This should mean that the opposite is also true. If he is not paid, he will testify. And people have killed each other over far less money. If I went to jail at Riker’s Island for several months and was expecting $750,000 when I got out but then found out I wasn’t going to get it, no amount of previous gifts received would make me say “oh well, I guess I should just appreciate what I have.”
That’s the thing - Trump pays at least something to some people. He happens to be one of them.
He was even one of those singled out as loyal in those interminable and interchangeable books Trump puts out. Frankly, Weisselberg has a reasonable expectation that relationship will continue. This is not exactly some kind of shocking bit of irrationality.
Some people treat that $750k as money that will never be paid. Why? There’s actually more than a reasonable shot it will be. Yes, Trump rips a lot of people off. But clearly not everybody. Or else he’d never have anybody ever work for him for more than a few weeks. It’s quite likely he’s got a cushy gig waiting for him after, too.
Cohen, on the other hand, even limited to the evidence presented in this trial, clearly expected more and didn’t get it. And he was and continues to be rather sore about it.
The only kind of legal training I had was business law (just one class as a Business Admin major) so take this with a grain of salt, but if I remember correctly in the US if following a clause in a contract requires you to break the law, then that clause is unenforceable.
So if keeping his mouth shut due to an NDA is obstruction, he doesn’t have to do it. He can cooperate without fear that the contract was violated.
If the law forced you to have to choose between breaking a contract and breaking the law that would be messed up, but fortunately it doesn’t work that way.
Weisselberg knows better than anyone that if he testifies, he’s not getting paid, whatever the law says. He can sue Trump, who will counter sue (for something) and bury him in legal bullshit until he dies.
I also think that if Trump agreed to pay him but only if he didn’t testify (whatever the weasel wording) that seems unenforceable on both sides. IOW, I don’t think W can agree to forego something for which he has a legal duty. His consideration is not legally valid. It can’t legally bind Trump any more than Trump’s $750K binds W.
And none of it matters, because he’ll simply plead the fifth (which, frankly, seems reasonable), collect his dough, and live out his retirement.
There really isn’t. People have successfully used trump as means of getting their (universally terrible) political platform on the levers of power, and some owe trump for their advancement because no other POTUS would allow such bafoonish incompetents into positions of power, however fleetingly.
But at no point has Trump actually gotten into a relationship with another party and followed through on given them what he promised unless he was getting more than that in return (e.g. the Weisselberg tax fraud the Trump org saved more money on avoided Medicaid fees than Weisselberg saved in taxes, and it didn’t cost them anything more).
If I was the New York State government, I’d make such contracts both unenforceable and any money paid under such a contract subject to seizure.
I checked, but I don’t see that the transcript from the actual hearing is up yet.
However, from the article I linked to upthread, there is this snippet
So it might be technically true that he is allowed to testify.
The issue for both sides, as that same article notes, is that Weisselberg is an unknown variable at this point. On one hand, he has a history of Trump subservience, and a contract that gives him a financial incentive not to remember things. On the other hand, he is a man in his 70s sitting in jail for the second time. Is he bitter? Is he willing to just spill the truth? Or is he going to be a Trump loyalist to the end?
As we’ve seen, the DA would like to not have him here, but instead introduce his payoff agreement. That’s less work for them, and it makes that part of the case cleaner than dealing with his (likely uncooperative) testimony.
But it sounds like the judge, who has a strong motivation to ensure that he is not later overturned on appeal, might prefer to just tell the jury “Weisselberg isn’t here for reasons outside the control of either party.” Which is what the law says to do if Weisselberg isn’t legally available.
If I’m the defense, I definitely don’t want the severance/payoff agreement to come in. The ideal scenario would be for the judge to tell the jury that Weisselberg wasn’t called by the DA because he would have contradicted their case, but it sounds like they are agreeing with the judge that he’s not going to answer any questions.
I think the judge is being wise by saying to bring Weisselberg over and put him on the stand without the jury present. That way we know how he’s going to respond. And I bet that’s what we get next week even before cohen takes the stand.
How does the judge rule? My guess: If Weisselberg pleads the 5th, the judge instructs the jury that Weisselberg wasn’t available for either party, and they should draw no inference from his absence. But if Weisselberg testifies favorably for the defense, then I think the judge lets the DA choose not to call him and instead introduce evidence of his hush money agreement with the Trump org (and then, if they so choose, the defense can call him as their witness).
