"More credible": Legal experts say Hope Hicks' testimony "ties everything more closely to Trump"

Former Trump campaign press secretary and White House communications director Hope Hicks testified on Friday in the New York criminal trial of the former president – and her testimony outlining Trump's hands-on leadership could help prosecutors make their case that Trump falsified business records to hide embarrassing information ahead of the 2016 election.

Hicks discussed her key role in meetings and made clear that she "reported to Mr. Trump," who, she said, closely managed his communications strategy. Multiple news outlets, including The New York Times, reported that Hicks said she was "very concerned" about the "Access Hollywood" tape in which Trump bragged about grabbing women by their genitals. The audio clip was published in October — a month before the election.

“I was concerned," Hicks said Friday. "Very concerned. Yeah. I was concerned about the contents of the email, I was concerned about the lack of time to respond, I was concerned that we had a transcript but not a tape. There was a lot at play."

Trump's defense, meanwhile, used their cross examination to ask Hicks questions about Cohen's informal role with the campaign and Trump's concern about his wife Melania's reaction to the "Access Hollywood" tape.

"He liked to call himself a fixer, or Mr. Fix-it, and it was only because he first broke it," Hicks said, according to The Times. Hicks also said of Cohen: "He would try to insert himself at certain moments."

Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying he was part of a scheme to kill damaging stories about extramarital affairs ahead of his 2016 campaign. Manhattan District Attorney Alvin Bragg alleged that Trump went to "great lengths to hide this conduct, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws."

Trump denies those charges, as well as the affairs. Each count is punishable by up to four years behind bars.

New York prosecutors have cited text messages, witness testimony, phone calls and other records to allege that Trump schemed to pay off adult film star and director Stormy Daniels, model Karen McDougal as well as a doorman who falsely claimed Trump had an affair with a housekeeper. The scheme allegedly involved a $130,000 payment to Daniels described as "legal expenses" in Trump Organization records. Bragg said the scheme "mischaracterized, for tax purposes, the true nature of the reimbursements" for that payment.

According to The Times, prosecutors asked Hicks if Cohen would have paid Daniels without alerting Trump. Hicks said that would have been out of character for Cohen.

Prosecutors on Friday asked Hicks about an email she wrote saying "Deny, deny, deny" concerning the Washington Post's email seeking comment about the Access Hollywood tape. She described that reaction as a "reflex." She also said the campaign was concerned about a Wall Street Journal article about McDougal.

“One of the defining characteristics of Hope Hicks, both in the campaign and in her time in the White House, was that Mr. Trump wanted to have her in the room as often as possible,” Hofstra University constitutional law professor James Sample said. “Hope Hicks is a witness who will heighten the connection between what the jury has already heard and the prosecutors need to establish that part of the reason for these deals was to influence the election.”

Prosecutors have highlighted the "Access Hollywood" tape as the impetus for quashing Daniels' story over their concerns about his election prospects. According to The Times, Hicks called the media aftermath of the tape's release as "intense" and that it "dominated coverage."

Hicks said she spoke to both Trump and his former lawyer, Michael Cohen, about Daniels' claims. Hicks also said she asked Cohen to "chase down a rumor" about another tape that could hurt Trump's campaign.

“The question is, ‘how much does she know?’” Sarah Krissoff, a New York white collar defense attorney and former federal prosecutor, told Salon. “About this catch-and-kill scheme, to the extent that she may have had a broader understanding of that … overarching conspiracy than [Daniels’ former lawyer Keith Davidson].”

Hicks could offer prosecutors a crucial nexus between the deals described by witnesses who have testified in the case so far – and the campaign’s desire for that deal to protect Trump’s chance of winning the 2016 election and mitigate the campaign’s fear that the Access Hollywood tape would decimate support from female voters. The Washington Post reported that their reporters contacted Hicks in October 2016 about its impending story breaking news about the tape.

“Obviously she has something useful to say,” Krissoff said. “Otherwise, the prosecutors wouldn’t call her.”

Krissoff said while Hicks is unlikely to add “bombshell” news, she likely she’ll help back up prosecutors’ case.

“Even if it's just little tidbits, sometimes it's a really small point of corroboration,” Krissoff said, adding: “Everyone sort of has just a little, little piece of the story and the DA’s office is going to argue that all of these puzzle pieces add up to a crime.”

