Editor’s Note: Jim Walden And Deanna Paul are former prosecutors in private practice with the New York law firm Walden Macht & Haran. The opinions expressed in this comment are their own. Read more reviews at CNN.
The presiding judge Donald TrumpThe Manhattan trial told prosecutors last week that they could question the former president about myriad acts unrelated to the charges he faces in his election interference case, if he decides to appear in the witness box.
Days later, New York’s highest court overturned Hollywood movie mogul Harvey Weinstein’s sex crimes conviction.
The connection between these two independent pursuits may not seem obvious, but it exists. And the recent dramatic developments in the Weinstein case demonstrate why the presiding judge of the Trump trial, Judge Juan Merchan, must reverse his decision allowing Trump to be questioned about proven misconduct in other cases. If he doesn’t do so, Trump could have an easy path to overturning his conviction in this case.
Trump faces 34 counts of falsifying business records to cover up his alleged attempts to interfere in the 2016 election. The theory of the case is quite simple: In October 2016, the Republican candidate’s campaign for he presidential election was on the ropes because a leaked video from the Access Hollywood program went viral, showing him boasting that his fame gave him the right to “grab” women. through their genitals.
Around the same time, two women — former Playboy bunny Karen McDougal and adult film actress Stormy Daniels — came forward with lurid stories about their affairs with Trump. Prosecutors say he didn’t want revelations about the sordid affairs to derail his White House ambitions: Trump, they say, agreed to buy the women’s silence, and he and his associates falsified documents merchants to hide payments. He then narrowly won the election to the American presidency.
The trial of the now former president began in earnest last Monday and after the first week of testimony, it is clear that prosecutors have what it takes to convince Trump. David Pecker, former publisher of the National Enquirer and close Trump associate, painted a textured picture of a capture-and-kill plan put in place by the former president and his longtime lawyer and fixer, Michael Cohen. And the prosecutions have only just begun. Cohen, who played a crucial role in paying and reimbursing Daniels, is expected to take the stand as a star witness. Trump, for his part, denies any wrongdoing.
Trump’s public behavior, including his continued attempts to attack Michael Cohen and other expected witnesses, as well as his recently more “animated” behavior in the courtroom (as described by the New York Times reporter Maggie Haberman at CNN) suggests he might be worried about a possible conviction — just as he should be, given the strength of the case. Instead of relying on a strong case, prosecutors indicated they may plan to cross-examine Trump on topics that do not and should not matter to this trial.
Merchan agreed to let prosecutors question Trump about his recent violations of the silence order and his loss in court to New York Attorney General Letitia James, who proved the former president engaged in a financial fraud over several years, including inflating the value of real estate assets when seeking loans and underestimating them. estimates on tax returns. They also plan to question him about a case he lost last year after writer E. Jean Carroll successfully sued the former president for defamation and sexual assault.
The prosecutors are making a serious mistake, as is Judge Merchan. None of the acts mentioned above have anything to do with the secret payments made in Manhattan. Trump is not being judged to be a morally bankrupt person. He is on trial for using false records to cover up election interference. Other wrongdoings, even those for which he was found responsible, are irrelevant.
The prosecutors and the judge put the former president in an untenable position. The Constitution gives him the right to testify in his own defense – or not to appear on the witness stand if he wishes. He said he wanted to testify.
But Trump must now weigh his right to defend himself against the certainty that prosecutors will be allowed to engage in a sideshow by including in their cross-examination questions about misconduct that is not part of the current trial. Trump could argue that his right to testify has been “chilled” – that he has been strongly discouraged from exercising this constitutional right.
Although he never really intended to speak out, Trump could use Judge Merchan’s decision as the basis for a new trial. This is essentially what happened in the Weinstein affair. In 2020, Weinstein was tried for sex crimes involving three women. The judge in that case, Justice James Burke, took the same bait, reasoning that prosecutors could cross-examine Weinstein, had he testified, about more than two dozen uncharged acts in the case, including bullying and angry outbursts toward clerks, restaurant workers, and business associates – most of which had no bearing on his credibility in court. Weinstein chose not to testify in this case.
He appealed his conviction on several grounds, including that Judge Burke’s decision allowing these questions violated his right to testify in his own defense. The New York State Court of Appeal ruled Thursday, by 4 votes to 3, that the producer had not received a fair trial.
Judge Merchan must not make the same mistake. He can reverse his own decision – and he should. If he fails to do so, Trump could see his conviction overturned while the ink has not yet dried on the jury’s verdict.
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