It was a pretty good day for Donald Trump and his defense team. David Pecker, the former National Enquirer publisher, was seen by jurors as being a little fuzzy on the details of a key moment: an August 2015 meeting where prosecutors say he, Michael Cohen and the former president conspired to break campaign finance laws by cementing an agreement to "catch-and-kill" potentially damning stories about the Republican candidate.
During cross examination, Trump attorney Emil Bove pressed the witness on why he was now testifying that Hope Hicks — then-director of the Trump campaign's communications team — was "in and out" of that Trump Tower meeting when he had previously told federal investigators that she was not there. Bove then handed Pecker a document that the attorney said would refresh his memory.
But that document appears to have been more of a prop than a piece of evidence. After jurors left the room Thursday, and following objections from the prosecution, Judge Juan Merchan accused Bove of leaving the jury with a false impression.
"If there wasn't anything in that document, it's misleading," Merchan said, as HuffPost reported. "I'm going to ask you to be very careful with that."
When Bove sought to defend himself, Merchan cut him off. "Mr. Bove, are you missing my point?"
Norm Eisen, an attorney and CNN legal analyst, said that moment undid whatever good may have been accomplished Thursday from the defense's perspective.
"The defense, Mr. Bove, Trump's lawyer, really got off to a strong start with their cross-examination," Eisen said. "But then, they made a mistake."
Instead of demonstrating that Pecker, 72, is unreliable, Bove undermined his own credibility before the jury by introducing a document that did not contain the information that the defense counsel claimed. "It seemed to be an 'a-ha' movement," Eisen commented. But, now, "All that good is going to be undone because the judge is going to tell the jury that it was not fair."
Former federal prosecutor Harry Litman agreed that it was a bad moment for the defense, coming after Merchan earlier in the week told one of Trump's other attorneys, Todd Blanche, that he was "losing all credibility" with the court. That rebuke came during a hearing on whether Trump should be held in contempt for violating a gag order, with Blanche faulted for failing to present any case law to support his claim that attacks on witnesses were protected forms of speech.
"Not as bad as 'you're losing all credibility,' but not great," Litman commented on social media. "Bove will start tomorrow [with] a real embarrassment before [the] jury, as judge tells them Bove basically misled them in characterizing [the] document he was supposedly using to 'refresh [Pecker's] recollection.' A bad way to start the day and... undoes the solid if not very damaging work he did."
The next morning, with jurors once again in the room, Trump's defense attorney was indeed forced to begin by saying "sorry" for the document "confusion" and the suggestion that Pecker flatly told investigators that Hicks was not at the 2015 meeting, CNN reported.
"I wanted to apologize and move on from that," Bove said Friday.