Krissoff said Hicks offers a contrast to witnesses who have testified so far, including Daniels’ former lawyer.

“She probably has less baggage as a witness than some of the other folks,” Krissoff said.

According to The Times, Hicks testified Friday that Cohen told her he received a denial from Daniels about a Wall Street Journal detailing the alleged extramarital affairs. She also said she was told internally that Trump did not have an affair with McDougal.

Cohen, for his part, has said he lied to benefit Trump amid the 2016 election.

“All of the key witnesses so far are people that are been involved in a scheme in one way or the other,” Krissoff said. “They’re on one side or the other trying to get the money or paying money, other than a few sort of ministerial witnesses. She was more of a third party witness to the facts, not engaged in the underlying activity, but observing it because of her position with Trump. So I think that's going to make her more credible.”

Trump, for his part, argues he’s the victim of a political witch hunt and has called it a “bookkeeping” case. His defense has suggested he was the target of a shakedown – a Newsweek reporter tweeted that Trump lawyer Emil Bove on Thursday asked Davidson about the definition of extortion.

Trump attorney Todd Blanche has argued Trump was trying to protect “his family, his reputation and his brand.” In testimony last week, former National Enquirer publisher David Pecker said Trump’s “family wasn’t mentioned” in conversations with Cohen and Trump about the “catch-and-kill” scheme.

Hicks, in contrast, said Trump was concerned about Melania's reaction to the "Access Hollywood" clip. "President Trump really values Mrs. Trump’s opinion, and she doesn't weigh in all the time, but when she does, it’s really meaningful to him. He really, really respects what she has to say. I think he was just concerned of what her perception of this would be," she said.

“It’s really crucial to the state of mind at this point,” David Schultz, professor of political science and legal studies at Hamline University, said.

“The question is: what was the purpose?” Schultz said. “What was the intention behind it? And she can clarify that. If she can say: ‘Oh, yeah, we did this because we knew that this information coming out, or we thought this information coming out would have an impact in terms of affecting the election, and that we arranged to do all this to hide embarrassing information that could affect the election,’ that's pretty significant. And that it's just a long way to making the prosecutor's argument.”

Prosecutors have yet to discuss at length the particulars of the business records they accuse Trump of falsifying – a move Sample calls a “strategic” choice.

“To show that they were intended to influence the election is necessary to turn these crimes into felonies,” Sample said.

Sample said prosecutors are focusing on detailing the deals first, before going into Trump records that described payments to reimburse Cohen for hush money as legal fees.

Bragg initially cited three potential “aggravating factors”: tax implications, federal election law and New York state election law.

“As they've gone to trial, it has become clear that the one on which they are primarily relying is New York State election law and it is a relatively untested area,” Sample said. “It's untested for a pretty good reason, which is that most of the time when a falsification of business records matter is tried, it's just statistically not likely to be falsification in order to influence an election.”

Sample said some critics think the nexus between the scheme and influencing the election is a “bit tenuous.”

But Sample said of the prosecutors’ case: “It's certainly plausible, and it certainly fits the facts on the ground.”

Critics have questioned the merits of the case, the age of the events in question, its importance relative to Trump's other pending cases and whether prosecutors are overreaching on a federal election issue. In an opinion essay for The New York Times, Boston University law professor Jed Shugerman called the case an "embarrassment, in terms of prosecutorial ethics and apparent selectivity."

Shugerman said Trump could have "falsely recorded these internal records" to hide the hush money payments in order to deceive the F.E.C. and state investigators probing his campaign.

But Shugerman said it's unclear whether Manhattan prosecutors are pursuing that "novel" argument.

Shugerman said he couldn't find a case of a state prosecutor "relying on the Federal Election Campaign Act either as a direct crime or a predicate crime." Trump's lawyers are arguing an underlying crime must fall under the laws of New York — and Shugerman said prosecutors couldn't cite a judicial interpretation supporting their approach.

Overall, Shugerman said the prosecutors' election interference is too broad and may not survive a state appeal. He pointed out that President Biden's Justice Department itself has not appointed a special counsel to look into the issue.

But Bennett Gershman, former New York prosecutor and law professor at Pace University, said at the end of the day, the alleged election interference is highly troubling.

