Perhaps Judge Juan Merchan has been sobered by the defense mistrial motion he prompted last week. The judge foolishly allowed Manhattan prosecutors to elicit graphic testimony from porn star Stormy Daniels about a 2006 sexual encounter she claims to have had with Donald Trump. That testimony was irrelevant to the sole question in the trial, which is whether Trump fraudulently falsified his financial records in 2017. On that matter, Daniels has no knowledge; thus, her testimony was offered solely to inflame the jury against the defendant.
Whatever the reason, the latest ploy by District Attorney Alvin Bragg was too much, even for the complaisant Merchan. After a weekend of handwringing, the judge this morning denied the attempt by Bragg’s prosecutors to place before the jury the severance agreement of Allen Weisselberg, Trump’s former chief financial officer.
Weisselberg is currently incarcerated at Rikers Island. That’s right: While Manhattan’s Democratic district attorney turns a blind eye to serious crime in the Big Apple, he has prosecuted Weisselberg not once but twice in the last two years.
Weisselberg is currently doing a five-month stint in the slammer after Bragg pressured him to plead guilty to perjury committed in the recent civil fraud case against Trump (Weisselberg falsely denied his complicity in the exaggeration of the valuation of some Trump assets). He previously served a four-month sentence in Rikers on minor tax convictions.
Weisselberg’s real crime appears to be that he has for years rebuffed Bragg’s pressure to implicate Trump in crimes. The 76-year-old is sitting in jail yet again, even though Bragg’s default position is to keep criminals out of Rikers, so he can, shall we say, get his mind right.
The prosecutors’ severance agreement gambit is deceitful.
When Weisselberg retired after decades of working for the Trump Organization, he was given a $2 million severance package. The severance agreement bound Weisselberg not to (a) disparage Trump and the organization, (b) make adverse claims against them, or (c) induce any person or entity to bring a civil lawsuit or criminal complaint against them.
Bragg’s prosecutors want to put the agreement in front of the jury in order to argue that Trump is effectively blackmailing Weisselberg — warning, in effect, “Testify against me and you don’t get the money.” Bragg would like the jurors to believe that Weisselberg is not being called to testify, not because he would provide favorable testimony to his former boss, but because Trump has bought his silence about undescribed crimes.
But it’s not true.
First of all, as Bragg well knows, a contract that purported to deny a party benefits if the party cooperated with a state criminal investigation would not be enforceable. But as Bragg also knows, Weisselberg’s severance agreement does nothing of the kind.
To the contrary, the agreement explicitly provides that it does not apply to “testimony directly compelled by subpoena or other lawful process issued by a court of competent jurisdiction.”
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By its own terms, then, the severance agreement does not bar Weisselberg from testifying in the Trump trial.
Second, what is preventing Weisselberg from testifying is … the Manhattan District Attorney’s Office.
Weisselberg clearly has relevant, important testimony to give. As the CFO, he approved the manner in which Michael Cohen was reimbursed by Trump in 2017 for the $130,000 Cohen had laid out in 2016 to get Daniels to agree to a non-disclosure agreement (pejoratively, the “hush money” deal not to go public about the sexual encounter she alleges happened in 2006).
But Weisselberg is not testifying because he fears that if Bragg does not like what he says, he will once again be prosecuted by the DA’s office. If defense lawyers called him, Weisselberg would likely take the 5th rather than testify to avoid a charge of perjury from Bragg, even if his testimony were true.
Bragg has the legal authority to immunize Weisselberg — i.e., to give Weisselberg a legally binding assurance that nothing he says in testimony at the trial will be used against him in a future criminal prosecution (except that, if he lies, he could be prosecuted for perjury). Under the law, a defendant has no power to grant a witness immunity from prosecution, and a court cannot grant immunity on its own. Only the state’s attorney has this authority.
Consequently, Weisselberg is not testifying because Bragg does not want him on the stand. Rather than have him sit in the witness chair, the DA prefers for Weisselberg to sit in Rikers as a warning to other potential witnesses who might consider testifying on Trump’s behalf.
But of course, Bragg does not want the jury to think he is the one keeping Weisselberg off the witness stand. Hence, prosecutors tried to get Merchan to admit the severance agreement into evidence. They would then have used it to hoodwink the jury into believing it was Trump who is preventing Weisselberg from testifying.
In just the same way, Bragg’s prosecutors have sought to delude the jury into believing that Trump is on trial for conspiring to steal the 2016 election by suppressing politically damaging information. Again, the actual charge in the indictment is falsification of business records. That’s usually a misdemeanor in New York, but Bragg — the progressive prosecutor who generally prefers not to prosecute — has inflated it into 34 felonies in Trump’s case.
Regardless of how one feels about Donald Trump, New Yorkers should be outraged at the mockery Bragg is making of the state’s legal system — as the entire country looks on.
Andrew C. McCarthy is a former federal prosecutor.