As an ignorant non-lawyer, does that mean that Weisselberg has to waive his 5th Amendment rights if he wants to testify on behalf of the defense, and then opens himself up to cross-examination by the prosecution? He can’t testify then refuse to answer questions that might implicate him in a crime, giving the defense an unfair advantage. Am I assuming correctly?
Yep, on cross, he’d have to answer any question related to his direct testimony, and I wouldn’t be surprised if the judge allowed the prosecution to enter his NDA to impeach his credibility.
Don’t think of it as Weisselberg’s choice to testify; it’s up to either side whether they would choose to call him as a witness. (The choice for Weisselberg is whether to be cooperative)
Since he’d be called as a witness, and would be there from jail subject to the party’s subpoena power, he’d have no choice but to take the stand.
This means two things. One, he’s subject to cross examination by the other side (so, yes, if the defense calls him as a witness, the DA would get to cross examine him). And, two, he can invoke the fifth amendment as to any questions he’s asked which might be used against him.
In that latter sense, the parties are speaking colloquially when they talk about the witness “taking the fifth”. They are referring to the expected response to specific questions that they’d ask about the payoffs; they aren’t talking about a blanket refusal to testify.
I agree. If the defense calls him, the DA will be allowed to use his agreement to impeach his credibility. Thats part of why I don’t think the defense wants to call him and are harping on the idea that he just won’t answer questions.
…
There’s another thing I saw in the coverage yesterday that I thought was worth noting:
If you listen to the Michael cohen recording of Trump, when they talk about the repayment to McDougal, it abruptly cuts off right after Cohen mentions not using cash.
On Friday, one of the DA’s paralegals was able to testify that they corresponded that time with call logs to show that the phone received a call when the recording stopped.
The DA has been very thorough.
I also found this amusing.
Lawyer to donald : “Here’s some bullshit that Hannity wrote about you. Why don’t you highlight it while we work? You do know how to color, don’t you?”
Correct me if I’m wrong, but my understanding is that if he answers a question on direct, cross can ask him questions on the subject he spoke to because he has waived his Ffifh Amendment rights on that topic.
MAGAsplainin’.
Yes, I agree.
And that is why it is so risky to waive that right, and why lawyers advise to cast such a wide net.
Could the judge grant him immunity? Then he would be unable to involve the fifth, right.?
No, but the DA could (and did, for Pecker*). But ultimately this goes back to Weisselberg’s loyalty to donald.
Which, as I think about, weighs in favor of letting the DA claim that he’s a defense witness, and therefore get to present his severance agreement to explain why they didn’t call him.
*well, actually, it was the feds who gave Pecker immunity. Recall that the campaign finance violation is a federal crime, so that was the liability that Pecker faced. I have no doubt testifying fully and completely was a condition.
No kidding about the wide net! I’ve proofread depositions where the witness refused to answer ANY questions beyond name and address. Just read the Fifth formula off a cue card to every subsequent question. And that was in civil litigation.
I had one like that years ago. My clients lived overseas, and had given money to an accountant living in Florida to invest. She wasn’t replying to their calls and wouldn’t account for the money. I was hired to sue her. At the deposition, in addition to her civil lawyer, was a new person - a criminal lawyer - who told her not to answer anything. It got to the point where she just held up a hand to show me “5” after every question. I was flummoxed.
(This was before I did criminal law. It turned out that the woman had used the money for herself. My case got easy, because we quickly worked out a repayment plan.
And I was prepared the next time somebody took the fifth on me at a deposition. If you aren’t going to answer any of my questions, then I’m going to ask you the most incriminating questions. Why? Because while we can’t use the answer against you to prosecute you, it does establish an adverse inference in the testimony that you are giving).
Though that matters less if he can’t claim the fifth. Its one thing to claim the fifth for Trump, another to actually lie under oath for him.
Its all pretty academic as I can’t see them deciding to call him at this short notice.
I thought the 5th was against incriminating oneself - not the other guy.
The thing about the Fifth is that the questioner is not able to prove that the answer could be incriminating. We have to take the witness’ word for it. In Burdick v US, Wilson issued a blanket pardon to the persons of interest, to eliminate any possibility of jeopardy so that they could be compelled to rsepond – but, they rejected the pardons and held out (a pardon is a reactive instrument: the recipient must present it to the bench for it to take effect).