Politics
Column: How Trump's trial will go well beyond the charges to paint a damning portrait of him
The scheme at the heart of the charges against Donald Trump in New York is well-known: To keep allegations of an affair with the adult-film actress Stormy Daniels from becoming public, Trump is accused of agreeing to pay her $130,000, camouflaged as payments to Michael Cohen for legal services. It’s in the camouflaging that Trump is charged with committing the 34 felonies at issue before a jury starting Monday.
But the jury, and the country, are going to hear a lot of evidence of Trump’s other allegedly wrongful acts — and a virtual avalanche of such evidence should the defendant decide to testify. That will paint a broader and more damning portrait of Trump, who is reportedly already on tenterhooks about Daniels’ expected testimony, giving him even more opportunities to complain that he is the victim of a no-holds-barred railroading at the hands of Manhattan Dist. Atty. Alvin Bragg.
Bragg’s team can introduce information about Trump’s other alleged misconduct under New York’s rules of evidence, which mirror the federal courts’. Known in New York as “Molineux evidence,” after the case that defined it, it’s generally considered a bonanza for prosecutors and a bane of defendants.
It’s an axiom of criminal law that jurors should assess guilt or innocence based on the defendant’s conduct in the case before them. That means they shouldn’t make their decision based on judgments about the defendant’s character — for example, that the defendant is a “bad person” who, having done bad things in the past, probably did them again. So it would be improper to introduce the fact that an alleged bank robber previously robbed a bank to show that he is a “bank-robbing kind of person” and therefore likely committed the bank robbery he’s now charged with.
New York’s rule generally prohibits the prosecution from relying on “character” or “propensity” evidence to urge conviction. But it’s riddled with exceptions that permit prosecutors to offer evidence of prior bad acts for many purposes other than character, including to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident” — more or less anything other than the forbidden character inference.
One example in Trump’s case, greenlighted by the court over his vigorous objections, concerns a “catch and kill” scheme in which the National Enquirer agreed to buy and then bury embarrassing stories about the then-candidate. That’s not what happened in Daniels’ case, but Judge Juan M. Merchan agreed to let the prosecution present it to the jury. His rationale was that it is part of the same “narrative of events that precipitated” the alleged falsification of records and could help prove Trump’s purported intent to conceal allegations of affairs from voters.
Merchan likewise ruled that the prosecution may introduce a transcript of the notorious “Access Hollywood” tape in which Trump boasted of sexually assaulting women. The judge found that the comments could help show Trump’s motive for concealing the alleged Daniels affair because the revelation of the tape was a crisis for his campaign.
For similar reasons, Merchan is permitting testimony from model Karen McDougal about the affair she says she had with Trump and the Enquirer’s suppression of her story. Likewise, the court approved a limited presentation of evidence about the alleged purchase of information from a Trump Tower doorman, Dino Sajudin, to the effect that Trump fathered a child with a housekeeper.
The court will instruct the jury to regard the evidence only for its permissible purposes — for example, to demonstrate intent — and not to infer that because Trump may have done something bad before, he probably did so again. But trial lawyers understand that inferring acts based on character is human nature; it’s very hard in practice to prevent jurors from indulging the impermissible inference.
Moreover, if Trump takes the stand — as he has flatly asserted he will — that would permit the district attorney’s team to unleash a torrent of additional evidence of prior bad acts. That’s because the former president would be putting his own credibility at issue, enabling prosecutors to introduce more evidence related to that question.
On Monday, Merchan ruled that prosecutors may use several noxious episodes from Trump’s past to impeach his testimony if he takes the stand. They include New York Atty. Gen. Letitia James’ successful fraud case against Trump’s business and the writer E. Jean Carroll’s victorious lawsuit for sexual assault and defamation.
Such testimony would likely appall jurors who already have some notion of Trump’s essential sleaziness. It’s one of several reasons that notwithstanding his bombast, we should not expect him to testify. Trump’s more likely role in court over the coming weeks will be to sit still and seethe silently.
Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker series. @harrylitman
Politics
Hegseth says Pentagon will review Mark Kelly’s public statements about classified briefing amid ongoing feud
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Secretary of War Pete Hegseth on Sunday suggested Sen. Mark Kelly, D-Ariz., may have violated his oath with comments he made to a news outlet following a classified briefing.
