Trump's Trials - Week one of testimony in hush money trial, plus Supreme Court weighs immunity

Episode Date: April 27, 2024

This week on Trump's Trials, host Scott Detrow and Domenico Montanaro are joined by law professor Kim Wehle. This was the first week of witness testimony in former President Donald Trump's New York hush money trial. The prosecution used their witnesses to establish Trump's knowledge and involvement in hush money payments for his alleged electoral benefit. Trump's defense team cross-examined witnesses countering that framing with the idea that this is politics as usual. Meanwhile, at the Supreme Court, justices heard oral arguments over whether Trump is immune from criminal prosecution. Although the justices seemed skeptical of granting Trump absolute immunity, it appeared the majority of the conservatives justices seemed opened to granting some sort of immunity for presidents. Topics include:- Week one of testimony in hush money trial- David Pecker testimony - Supreme court and immunity Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

A week of testimony from a key witness who says he bought and buried stories to help Donald Trump's presidential campaign. A conservative Supreme Court that seems poised to redefine presidential power. From NPR, this is Trump's Trials, I'm Scott Detro. We love Trump! This is a persecution. He actually just stormed out of the courtroom. Innocent till proven guilty in a court of law. It was a big week in a court of law.

It was a big week in the Trump legal world. First that hush money trial in New York. This week we heard opening arguments, and then the first three witnesses called by the prosecution, one being David Pecker, the former publisher of the National Enquirer, and he has given us the first look into how the prosecution is framing this case as one based on a pattern of election interference, as they put it. On the stand, Pecker revealed a deal that he made with Michael Cohen, then Trump's

lawyer and candidate Donald Trump, to catch and kill negative stories about Trump, all to protect him and help him win the presidency. But the defense, who cross-examined Pecker and the other witnesses, is countering that narrative by trying to show that this was business as usual for the tabloid. And maybe more consequential than everything that happened in New York, about 200 miles south, the Supreme Court heard oral arguments over whether or not Trump, or any other future president, is immune from criminal prosecution. Although the justices seemed unlikely to grant blanket immunity to Trump, their decision may end up benefiting him anyway. Why? It is all about delay.

Delay, something brought up time and time again on this podcast by my colleague, Domenico Montanaro. Hey Domenico. Hey Scott, great to be with you. All right Domenico, there was a lot to talk about enough so that one day this week we had two separate episodes on two different big news events in the world of these legal cases. What are you thinking about now that the week has come and gone and we've had some time

to reflect on this? Yeah, and the months here. I mean, after months of covering Trump's many legal battles, it could very well be that the election has decided based on what happens in these two cases, lots of voters are saying that what's happening in New York is serious, that there are significant numbers of them saying that they would be less likely to vote for Trump if he's convicted. That's meant that these trials once again have made Donald Trump the center, the focus of the presidential election when he's the challenger.

Normally, elections with an incumbent president like Joe Biden would be a referendum on their time in office. Biden is unpopular. Most challengers would run on change in that case, but Trump can't do that. Instead, these trials are making 2024 a referendum once again on Donald Trump. At the same time, Trump's team has gotten really good at that word, Scott, delay and delays in the federal election interference case are benefiting Trump and it's looking like the Supreme Court will send the immunity question back to a lower court for clarification on what is a private act versus what's an official one and the Justices three of whom were appointed by Trump don't appear to be moving with any real urgency in the context of say

I don't know a presidential election coming in six months. You know, it's worth reminding everyone. Why would that make anybody hurt? I know, right? Yeah. You know, it's really worth reminding everyone this literally is a case about Trump's alleged attempts to overturn the 2020 election. And it's fair to assume that the prosecution has evidence that's never been seen by the public and may never reach the light of day if Trump were to win the White House in November.

Right, because this is what we're talking about. If the trial doesn't happen before the election and Trump is elected president, he has made it very clear he would pressure the Department of Justice to shut the case down or maybe even pardon himself. That's worth remembering. We're going to talk about all of this and more after a quick break. When we're back, we will be joined by law professor Kim Whaley. Stick around.

