DONALD TRUMP

FactCheck: Trump's repeated claims on his New York hush money trial

FactCheck has examined the remarks former President Donald Trump has made about his hush money case and trial.

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Former President Donald Trump has been found guilty by a jury in New York on 34 felony counts of falsifying business records in an effort to conceal election law violations after buying the silence of porn star Stormy Daniels, shortly before the 2016 election. Daniels said she had a sexual encounter with Trump, who denies it. In recent days in his remarks outside the courthouse, in speeches and on social media, Trump repeatedly has made false and misleading statements about the case and trial.

  • Trump has repeatedly claimed, without evidence, that President Joe Biden is behind the prosecution of this case. This is a New York state case, and Biden has no control over it.
  • The former president has claimed that the judge in this case — Justice Juan Merchan — is “corrupt” or “conflicted,” but one of Trump’s own lawyers last year said he had “no issue … whatsoever” with Merchan.
  • Trump wrongly has claimed a limited gag order — barring remarks about certain trial participants — prevented him from answering “simple questions” or criticizing the Biden administration.
  • He falsely claimed that Merchan “wouldn’t let” Trump’s defense team call campaign finance expert Bradley Smith as a witness. The judge did not say Smith couldn’t testify, although he limited what Smith could potentially discuss if he testified.
  • Trump wrongly said the judge wouldn’t allow an “advice of counsel” defense. Before the trial, Trump’s attorneys chose not to seek such a defense, and Merchan held them to that decision.
  • He has also claimed that all legal scholars said this case “shouldn’t be brought,” and that Manhattan District Attorney Alvin Bragg himself “didn’t want to bring the case.” Bragg said he didn’t want to pursue a broader financial crimes case until it was “ready,” and there were some law experts who said the hush money case against Trump was “strong.”

The jury began its deliberations on May 29 and reached the verdict the following day. The indictment was brought by the Manhattan district attorney’s office. (See our Q&A on the indictment for more information.)

After the guilty verdict was revealed, Trump told reporters, “This was a rigged, disgraceful trial.” Sentencing is scheduled for July 11.

Not a Biden case

Without evidence, Trump has repeatedly claimed that President Joe Biden is responsible for the prosecution of this case. Biden has no control over state-level prosecutors.

“Make no mistake about it, I’m here because of crooked Joe Biden,” Trump claimed on May 28 in remarks to the press before closing arguments in the case. “This is purely his weaponization.” The following day, Trump said, “It was all done by Joe Biden. This judge contributed to Joe Biden.” He repeated the claim again after the guilty verdict, saying, “This was done by the Biden administration in order to wound or hurt an opponent.”

The 34-count indictment for this case was brought by Bragg, the Manhattan district attorney.

Despite his unsupported claims that Biden is behind the case, Trump has also claimed that “the federal government” looked at this case and “turned it down.” (The Federal Election Commission voted 2-2 on whether Trump violated campaign finance laws, so it couldn’t pursue any charges.)

Separately, the federal government has indicted Trump for other matters — his handling of classified documents after he left office and his attempts to remain in power despite losing the 2020 presidential election. But those cases, which Biden has denied any involvement in, have nothing to do with the New York hush-money case.

Trump’s suggestion that the judge in this case, Justice Juan Merchan, is linked to Biden rests on a $15 contribution Merchan made to Biden’s presidential campaign in 2020.

As we’ve reported before, Federal Election Commission records show three small donations from Merchan to ActBlue, a Democratic fundraising platform, in July 2020. In addition to the $15 to Biden’s campaign, the other two donations, of $10 each, were earmarked for the voter mobilization group Progressive Turnout Project and the group’s digital ad campaign called Stop Republicans.

Reuters reported on May 17 that the New York State Commission on Judicial Conduct dismissed an ethics complaint about the donations, with a caution to Merchan. Last May, an advisory ethics committee said Merchan wouldn’t need to recuse himself from the case, writing that “these modest political contributions made more than two years ago cannot reasonably create an impression of bias or favoritism in the case before the judge.”

