THE FRIDAY
READ
Will the Jury Convict Trump? Here Are the Clues.
Judgment day approaches.
By ANKUSH
KHARDORI
05/24/2024
05:00 AM EDT
https://www.politico.com/news/magazine/2024/05/24/trump-trial-verdict-00159676
Ankush
Khardori is a senior writer for POLITICO Magazine and a former federal
prosecutor at the Department of Justice, where he specialized in financial
fraud and white-collar crime. He has also worked in the private sector on
complex commercial litigation and white-collar corporate defense. His column,
Rules of Law, offers an unvarnished look at national legal affairs and the
political dimensions of the law at a moment when the two are inextricably
linked.
It’s been
four-plus weeks of rolling in the muck in a Manhattan courthouse, with
sometimes heated testimony and cross-examination featuring a tabloid publisher,
a porn star and a former fixer for Donald Trump. And nobody involved is coming
out looking good.
But that’s
not what People v. Trump is ultimately about. The first-ever criminal
prosecution of a U.S. president, at least according to the team of prosecutors
working under Manhattan District Attorney Alvin Bragg, is about alleged
“election interference” during the 2016 campaign committed at the behest of the
former and potentially future president.
Is Bragg
going to convince a jury?
As we
approach closing arguments on Tuesday, here’s what we can say: It appears that
the odds of Trump being convicted are fairly good — but not overwhelming.
Perhaps slightly more likely than not.
The
likelihood of an acquittal, which would require all 12 jurors to unanimously
conclude that Trump is not guilty, appears slim at best.
Yet there
is a very real chance that one or more jurors will refuse to convict — most
likely because they are unwilling to fully credit the testimony of Michael
Cohen — and that the jury will hang, resulting in a mistrial and a de facto
victory for Trump.
Several
major factual issues appear to be largely (if not entirely) incontestable at
this point given the way that the evidence came in over the course of the
trial. Much of it is not good for Trump.
First,
Trump had an extramarital sexual encounter with Stormy Daniels, despite his
yearslong claims to the contrary both before and during the trial. Second,
Trump worked with and through David Pecker, the former publisher of the
National Enquirer, to “catch and kill” damaging stories about him to influence
the outcome of the 2016 election, and Trump wanted him to do the same with
Daniels’ story once she began shopping it around in the final weeks of the
campaign. Third, after Pecker declined to kill the Daniels story, Cohen paid
Daniels himself and was later reimbursed for the cost by Trump. And fourth, the
Trump Organization’s business records inaccurately described the reimbursement
to Cohen as work for legal services.
There is,
however, a potentially crucial ingredient missing from this list. In order to
convict Trump on the felony charges brought by prosecutors, it is not enough
for them to establish that Trump paid Daniels off to influence the election or
even that he falsified his company’s business records. (That would only be a
misdemeanor offense under New York law.)
In order to
establish Trump’s guilt on the felony charges that have been brought,
prosecutors have to persuade all 12 of the jurors beyond a reasonable doubt
that Trump falsified those records with the intent to conceal “another crime,”
such as breaking election laws. In the end, the case could rise or fall on that
ostensibly narrow — but essential and still hotly contested — factual question.
Here are
the potential worlds where Trump gets a guilty verdict — and where he doesn’t.
How Trump
Gets Convicted
Broadly
speaking, the D.A.’s office has provided two logical paths for jurors to use to
convict Trump — one that goes through Cohen and one that goes around him.
The path
through Cohen relies on his testimony about purported conversations that he had
with Trump about the relevant events in 2016 and 2017.
If you
believe Cohen, his testimony broadly established Trump’s involvement in and
knowledge of the underlying effort to purchase Daniels’ story in order to
ensure that it did not hurt Trump’s 2016 election chances; prosecutors have
characterized that scheme as a conspiracy to influence the election using an
illegal campaign contribution. Cohen’s testimony also sought to establish the
process for Trump reimbursing Cohen for the payment to Daniels using
intentionally falsified business records.
Jurors do
not have to believe Cohen entirely on every minute detail, but they could adopt
the overall thrust of his account. In Cohen’s telling, Trump was fully in the
loop and understood exactly why everything in this intricate scheme was
happening, up to and including the purpose of falsifying the company’s records
concerning the reimbursement to Cohen — i.e., that falsifying the records was
intended to conceal the commission of “another crime” of some sort.
The second
path to a conviction relies on circumstantial evidence, inference and common
sense — all of which, as a legal matter, are perfectly appropriate grounds upon
which jurors can render a verdict.