The indicator from Planet Money is all in on video games. Not just because they're a fun hobby, video games are one of the fastest growing businesses worldwide, worth more than the film and music industries combined. We're seeing some games that are really taking, I mean, half a billion dollars to make. We're taking a week-long look at the video game industry. Listen to the Indicated from Planet Money podcast on NPR. On Wait, Wait, Don't Tell Me, we have very important people on our show and then ask

them about very unimportant things. Here's U.S. Treasury Secretary Janet Yellen. Ah, we are also reliably informed that among your enthusiasms in addition to macroeconomic policy is mobile games. There is some truth in that. There's some truth in that. Join us for the NPR podcast that considers all the other things. That's Wait, Wait, Don't Tell Me. Do you ever wish you could get your stories in three hours rather than three minutes?

Or maybe you're sick of doom scrolling, getting your stories in three hours rather than three minutes? Or maybe you're sick of doom scrolling, getting your news in bits and pieces. That is where Embedded comes in. We bring you documentary series that will change the way you think about things. Find us wherever you get your podcasts. We are back and we are joined by University of Baltimore law professor Kim Whaley. Hey, Kim. Hi. So it's a little strange that on a week when the US Supreme Court seems poised to possibly redefine presidential power, we're going to make that the second thing we talk about.

But we're going to start with the trial in New York because this is, you know, possibly the only trial that's going to happen this year. We heard opening arguments this week and we got the first three witnesses. What did you make of the story that the prosecution is trying to tell the jury in this trial from what we've seen this week? Well, there are really three legs to the stool here that they have to prove. The first is this is essentially a crime of falsification of business records. That's really the big issue here, which is not that big. But to get it from a misdemeanor to a felony, they have to prove that Donald Trump had an intent to commit fraud relating

to those documents and that the intention was to cover up the hush money payments to affect the 2016 election. So I think their story was using David Pecker, listen, Donald Trump knew about this scheme and he knew that it was about making sure that this information didn't go public to impact the election. So using his former secretary to put Stormy Daniels in Trump Tower to her testimony that he kept Stormy Daniels and Karen McDougall's names and contact information in his Rolodex, so to speak, that loops her into Donald Trump's orbit to establish that he was well aware of all this. And then Pecker did testify that the understanding was this was about killing stories because

they were really worried about in particular the excess Hollywood tapes impact and having that just be exacerbated by additional extramarital affairs. Right. Because Domenico, that is a key thing here. David Pecker, the former National Enquirer CEO, is detailing this system where the magazine pays for lurid stories, gives people money for exclusive rights with the intention of never publishing them

or buying them and burying them. Pecker is saying that he's doing this to help Donald Trump. That in itself, in a vacuum vacuum is kind of seedy, but not illegal, right? So the part the trial is focused on is what happens next. And Pecker testifying that he wasn't doing this because he liked Donald Trump. He wasn't doing this because he was embarrassed

for Donald Trump. He was doing this because he wanted to help Donald Trump win, which makes it effectively a campaign contribution. Yeah, I mean, and beyond, you know, whether or not this is illegal, uh, you know, whether it's normal, no, I mean, this is not the kind of thing that presidential candidates do. I mean, presidential candidates are not traditionally coordinating with the national inquirer to kill stories about alleged affairs and creating stories

about how your main opponent at the time, Ted Cruz was, you know, his father was part of a conspiracy to kill JFK. And that was completely made up. It was made up. Yeah. And we should just remind people, yet it did kind of take over the campaign for a couple weeks at a point where Cruz was Trump's main remaining opponent. Right. And people were analyzing the photo and, you know know and you can just imagine sort of pecker and trump kind of like

Laughing about this kind of greatest troll ever, you know created because again, it was completely made up It was intended according to pecker to you know help trump in the election Which seems fairly obvious considering cruz was the you know last man standing in the in the republican primary You know and that's why prosecutors alleged that this is election interference. It started in the Republican primary. That's why prosecutors allege that this is election interference. It started in the primary. It didn't just end up with Karen McDougal and Stormy Daniels as these hush money payments to allegedly cover up affairs, but was happening throughout this whole thing and was essentially created, prosecutors are trying to show, to be able to help Trump win. Kim, the defense gave its opening argument. It cross-examined Pecker at length.

