Former President Donald Trump’s debut criminal trial may be about many allegations: hush-money payments to a pornographic film actress, a coverup to influence the 2016 presidential election, and serial falsification of business records to hide a campaign-threatening secret from voters and tax authorities.
But a Manhattan judge has dramatically shaped the balance of what the jury — and the public — will hear about it in opinions he published on Monday.
In a pair of pre-trial rulings, Manhattan Supreme Court Justice Juan Merchan decided dozens of controversies, large and small, including which witnesses may testify, what evidence may come in, and whether certain topics are off-limits from mentioning to the jury. Though the details vary, the judge made one overarching theme abundantly clear: Sex may be relevant to Trump’s debut criminal trial, but this is mostly a case about an alleged attempt to influence an election.
For prosecutors, the topic is a thorny and critical one because Trump’s alleged coverup is intertwined with accusations against him of serial sexual predation and misconduct.
Focusing too heavily on that history, including on uncharged criminal accusations, could compromise the integrity of any convictions in the inevitable appeals to follow. On the other hand, keeping the spotlight on election influence may give the case a different sense of gravity compared to “hush money” for consensual sex and, by elevating the importance of federal and state election law crimes, could raise the stakes if Trump is convicted.
To succeed, prosecutors face the challenge of showing jurors, within the constraints of the rules of evidence, just what Trump allegedly sought to hide from voters.
Why the “Access Hollywood” tape can only be described
The judge denied every effort by Trump’s legal team to keep mention of federal and state election law from the jury, but the former president succeeded in keeping out a key piece of evidence from the prosecutor’s presentation of the case: the “Access Hollywood” tape, in which Trump boasted about grabbing women “by the pussy.” Prosecutors can have a witness describe the exchange, but cannot play audio or visual of it.
For prosecutors, the tape presents critical context for the jury: The Washington Post’s publication of the footage in October 2016, the month before the election, sent the Trump campaign into a tailspin, focusing public attention on the candidate’s record of sexual misconduct weeks before voters went to the polls. More than 25 women accused Trump of sexual harassment, impropriety, assault or rape, including multiple women stepping forward publicly for the first time after the release of the “Access Hollywood” tape.
Against this backdrop, Trump, his campaign and his allies allegedly sought to cover up other brewing scandals, including through payoffs to adult film actress Stormy Daniels at the heart of the case.
Despite agreeing with prosecutors’ theory about relevance, Merchan did not believe the tape itself was necessary.
“This Court rules that the proper balance lies in allowing the People to elicit testimony about a videotaped interview which surfaced on October 7, 2016, that contained comments of a sexual nature which Defendant feared could hurt his presidential aspirations,” the judge wrote. “However, it is not necessary that the tape itself be introduced into evidence or that it be played for the jury.”
One important caveat: the judge said he would consider revisiting the decision should Trump’s defense “open the door.” Trump’s lawyers will accordingly have to be cautious in how they counter the testimony about the tape, avoiding eliciting any testimony that may be contradicted by the footage itself.
By keeping the infamous footage from the jurors, the judge holds Manhattan District Attorney Alvin Bragg to his public messaging about the case.
“The core is not money for sex,” Bragg told a local NPR affiliate late last year. “We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up.”
Trump, sexual assault and the rules of evidence
The judge reserved decision on a more delicate topic, whether to allow prosecutors to tell jurors about the multiple women who accused Trump of sexual assault.
The prosecutors’ motion cited three women who went public shortly before the 2016 election, each with an account from different decades. Jessica Leeds said she was sitting in first-class on a flight to New York in the 1970s, when Trump allegedly groped her, and she says that she moved to coach to escape him. In 2005, Rachel Crooks was a receptionist at the real estate company Bayrock Group, then located in Trump Tower, when she said Trump kissed her without consent in an elevator. Finally, in 2015, Natasha Stoynoff, a former People magazine journalist, said Trump pressed himself up against her at Mar-a-Lago, with his then-pregnant wife Melania Trump in another room.
In his ruling, Merchan recognized the need to tread carefully before letting the jury hear such evidence.
“The People will be required to make a further offer of proof,” the judge wrote.
The judge’s caution is understandable: These women have accused Trump of uncharged crimes, a fact cast into sharp relief before Leeds and Stoynoff testified in the sex-abuse lawsuit brought by E. Jean Carroll. Before that trial began, Trump’s lawyers fought to prevent their testimony as prejudicial to the jury, but the judge found that their accounts were admissible, in part, because they alleged a “federal or state crime.”
In the case of Leeds, federal district judge Lewis Kaplan found that Trump arguably stood accused of violating two federal statutes governing assault and sexual assault within “special maritime and territorial jurisdiction” — specifically, a commercial aircraft. (In the 1970s, Trump had not yet owned his private fleet of planes.) Kaplan also found Stoynoff’s claims of groping and forcible kissing amounted to alleged violations of Florida’s sexual battery statute.
Over in state court, Justice Merchan must grapple with a different set of precedents — most importantly here, the 1901 case of Roland Burnham Molineux, a chemist and scion of a renowned Civil War general who stood accused of poisoning a woman to death. During a sensational trial that captivated the yellow-journalism-era press, prosecutors introduced evidence suggesting that Molineux had previously fatally poisoned a perceived rival, but he was never charged with that prior crime. Molineux’s successful appeal established New York State’s landmark precedent governing the admission of “prior bad acts,” such as crimes.
Bragg’s prosecutorial team recognized that challenge — and described both the “Access Hollywood” tape and sexual misconduct allegations in court papers as “potential Molineux evidence.” But case law regarding that category of evidence has developed considerably over more than a century. Prosecutors point to an exception for “when the evidence of the other crimes is relevant to an issue other than the defendant’s criminal tendency.”
Merchan’s ruling reveals his inclination to wade gingerly into this type of evidence, which could hand Trump grounds to appeal possible convictions. The judge signaled that he will also carefully limit testimony by former Playboy model Karen McDougal and doorman Dino Sajudin. In both of their accounts, the National Enquirer’s publisher American Media Inc. paid them to suppress stories embarrassing to Trump. McDougal had considered going public about her alleged affair with Trump, and Sajudin had tried to shop around a false rumor that Trump fathered an illegitimate child.
By contrast, Merchan has shown no hesitation about prosecutors telling jurors about federal and state election law.
“The People claim that the Defendant paid an individual $130,000 to conceal a sexual encounter in an effort to influence the 2016 Presidential election and then falsified 34 business records to cover up the payoff,” the judge wrote on Feb. 15, 2024, in his ruling refusing to dismiss the case. “In this Court’s view, those are serious allegations.”
After Trump’s attorneys subsequently tried to keep the topic away from the jury, Merchan made clear that his finding was final.
“These issues have already been decided by this Court and this argument will not be entertained again,” he wrote on Monday.