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Trump's hush money trial starts, as his team hopes for delay

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: This is a persecution.

UNIDENTIFIED PERSON #1: He actually just stormed out of the courtroom.

UNIDENTIFIED PERSON #2: Innocent until proven guilty in a court of law.

SCOTT DETROW, HOST:

This week, we heard opening arguments in the former president's New York hush money trial and testimony from three witnesses for the prosecution, most prominently David Pecker, the former publisher of the National Enquirer. He gave us the first look into how the prosecution is framing their case, as one based on a pattern of election interference as they frame it. Perhaps even more consequential, the Supreme Court heard oral arguments this week over whether Donald Trump or any other president is immune from criminal prosecution. Although the justices seemed unlikely to grant Trump's blanket immunity request, many conservative justices seemed open to the idea of some form of presidential immunity. And it looks like there's a likely chance that any ruling would delay Trump's federal election interference case even further.

I discussed both of these cases with NPR senior political editor and correspondent Domenico Montanaro, as well as University of Baltimore law professor Kim Wehle. I started by asking Kim what she made of the story the prosecution is trying to tell the jury in the hush money trial.

KIM WEHLE: Well, there are really three legs to the stool here that they have to prove. The first is this is essentially a crime of falsification of business records. That's really the big issue here, which is not that big. But to get it from a misdemeanor to a felony, they have to prove that Donald Trump had an intent to commit fraud relating to those documents and that the intention was to cover up the hush money payments to affect the 2016 election.

So I think their story was, using David Pecker, listen, Donald Trump knew about this scheme, and he knew that it was about making sure that this information didn't go public to impact the election. So using his former secretary to put Stormy Daniels in Trump Tower, to her testimony that he kept Stormy Daniels and Karen McDougal's names and contact information in his Rolodex, so to speak. That bloops her into Donald Trump's orbit to establish that he was well aware of all this.

And then Pecker did testify that, you know, the understanding was this was about killing stories because they were really worried about, in particular, the "Access Hollywood" tape's impact and having that just be exacerbated by additional extramarital affairs.

DETROW: Right. Because, Domenico, that is a key thing here. David Pecker, the former National Enquirer CEO, is detailing this system where the magazine pays for lurid stories, gives people money for exclusive rights with the intention of never publishing them, of buying them and burying them. Pecker is saying that he's doing this to help Donald Trump. That, in itself, in a vacuum, is kind of seedy but not illegal, right? So the part the trial is focused on is what happens next. And Pecker testifying that he wasn't doing this because he liked Donald Trump, he wasn't doing this because he was embarrassed for Donald Trump, he was doing this because he wanted to help Donald Trump win, which makes it effectively a campaign contribution.

DOMENICO MONTANARO, BYLINE: Yeah. I mean, and beyond, you know, whether or not this is illegal, you know, whether it's normal, no. You know, I mean, this is not the kind of thing that presidential candidates do. Presidential candidates are not traditionally coordinating with the National Enquirer to kill stories about alleged affairs and creating stories about how your main opponent at the time, Ted Cruz, was, you know, his father was part of a conspiracy to kill JFK. And that was completely made up.

DETROW: It was made up. Yeah.

MONTANARO: Yeah.

DETROW: And we should just remind people it, yet it did kind of take over the campaign for a couple of weeks at a point where Cruz was Trump's main remaining opponent.

MONTANARO: Right. And people were analyzing the photo. And, you know, and you can just imagine sort of Pecker and Trump kind of like laughing about this kind of greatest troll ever, you know, created because, again, it was completely made up. It was intended, according to Pecker, to, you know, help Trump in the election, which seems fairly obvious considering Cruz was the, you know, last man standing in the Republican primary. You know, and that's why prosecutors allege that this is election interference. It started in the primary. It didn't just end up with, you know, Karen McDougal and Stormy Daniels as these hush money payments to allegedly cover up affairs but was happening throughout this whole thing and was essentially created - prosecutors are trying to show - to be able to help Trump win.

DETROW: Kim, the defense gave its opening argument. It cross-examined Pecker at length. The defense has cross-examined some of these other witnesses as well. But what to you is clear about the defense strategy based on what you've seen so far?

WEHLE: I think the strongest strategy, the strongest defense, is that this is just what happens in the rough and tumble of politics. His lawyer said, you know, it's called democracy. I think that's a almost grotesque exaggeration. Even if the government proves that Donald Trump was part of this, which it seems like Pecker established that and that it was about keeping information quiet around the campaign, that's not illegal, or at least it shouldn't be treated as a crime for purposes of this candidate or for, you know, the candidate for 2024, that this is just what happens.

DETROW: There's been a series of hearings about the gag order that the judge put in place on Trump and the prosecution, saying that Trump is repeatedly violating it through social media posts, through statements in the hallway. And we're waiting for a ruling. But, Kim, there was a big hearing on this, and there hasn't been a ruling.

