFK Assassin”; “ ‘Family Man’ Marco Rubio’s Love Child Stunner!” Pecker also testified this was all done in coordination with Cohen—and by extension Trump—in order to boost the campaign.
“After the Republican debate and based on the success that some of the other candidates had, I would receive a call from Michael Cohen and he would direct me and direct [National Enquirer editor-in-chief] Dylan Howard on which candidate and which direction we should go,” Pecker testified.
“We would add content based on the some of the information that Michael Cohen had,” Pecker continued. “Michael Cohen would call me, and say he said, ‘We would like for you to run negative articles on a certain candidate,’ let’s say it’s on Ted Cruz, then he would send me information about Ted Cruz, or about Ben Carson, or about Marco Rubio, and that was the basis of our story and then we would embellish from there.”
What transformed this seedy agreement with some semblance of journalism into a definitive and provable crime, prosecutors argue, is the agreement to pay sources to kill their stories rather than to run them, something Pecker said he had never done prior to the 2016 election coverage. Pecker testified that he also did this with a doorman peddling a false story about an “illegitimate child” Trump had with a Trump Tower “maid,” because the Trump campaign didn’t want the story out even if it was untrue. He’s expected to testify that he also did this catch-and-kill scheme with former Playboy Playmate Karen McDougal, who has alleged that she had a yearlong affair with the former president, and that he was asked to do it with Stormy Daniels as well.
We haven’t heard how Trump’s legal team intends to counter Pecker’s testimony on cross-examination, but that should be coming on Thursday or Friday. The defense will most likely try to portray Pecker as a sleazebag who betrayed his friend—a “rat” in Trump parlance—to save his own skin. Also, expect the defense to portray the unusual cooperation deal that Trump had with Pecker as typical of journalist–source relationships, which often involve reporters trying to curry favor with the people they cover in exchange for information.
This was not a normal journalist–source relationship. Those tend not to involve the exchange of large sums of money! And even though at one point Pecker seemed to suggest that the relationship was “mutually beneficial” because it boosted newsstand sales, and was therefore aboveboard, that isn’t going to be a golden ticket out either because Pecker could not explain how killing juicy negative stories about Trump could possibly boost his newsstand sales.
Pecker’s testimony continues on Thursday and Friday.