Kelly told Margaret Brennan on Face the Nation that it is “shocking how deep we have gone into these magazines” when asked if the Pentagon has updated lawmakers on the Iran war’s impact on U.S. weapons stockpiles.
The senator told Brennan the Tomahawks, Army Tactical Missile System (ATACMS), RIM-161 Standard Missile 3 (SM-3), Terminal High Altitude Area Defense (THAAD) rounds and Patriot rounds used to defend the U.S. have been hit hard, adding that it will take years to replenish those stockpiles, which could affect a hypothetical U.S. conflict with China.
In response, Hegseth questioned whether Kelly, a former Navy pilot, may have violated his oath and said the Pentagon’s legal counsel will review his comments.
FEDERAL JUDGE BLOCKS PENTAGON FROM DEMOTING MARK KELLY OVER CONTROVERSIAL MILITARY VIDEO
Pentagon chief Pete Hegseth suggested Sen. Mark Kelly may have violated his oath with comments he made following a classified briefing. (Aaron Schwartz/CNP/Bloomberg via Getty Images Tom Williams/CQ-Roll Call, Inc via Getty Images)
“‘Captain’ Mark Kelly strikes again,” Hegseth wrote on X.
“Now he’s blabbing on TV (falsely & dumbly) about a *CLASSIFIED* Pentagon briefing he received,” he continued. “Did he violate his oath… again? @DeptofWar legal counsel will review.”
The senator clapped back, saying Hegseth had revealed similar information at a recent hearing and that it was not classified.
“We had this conversation in a public hearing a week ago and you said it would take ‘years’ to replenish some of these stockpiles,” Kelly responded on X. “That’s not classified, it’s a quote from you. This war is coming at a serious cost and you and the president still haven’t explained to the American people what the goal is.”
This comes amid a months-long dispute between Hegseth and Kelly over the senator’s participation in a video with some of his Democratic colleagues in Congress urging U.S. military members to ignore “illegal” orders.
The DOJ has opened an investigation into the video posted online featuring six Democratic lawmakers calling on troops and members of the intelligence community to defy illegal orders from the federal government. The lawmakers all served in the military or at intelligence agencies.
In addition to Kelly, the other lawmakers in the video were Sens. Elissa Slotkin of Michigan, as well as Reps. Chris Deluzio and Chrissy Houlahan of Pennsylvania, Maggie Goodlander of New Hampshire and Jason Crow of Colorado.
GRAND JURY REJECTS DOJ EFFORT TO INDICT DEMOCRATIC LAWMAKERS WHO URGED MILITARY TO DEFY ILLEGAL ORDERS
Pentagon chief Hegseth said the Pentagon’s legal counsel will review Sen. Mark Kelly’s latest comments. (Joe Raedle/Getty Images)
“This administration is pitting our uniformed military and intelligence community professionals against American citizens,” the lawmakers said in the video. “Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats coming to our Constitution aren’t just coming from abroad but from right here at home. Our laws are clear. You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.”
Grand jurors declined to sign off on charges against the lawmakers in February.
In November, the Pentagon launched an investigation into Kelly, pointing to a federal law that allows retired service members to be recalled to active duty on orders of the secretary for possible court-martial or other punishment.
Hegseth has censured Kelly and has attempted to retroactively demote him from his retired rank of captain over his participation in the video, which affirms that refusing unlawful orders is a standard part of military protocol.
But a federal court ruling blocked the Pentagon from demoting the lawmaker over the video. The court also found the Pentagon likely violated Kelly’s First Amendment rights, and those of “millions of military retirees,” when it formally censured him on Jan. 5.
Hegseth subsequently appealed that ruling.
Sen. Mark Kelly has repeatedly said he would not back down amid the Pentagon’s attempts to punish him over the video. (Graeme Sloan/Bloomberg via Getty Images)
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Last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments and appeared largely skeptical of Hegseth’s attempt to punish Kelly for the video.
“I will not back down from this fight,” Kelly said after the hearing.
President Donald Trump had accused the lawmakers of being “traitors” who engaged in “sedition at the highest level” and “should be in jail” after the video was posted last fall. He even suggested they should be executed over the video, although he later attempted to walk that comment back.