Former President Donald Trump faces 34 felony counts of falsifying business records related to hush money payments to adult actress Stormy Daniels before the 2016 election. Here’s what you need to know.

Attacks on judge

Besides pointing to that small political contribution, Trump has made other attacks on Merchan’s credibility, claiming repeatedly, including after the verdict, that he is “corrupt” or “conflicted.” But before the trial, one of Trump’s lawyers at the time said he has “no issue … whatsoever” with Merchan overseeing the case.

In an April 2, 2023, interview with CNN, then Trump lawyer Joe Tacopina — who in January withdrew from representing the former president — said Merchan “has a very good reputation.”

Asked if he thought Merchan was biased, Tacopina said, “I have no reason to believe this judge is biased.”

According to his court bio, Merchan has been an acting justice on the New York Supreme Court since 2009. He was appointed to the Family Court for Bronx County in 2006 by then-New York City Mayor Michael Bloomberg.

In the past, Trump has objected to Merchan having been the judge who sentenced the Trump Organization’s chief financial officer, Allen Weisselberg, to five months in jail in a tax fraud case. At the January 2023 sentencing, Merchan said had there not been a plea deal, he would have imposed a harsher sentence than the five months, which ultimately was reduced to 100 days with good behavior. Weisselberg was released in April 2023, but sentenced to five months again, by a different judge, this April after committing perjury in the New York civil fraud trial against Trump.

Last year, Trump also said that Merchan’s daughter “worked for Kamala Harris” and “now receives money from the Biden-Harris campaign.” As we’ve said before, the career of Merchan’s daughter is irrelevant; she’s not the judge in this case. She works for a digital campaign consulting firm that does work for progressive clients, including the two campaigns mentioned by Trump.

Limited gag order

One of Trump’s more common — and often inaccurate — claims involves a gag order that Merchan imposed on March 26 and expanded on April 1.

“Every time I speak to you, you ask me simple questions. I’m not allowed to give you the answer because I’m gagged by the judge,” Trump said in remarks outside the courtroom on May 29, as jury deliberations began.

The former president has made similar remarks before and during the trial. At the Libertarian National Convention on May 25, Trump wrongly accused the “Biden regime” of “imposing a strict gag order in order to keep me from talking about their crimes and their unconstitutional acts.”

The gag order issued by Merchan — not “the Biden regime” — did not prevent Trump from speaking “every time” he was asked a question, and it did not prevent him from criticizing the Biden administration.

Manhattan District Attorney Bragg requested a gag order in February, citing the former president’s “long history of making public and inflammatory remarks about the participants in various judicial proceedings against him, including jurors, witnesses, lawyers and court staff.” Merchan agreed to a limited gag order that sought to prevent Trump from making intimidating or harassing remarks about certain trial participants.

Specifically, the March 26 order covered witnesses, jurors, court staffers, the prosecuting attorney and the district attorney’s staff (though not the district attorney himself), as well as family members of the district attorney’s prosecutors and staff members. “The uncontested record reflecting the Defendant’s prior extrajudicial statements establishes a sufficient risk to the administration of justice consistent with the standard set forth in Landmark, and there exists no less restrictive means to prevent such risk,” Merchan wrote, referring to a 1978 Supreme Court ruling.

The judge expanded his order on April 1 to include his family and member’s of the district attorney’s family after Trump attacked the judge’s daughter on social media.

“The average observer, must now, after hearing defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well,” Merchan wrote. “Such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the Rule of Law itself.”

The gag order, in its original and the amended form, allowed Trump to criticize Merchan and Bragg. And, of course, Trump was free to continue to make remarks about Biden and others not involved in the trial.

“The Defendant has a constitutional right to speak to the American voters freely, and to defend himself publicly,” the amended order stated. “This Decision and Order is equally narrowly tailored and in no way prevents Defendant from responding to alleged political attacks but does address Defendant’s recent speech.”

