Opening arguments in Donald Trump's criminal trial are scheduled to begin today and Trump isn't taking it well. He was posting late into the night on Sunday railing against well, everything. He's clearly feeling the stress of what he's about to face. And he's right to be nervous. The New York Times reports that the prosecution's first witness is going to be David Pecker, the former publisher of the National Enquirer and owner of its parent company AMI.
Pecker is a former close confidante of Trump's. The two men, who've known each other since the 1980s, have not spoken since Pecker was given immunity by federal prosecutors in the Michael Cohen case back in 2018 and testified that Trump was involved up to his neck. And yet, while Trump has crudely insulted everyone involved in that case, and his current one, he's never said a word against Pecker. That's curious, don't you think?
Up until the moment the FBI searched Michael Cohen's home and office looking for evidence of this payoff scheme to silence various people during the 2016 campaign, there had been no greater cheerleader for Donald Trump than David Pecker. The National Enquirer had run hit piece after hit piece on Trump's political rivals, first in the Republican primary when they accused Sen. Ted Cruz, R-Tx., of having an affair and Dr. Ben Carson of medical malpractice, then the paper basically devoted every other front page during the general election to slamming Hillary Clinton as a raging succubus from hell. Once Trump got into the White House, Pecker used his paper to extol Trump's leadership as a combination of Mahatma Gandhi and Alexander the Great. But after one last cover calling Michael Cohen a traitor and a liar, the Trump stories stopped cold and the paper returned to its celebrity gossip roots.
Nobody knows for sure what precipitated the change but the timeline certainly suggests that Pecker fairly quickly decided that he didn't want to go to jail for Donald Trump when the FBI came calling. He stuck an immunity deal with the federal prosecutors and told them what he knew. And what he knew was that back in 2015 when Trump had decided to run for president, he called Pecker up to his office in Trump Tower and asked him what he could do to help his campaign. Pecker told him that he could keep an eye out for negative stories and they could coordinate together to shut them down. Cohen would be the liaison.
Pecker used the "catch and kill" method (pay for the story and then never run it) with former Playboy playmate Karen McDougal who said she'd had a months-long affair with Trump and paid off a doorman who claimed he had evidence that Trump had fathered a child with an employee. But according to the Wall St. Journal, when adult film star Stormy Daniels turned up (for a second time) Pecker refused to have the Enquirer pay her off because he had consulted with an election lawyer who informed him that it could be considered an illegal in-kind contribution. So Cohen made the deal with Daniels and ended up having to front the money himself with the understanding that Trump would reimburse him.
Will Pecker testify that Trump knew that what they were doing was illegal?
Predictably, Trump took his sweet time in paying back Cohen who even had Pecker ask for it on his behalf. Trump told Pecker that Cohen had plenty of money. In the end, he reimbursed him, plus a bonus, but he lied about it repeatedly until shortly after the FBI raid on Cohen's office. Trump's involvement in the payments was first revealed by his newly hired attorney, Rudy Giuliani, on Fox News one night when he blurted out that Cohen had "funneled it through the law firm, and the president repaid him.” The next day Trump tweeted a long explanation that he'd paid off an extortionist and "money from the campaign played no roll [sic] in it." The move, which was the first of many harebrained strategies cooked up by Giuliani and Trump without input from people who know better, came as a complete surprise to his staff. “People in the White House are a little concerned about what looks like the roller coaster ride ahead," the Wall Street Journal reported:
Election-law experts said Mr. Giuliani’s revelation places the president at the center of questions about possible campaign-finance violations. Mr. Trump’s reimbursement of his lawyer for the payment could violate election law, since Mr. Cohen likely would have been required to report the funds he spent upfront as an in-kind donation, if investigators determine the payment was made to help Mr. Trump win the election. Mr. Giuliani on Wednesday suggested it was.
Michael Cohen pleaded guilty to those campaign finance violations, saying in court that he did so at Trump’s direction. Pecker was given immunity and he corroborated Cohen's account that Trump was in on the scheme. Trump, identified as "Individual 1" in prosecution documents, was let off the hook even though it was clear that he was guilty of the same crimes for which Cohen was going to prison and Pecker was given immunity.
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Even Fox News analyst Judge Andrew Napolitano thought this was a clear cut case of criminal liability
According to then-US Attorney in charge of the case, Geoffrey Berman, who was later forced to resign, that happened because of interference from Attorney General Bill Barr who instructed them to "cease all investigations" into the matter. Berman wondered if Barr was trying to shield Trump from possible legal liabilities after he was out of office. It's certainly not a stretch to think so.
In 2021, the FEC fined AMI $187,500 for unlawfully aiding Donald Trump’s presidential campaign in 2016 by making a $150,000 illegal campaign contribution in the Karen McDougal matter. Pecker, who no longer owns the company, was personally protected by his immunity agreement. Again, Trump was let off the hook despite the investigators' finding that he was liable as well.
There is no doubt that the scheme was illegal. It's just a matter of the Manhattan prosecutors proving that Trump's actions to hide the payments show that he was doing it to commit another crime. If the other crime is violating campaign finance laws, Pecker will be able to shed light on that issue.
After all, Pecker had already made the mistake of paying off McDougal on Trump's behalf but refused to pay Stormy Daniels because he'd been informed by an attorney that he was crossing legal lines. What are the odds that he didn't call up his good pal Trump and say, "hey, Don, my lawyer tells me this plan we've got going might be illegal?" Maybe he was too scared to say anything but he sure wasn't scared to tell Cohen that he wouldn't play ball so I think that's unlikely.
We know Pecker is going to testify that Trump asked him to help with the campaign and that he was in on the scheme to "catch and kill" any negative stories. Michael Cohen got Trump on tape talking about payments. Will Pecker testify that Trump knew that what they were doing was illegal? Will they be able to show that his fraudulent bookkeeping was in service of covering up his crime? Stay tuned. We're finally going to find out.
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