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Manhattan prosecutors in Donald Trump’s hush money case can’t play the infamous “Access Hollywood” tape for the jury — that is, unless Trump’s defense team gives the judge a reason to let them.
In a pretrial ruling, Judge Juan Merchan said prosecutors with District Attorney Alvin Bragg’s office can elicit testimony about the 2005 recording that “contained comments of a sexual nature which Defendant feared could hurt his presidential aspirations.” The judge noted that the tape, which surfaced a month before the 2016 presidential election, is relevant to the charges of falsifying business records because it helps establish Trump’s intent and motive for allegedly paying off Stormy Daniels and then attempting to cover it up. But the judge reasoned that it’s unnecessary for the tape itself to come into evidence or be played for the jury. The former president has pleaded not guilty.
However, in a potentially important caveat, Merchan said he may reconsider his ruling if the defense were to “open the door.”
However, in a potentially important caveat, Merchan said he may reconsider his ruling if the defense were to “open the door.”
What does it mean to “open the door,” you might wonder? That’s when one side at trial does something that lets the other side introduce evidence that it otherwise wouldn’t have been able to. Here, that could happen if the defense were to create a misleading impression regarding the evidence in question. Whether the line is crossed into door-opening territory is something that the judge would assess in the moment, at his discretion.
As it stands, Merchan’s ruling on the tape is pretty good for Trump, because the jury wouldn’t be able to directly hear the defendant’s own words about being able to grab women’s genitals by virtue of his celebrity. In a court filing ahead of Merchan’s ruling, prosecutors wrote that the tape’s release “caused a panic within the campaign about defendant’s electoral prospects and ultimately served as the catalyst for consummating the Stormy Daniels payoff.” But Merchan ruled that a compromise was warranted, to avoid “undue prejudice” to the defendant.
Now, assuming a trial goes forward at some point — it recently hit a delay snag that could be cleared up next week — Trump’s lawyers just have to make sure they don’t call that evidence into question in a way that lets prosecutors play the tape itself. That’s a door they don’t want to open.
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