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With this serious misstep, prosecutors might be handing Trump a get-out-of-jail-free card

Editor’s Note: Jim Walden and Deanna Paul are former prosecutors in private practice at the New York law firm of Walden Macht & Haran. The views expressed in this commentary are their own. Read more opinion at CNN. 

The presiding judge in Donald Trump’s Manhattan trial told prosecutors last week that they could grill the former president on myriad acts unrelated to the charges he faces in his election interference case, should he decide to take the witness stand.

Jim Walden – Courtesy of Jim Walden

A few days later, New York’s highest court overturned the sex crimes conviction of Hollywood movie mogul Harvey Weinstein.

The connection between these two unrelated prosecutions might not seem obvious, but it’s there. And the recent dramatic developments in the Weinstein case demonstrate why the presiding judge in the Trump trial, Judge Juan Merchan, needs to reverse his ruling allowing Trump to be questioned about proven misconduct from other cases. If he doesn’t, Trump could have an easy path to having a conviction in the case tossed out.

Deanna Paul - Meredith Eves Flynn

Deanna Paul – Meredith Eves Flynn

Trump faces 34 felony counts of falsifying business records to cover up his alleged efforts to interfere with the 2016 election. The theory of the case is fairly straightforward: In October 2016, the then-Republican presidential candidate’s campaign was on the ropes because leaked video from the Access Hollywood program had gone viral, showing him bragging that his celebrity gave him license to “grab” women by their genitals.

Around that same time, two women — former Playboy bunny Karen McDougal and an adult film actress Stormy Daniels — came forward with lurid stories about their affairs with Trump. Prosecutors allege that he didn’t want revelations about the tawdry liaisons to derail his White House ambitions: Trump, they contend, agreed to buy the women’s silence, and he and his associates falsified business records to cover up the payments. He went on to narrowly win election to the US presidency.

The trial of the now-former President got underway in earnest last Monday and after the first week of testimony, it’s clear that prosecutors have the goods on Trump. David Pecker, the former publisher of the National Enquirer and a close Trump associate, painted a textured picture of a catch-and-kill scheme entered into by the former president and his long-time attorney and fixer, Michael Cohen.  And the prosecution is just getting started. Cohen, who played a crucial role in the Daniels payment and reimbursement, is expected to take the stand as a star witness. Trump for his part, denies any wrongdoing.

Trump’s public behavior, including his continuing attempts to attack Michael Cohen and other expected witnesses, as well as his recently more “animated,” courtroom demeanor (as New York Times reporter Maggie Haberman described it to CNN)  suggests that he may be worried about a possible conviction — as well he should be, considering the strength of the case. Instead of relying on the strong case they have however, prosecutors have indicated that they may be planning to cross-examine Trump on things that don’t, and shouldn’t, matter for this trial.

Merchan agreed to let prosecutors question Trump about his recent gag order violations and courtroom loss to New York Attorney General Letitia James, who proved the former president had engaged in a multiyear financial fraud, including inflating the value of property assets when seeking loans and lowballing those estimates on tax declarations. They also plan to ask him about a case he lost last year after writer E. Jean Carroll successfully sued the former president for defamation and sexual assault.

Prosecutors are making a grievous mistake, as is Justice Merchan. None of the above-mentioned acts has anything to do with the Manhattan hush money payments. Trump is not on trial for being a morally bankrupt person. He is on trial for using false records to conceal election interference. Other bad acts, even those he was found liable for, are beside the point.

The prosecutors and the judge have put the former president in an untenable position. The Constitution gives him the right to testify in his own defense — or not to take the witness stand if he chooses. He has said he wants to testify.

But Trump must now weigh his right to defend himself against the certainty that prosecutors will be permitted to engage in a sideshow by including in their cross examination of him questions about misconduct that are not part of the current trial. Trump could argue that his right to testify has been “chilled” — that he has been given a strong disincentive to exercising this constitutional right.

Even if he never really intended to take the stand, Trump could use Justice Merchan’s decision as a basis for a new trial. This is essentially what happened in the Weinstein case. In 2020, Weinstein faced trial for felony sex crimes involving three women. The judge in that case, Justice James Burke, took the same bait, ruling that prosecutors could cross examine Weinstein, had he testified, about more than two dozen uncharged acts in the case, including bullying and fits of anger towards employees, restaurant workers, and business associates — most of which did not bear on his in-court credibility. Weinstein chose not to testify in the case.

He appealed his conviction on several grounds, including that Justice Burke’s ruling allowing these lines of questioning undercut his right to testify in his own defense. The New York State Court of Appeals found in a 4-3 decision on Thursday that the producer had not received a fair trial.

Justice Merchan must not make the same mistake. He can reverse his own ruling — and he should. If he does not, Trump could get a conviction overturned while the ink hasn’t yet dried on the jury’s verdict.

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