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Judge skewers Trump defense's 'credibility' in gag order hearing ahead of 'catch and kill' testimony

Judge Juan Merchan heard arguments on whether Trump violated a gag order with his social media posts about two expected witnesses in the hush money trial.
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Prosecutors in Donald Trump's hush money trial asserted Tuesday that the former president has been violating a gag order barring him from attacking witnesses on social media in an attempt to get locked up for political purposes.

Debate over the order, which took place in a hearing before the jury returned to the courtroom, included the judge telling a defense lawyer that he was "losing all credibility" with his argument that Trump was being "very careful to comply" with the gag order. Lawyers with the Manhattan District Attorney's Office argued that Trump should be held in criminal contempt over a series of posts on Truth Social that they say violated Judge Juan Merchan’s gag order.

“The purpose of this hearing is to find out whether the defendant Mr. Trump should be held in contempt for one or all of these violations,” Judge Juan Merchan said as the hearing began.

Prosecutor Chris Conroy said the DA's office was not yet seeking to have Trump jailed over the gag order, while adding that he "seems to be angling for that."

The judge's order prohibits Trump from publicly attacking witnesses and jurors, something prosecutors say he’s done at least 10 times since the order went into effect.

The DA’s office is seeking the maximum $1,000 fine for each of the 10 posts it says violated the order, along with an order that Trump remove the posts from his social media platform. It also wants Merchan to warn Trump any future violations risk not just additional fines but also as long as 30 days in jail.

“His disobedience of the order is willful, it’s intentional,” Conroy said. “He knows what he’s not allowed to do and he does it anyway.”

Trump attorney Todd Blanche argued “there was absolutely no willful violation” of the April 1 order and said his client was merely responding to a “barrage of political attacks.”

When Merchan pressed Blanche on what specific attacks Trump was responding to when he made the posts, the attorney struggled to answer.

“I keep asking you over and over to give me an example and I’m not getting an answer,” the judge said, appearing frustrated.

Donald Trump, awaits the start of proceedings at Manhattan criminal court
Donald Trump, awaits the start of proceedings at Manhattan criminal court in New York on April 22, 2024.Yuki Iwamura / AP

Merchan reserved a decision on the issue until a later time, but he made clear that he was not impressed by the arguments from Trump's legal team. Prosecutors, he said, had presented him with relevant case law. "You have presented nothing," the judge told Blanche.

Trump did not seem concerned during Blanche’s exchange with the judge — he sat with his eyes closed for a portion of it. He took to Truth Social immediately after the hearing to vent about the judge and Mark Pomerantz, a former prosecutor in the DA’s office. (The judge is not covered by the order.) The post questioned whether Pomerantz will be “prosecuted.”

The heated back and forth came before the jury was brought into the room to hear testimony from a key witness in case, former National Enquirer publisher David Pecker, who outlined the “catch and kill” scheme between himself, Trump and Michael Cohen that prosecutors say ultimately led Trump to break the law by falsifying business records. Trump has pleaded not guilty.

A 'mutually beneficial' agreement

During his opening statement Monday, prosecutor Matthew Colangelo said Pecker conspired with his longtime friend Trump and Cohen, who was then Trump's lawyer, in an effort to suppress scandalous stories about Trump during the 2016 presidential campaign.

"They agreed that Pecker would help the defendant's campaign by acting as eyes and ears for the campaign," Colangelo said.

It was Pecker who alerted Cohen to the news that adult film star Stormy Daniels was about to come forward with a claim that she had had a sexual encounter with Trump in 2006, when he was married, Colangelo said. Trump has denied her claim.

Cohen ultimately paid Daniels $130,000 to get her to sign a nondisclosure agreement. Prosecutors allege that Trump falsely claimed his reimbursement to Cohen as legal payments. He’s charged with 34 counts of falsifying business records, a low-level felony, and faces up to four years in prison if he’s convicted. He has pleaded not guilty.

Pecker testified Tuesday that he'd known Trump since the late 1980s and had "a great relationship with Mr. Trump over the years." He said that when he purchased the Enquirer in 1999, Trump told him: “Congratulations! You have purchased a great magazine.”

Pecker said Trump later became a source for news on his hit show "The Apprentice." He said they generally spoke every few months, but their contacts became more frequent after Trump declared he was running for president in 2015. Pecker also said he attended Trump's campaign announcement at Trump Tower after Cohen told him he should be there.

"No one deserves to be there more than you," Cohen told him in an email that was shown to the jury.

He then recounted a meeting he had at Trump Tower with Cohen and Trump in August 2015, which is when prosecutors said the election scheme was hatched. Pecker said the pair asked him what he could do to help the campaign.

"I said what I would do is I would run, or publish, positive stories about Mr. Trump, and I would publish negative stories about his opponents," Pecker recounted, adding he also told them he'd be their "eyes and ears" on stories that could be damaging.

He said he "thought that a lot of women would come out to try to sell their stories because Mr. Trump was well known as the most eligible bachelor and dated the most beautiful women. And it was clear that based on my past experience, that when someone was running for public office like this, it is very common for these women to call up magazines like the National Enquirer to try to sell their stories.”