Slotkin, who previously worked at the CIA and Pentagon, was targeted with a bomb threat just days after the clip and Trump’s subsequent statements suggesting the Democrats be executed.
Voters in California may get a chance to remake the state’s open primary system in two years.
Political consultant Steve Maviglio filed an application Friday with state officials that seeks to alter California’s voting system by reverting to a traditional primary. Under the proposal, the top candidates from each party would advance to the general election in November.
The current system allows the top two candidates, regardless of party, to move on to the runoff. That has led to instances in which two Democrats or two Republicans have faced off in the general election.
The state’s gubernatorial election, for example, has prompted concern that two Republicans could shut out the Democratic candidates. Riverside County Sheriff Chad Bianco and former Fox News commentator Steve Hilton have polled high in various surveys and are facing a large field of Democrats.
Democratic voters vastly outnumber Republicans in California, yet some political consultants said they feared there were so many Democrats running that voters wouldn’t coalesce around one candidate and the field would be split. Those fears have eased somewhat in recent months as some Democratic candidates advance from the pack.
The state’s top-two primary system has been in place since California voters passed Proposition 14 in 2010. The state’s major political parties opposed the initiative, while Gov. Arnold Schwarzenegger supported it.
The goal was to help end partisan gridlock in Sacramento and force candidates in primaries to appeal to a wider range of voters, rather than just those in their own party.
Proposition 14, as well as the state’s once-a-decade redistricting process, has led to some dramatic races, including the 2012 face-off between Democratic Reps. Brad Sherman and Howard Berman for a congressional seat in Los Angeles’ San Fernando Valley. Amid aspersions and attack ads, the pair nearly came to blows at a community debate.
Maviglio described the ballot measure as a simple repeal of Proposition 14, and said he was inspired by the governor’s race.
“It was extremely scary to envision the November ballot for governor with Republicans on it,” Maviglio said.
The New York Times first reported on the ballot measure proposal.
A news release from Maviglio states that the proposed repeal of Prop. 14 “is fueled by concerns that California’s primaries are disenfranchising a majority of California voters by limiting choice to candidates from one party.”
A website for the effort includes criticisms of the current primary system by Democratic Party Chair Rusty Hicks and Ron Nehring, former chairman of the California Republican Party.
Maviglio’s ballot initiative proposes to appear on the 2028 ballot and take effect in 2030.
Talk of changing Proposition 14 has been swirling in Sacramento for months.
Secretary of State Shirley Weber told reporters at an unrelated news conference last week that she had voted years ago against Proposition 14. She questioned whether it had actually succeeded in creating more diversity.
“I did not like the open primary,” Weber said. “I didn’t think it would solve any problems. They had a list of problems it would solve, and none of those have been solved.”
Democrats are struggling to respond to a major redistricting setback in Virginia, with some party leaders discussing an audacious and possibly far-fetched idea for trying to restore a congressional map voided by the court but showing little indication they have a clear plan.
During a private discussion on Saturday that included Democratic House members from Virginia and Representative Hakeem Jeffries of New York, the minority leader, the lawmakers vented anger at their defeat at the Virginia Supreme Court, spoke about a collective determination to flip two or three Republican-held seats under the existing map and discussed a bank-shot proposal to redraw the congressional lines anyway, according to three people who participated in the call and two others who were briefed on it.
They did not land on a specific course forward, and Mr. Jeffries and the other members of Congress agreed to consult with their lawyers about the most prudent way to proceed, said the people, who spoke on the condition of anonymity to describe a private talk.
The conversation reflected the desperation and fury that have gripped the party after the state Supreme Court struck down a favorable map that had been ratified by voters. The most dramatic idea they discussed — which would involve an unusual gambit to replace the entire state Supreme Court, with a goal of reinstating their gerrymandered map — drew mixed reactions on the call, said the people, and it was not clear that it would even be viable, or palatable to Gov. Abigail Spanberger and Democrats in the Virginia General Assembly.
After Democrats had fought Republicans to a rough draw last month in a nationwide gerrymandering war, a pair of recent court rulings quickly gave the G.O.P. the clear upper hand in the race to redraw maps ahead of the midterm elections. Facing stiff headwinds, including President Trump’s low approval ratings and high gas prices, Republicans are looking for every advantage they can find to defy the odds and hold on to their narrow majority.
