It has been suggested by some legal analysts that Manhattan District Attorney Alvin Bragg's criminal indictment against former President Donald Trump is thin and weak, and indeed, recent reports indicate that the prosecutor is still investigating and trying to build a case.
DA Bragg is reportedly seeking access to a sworn deposition Trump gave last year as part of the civil defamation case against him by columnist E. Jean Carroll over his denial of her unproven rape allegations, the Daily Beast reported.
The Manhattan prosecutor argued that Trump's responses in that taped interview show how the former president "dealt with allegations of a sexual nature" in the past, but Trump's attorneys moved to block Bragg's request by claiming that the deposition was confidential and under a protective order.
CBS News reported in late July that New York Judge Juan Merchan, who is overseeing DA Bragg's prosecution of former President Trump, ruled against several "overly broad" subpoenas that Bragg had issued in support of his effort to convict Trump of allegedly falsifying business records in relation to the 2016 "hush money" payments he made to silence accusations of prior sexual affairs.
The New York judge rejected Bragg's attempts to obtain emails from former first lady Melania Trump as well as other emails and documents from White House staffers and Trump Organization employees, as he determined that the "request would yield significantly more responsive records than necessary."
However, Judge Merchan did not block a subpoena for the sworn deposition in the Carroll case, as he believed it to be "relevant and material" to the Manhattan case, but rather told prosecutors to seek clarification from the federal judge who presided over that case whether the taped interview was still protected by a confidentiality order that had been in place during the civil proceedings.
In that deposition, Trump had addressed the infamous "Access Hollywood" tape leaked during the 2016 election in which he spoke crudely about what some women will let famous men do to them. Manhattan prosecutors argued that the tape, leaked around the same time that the "hush money" payments were made, "features prominently in the People's case" and that "the way in which defendant dealt with allegations of a sexual nature by women in the months leading up to the 2016 presidential election is clearly relevant to the allegations in the People's case."
DA Bragg's effort to obtain the Trump deposition in the Carroll case was mentioned during a recent broader discussion of the former president's mounting legal woes on MSNBC with host Andrea Mitchell and a panel of legal analysts.
Catherine Christian, a former prosecutor in the Manhattan office, said, "The question is whether or not the protective order on that deposition still exists, and if it doesn't, it will come in," and noted that while New York Judge Merchan was willing to allow it he had left the final decision up to U.S. District Judge Lewis Kaplan of the Carroll case.
"That's a very important deposition because the statements that Donald Trump made, particularly involving the 'Access Hollywood' tape, it sort of shows the state of mind in that period when those hush money payments were made to Stormy Daniels and Ms. McDougal, the former Playboy model, it sort of all explains why these were hush money payments as opposed to legal expenses that he claims they were," she explained.
Newsweek reported that according to former federal prosecutor Neama Rahmani, the federal judge was likely to allow the deposition tape involving former President Trump to be used in the Manhattan case for two reasons, the first of which is that prior admissions of a party are permitted to be used as evidence.
The former prosecutor also reasoned that there was an exception to the hearsay rule for former testimony when such testimony was made under oath or as part of an official proceeding.
"To the extent that the DA's office can credibly argue that this wasn't just a one-off affair. This is something that happens all the time. I don't think jurors are going to like that," Rahmani said of what Trump had said during the deposition and noted particularly that the "unapologetic" demeanor of Trump was likely to "turn off a lot of jurors, especially in a liberal jurisdiction in New York."
It is unclear when District Judge Kaplan will make a decision on whether to allow DA Bragg to use the Trump deposition in the Carroll case in his own prosecution of the former president, but the Daily Beast noted that Kaplan set Wednesday as the date by which both Trump and Carroll needed to file briefs in response to Bragg's request.