They agreed if that happened, Pecker would notify Cohen, and "he would be able to kill" the stories, Pecker said. He called the agreement "mutually beneficial" because he thought the positive Trump stories — and negative stories about his opponents — would help the paper's newsstand sales.

He said Cohen would call and say "we would like you to run an article" on a specific target, and the Enquirer would "embellish it from there." Asked who the "we" was that Cohen referred to, Pecker said he understood it to mean Cohen and Trump. He said he would send Cohen copies of the stories before they published, and would sometimes make additions requested by Cohen.

The articles included stories about then-Trump rivals — and now allies — Sen. Ted Cruz, R-Texas, Sen. Marco Rubio, R-Fla., and Ben Carson. The headlines included “Boozin Ted Cruz Fixin To Lose” and “Bungling Surgeon Ben Carson Left Sponge in Patient’s Brain!"

Prosecutor Joshua Steinglass also asked Pecker about a notorious headline linking Cruz's father to the John F. Kennedy assassination. Pecker said the story was "created" by mashing together pictures of Cruz's father and Lee Harvey Oswald.

Cruz accused Trump of being behind the Enquirer stories at time, something Trump denied in a March 2016 statement, saying, "I have nothing to do with the National Enquirer and unlike Lyin’ Ted Cruz I do not surround myself with political hacks and henchmen and then pretend total innocence."

Catch and kill

Pecker then described the first of three stories prosecutors said he helped to kill in order to aid Trump. He said that in October of 2015, Enquirer editor Dylan Howard reached out to him — as he'd been instructed to do — with a salacious Trump story. A doorman at one of Trump's New York buildings, Dino Sajudin, was "selling a story that Donald Trump fathered an illegitimate girl with a maid in — at — at Trump Tower, and may have worked in his — in Mr. Trump’s penthouse.”

He said he "immediately" called Cohen, who didn't think the allegation was true but said he would check it out. In the meantime, Howard negotiated to buy the rights to Sajudin's story for $30,000. Pecker said he told Cohen, “I’ll pay for it. This’ll be a very big story. I believe it’s important he should be removed from the market, so we’ll acquire the story.”

The deal included a $1 million penalty if the doorman spoke about it to anyone else.

Cohen told him "the boss" was "very pleased," Pecker said, adding that he didn't discuss the plan directly with Trump — only with Cohen.

"Prior to this arrangement to purchase this story from Dino, had you ever paid a source to kill a story about Donald Trump?” Steinglass asked.

“No,” Pecker answered. He added that it was much more than the tabloid would typically pay for a story — especially since Howard hired investigators who determined the doorman's story was "absolutely 1,000% untrue."

Pecker said he eventually wanted to release the doorman from agreement because he was "difficult," but that Cohen asked him not do so until "after the election." Pecker said he agreed.

The Playboy model

Pecker recounted another tip Howard got in June of 2016 involving Karen McDougal, "a Playboy model who is trying to sell the story about a relationship that she had with Donald Trump for a year.”

Pecker said he again alerted Cohen, who told him he didn't think the claim was true. He told Cohen he'd keep him "apprised" of any developments. He said he then got a call from Trump, who said Cohen "told me about Karen." He said Trump asked him, "What do you think?" Pecker said he suggested to Trump that he buy the story, but Trump demurred and said, “I don't buy any stories." "Anytime you do anything like this, it always gets out,” he quoted Trump as saying.

Pecker said Howard arranged an interview with McDougal, and Cohen called several times while it was happening. "He kept on calling, and each time he called he seemed more anxious," Pecker said, adding that he believed but did not know that Cohen was being pressed for details by Trump.

Trump has denied McDougal's claim of an affair.

Trump's social media posts

The contempt hearing on Tuesday morning focused on prosecutors' allegation in two court filings that Trump "willfully violated" the gag order with repeated posts on Truth Social. The cited posts include one that referred to Cohen and Daniels as "sleaze bags" and others that linked to a New York Post story calling Cohen a "serial perjurer."

The partial gag order Merchan slapped on Trump this month bars him from making “public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.”

Trump's attorneys have argued that the posts didn't violate the order because he was largely sharing posts from other people and news outlets, and the posts are political speech. Asked by the judge what case law he had to support that position, Blanche said he didn't have any, but "it's just common sense."

Blanche defended one of the posts about Daniels, saying it concerned her credibility, not her anticipated testimony.

“Her credibility doesn’t matter a whole lot if she doesn’t take the stand in this trial,” Merchan said.

Conroy told the judge that Trump's use of his acronym for his campaign slogan "Make America Great Again" in some of the posts doesn't change the nature of their message.

“Throwing a ‘MAGA’ into a post doesn’t make it political. It may make it more ominous,” he said.

Trump's lawyers have also contended that the order allows Trump to defend himself from attacks, so he was within his rights to speak out because Cohen and Daniels have criticized him publicly. Merchan said last week that he doesn't believe his order makes such an exception.

Manhattan District Attorney Alvin Bragg’s office also cited comments Trump made to reporters Monday, when he repeatedly called Cohen a liar. Conroy said he’d be filing another motion on those comments later Tuesday.

Court proceedings for the day ended earlier than normal because of the Passover holiday.

As previously stated by the judge, the court will not be in session on Wednesday. The trial will resume Thursday with further testimony from Pecker.