Any plans to enact a new congressional map for this year’s midterm elections would require action in the next few days. In a court filing last month, Steven Koski, the commissioner of the Virginia Department of Elections, said any changes to the maps after Tuesday, May 12, “will significantly increase the risk” of his agency being unable to properly prepare for the state’s scheduled Aug. 4 primary election.
A spokesman for Mr. Jeffries declined to comment.
Scott Surovell, the majority leader of the Virginia Senate, declined to comment on Saturday evening. Don Scott, the speaker of the state House of Delegates, said in an interview that he had not spoken to Mr. Jeffries or members of the congressional delegation about the multistep proposal that came up in the discussion.
One key to the plan would be having Democrats in Richmond lower the mandatory retirement age for state Supreme Court justices, an idea that began circulating among state lawmakers and members of Congress after a column proposing a version of the idea was published on Friday night in The Downballot, a progressive newsletter.
Ms. Spanberger would have to sign off on any legislation that lowered the judicial retirement age. She has not been briefed on the proposal, the people involved in the discussion or briefed on it said. Her spokeswoman, Libby Wiet, declined to comment.
The first step in the process, as discussed on the delegation’s call, would be to invoke a January ruling by a circuit court judge in Tazewell County, Va., that said the 2026 constitutional amendment effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public locations three months before a general election.
Democrats would aim to use that ruling to seek to invalidate the earlier constitutional amendment that created the state’s independent redistricting commission by arguing that courthouses across the state did not post notice of it at the time. That would give the legislature the authority to enact a map of its choosing.
Ensuring the plan proceeds would involve the General Assembly, which is controlled by Democrats, lowering the mandatory retirement age for Virginia’s Supreme Court from 75 to 54, the age of the youngest current justice, or less. Virginia judges are appointed by the General Assembly, where Democrats hold majorities in both chambers and could then fill vacancies on the court with sympathetic Democratic lawyers.
Mandatory retirement ages are in place for judges in 32 states and Washington, D.C., according to a 2015 law review article from the Duke University Law School. The article said the most common retirement age set by states is 70.
In states such as Arizona, Georgia and Utah, Republican lawmakers have expanded state Supreme Courts in order to make them more conservative. But the Virginia proposal, which would get rid of all the sitting judges, would go considerably further.
Former Representative James P. Moran, Democrat of Virginia, said a move to stack the Virginia Supreme Court would be “just a bridge too far” and could backfire on his party.
He said he understood that many Democrats felt that their party “needs to fight back and not just be victims of unparalleled aggression.” But, he added: “We do have to keep our credibility. We have to do things that pass the legitimacy test.”
Representative Suhas Subramanyam, a Democrat who represents Loudoun County, Va., said in an interview that he supported doing whatever was necessary to preserve the map voters approved in last month’s referendum — including replacing the state’s Supreme Court justices.
“Everyone has got to have a strong stomach right now; this is a complete disaster waiting to happen if people are timid,” said Mr. Subramanyam, who was on the Saturday call. “We have Republican states ignoring their constitutions and interrupting early voting and ignoring their Supreme Courts all together. We know based on that, Republicans would explore every single option possible to move this forward.”
On Friday, Democratic legislative leaders in Virginia signaled that they planned to appeal the state Supreme Court ruling to the U.S. Supreme Court. But some legal experts believe the state court ruling could be the final word on the matter, because it does not involve federal law or the U.S. Constitution.
Mr. Jeffries has maintained throughout the redistricting battles over the last year that he would maintain all options for creating or preserving Democratic House districts and has said repeatedly that Democrats would employ “maximum warfare, everywhere, all the time.”
In an interview on Friday night, before his Saturday meeting with Virginia lawmakers, Mr. Jeffries said he was “exploring how to unravel this decision.”
“It’s an all-hands-on-deck moment, and it’s unprecedented in American history as far as we can tell that an actual election has been overturned by a handful of unelected judges,” Mr. Jeffries said. “We’re not going to step back, we will continue to fight back.”
Tim Balk contributed reporting.
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