by Jonathan Turley
Before the start of the Manhattan prosecution of former president Donald Trump, I characterized the case of District Attorney Alvin Bragg as based on a type of obscenity standard.
In a 1984 pornography case, Supreme Court Justice Potter Stewart wrote “I shall not today attempt further to define [obscenity]. . . . But I know it when I see it.”
Bragg has refused to clearly define the crime that Trump was seeking to conceal when payments for a non-disclosure agreement were listed as a legal expense.
We would just know it when we saw it at trial.
We are still waiting, but this week, Bragg seems to be prosecuting an actual obscenity case.
The prosecution fought with Trump’s defense counsel to not only call porn star Stormy Daniels to the stand, but to ask her for lurid details on her alleged tryst with Trump.
The only assurance that they would make to Judge Juan Merchan was that they would “not go into details of genitalia.”
For Merchan, who has largely ruled against Trump on such motions, that was enough.
He allowed the prosecutors to get into the details of the affair despite the immateriality of the evidence to any criminal theory.
Neither the NDA nor the payment to Daniels is being contested.
It is also uncontested that Trump wanted to pay to get the story (and other stories, including untrue allegations) from being published.
The value of the testimony was entirely sensational and gratuitous, yet Merchan was fine with humiliating Trump.
Daniels’ testimony was a dumpster fire in the courtroom.
The most maddening moment for the defense came at the lunch break when Merchan stated, “I agree that it would have been better if some of these things had been left unsaid.”
He then denied a motion for a mistrial based on the testimony and blamed the defense for not objecting more.
That, of course, ignores the standing objection of the defense to Daniels even appearing, and specific objections to the broad scope allowed by the court.
This is precisely what the defense said would happen when the prosecutors only agreed to avoid “genitalia.”
There was no reason for Daniels to appear at all in the trial.
Even if he was adamant in allowing her, Merchan could have imposed a much more limited scope for her testimony.
He could also have enforced the limits that he did place on the testimony when it was being ignored by both the prosecutors and the witness.
Merchan said that he is considering a limiting instruction for the jury to ignore aspects of the testimony.
But that is little comfort for the defendant.
The court was told that this would happen, it happened, and now the court wants to ask the jury to pretend that it did not happen.
