The criminal tax fraud trial of two Trump Organization companies saw some drama — and a win for the prosecution — as the firm's controller was declared a hostile witness after being evasive on the stand.
The ruling, which prosecutors had unsuccessfully sought earlier in the trial, gives them more latitude in questioning Controller Jeffrey McConney, their own witness but one who so far hasn't been very helpful to them.
Armed with the ruling, Assistant District Attorney Joshua Steinglass was free to needle McConney, and went on the attack.
"Did you ever say to Donald Trump, 'Hey, the CFO is making me commit fraud?'" Steinglass asked, referring to longtime Trump Organization chief financial officer Allen Weisselberg.
"No," McConney said, adding later that he was just following the directives of Weisselberg, who was his boss.
"I thought if I refused or started fighting back, I'd probably lose my job," he said.
'Unbelievably evasive'
Prosecutors with Manhattan District Attorney Alvin Bragg's office are trying to show that allegedly abusive tax practices at the Trump companies weren't a secret scheme hatched by McConney and Weisselberg, as the defense contends, but part of the firm's business practices. Trump himself, who isn't charged, has called the trial a baseless vendetta.
One unusual aspect of the case is the loyalty that some prosecution witnesses may feel to the Trump Organization. Weisselberg pleaded guilty in August and must testify truthfully for the prosecution in exchange for a sentence as short as 100 days in jail. But he remains on the firm's payroll and has worked for the family since 1973, starting with Trump's father, Fred Trump. And McConney still holds his controller job at the firm.
It all came to a head at a hearing outside the jury's presence on Monday. Steinglass told the judge that McConney was being "unbelievably evasive" when questioned by prosecutors, after readily answering complex questions from
"Your honor, now I think it's fairly clear, both from his demeanor and answers, that he's given them anything she wants to hear," Steinglass said, gesturing to Necheles at the defense table. "He is being unbelievably evasive" in responding to the prosecution, "going back on what he's saying, looking down, and he refuses to speak English."
Stark contrast
This time New York State Supreme Court Justice Juan Merchan granted the request and declared McConney hostile.
"Now I see how he's handling direct examination again, I think it's very clear to the average observer that he's very helpful to you," Merchan told defense lawyers at the hearing.
In cross-examination by Necheles that began on Thursday and resumed Monday morning, McConney had easily answered the defense lawyer's questions. He testified that he had spoken to or met with the lawyer four times during his days on the witness stand, including in the middle of questioning by prosecutors.
At one point during Necheles's cross-examination, he even walked back testimony he gave last week that Weisselberg told him he had discussed with Trump using perks to reduce his reported salary — the alleged scheme at the heart of the case.
McConney, who is testifying under a grant of immunity from the DA's office, explained last week's response by saying he hadn't wanted to give prosecutors answers they wouldn't like.
"I was afraid I wasn't allowed to say anything other than what I'd testified before the grand jury," he said.
"Were you worried you'd have a problem?" Necheles asked.
"Yes," he said.
"Were you worried that prosecutors would claim you were committing perjury?" she asked. The judge told the jury to disregard the question.
"As you sit here today, do you believe Allen Weisselberg told President Trump?" she asked.
"No," McConney said.
Dramatic exchange
Fireworks ensued when Steinglass resumed his direct questioning of McConney, who began to falter and stammer as the prosecutor asked him why he had approved a $6,000 payment to Weisselberg's wife, Hilary Weisselberg, who didn't even work at the Trump companies.
"You know that wasn't legal?" the assistant DA asked.
"I'm not sure it wasn't legal," McConney said.
"You're not sure?" Steinglass asked, incredulously.
"You can issue a paycheck to anybody you want," McConney said.
The exchange prompted Steinglass to ask that McConney be declared hostile. The designation sent a jolt of electricity through the trial, which has had its moments of drama but has often been focused on ledgers and spreadsheets.
On several occasions Monday, the prosecutor even poked fun at Necheles in front of the jury, making air quotes with his fingers when referring to her "cross-examination."
The judge allowed him to do it, over the defense lawyer's repeated objections.
The case is People v. Trump Organization, 01473-2021, New York State Supreme Court (Manhattan).
