https://www.law.com/newyorklawjournal/2022/12/02/trump-org-defense-team-calls-for-mistrial-over-das-references-to-ex-presidents-actions/?kw=Trump%20Org%20Defense%20Team%20Calls%20for%20Mistrial%20Over%20DA%27s%20References%20to%20Ex-President%27s%20Actions

Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J., Wednesday, July 7, 2021. Photo: Seth Wenig/AP

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Trump Org Defense Team Calls for Mistrial Over DA's References to Ex-President's Actions

Defense attorney Michael van der Veen argued that the Manhattan DA had presented Donald Trump as an unindicted co-conspirator in the fraud scheme, putting a bias on the jury “that can’t be undone.”

December 02, 2022 at 02:51 PM

4 minute read

Criminal Law

Jane Wester

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During his closing argument Friday in the criminal tax fraud trial of the Trump Organization, Manhattan assistant district attorney Joshua Steinglass showed jurors a memo initialed by former President Donald Trump.

In the memo, Trump Organization chief operating officer Matthew Calamari asked the company’s controller, Jeffrey McConney, to reduce his salary by $72,000, the amount the Trump Organization paid for his rent in 2012. Prosecutors have argued the process of “backing out” personal expenses from executives’ salaries was one way the Trump Organization avoided taxes in the later years of the alleged fraud scheme.

Steinglass noted that Trump had written “OK” and his initials on the memo in his signature black Sharpie.

“There’s only one reason for that, which is to underreport income,” Steinglass said. “Mr. Trump is explicitly sanctioning tax fraud.”

The Trump Organization defense team immediately offered an objection, which was sustained by Acting Supreme Court Justice Juan Merchan.

Steinglass reiterated after a sidebar that Trump “is not on trial,” but he emphasized that jurors should be skeptical of the defense narrative that McConney and Allen Weisselberg, who pleaded guilty to 15 counts in August and testified under a plea agreement, “went rogue” and acted without the knowledge or approval of the company’s CEO.

“This whole narrative to show Donald Trump was blissfully ignorant is just not real,” he said, later urging jurors to “put aside the elephant that’s not in the room” while remembering that “the rules apply to everyone.”

The “explicitly sanctioning” comment was one of several issues raised by Trump Organization defense attorney Michael van der Veen when he moved for a mistrial at the conclusion of Steinglass’ summation.

“We picked a jury and voir dired a jury based on the People’s representation that this case was not going to be about Donald Trump,” van der Veen said.

Van der Veen argued that Steinglass had presented Trump as an unindicted co-conspirator in the fraud scheme, putting a bias on the jury “that can’t be undone.”

Steinglass argued that the DA’s theory has always been that corporate liability is predicated on the actions of Weisselberg and McConney, not Trump, but Trump was nevertheless the CEO and president of the Trump Organization.

“If the name of the CEO were John Doe, there’d be no objection here,” Steinglass said.

Merchan said he did not recall Steinglass promising not to mention Trump. Instead, he said, he recalled Steinglass saying the DA’s case would not get into politics or suggest Trump should be sitting at the defense table.

“I don’t believe that it’s necessary to declare a mistrial,” Merchan said. “In fact, that’s not even really a thought.”

The Trump Organization defense attorneys also objected strongly to a chart prepared for Steinglass’ closing argument, which Merchan eventually allowed him to present.

The chart showed the various ways in which Weisselberg earned money through salary, bonus and unreported personal expenses across the years of the alleged fraud scheme.

Steinglass argued that, contrary to the defense team’s argument that the Trump Organization saved only an incidental amount on Medicare taxes through Weisselberg’s scheme, the company saved hundreds of thousands of dollars by funding its executives’ cars and apartments with so-called “pre-tax” dollars.

“In order to do this legally, to get the same amount into Allen Weisselberg’s pockets, the Trump Corp. and Trump Payroll Corp. would have had to gross him up roughly double,” Steinglass said.