You know, it's the defense has cross-examined some of these other witnesses as well. But what to you is clear about the defense strategy based on what you've seen so far? I think the strongest strategy, the strongest defense, is that this is just what happens in the rough and tumble of politics. His lawyer said, it's called democracy. I think that's an almost grotesque exaggeration. Even if the government proves that Donald Trump was part of this, which it seems like Pecker established that and that it was about keeping information quite around the campaign. That's not illegal or at least it shouldn't be treated as a crime for purposes of this candidate or for the candidate for 2024 that this is just what happens.

You know, politically, a lot of this just fits to a broader narrative and broader pattern of Trump's business practices. You know, like whether or not he's convicted in the end, whether or not all of these criminal trials wind up happening, it is a choice that people have to make in the fact that you have somebody who was engaging with the National Enquirer the way he was to make up stories about opponents that he was,

you know, now been gone after by the state and found liable for fraudulent business practices, otherwise owing New York State some half a billion dollars. been gone after by the state and found liable for fraudulent business practices, otherwise owing New York state some half a billion dollars. I mean, it's thing after thing, scandal after scandal where Trump has now essentially put himself so front and center that he's threatened to make this election entirely about him instead of an unpopular incumbent president in President Biden. This happens, I guess, in a lot of trials, but in the high profile tribals where there's

a lot of media attention, it's always interesting to remind yourself what the jury is seeing versus what the jury is not seeing. There's been a series of hearings about the gag order that the judge put in place on Trump and the prosecution saying that Trump is repeatedly violating it through social media posts, through statements in the hallway, and we're waiting for a ruling. Domenico is funny, after years of living in the Twitter world, there was legal arguments about whether or not retweets are endorsements. I was thinking the same thing when I first saw the first tweet that they were talking about or the first truth social update that was a repost of what was said by somebody on

Fox News I thought huh does a retweet equal endorsement now? I guess we're gonna find out it might might be the first time we talk about that in a court of law. Answers always been yes in my point of view But but Kim there was there was a big hearing on this and there hasn't been a ruling There hasn't been a ruling and you know, Donald Trump seems to have pivoted his speech to how unconstitutional unfair and unprecedented this gag order is I mean as with Donald Trump the reason we're in this position has nothing to do with the courts. It's about him, you know, and getting him in line.

I mean, the judge said to his lawyer, Todd Blanch, you're losing credibility counsel by sort of claiming that this is all okay. I'm paraphrasing. The judge, I think, is frustrated and that there's a concern that Donald Trump just doesn't care and he will continue to escalate violations of the gag order, which is narrow. He can say things about the judge. He can't say things about witnesses.

He can't think things about jurors. And there's two pieces here. One has to do with protecting the integrity of the trial, making sure that his constitutional rights are complied with. And the other is safety. I mean, Donald Trump, look at the two election workers, Seamus and Ruby Freeman, whose lives were destroyed by being attacked by Rudy Giuliani and Donald Trump. The judge is aware of that.

Competing with that is his right to speech, political speech. But that is, you know, I think routinely exaggerated in these discussions. The First Amendment does not give people unlimited rights to speak about anything they want. It's balanced against other interests. And how this judge is going to effectively constrain him to protect the trial on appeal and to protect the people involved, honestly, I don't know. I think it's kind of unprecedented given Donald Trump's platform and given the sort of the tendencies even towards violence of his supporters and then how fervently they support him and believe he is a victim of the judicial system.

And of course, there's nothing in this gag order that would stop candidate Trump from giving campaign speeches about the policies he wants to enact in a second administration or what he would do if he were in the White House. But of course, Domenico, that is not what Donald Trump campaigns on. He campaigns on this idea that he is an aggrieved victim. And before we shift gears to the Supreme Court, I want to ask you, we've now had two weeks of Donald Trump, presidential presumptive nominee slash criminal defendant, what has jumped out to you about his courtroom demeanor?