"This is a case where a man violated the law, and whether he should be punished for violating the law," Gershman said.

Still, Krissoff said she sees hurdles for prosecutors: “This is not an easy case for them to prove.”

“One of their key witnesses here, Michael Cohen, and actually, Stormy Daniels as well, have a ton of baggage about truthfulness here,” she said. “So there is lots of fodder for their cross examination.”

“They have been sort of laying this foundation at the beginning of these relatively more reliable witnesses who are outlining this scheme,” Krissoff said. “But some of those witnesses really don't connect up directly to Trump as much as the DA’s office would like.”

For example, Davidson, the Los Angeles-based former lawyer for Daniels, testified Tuesday that there was as “unspoken understanding that there was a close affiliation between David Pecker and Donald Trump, and that AMI would not run this story or any story related to Karen and Donald Trump as it would tend to hurt Trump.”

“Having some sort of belief or understanding is not the same as it actually being true,” Krissoff said.

“She sort of ties everything more closely to Trump,” Krissoff said. “And corroborates the bits of story that have emerged so far that show Trump communications, trying to corroborate these meetings or calls Pecker talked about.”

The best-case scenario for Trump? Krissoff said Trump’s team would have to hope that Hicks’ recollection is “vastly inconsistent” with other witnesses.

“Then, the defense can stand up and say: ‘Listen, you have to convict beyond a reasonable doubt,’” Krissoff said. “‘You're hearing the stories from witnesses that are not remotely aligned. Who do you believe? Do you believe him, do you believe her? Everybody here is telling us their version of the story and this is certainly not evidence beyond a reasonable doubt.’”

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The D.A.’s office would likely argue that any inconsistencies are expected for recollections of years-old meetings.

Pecker testified last week that Hicks was “in and out” of an August 2015 Trump Tower meeting. Prosecutors say Pecker, Cohen and Trump conspired to break campaign finance laws by scheming to “catch-and-kill” salacious stories about Trump.

Pecker said he recalled a phone conversation in which he told Trump he was planning to extend McDougal’s contract for six months. “He thought that was also a bad idea,” Pecker said of Trump.

“I wanted to extend her contract so she would not go out and give any further interviews or talk to the press or say negative comments about American Media or about Trump,” Pecker said.

Pecker said he received a second call back from Trump, Hicks and former White House press secretary Sarah Huckabee Sanders. “I explained to the two of them, that – why I was going to extend her agreement,” Pecker said. “And both of them said that they thought it was a good idea.”

During that second call, Pecker said Trump responded: ‘It’s your business. You do whatever you plan on doing.’”

Schultz said prosecutors may hope Hicks will shed light on whether “it was a deliberate decision on the part of Trump to make us basically work with Pecker to do catch-and-kill for the purposes of suppressing information that could affect the election – and not for the purposes of just covering up embarrassing material to protect Trump's family.”

In cross-examination, Trump lawyer Bove asked whether Pecker had told federal investigators in August 2018 that Hicks was at the 2015 Trump Tower meeting. At one point, he handed Pecker documents, saying, “I’m going to hand you a copy of this report, as well.”

The judge said Pecker could answer Bove’s question: “at no point during this meeting did you tell the government that Hope Hicks was present in August of 2015 at Trump Tower; correct?”

Pecker said: “I don’t remember.”

Prosecutor Joshua Steinglass raised an objection, saying that the report did not state whether investigators ever specifically asked whether Hicks attended the meeting.

The judge said: “Well, then how can he answer the question? The question is: were you asked?”

Bove said the report was not “memorializing then questions.”

The judge said that makes it “a bit disingenuous to hand the witness a document to refresh his recollection.”

The next day at trial, Steinglass asked the judge if he would address about “what we consider to be improper impeachment by omission by Mr. Bove?”

Bove said he apologized to Pecker “for any confusion about that.”

“That was my fault,” Bove told Pecker. “There was some confusion in the question about what had been said and whether Hope Hicks came up… I want to apologize and move on to another meeting from that. If I ask a bad question today, I think Mr. Steinglass will tell me.”

Bove later asked Pecker about the Trump Tower meeting: “And you did not suggest to the jury that you have a recollection of [Hicks] speaking during the meeting; correct?”

Pecker said: “That’s absolutely correct.”