To date, Trump has been fined $10,000 for violating the gag order on 10 occasions. Among the violations were comments about witnesses and the jury, including a social media post that quoted a Fox News host as saying “undercover Liberal Activists” were “lying to the Judge” to get on the jury.

Smith could have testified

In his May 29 remarks, Trump falsely said that his attorneys planned to have Bradley Smith, a former Federal Election Commission chairman, testify for the defense, but were denied by Merchan.

“This judge didn’t even let us use the No. 1 election attorney,” Trump said. “We had the leading election expert in the country, Brad Smith, ready to testify. Wouldn’t let him do it.”

But it’s not true that Merchan would not let Smith take the stand. Trump’s team decided not to use Smith as a witness after Merchan narrowed what he could talk about.

In a pretrial decision, Merchan ruled that Smith could “not testify as a lay (fact) witness; offer opinion testimony regarding the interpretation and application of federal campaign finance laws and how they relate to the facts in the instant matter, nor may Smith testify or offer an opinion as to whether the alleged conduct in this case does or does not constitute a violation of the Federal Election Campaign Act.”

Instead, Merchan said that Smith would be permitted to provide “general background” about the FEC, including what it does and what laws it may enforce, and he would be able to define certain terms, such as campaign contribution, “that relate directly to this case.”

However, in court on May 20, Merchan also said that “it will be impossible” for Smith to address three specific terms that the defense wanted Smith to talk about “without invoking, discussing and interpreting the application of federal law.” The judge also pointed out that if Smith were called to testify, the prosecution would be allowed to call its own witness to testify on the same subject matter, resulting in a “battle of the experts” that may confuse the jury.

Ultimately, Smith was not asked to testify in court. In a social media post on May 20, Smith complained that Merchan had “so restricted” his testimony, but acknowledged that the “defense has decided not to call” him.

‘Advice of counsel’ defense

On the evening after closing arguments, Trump complained on Truth Social that Merchan would not allow him to employ an “advice of counsel” defense during the trial. Actually, Trump’s defense attorneys made a strategic decision before the trial to not seek such a defense. Merchan held them to that.

“An advice of counsel defense says that the defendant lacked the specific intent necessary to commit the charged crime (in this case, intent to defraud) because he was advised by his attorney that his behavior was lawful,” Randall D. Eliason, who teaches white collar criminal law at George Washington University Law School, explained to us via email. “If that’s true, that negates the required criminal intent.”

“THE GREATEST CASE I’VE EVER SEEN FOR RELIANCE ON COUNSEL, AND JUDGE MERCHAN WILL NOT, FOR WHATEVER REASON, LET ME USE THAT AS A DEFENSE IN THIS RIGGED TRIAL,” Trump wrote on Truth Social on May 28. “ANOTHER TERM, ADVICE OF COUNSEL DEFENSE!”

“To present such a defense, the defense usually has to announce it in advance and, most important, has to agree to waive attorney-client privilege so the attorney can testify about the legal advice given,” said Eliason, a former assistant U.S. attorney for the District of Columbia, where he served as chief of the public corruption/government fraud section. “That waiver would apply to all attorney-client communications, so the defense often is reluctant to do that.

“That’s what happened in this case – Trump was not willing to waive attorney-client privilege as required, so the judge told him he could not present the defense,” Eliason said. “So he was not flatly prohibited from offering an advice of counsel defense, he was prevented from doing so when he would not take the legal steps necessary (including waiver) to properly raise the defense. That’s standard.”

In a March 12 court filing, Trump’s attorneys said they would not be employing a “formal advice-of-counsel defense.”

However, Trump’s lawyers did attempt to put forth a related argument, that Trump “lacked the requisite intent to commit the conduct charged in the Indictment because of his awareness that various lawyers were involved in the underlying conduct giving rise to the charges.” They noted that this argument was not “a formal advice-of-counsel defense,” which, his lawyers said, “would require him to prove at trial that he (1) made a complete disclosure to counsel [concerning the matter at issue], (2) sought advice as to the legality of his conduct, (3) received advice that his conduct was legal, and (4) relied on that advice in good faith.”