Because I think we are seeing him a little bit more subdued and from this criminal jury than we have in some of these civil trials. Well, there's always been two Trumps, right? There's campaign Trump, and then there's like deposition Trump. He's always been a little bit more subdued in these depositions through the years.

He's had to sort of tell the truth because he's under oath and if he got caught then there would be real penalties for perjury and the like. You know, in this courtroom he was certainly more subdued. He's kind of quiet, almost meditative in some respects. I'm not going to get into whether he's sleeping at times or not, but he was, you know, he was respectful, listening. It's certainly a far cry from what he's like in the hallways, crying about grievance and martyrdom and witch hunts and the like. I was struck in the courtroom when David Pecker was telling a story about going to the White House and Trump introducing him as the guy who knows more stories about me than anyone

else and nobody in the White House laughed but everyone in the court did. Let's talk about the other big legal story this week and that was the Supreme Court finally hearing oral arguments on this idea of presidential immunity. Trump has been arguing this maximalist position that a sitting president can basically do whatever he wants when he's in office. His lawyers have continued to make that extreme point. The SEAL Team Six incident came up again in front of the Supreme Court. Kim, Supreme Court arguments, especially from the conservative bloc, were pretty different. And I think to a lot of people who don't follow closely, shockingly different.

It was very disheartening and disturbing, although not surprising. And I say not surprising, first of all, because they took this case. They didn't need to take this case because just so everyone's clear, in this moment, today as we speak, there is no such thing as criminal immunity for presidents. It's unprecedented. There's no legal support for it. There's no support in the Constitution. Actually the text of the Constitution suggests otherwise. There's no precedent for it. There's no support in the Constitution. Actually, the text of the

Constitution suggests otherwise. There's no precedent for it. So this conservative court is poised to manufacture out of thin air, the textualists, a brand new legal doctrine. Not only did they take the case, but they didn't narrow the issue to the January 6th indictment. That's really what judges should do. They rule on the case before them. They instead expanded the question presented to immunity generally, which is really more of a legislative question. They really did not want to talk about January 6. So when you think about the fact that we're here because of January 6, the horrors of January 6, the excesses of January 6, and the conservatives on the court are now poised because of that, and Jack Smith's attempt to try to disincentivize presidents from doing that in the future and

hold Donald Trump accountable, they are now going to expand the powers of the presidency. We'll be waiting a little bit for a final ruling on this. Chief Justice John Roberts really didn't say much either way throughout the hearing, and Amy Coney Barrett, another conservative of the court, seemed a lot more skeptical of all of this than that main conservative block. But yes, certainly that was the tone of these oral arguments. You wrote that Trump was almost being rewarded January 6th, especially if you look at Justice Alito's questioning and the line of thought that he and Justice Gorsuch and others kept taking. They're saying, okay, we now need to protect presidents because prosecutors are dangerous.

That's really what the energy was that prosecutors are the bad guys here. And look what's happened to Donald Trump. We're not going to really use that language. But we don't want to see this happen going forward that this injustice is being done, these are my words, not theirs, to a former president with prosecutors that could have other agendas. I mean, this is again, this is the backstory. They didn't articulate it, but the distortion around really what's issue in this moment,

which is putting guardrails in place again after Donald Trump trashed so many of them and the dangers of allowing a president and his lawyer when asked, could he assassinate political rival and would that be within his official conduct? His lawyer basically said yes. The fact that that was something that the judges are even entertaining, the justices are entertaining, certainly is saying, listen, good job. We're going to reward you with more power to do those kinds of things the next round because we're so worried about rogue prosecutors abusing their lesser power to investigate

and prosecute crimes. Domenico, this is almost like, feels to me like a natural extension of the last nine years of the establishment wing of the Republican party wanting to look every direction but what is directly happening with their nominee and their president. That's true. I think I would go even further back than that though, because you have to look at the fact that people are products of their experiences, which is a good thing for us to remember as reporters. for us to remember as reporters when we interview people, but then to think about the justices on the Supreme Court, I thought it was really telling our colleague Nina Totenberg did a really smart piece looking at the political backgrounds of each of the five justices who seem to be skeptical of not having some degree of immunity for a president from crimes. Justice Alito, Kavanaugh, Thomas, Roberts, Gorsuch, all have experience either in White Houses or around Washington politics that may have lent them