There is
plenty of reason, even apart from the direct evidence offered by Cohen of
Trump’s participation in approving the deal with Daniels and signing off on the
false records regarding the reimbursement, to believe that Trump was in on
everything and fully aware of the legal risks and implications of what he had
done.
After all,
Trump was the only full-time participant in all of the key events. He was the
person who had sex with Daniels. He was the candidate running for president
whose political interests were at risk if Daniels’ account became public. He
was a principal (represented by Cohen) in the contract negotiations to acquire
Daniels’ story. He was the person who ultimately gave the money for Daniels to
stay quiet. And he was the head of the business whose records were falsified in
the course of repaying Cohen.
If you
believe all of this, it is not a terribly difficult leap to conclude that Trump
knew all of the key facts — including why the reimbursements were disguised —
at every step of the way. Trump, of course, could have also taken the witness
stand to dispute all of these claims, but he chose not to. To be clear,
testifying would have been a mistake of historic proportions because Trump is a
terrible witness and would have faced a grueling cross-examination, but jurors
sometimes want to hear the defense present a coherent alternative account from
the one offered by prosecutors, and without Trump taking the stand, that was
harder to discern.
These two
paths — one relying largely on Cohen’s testimony, and one relying largely on
circumstantial evidence of Trump’s intent to conceal the commission of a crime
when he reimbursed Cohen — aren’t mutually exclusive. For prosecutors to
prevail, the jurors don’t have to agree on their reasoning, either, as long as
they agree to convict.
There’s no
way to predict what the jury thinks about all of this — to say nothing of how
they will actually come out — but prosecutors are clearly within striking
distance of convicting Trump. And, if we are being honest, it probably helps
matters that they are in Manhattan; Trump is widely reviled there at this point
and, as a general matter, people are not inclined to bend over backward to give
him the benefit of the doubt.
Heading
into closing arguments, Trump’s lawyers have plenty of material to work with
and a very solid shot at a hung jury. As a practical matter, their goal is to
convince at least one juror that there is reasonable doubt on one or more
elements of the charges for falsifying his company’s records.
The most
obvious path to doing so is — and has always been — to focus on Cohen’s
credibility issues. After all, according to a poll conducted by Ipsos and
POLITICO Magazine in the run-up to the trial, roughly half of the country
already believes that Cohen is dishonest.
In the end,
Trump’s best defense may be a simple one: Cohen did the deeds, and he’s lying
about the extent of Trump’s involvement.
For
starters, Cohen was the lawyer who negotiated and finalized the payment to
Daniels. He was the person who executed the complex process by which the
payment to Daniels was made, using an LLC and pseudonyms in the contract. And
he, along with former Trump Organization CFO Allen Weisselberg, actually
created the false documents — the checks, invoices and the like — that are at
the center of the case as a legal matter.
These facts
are arguably consistent with a legally innocuous scenario: Trump relied on his
lawyer and CFO to ensure that Daniels was paid, but he was not aware of the
underlying legal implications, and at the point of repaying Cohen, he did not
intend to conceal the commission of “another crime.” Justice Juan Merchan
precluded Trump’s lawyers from offering a very shaky “advice of counsel”
defense — which basically would have allowed Trump to claim that he was simply
following Cohen’s advice — but the facts about Cohen and Weisselberg’s
involvement hang over the case regardless, and the practical implications may
prove unavoidable for one or more of the jurors.
On paper at
least, Trump lawyer Todd Blanche’s lengthy cross-examination of Cohen also drew
out a series of damaging concessions that are likely to feature prominently in
the closing argument.
First,
Blanche appears to have established that Cohen is a serial, unrepentant liar
who has often lied in legal proceedings to advance his own self-interest. In
addition to lying to Congress (which was plausibly done for Trump), Cohen also
lied to the Justice Department, to his bank and also to the IRS — all of which
he did to help himself personally and financially. He also claims that he lied
to the federal judge who took his guilty plea on tax fraud charges.
Second,
Blanche appears to have established that Cohen has two classic motives to lie
about Trump: vengeance and greed. Cohen acknowledged that he wants to see Trump
go to prison the same way he did. He also conceded that he has made millions of
dollars working in the media after turning against Trump and improbably
becoming something of a hero to the sort of anti-Trump news consumers who get
all of their information from cable and social media.
Third, and
most damagingly, Blanche credibly identified several possible lies that Cohen
told on the stand when he was being questioned on direct examination by
prosecutors.