The trial was previously scheduled to start May 20.

Therefore, they argued, “there is no privilege waiver requiring production of communications protected by the attorney-client privilege.”

On March 18, however, Merchan ruled against the use of a so-called “presence” of counsel defense.

“To allow said defense in this matter would effectively permit Defendant to invoke the very defense he has declared he will not rely upon, without the concomitant obligations that come with it,” Merchan wrote. “The result would undoubtedly be to confuse and mislead the jury. This Court can not endorse such a tactic.”

Nevertheless, during the trial, one of Trump’s attorneys said, according to a CNN account, that he wanted “to be able to argue that because Michael Cohen testified that ex-National Enquirer publisher David Pecker told him the agreement was ‘bulletproof’ and Cohen communicated that to Trump, that they should be able to argue it goes to Trump’s state of mind and intent to defraud.”

Merchan said his previous decision had not changed and “honestly I find it disingenuous to make it at this point.”

“This is an argument that you’ve been advancing for many, many, many months,” Merchan added. “This is something you’ve been trying to get through to the jury for many, many, many months. It’s denied; it’s not going to happen. Please don’t raise it again.”

The case against Trump

Trump has argued that he should have never been put on trial because “every single legal scholar and expert said this is no case” and “shouldn’t be brought,” as he said on May 29. Even “Bragg didn’t want to bring the case.” On May 30, Trump claimed that “Bragg turned it down, then rejuvenated it when I was running for office.”

It’s not true that there were no legal minds who thought there was a case against Trump.

Norman Eisen, a CNN legal analyst who served as special counsel for ethics and government reform during the Obama administration, and John Dean, a CNN contributor and former White House counsel to President Richard Nixon, wrote an April 2023 opinion piece titled “Alvin Bragg was right to prosecute Donald Trump.”

The men noted that many had said that the hush money case appeared “too political,” “too thorny legally” and “should have been brought by federal authorities – or not at all.” And though Eisen and Dean said that there were “important critiques of the case” that “are worthy of consideration,” the men concluded that “ultimately, they are all wrong.”

“Bragg’s case is a strong one and should not be resisted merely because it involves a controversial political figure,” they wrote.

Eisen made similar points in another April 2023 op-ed co-authored with Karen Friedman Agnifilo, also a CNN legal analyst and a former Manhattan chief assistant district attorney. The headline: “We Finally Know the Case Against Trump, and It Is Strong.”

They said some legal observers feared that the case would be weak, which turned out not to be so.

“With the release of the indictment and accompanying statement of facts, we can now say that there’s nothing novel or weak about this case,” Eisen and Adnifilo wrote. “The charge of creating false financial records is constantly brought by Mr. Bragg and other New York D.A.s. In particular, the creation of phony documentation to cover up campaign finance violations has been repeatedly prosecuted in New York. That is exactly what Mr. Trump stands accused of.”

In the end, they said that Trump was “being treated as any other New Yorker would be with similar evidence against him.”

As for Bragg, Trump may be referencing comments that were made about his reluctance to bring a broader case about Trump’s alleged financial crimes — not specifically the hush money case.

As we have written, Mark Pomerantz, a former prosecutor in the Manhattan DA’s office, wrote in a book released in early 2023 that Cy Vance, Bragg’s DA predecessor, “agreed and authorized” the prosecution of Trump for allegedly obtaining bank loans by overvaluing his assets. But Pomerantz wrote that once Bragg took office, “the new regime decided that Donald Trump should not be prosecuted, and the investigation faltered.”

When Pomerantz resigned in protest in March 2022, he said that Bragg’s decision was “misguided and completely contrary to the public interest.”

However, Bragg later said that he had not ruled out bringing a case in the future.

“I bring hard cases when they are ready,” Bragg said, during a February 2023 press conference, in which he was asked about what Pomerantz had written in his book. “Mark Pomerantz’s case simply was not ready. So I said to my team, let’s keep working,” Bragg said.

Bragg announced the indictment for the hush money case against Trump on April 4, 2023.

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