to this idea that there is political targeting, that they each have their own sort of grievances with how the processes have played out with the presidents they served with with Gorsuch his mother and how she was Investigated when she was head of the EPA really interesting stuff on politics Which you know, I thought the training was that you separate out your politics from what is the you know? Dry reading of the law But that's the thing when a lot of this stuff is not completely spelled out then the justices get to interpret What has happened and it certainly hits Kim's point not going back to any kind of originalist text and strictly looking at that They are seeming to interpret this through their own political lens and their own experiential lens

And I thought it's interesting, you know You have Kavanaugh kind of new to the court, but saying that independent councils even shouldn't exist. That was wrongly decided by the Supreme Court. And the irony here being that he served on the staff of an independent council investigating former President Clinton. So just a lot of cross waves of politics going on during that hearing. Danielle Pletka I should add, I was serving with him during that investigation of Whitewater Independent Council under Kenneth Starr.

That's how I first met then Brett Kavanaugh, now Justice Kavanaugh. He did this week at Oral Argument criticize Morrison versus Olson, the Supreme Court case that said an independent prosecutor of the president is constitutional and Justice Scalia dissented. And on the merits of that case, I think Justice Scalia made some excellent arguments, but it isn't the law. The law is still the majority decision.

So it was really unusual for a sitting justice from the bench criticize the law of the Supreme Court, of his predecessors that has not been overturned. Morrison versus Olson is still the law of the land upholding investigations of presidents. Why do you think the conservatives on the Supreme Court and maybe the Supreme Court as a whole, because again, a while back, a few weeks ago,

we interviewed retired Justice Breyer for this podcast and he wouldn't answer a single question about January 6th. Why do you think the Supreme Court is so reluctant to deal with such a high profile, violent and criminal activity that happened directly out their window? I honestly, I think that's tough. I was stunned to hear the section three of the 14th amendment arguments. Right, the Colorado case about whether they could kick Trump off the ballot. Even the progressives on the court not push, you know, he engaged in insurrection.

Everyone kind of assumed that. And even when they departed from the majority, they did it in a concurrence. They didn't write a dissent. So I don't know if they're worried that it will tarnish the integrity of the court to get squarely involved in that. I don't know if they're worried about their own personal safety. That's that, of course, they'd never make that public, but this is that fraud. But I'll be honest, it's very hard to understand as constitutional experts that they're not

looking at the bigger picture here and ensuring that we have no more kings in America. So we're almost certainly looking at that classic June timeline for this ruling. If the court issues a ruling that sends it back down for further questions about the difference between official and private activity, I think that that's almost certainly it for this case going to trial before the election. I appreciate both of you. That's Kim Whaley of University of Baltimore, as well as Domenico Montanaro. Thanks, guys. You're welcome.

Thank you. We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple podcasts. This show is produced by Tyler Bartleman, edited by Adam Rainey, Krishnadev Kalamore, and Steve Drummond. Our executive producers are Beth Donovan and Sam Yenigan.

Eric Maripotti is NPR's vice president of news programming. I'm Scott Detro. Thanks for listening to Trump's Trials from NPR. On It's Been A Minute, we're keeping you in the know when it comes to culture. I break down the latest trends and the forces behind them and introduce you to the creatives who think deeply about how we live today. Come for some good old cultural analysis and have a few laughs with me. Listen to the It's Been A Minute podcast from NPR. Hey, I hear you have a birthday coming up. Yeah, you. If you're listening to this, that

means you have a birthday coming up eventually. And here at LifeKit, we want it to be a special one. Magic can happen and good luck can happen and serendipity can happen if we're open to it. How to have a good birthday even if you're not a birthday person. That's on the Life Kit podcast from NPR. The Indicator from Planet Money is a daily podcast that helps you make sense of what's happening in the economy. And video games are a growing slice of that economy with billions of people around the world identifying as gamers.

That's why we're dedicating a week-long series to the growing business of video games. Listen to the Indicator for Planet Money podcast on NPR.