During closing arguments in Donald Trump’s criminal trial in Manhattan on Tuesday, lead defense attorney Todd Branch blasted the credibility of the prosecution’s star witness, the former president’s estranged fixer, Michael Cohen, saying He is “the greatest liar of all time.” The strategy makes sense given Cohen’s role in establishing that Trump “caused” the falsification of business records at the heart of the case. But even if the jury believed Cohen’s testimony, it would not prove that Trump falsified the records to facilitate or conceal “another crime,” which is grounds for charging Trump with 34 felonies rather than 34 misdemeanors.
Cohen was a convicted felon, disbarred and an admitted liar who harbored a deep resentment against his former boss. A $130,000 payment to porn star Stormy Daniels shortly before the election. Trump, who has appointed Cohen as his personal attorney, described the checks as “reserved” payments. But Cohen said Trump knew that characterization was false, describing it during a January 2017 meeting at Trump Tower by Trump Organization Finance Chief Allen Weisselberg (who did not testify) After hearing this statement, Trump agreed with it.
“You couldn’t have found out that President Trump knew when he made this payment without taking Michael Cohen’s word for it,” Branch told jurors. Branch said that given Cohen’s history of dishonesty and his involvement in Trump’s hostility, jury ‘cannot convict President Trump’ [of] According to Michael Cohen, no crime was committed beyond a reasonable doubt.
However, even without Cohen’s testimony, there is strong circumstantial evidence that Trump “knew of the payment.” It’s unbelievable that Cohen, who is eager to please Trump and often consults with him, would have hatched the scheme himself, or that he would have spent $130,000 of his own money without a promise of reimbursement.
Trump’s lawyers said he was too busy with his presidential duties to focus on the legitimacy of Cohen’s invoices or how the payments were recorded. But Trump personally signed nine of the 11 checks to Cohen, and prosecutors credibly painted him as a proud miser who would never pay Cohen a total of $420,000 — according to Weisselberg of handwritten notes, which included income tax adjustments, bonuses and reimbursements of unrelated expenses – but the exact purpose was unknown.
Branch had more reason to argue that prosecutors failed to prove “another crime.” While prosecutors are still hesitating on the specifics of the crime, they have said their main theory is that Cohen and Trump conspired to promote his election through “unlawful means” in violation of an obscure New York state law. The law apparently was never invoked. Under this theory, prosecutors are using one misdemeanor (illegal promotion of Trump’s election) to convert another misdemeanor (falsifying business records) into a felony. But the only way they can do that is by arguing that the non-disclosure agreement (NDA) with Daniels constitutes “unlawful means.”
The defense team noted that nondisclosure agreements are common and that they are not illegal in themselves. Prosecutors argued that Cohen violated the Federal Campaign Act (FECA) by paying hush money to make excessive contributions to the campaign. Cohen accepted that characterization in a 2018 federal plea agreement that hinged on a blurry distinction between personal and campaign spending that also resolved several other unrelated charges against him. But Trump doesn’t appear to believe Daniels’ payment was illegal, which helps explain why he was never indicted for soliciting Cohen’s “contribution”: To convict Trump, federal prosecutors would have to prove he “knowingly and willfully “Violation of FECA.
New York prosecutors said the standard for a FECA criminal conviction was irrelevant: Even if Cohen’s payment to Daniels was merely a civil violation of federal campaign finance regulations, it still constituted an “illegal means.” But Trump’s understanding of FECA’s requirements remains relevant. If Trump believed the nondisclosure agreement was entirely legal, as his lawyers insist, he could not have knowingly conspired with Cohen to illegally influence the election. The claim that he falsified business records to cover up alleged criminal conduct hinges on the assumption that he was aware of the moribund state election law prosecutors relied on (which is questionable) and anticipated how they would interpret it, FECA, which A little more questionable.
Prosecutors sought to cover up the issues, asserting that Trump committed “election fraud” when he directed Cohen to pay Daniels for silence, thereby withholding information that voters might have considered relevant to their choice between him and Hillary Clinton. “This was a planned, coordinated, long-term conspiracy to influence the 2016 election and help Donald Trump through illegal expenditures,” Chief Prosecutor Matthew Colangelo told the jury in 2016. Trump was elected to silence those who had bad things to say about his actions. “This was pure election fraud. “
During his summing up, prosecutor Joshua Stanglass sought to use Branch’s scathing characterization of Cohen against Trump. “We did not select Michael Cohen as our witness,” he said. “We did not go to the witness store to pick him up. The defendant chose Michael Cohen as his middleman because he was willing to deceive and lie on his behalf.” Steinglass acknowledged that “Cohen was biased” and that this was because he “was the only one who served “It is understandable that people who have paid the price for their role in this conspiracy are outraged.”
As for the nature of the conspiracy, Stanglass called Daniels’ confidentiality agreement “a subversion of democracy.” He called it “an effort to deceive American voters.” He told “a sweeping story of a fraud perpetrated on the American people,” New York Times explain. “He argued[d] The American people in 2016 have the right to decide whether they care if Trump sleeps with a porn star, and this conspiracy prevents them from doing so.
Do the American people have such a right? If so, Trump would be violating that rule even by simply asking Daniels to remain silent, perhaps by appealing to her to sympathize with his wife. Had Daniels agreed, the outcome would have been the same. This still amounted to “election fraud,” as prosecutors put it, even though there was clearly nothing illegal about it.
There is a glaring mismatch between the charges against Trump and the nature of his crime as described by prosecutors, which was not a crime at all. Because they couldn’t charge him with “election fraud” simply because he tried to hide embarrassing information, they instead built a complex case that relied on interplaying statutes and contested assumptions about Trump’s knowledge and intent. .
Ultimately, the jury will likely buy the bill. Stanglass “knew that many of these jurors who were committed to fairness and impartiality may have views about Trump that they should not consider in this trial,” era Journalist Jonah Bromwich writes. “But he tied the case against Trump to a broader assessment of him by his political opponents — trying to tap into jurors’ underlying political sympathies while still talking about the evidence that made it into the courtroom.”
In heavily Democratic jurisdictions, these “potential political sympathies” could be crucial. But if jurors take their responsibilities seriously, they may notice holes in the state’s case.
Stanglass defended prosecutors’ decision to tell Daniels salacious and unflattering details about her sexual relationship with Trump, saying the details were relevant to establishing Daniels’ motives in trying to silence her. He said the same was true for leaked information enter hollywood Trump was recorded bragging about sexually assaulting women, something prosecutors have repeatedly raised. They said Daniels’ comments could deal a fatal blow to Trump’s campaign after the news came to light.
The legal logic here is that Trump is primarily concerned about the election, so Daniels’ compensation should be considered a campaign expense, making Cohen’s campaign contribution too large. This in turn makes it a misdemeanor under New York election law. Trump is said to have understood all this, which is why he agreed to conceal his reimbursement to Cohen. Even though that happened back In elections, it somehow achieves “the purpose of keeping voters away from the message.”
We could discuss the legal implications of asking jurors to imagine a swaggering Trump in his underwear, imagining him having “brief,” condomless sex “in missionary position,” and recalling that he “grabbed women ‘s vagina”. But like much of the testimony — including Cohen’s claim that Trump “didn’t have Melania in mind” when he decided to pay Daniels — the evidence undoubtedly reinforced the impression that Trump is a terrible person.
If prosecutors want to prove that, the evidence they present is enough. It may also be enough to conclude that he falsified business records. But there is plenty of room for reasonable doubt as to whether the records were intended to cover up “another crime.” Contrary to what prosecutors suggested, the state’s broad definition of “election fraud” didn’t matter.
