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Michael Cohen (Photo by Yana Paskova/Getty Images), Donald Trump (AP Photo/Rebecca Blackwell), Stormy Daniels (Photo via Tara Ziemba_Getty Images)
In a Monday ruling on the Manhattan district attorney’s hush-money criminal prosecution of Donald Trump, the presiding judge largely ruled in favor of prosecutors’ motions in limine, allowing the infamous Access Hollywood tape to be referenced at trial but not played for the jury and rejecting a “presence of counsel” defense. But the ruling was also notable for what it did not yet do regarding evidence that may be used as possible proof of “consciousness of guilt.”
Near the very end of Acting New York Supreme Court Justice Juan Merchan’s ruling, the judge discussed four categories of evidence that Manhattan DA Alvin Bragg (D) has asserted will be probative of the former president’s awareness of wrongdoing.
That “consciousness of guilt” evidence Bragg cited includes “evidence of the pressure campaign” Trump launched to “ensure” his former fixer Michael Cohen “did not cooperate with federal investigators” in a campaign finance violation probe, Trump’s “harassing comments on social media” about Cohen and Stormy Daniels, Trump’s since-dropped $500 million lawsuit against Cohen, and the former president’s “endorsing” of “aggressive attacks on one’s perceived opponents.”
In a footnote, Merchan pointed out that the defense argued “Presidential Immunity” should mean that certain statements Bragg wants to introduce were “official acts.”
In light of that, the judge wrote that his decision “will be revised, if necessary,” but in the meantime he did not rule one way or another on this evidence, which could theoretically include anything from Truth Social posts, “horseface” insults on what was then known as Twitter, claims of extortion, or tweets like this:
“I will never testify against Trump.” This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about “President Trump.” Nice to know that some people still have “guts!”
— Donald J. Trump (@realDonaldTrump) December 3, 2018
Merchan concluded that the state must do more to persuade him on this issue, but he did not close the door either.
“Decision on the People’s first and second requests regarding the alleged pressure campaign against witnesses as well as the alleged harassing comments made on social media towards Cohen and Daniels is reserved pending a further offer of proof by the People,” he wrote. “Though this Court agrees that conduct such as attempting to threaten witnesses, imploring them to testify falsely, and offering money to change their testimony could certainly be probative of consciousness of guilt, this Court needs to review the proposed evidence before ruling on its admissibility.”
Merchan similarly ruled he needs more specifics about the Trump lawsuit against Cohen and about the alleged endorsements of searing attacks on opponents before he rules on their admissibility on “consciousness of guilt” grounds.
“With respect to the latter, the Court requires further information about what was actually said or written as well as when and where it was written,” he said.
In the end, Michael Cohen, the former Trump lawyer who went to federal prison for his role in trying to cover up the Stormy Daniels affair by using Essential Consultants, LLC, to pay the porn star $130,000 weeks before the 2016 election, will be a witness at trial despite the defense’s efforts to argue against his participation in the case in its entirety. Daniels will also be a witness.
Read the judge’s ruling here.