WEHLE: There hasn't been a ruling. And, you know, Donald Trump seems to have pivoted his speech to how unconstitutional, unfair and unprecedented this gag order is. I mean, as with Donald Trump, the reason we're in this position has nothing to do with the courts. It's about him, you know, and getting him in line. I mean, the judge said to his lawyer, Todd Blanche, you're losing credibility, counsel, by sort of claiming that this is all OK. And I'm paraphrasing. The judge, I think, is frustrated. And there's a concern that Donald Trump just doesn't care, and he will continue to escalate violations of the gag order, which is narrow. He can say things about the judge. He can't say things about witnesses. He can't - things about jurors.

And there's two pieces here. One has to do with protecting the integrity of the trial, making sure that his constitutional rights are complied with. And the other is safety. I mean, Donald Trump - look at the two election workers, Shaye Moss and Ruby Freeman, whose lives were destroyed by being attacked by Rudy Giuliani and Donald Trump. The judge is aware of that. Competing with that is his right to speech, political speech. But that is - you know, I think, routinely exaggerated in this discussion is the First Amendment. It does not give people unlimited rights to speak about anything they want. It's balanced against other interests.

And how this judge is going to effectively constrain him to protect the trial on appeal and to protect the people involved, honestly, I don't know. I think it's kind of unprecedented given Donald Trump's platform and given the - sort of the tendencies even towards violence of his supporters and how fervently they support him and believe he is a victim of the judicial system.

DETROW: Let's talk about the other big legal story this week, and that was the Supreme Court finally hearing oral arguments on this idea of presidential immunity. Kim, Supreme Court arguments, especially from the conservative bloc, were pretty different, and I think to a lot of people who don't follow closely, shockingly different.

WEHLE: It was very disheartening and disturbing, although not surprising. And I say not surprising, first of all, because they took this case. They didn't need to take this case because - just so everyone's clear - in this moment today as we speak, there is no such thing as criminal immunity for presidents. It's unprecedented. There's no legal support for it. There's no support in the Constitution. Actually, the text of the Constitution suggests otherwise. There's no precedent for it. So this conservative court is poised to manufacture out of thin air - the textualists - a brand-new legal doctrine.

Not only did they take the case, but they didn't narrow the issue to the January 6 indictment. That's really what judges should do. They rule on the case before them. They instead expanded the question presented to immunity generally, which is really more of a legislative question. They really did not want to talk about January 6.

So when you think about the fact that we're here because of January 6, the horrors of January 6, the excesses of January 6, and the conservatives on the court are now poised because of that, and Jack Smith's attempt to try to disincentivize presidents from doing that in the future and hold Donald Trump accountable, they are now going to expand the powers of the presidency.

DETROW: Chief Justice John Roberts really didn't say much either way throughout the hearing. And Amy Coney Barrett, another conservative on the court, seemed a lot more skeptical of all of this than that main conservative bloc. But yeah, certainly that was the tone of these oral arguments. Domenico, this is almost like - feels to me like a natural extension of the last nine years of the establishment wing of the Republican Party wanting to look every direction but what is directly happening with their nominee and their president.

MONTANARO: That's true. I think I would go even further back than that, though, because you have to look at the fact that people are products of their experiences. To think about the justices on the Supreme Court, I thought it was really telling - our colleague Nina Totenberg did a really smart piece looking at the political backgrounds of each of the five justices who seem to be skeptical of not having some degree of immunity for a president from crimes.

Justice Alito, Kavanaugh, Thomas, Roberts, Gorsuch all have experience either in White Houses or around Washington politics that may have led them to this idea that there is political targeting, that they have - each have their own sort of grievances with how the processes have played out with the presidents they served with, with Gorsuch's mother, and how she was investigated when she was head of the EPA. Really interesting stuff on politics. Which, you know, I thought the training was that you separate out your politics from what is the, you know, dry reading of the law.

But that's the thing. When a lot of this stuff is not completely spelled out, then the justices get to interpret what has happened. And it's certainly, to Kim's point, not going back to any kind of originalist text and strictly looking at that. They are seeming to interpret this through their own political lens and their own experiential lens.

DETROW: So we're almost certainly looking at that classic June timeline for this ruling. If the court issues a ruling that sends it back down for further questions about the difference between official and private activity, I think that's almost certainly it for this case going to trial before the election. I appreciate both of you. That's Kim Wehle of University of Baltimore, as well as Domenico Montanaro. Thanks, guys.

MONTANARO: You're welcome.

WEHLE: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Domenico Montanaro is NPR's senior political editor/correspondent. Based in Washington, D.C., his work appears on air and online delivering analysis of the political climate in Washington and campaigns. He also helps edit political coverage.