Apr.22

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Opening Statements in Trump's Trial Are Expected Today

Now that a jury of twelve (seven men and five women), plus six alternates, has been chosen, Donald Trump's "hush money" trial starts in earnest today. The trial is not really about "hush money" at all. If Trump had paid Stormy Daniels $130,000 out of his own pocket to buy her silence, it would have been perfectly legal. But he didn't. He used company money and then covered it up by falsifying company records to show the payment as "legal services rendered" to his go-between, Michael Cohen. Falsifying business records is a crime in New York. What Manhattan DA Alvin Bragg has to prove to the jury is that Trump caused the records to be falsified, and that he did it for political purposes. It is not necessary that Trump actually typed "For services rendered" into the computer himself. If he instructed someone else to do it, that is enough. Prosecutor Joshua Steinglass will tell the jury: "If a man hires a mobster to murder his wife, he is as guilty as the man who pulled the trigger."

Unlike in his civil trials, Trump actually hired two top-rate attorneys, Todd Blanche and Susan Necheles. Blanche used to be a federal prosecutor—and he worked with none other than Alvin Bragg. He then worked for New York's oldest law firm, Cadwalader, Wickersham, & Taft, before leaving to start his own law firm. Necheles, a graduate of Yale Law School, is a highly experienced New York defense attorney and has her own firm. She has represented politicians, real estate developers, and mobster "Benny Eggs." Judge Juan Merchan has repeatedly become frustrated with Blanche, so it wouldn't be surprising if at some point Necheles said to Blanche: "The judge really dislikes you; I'd better take over now."

Bragg has a lot going for him. The crime (cooking the books) is easy to understand, the motive is plain as day, there are multiple insider witnesses who will testify, hard evidence (including canceled checks) abounds, and the jury pool is about as good as any prosecutor dare dream about. Nevertheless, there are a few weak spots where the prosecution can be attacked. Here they are:

• Cohen's Credibility: The key witness is Michael Cohen. He is the one who actually paid off Daniels. He was reimbursed by Trump for the payment and Trump recorded the reimbursement on his company's books as "legal services rendered," which is a lie. Although Cohen is a lawyer, he did not do any legal work for Trump in this matter. The problem is that Cohen is a convicted liar and served prison time for it. The defense is going to harp on this endlessly, saying: "How can you believe a word from a guy who is a convicted liar?" It could work.
  
  But maybe not. The judge has now ruled that if the defense attacks Cohen's credibility, then the prosecution may introduce Trump's tweets attacking Cohen. This might show the jury that Trump is completely unhinged. However, although the cheese stands alone, Cohen doesn't. The prosecution has corroborating witnesses. David Pecker, who used to run the National Enquirer, can testify that Trump paid him to buy stories that reflected badly on Trump and kill them. This establishes a pattern of Trump's buying people's silence, so one more was hardly exceptional. Pecker has never been in prison and is a credible witness. Hope Hicks was one of the closest people to Trump during the 2016 campaign. She can testify that Trump was very worried about the Daniels story leaking out and sinking his candidacy. This strengthens Cohen's story. There may be other surprise witnesses who also corroborate Cohen's tale.
  
  
• What Was Trump's role?: Trump's lawyers are likely to say that CFO Allen Weisselberg dumped a bunch of checks on Trump's desk every morning and asked him to sign them, which he did, without even looking at them, because he trusted Weisselberg. And that it was therefore Weisselberg, or someone else, who falsified the business records without Trump's knowledge.
  
  The prosecution will try to rebut this with witnesses who will say that Trump was a micromanager. The company couldn't buy a box of paperclips without Trump's explicit approval. They will say it is absolutely inconceivable that anyone within the company, even Weisselberg, would pay a porn star (via a go-between) $130,000 without Trump's clear approval. Actually, the amount on the books is more than $130,000, since Trump had to pay Cohen enough that after paying federal and state income tax on that amount, he had $130,000 left over. In addition, Trump's signature is on all the checks, and a defense of "I didn't know what all these checks I signed were for" is probably not going to convince many jurors.
  
  
• Legal issues: This is where it gets hairy. Falsifying business records by itself is a misdemeanor. It only becomes a felony if it is done to cover up an underlying crime. What crime is Bragg going to claim Trump was trying to cover up? There are a lot of possibilities, each with pros and cons from the DA's perspective. He could shoot for violations of federal or state election law, or tax evasion, or financial fraud. This is weedy enough that we'll have an item tomorrow running it down in more detail. For now, just know that this is probably the toughest hurdle for Bragg to clear.
  
  Even if Bragg makes a compelling argument for an underlying crime, he's not home free. This is an area the jury is going to have trouble with unless the judge gives them clear instructions. If the jury doesn't understand the second crime, it is possible that they just convict Trump of the misdemeanor of falsifying business records, with no underlying crime. That would be a huge victory for Trump. This is where the two lawyers on the jury could come in. If the jurors don't really understand the judge's instructions, the lawyers could explain them in simpler language.
  

In an interview a few weeks ago, Cohen said that there will be some surprises during the trial, but he refused to elaborate further as to what they might be. In 6-8 weeks, we should know.

Gov. Kristi Noem (R-SD) took advantage of the trial to do a bit of campaigning yesterday—for vice president. On CNN's State of the Union, she called the trial ridiculous and said: "It's the way that Democrats are fighting these days, using the judicial system and activist judges to do so." Score three brownie points for the governor. She really, really wants to get out of South Dakota. (V)