For most people, sitting in court at their own criminal trial would represent a defining moment of their life.
But Donald Trump’s return to his hush money trial Thursday does not even represent the most critical courtroom drama of his day.
The ex-president’s attention is certain to stray from what he has repeatedly complained is a “freezing” court in New York to the neoclassical splendor of the US Supreme Court. Justices will be hearing oral arguments in his sweeping immunity case that could have profound implications for his legal fate and poses never-before-resolved questions about the powers of the presidency.
The double court date will represent yet another unfathomable twist in the saga of the presumptive Republican nominee who is again stretching America’s judicial and constitutional systems to their limits as he runs to reclaim the White House.
Trump has left no doubt he’d much rather be on the grander stage in Washington, watching Supreme Court justices — three of whom he appointed — debate his claim that, as an ex-president, he cannot be prosecuted for any actions that he took in office. Trump the showman would surely relish holding a photo-op on the court steps below an ornate marble facade that reads “Equal Justice Under Law.” It would be a far more colorful spectacle for a presidential campaign that has morphed with his legal defenses than the increasingly repetitive press gaggles he holds in the dingy corridor outside the Manhattan courtroom hearing his first criminal trial. But Trump has no choice but to listen to more testimony in New York from former tabloid publisher David Pecker, a key witness for prosecutors who allege the ex-president tried to mislead 2016 general election voters by covering up an affair that he denies.
Trump blames Judge Juan Merchan for dashing his hopes of being at the Supreme Court Thursday. The New York judge reminded Trump’s attorney that their client is a criminal defendant and must therefore attend his trial, prompting the ex-president to immediately weaponize his ruling for his political persecution narrative. In an interview with Fox News Digital, Trump accused Merchan of considering himself “above the Supreme Court” in preventing him from going to hear “some of the great legal scholars” argue his case.
Trump is playing to more than one jury
While Trump’s destiny in the New York case will be decided according to the evidence by 12 of his peers, he is playing to a much wider jury — the general electorate ahead of his clash with President Joe Biden in November. Millions of Trump voters have long been skeptical of efforts to call him to account for his personal, business and political behavior and are a receptive audience to his false claims he’s a political dissident being persecuted as part of a Biden plot. Trump is also using his on-camera appearances to boost his campaign finance operation. He has already raised $5.6 million online during the first week of his criminal trial, a source familiar with the figure told CNN on Wednesday.
Trump’s Supreme Court gambit is also part of his wider campaign strategy.
The case is potentially historic in its daring reach for power and serves as a metaphor for a former and possible future president who recognizes no limits on his authority or constitutional constraints. But Trump’s team also adopted the long-shot claim that he enjoys absolute presidential immunity as a way to delay his federal election interference trial. The hope is to push that trial past an election that could restore to Trump the presidential powers that may allow him to derail federal prosecutions against him.
But despite the stalling tactics, Wednesday brought another reminder of the ex-president’s scheme to overturn the 2020 election. A grand jury in Arizona indicted Boris Epshteyn, one of the ex-president’s closest advisers; former White House chief of staff Mark Meadows; and Trump’s former lawyer Rudy Giuliani, among others, over election subversion schemes, according to a source familiar with the investigation. The details in the indictment suggest the ex-president is an unindicted co-conspirator. Also on Wednesday, an investigator testified that Trump is an unindicted co-conspirator in the Michigan fake electors probe, along with Giuliani and others.
Merchan poised to deliver gag order ruling
Thursday is not the first time Trump has had vital business at the same time in courtrooms in different cities — a reflection of the depth of his legal quagmire and the way in which his criminal liability is entangled with his bid to win a second term.
Trump’s current trial — in which he pleads not guilty to misleading voters in the 2016 election through falsifying business records to cover up a hush money payment to an adult film star – may lack the constitutional high stakes of the Supreme Court drama. But Trump and prosecutors are still bracing for a significant moment. Merchan is considering his move after prosecutors claimed the ex-president had repeatedly and deliberately violated a gag order designed to protect jurors, court staff, witnesses and even members of the judge’s own family in the high-profile case.
In a tense hearing on Tuesday, Merchan warned Trump’s lawyers that they were losing credibility with the court after they struggled to prove that the ex-president had no intention of trampling over the order in his social media posts, reposts and public comments about several key witnesses, including his former lawyer Michael Cohen.
Merchan could rule at any time. His deliberations coincided with another apparent violation of the gag order on Tuesday when Trump targeted Cohen in an interview that was conducted before that day’s hearing on the gag order. “Michael Cohen is a convicted liar and he’s got no credibility whatsoever,” Trump told WPVI Philadelphia.
It’s inconceivable that other defendants would receive so much latitude in attacking the court, witnesses and jury selection. But Merchan is in a tricky position, since any action he does take could play into Trump’s narrative of persecution. Prosecutors have asked the judge to fine Trump $1,000 for each of at least 10 alleged infringements of the gag order. But $10,000 is unlikely to be much of a deterrent for someone of Trump’s wealth. If the judge were to use another potential sanction — a custodial sentence — he’d risk providing more material for Trump’s claims he’s being unfairly treated to stop him from winning back the White House. At the same time, however, if Merchan loses control of his courtroom and the case, the interests of justice could be prejudiced.
When testimony resumes in the case, David Pecker – the former CEO of American Media, which then-owned the National Enquirer – will be back on the stand. Prosecutors are using Pecker, who is compelled to tell everything he knows under an immunity agreement, to lift the lid on a “catch and kill” scheme to squelch unflattering stories about Trump before the 2016 election. Pecker is expected to testify about his role in orchestrating two nondisclosure agreements for negative stories about Trump. Pecker’s AMI paid Karen McDougal – who was alleging an affair with Trump in the months before the 2016 election (which he denies) – $150,000 for the rights to her story.
CNN reporters in the courtroom said Trump was deeply engaged at times during Pecker’s earlier testimony. But for Thursday morning, at least, he may be more fixated on the case he won’t be able to hear in real time – as the conservative Supreme Court majority he mostly built considers his immunity claim.
CNN
