Donald Trump's trial has been halted for a month in Manhattan after the Department of Justice recently disclosed a stockpile of documents to his defense team, which gives him a brief pause before potentially facing accountability, but a series of lesser known rulings haven't been going his way.
New York Supreme Court Justice Juan Merchan, who's overseeing the hush money case involving adult film star Stormy Daniels, made two significant rulings this week that could have a major impact on the trial that's expected to begin sometime next month, and both should concern the former president and his team, reported The Daily Beast.
"The first of these decisions allows a number of witnesses to testify in the case, including Trump’s former fixer Michael Cohen; former American Media CEO David Pecker; Dina Sajudin, a former Trump Tower doorman; and Karen McDougal, another individual who is alleged to have received similar payments to Daniels, also to cover up an alleged affair with the former president," wrote Ray Brescia, associate dean for research and intellectual life at Albany Law School. "Their testimony will cover whether the alleged actions related to Stormy Daniels were part of a larger scheme to hide just these sorts of hush-money payments."
Another ruling could have an even larger impact on Trump's ability to defend himself.
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"Justice Merchan swatted back one of the Trump team’s main defenses," Brescia wrote. "There has been a lot of speculation that the former president might claim that he acted on the 'advice of counsel' and thus the prosecution could not establish that Trump had the appropriate culpable intent. Based on that defense, the argument would go, he believed his actions were legal because someone who should know better — his lawyer — told him so."
Lawyers are allowed to advise their clients on how to comply with the law and the consequences of breaking it, but they're not permitted to instruct them how to get away with breaking the law, so any communications to that extent are not protected by attorney-client privilege under the crime-fraud exception.
"If Trump were to raise that defense, the advice he may have received would have had to come into evidence," Brescia wrote. "In other words, information that would normally be protected by the attorney-client privilege would lose its evidentiary shield. Instead, Trump’s team tried a different approach: they wanted to get all the benefits of the defense without actually raising the defense and waiving attorney-client privilege. In other words, they wanted to have their proverbial cake and eat it too."
Trump's team argued that because there was a lawyer in the room during conversations about the hush money payment, the former president could argue that any guidance he received should be perceived as legal, but the judge wasn't buying that argument and refused to allow that defense, saying that would allow Trump to "confuse and mislead the jury" by allowing him to invoke a tactic that he's already said he wouldn't use.
"While the hush-money prosecution may have faced a temporary setback, these recent rulings likely mean the case is not just on track, but also headed full-steam to trial in the near future," Brescia wrote.