In the most
notable instance and the most attention-grabbing part of the cross-examination,
Blanche claimed that Cohen was lying about what happened during a key phone
call — in particular, a 96-second-long call to Trump’s bodyguard, Keith
Schiller, in late October 2016.
When
questioned by prosecutors, Cohen testified that Trump was with Schiller during
that call and that he updated Trump about the payment to Daniels. Blanche
produced evidence suggesting that Cohen was actually calling Schiller to
complain about prank calls that he was getting from a 14-year-old kid and to
somehow try to get him in trouble with the government — a fact wholly
unmentioned when he was asked about the call by prosecutors. (Prosecutors later
tried to clean this up by having Cohen testify that perhaps he had called about
both issues, but it was clear that they were unprepared for Blanche’s
argument.)
To top this
all off, Cohen also admitted that in the middle of everything — indeed as part
of the reimbursement scheme at issue in the case — he stole $60,000 from the
Trump Organization by falsely claiming that he was using the money to reimburse
a vendor.
A central
goal of the defense is to try to persuade the jury that Cohen’s testimony is
essential to the government’s case — and that his unreliability is fatal to the
prosecution. After all, what prosecutor in their right mind would call someone
like Cohen, who has far more baggage than the usual cooperating witness, unless
they thought they absolutely had to?
A related
weakness in the case also became clear on cross-examination: Cohen was never
fully corroborated by other evidence. As a result, Trump’s lawyers can
reasonably argue to the jury that if they do not believe Cohen, then they
cannot convict Trump.
Take, for
instance, Cohen’s call with Schiller (and maybe Trump) in late October 2016.
The fact of the call is corroborated by phone records, but what happened on the
call — whether it was about Daniels, the 14-year-old kid prank-calling Cohen or
both — is not, and of course, it is the content of the call that matters most.
The same
corroboration problem applies to at least two other meetings described by Cohen
that he had with Trump in early 2017. Cohen testified that he and Trump
discussed the mechanics of how Cohen would be reimbursed at that time, which,
if true, would provide additional evidence of Trump’s criminal intent. The
problem is that the only other witness to these events besides Trump is
Weisselberg, and he did not testify on behalf of either side.
Cohen also
did not testify that he had told Trump that the payment to Daniels may have
been illegal. (In fact, Cohen may not actually have been aware of this himself
at the time.) And he did not testify that he ever advised Trump that his
business records needed to be falsified in order to avoid any scrutiny by the
Federal Election Commission, the Justice Department or any other federal or
state investigative agency.
These are
all credible flaws and gaps in the prosecutors’ case against Trump. Whether
Trump’s legal team can mine them effectively enough to persuade at least one
juror to side with them, of course, remains to be seen.
It is rare
— the stuff of movies — for a case to plausibly turn on the quality of each
side’s closing argument, but this could be one of those cases.
The outcome
could very well come down to how effectively each side is able to synthesize
the testimony and documents presented over the course of the trial to
demonstrate that the evidence — or lack thereof — supports their position.
For the
D.A.’s office, that means giving the jurors a clear explanation of how the
evidence actually satisfies each of the relevant elements of the charges beyond
a reasonable doubt. The jurors’ interest in the case cannot be carried merely
by virtue of the unseemly facts in and around the 2016 election — the sex, the
sleaze merchants, the (potentially) reformed co-conspirator. In the end — and
we are approaching the end — the case is about falsifying business records and
why.
For Trump’s
lawyers, their objective is to poke as many serious holes in the government’s
case as possible — most obviously and easily, with respect to Cohen’s testimony
— but more importantly, to offer their own accessible and cohesive account of
exactly where and why the jurors should see reasonable doubt in the
government’s case. Trump’s lawyers’ performance over the trial has been spotty
— largely, it seems, because of their client — but they have clearly made some
arguments that could linger in jurors’ minds.
Of course,
the potential political fallout for Trump’s presidential campaign remains even
more uncertain, but for Trump, this trial is both political and personal in the
sharpest of possible ways. It’s the latest battle in a decadeslong war between
Trump and the legal system that is, for now at least, at the center of American
politics.
We’ll know
soon enough what the result is in the trial in Manhattan, but Trump’s larger
war is unlikely to end anytime soon. If he’s convicted, he’ll appeal. He’s also
hard at work on acquiring what may be his ultimate get-out-of-jail-free card:
the presidency. If that happens, he’s likely to open up some new fronts of his
own in that war.
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