The Manhattan district attorney's office briefly called former National Enquirer chairman David Pecker as its first witness in Donald Trump's New York hush-money trial on Monday. But legal experts disagree on exactly how valuable his testimony may be.
Pecker played a central part in the alleged plot to pay off adult film star Stormy Daniels in order to keep her from exposing her alleged affair with Trump in the weeks before the 2016 election.
The district attorney's office called Pecker to the stand after both parties completed opening statements, which began Monday after an expedient jury selection last week.
Pecker is one of the "most critical witnesses in this trial," and his testimony, which will continue Tuesday, will have a "huge" impact, predicted Bennett Gershman, a Pace University law professor and former New York prosecutor.
"It will be the prologue that dramatically sets the stage for the way the prosecutors will develop the story. Pecker introduces the characters, the plot, and how the drama unfolds," Gershman explained, calling the prosecution's decision to have Pecker testify first a "great move."
The Trump ally, Gershman predicted, will "start the ball rolling" by laying out the alleged conspiracy, its key players and how "they committed their crimes."
As then-chairman and CEO of American Media Inc. (AMI), Pecker took part in a number of "catch-and-kill" schemes, buying rights to potentially damaging stories and never publishing them, on behalf of then-candidate Trump, according to CNN.
An agent for Daniels contacted AMI in October 2016, informing the company that she was willing to go public with her claims that she and Trump had a sexual encounter in 2006. The former president, for his part, has denied having the affair.
Following the call from Daniels' agent, Pecker then allegedly reached out to then-personal Trump attorney and "fixer" Michael Cohen, who negotiated the deal buying Daniels' silence for $130,000, court filings said, per CNN.
That $130,000 payment — reimbursed by the Trump Organization — is the focus of Manhattan District Attorney Alvin Bragg's case against Trump. Bragg indicted Trump last spring on 34 felony charges related to "falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election." Trump, the presumptive GOP nominee, has pleaded not guilty and has dismissed Bragg's case as politically motivated.
"In an ideal world for the prosecution, by the time the defense even starts their case, the jury is convinced of the defendant's guilt. You basically overwhelm them," former federal prosecutor Neama Rahmani said, noting that such an outcome may not occur in Bragg's case.
"This is a smoking gun type case, especially on felony charges," he said. "But that's why you really want to come out strong if you're the prosecution to give the defense no chance and just have the jurors minds already made up before the defense begins its case in chief."
Since Pecker "started it all," the district attorney's office likely chose him as its first witness because he "may be the best" person they can use to make their case chronologically, Rahmani told Salon, explaining that the first witness in a trial is "always an important one" and noting that in order to start out strong, prosecutors in any trial have to consider "primacy and recency."
But Pecker may not be the strongest first witness in general for the state, he suggested. Witnesses who participated in or helped with a crime typically "aren't the best" because of their involvement, and prosecutors "usually" aim to "sandwich" bad or "questionable" witnesses between "good ones" and avoid starting with them, Rahmani explained. Pecker is essentially an "unindicted co-conspirator" in Bragg's case against Trump given his role in the underlying scheme "the prosecution is trying to argue."
Pecker is also "testifying under a grant of immunity" from Bragg's office and his company was fined $187,500 by the Federal Election Commission for making an unlawful campaign contribution in connection to a separate catch-and-kill arrangement — further undermining his strength as a witness, Rahmani added.
Months ahead of the 2016 presidential contest, AMI agreed to pay model and actress Karen McDougal $150,000 to keep quiet about an alleged affair with Trump. The company, then headed by Pecker, did not face criminal charges but did admit to paying off McDougal and later paid the fine.
Though not a part of the former president's case, Bragg's team is expected to use the deal to "establish a pattern of such payments," CNN notes.
How Pecker's role in the hush-money payment to Daniels "relates to the charges against Trump" is "not clear," Syracuse University College of Law professor Gregory Germain told Salon, emphasizing that the former president's charges pertain to falsifying business records in connection with Daniels' payoff. "I don't see how the 'catch and kill' scheme is relevant to the business records charges, except maybe to show that Trump was trying to hide negative information from the public."
To prove the charges against the former president, the prosecution "must show" that Trump falsified them "to commit fraud on someone" and "hide a separate independent crime," Germain explained, reiterating he doesn't see Pecker's testimony relating to the "elements that the prosecution has to prove."
Germain said he expects Pecker to testify that Trump "sought and was aware of" the plan to buy Daniels' silence and will possibly offer the court "embarrassing information about Trump" or "negative evidence about his character."
Pecker may also deliver testimony confirming that Daniels' agent contacted the National Enquirer about the affair, that he contacted Cohen and that Cohen negotiated the payment; detailing how the "catch and kill" schemes work and describing the arrangement with McDougal, Rahmani added.
Gershman said he believes Pecker will testify that he "conspired with Trump" and Cohen to "manipulate the 2016 election" through the scheme, telling the court that the former president, along with Cohen, "paid the money to silence these witnesses and thereby cover up stories that would have seriously threatened Trump’s candidacy."
During his approximately 20 minutes on the stand Monday before jurors were adjourned, Pecker explained the National Enquirer's "checkbook journalism" process and described his relationship with the publication's ex-editor-in-chief, Dylan Howard, according to NBC News.
The former AMI chairman will resume his testimony on Tuesday.
"I don’t expect that Trump’s lawyers will be able to effectively damage Pecker’s testimony. He was a very close ally of Trump and was doing his bidding," Gershman predicted. "And there will be lots of evidence to corroborate everything Pecker says."
