During his closing argument in Donald Trump's criminal trial in Manhattan on Tuesday, lead defense attorney Todd Blanche hammered at the credibility of the prosecution's star witness, Michael Cohen, the former president's estranged fixer, calling him "the greatest liar of all time." That strategy makes sense given Cohen's role in establishing that Trump "caused" the falsification of the business records at the center of the case. But even if the jury believes Cohen's testimony, it does not prove that Trump falsified those records with the intent of facilitating or concealing "another crime," the justification for charging Trump with 34 felonies rather than 34 misdemeanors.
Cohen, a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss, was the only witness who testified that Trump approved a plan to reimburse Cohen for the $130,000 he paid porn star Stormy Daniels shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. Trump had designated Cohen as his personal lawyer, and the checks were described as "retainer" payments. But Cohen said Trump knew that characterization was false and went along with the charade after Trump Organization CFO Allen Weisselberg (who did not testify) described it during a meeting at Trump Tower in January 2017.
"There is no way that you can find that President Trump knew about this payment at the time it was made without believing the words of Michael Cohen," Blanche told the jurors. Given Cohen's history of dishonesty and his animus against Trump, Blanche said, the jury "cannot convict President Trump [of] any crime beyond a reasonable doubt on the words of Michael Cohen."
Even without Cohen's testimony, however, there is strong circumstantial evidence that Trump "knew about this payment." It defies belief to suppose that Cohen, who was eager to please Trump and conferred with him frequently, would have hatched this scheme on his own, or that he would have fronted $130,000 of his own money without the promise of reimbursement.
Trump's lawyers described him as too busy with presidential duties to pay much attention to the justification for Cohen's invoices or the way the payments were recorded. But Trump personally signed nine of the 11 checks to Cohen, and the prosecution credibly portrayed him as a proud penny-pincher who never would have paid Cohen a total of $420,000—which, according to Weisselberg's handwritten notes, included an adjustment for income taxes, a bonus, and reimbursement for an unrelated expense—without knowing exactly what it was for.
Blanche was on firmer ground in arguing that the prosecution had failed to prove "another crime." Although prosecutors are still hedging on exactly what that crime was, they have said their main theory is that Cohen and Trump conspired to promote his election by "unlawful means," in violation of an obscure New York law that apparently has never been invoked before. Under this theory, prosecutors are using one misdemeanor (unlawfully promoting Trump's election) to convert another (falsification of business records) into a felony. But the only way they can do that is by arguing that the nondisclosure agreement (NDA) with Daniels constituted "unlawful means."
The defense team has noted that NDAs are common and that there is nothing inherently illegal about them. The prosecution argues that Cohen, by fronting the hush money, made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA). Cohen accepted that characterization, which hinges on the fuzzy distinction between personal and campaign expenditures, in a 2018 federal plea agreement that also resolved several other, unrelated charges against him. But it is plausible that Trump did not think the Daniels payment was illegal, which helps explain why he was never prosecuted for soliciting Cohen's "contribution": To convict Trump, federal prosecutors would have had to prove that he "knowingly and willfully" violated FECA.
The New York prosecutors say the standard for a criminal FECA conviction is irrelevant: Even if Cohen's payment to Daniels was only a civil violation of federal campaign finance regulations, it would still constitute "unlawful means." But Trump's understanding of FECA's requirements is still relevant. If Trump thought the NDA was perfectly legal, as his lawyers maintain, he could not have intentionally conspired with Cohen to unlawfully influence the election. The claim that he falsified business records with the intent of covering up that alleged crime hinges on the assumption that he was aware of the moribund state election law on which the prosecutors are relying, which is doubtful, and anticipated how they might construe it in light of FECA, which is even more doubtful.
The prosecution has tried to obscure these issues by averring that Trump committed "election fraud" when he directed Cohen to pay Daniels for her silence, thereby concealing information that voters might have deemed relevant in choosing between him and Hillary Clinton. "This was a planned, coordinated, long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior," lead prosecutor Matthew Colangelo told the jury in his opening statement. "It was election fraud, pure and simple."
During his summation, prosecutor Joshua Steinglass tried to use Blanche's scathing description of Cohen against Trump. "We didn't choose Michael Cohen to be our witness," he said. "We didn't pick him up at the witness store. The defendant chose Michael Cohen to be his fixer because he was willing to cheat and lie on his behalf." Conceding that "Cohen is biased," Steinglass said that is because he is "understandably angry that he's the only one who's paid a price for his role in this conspiracy."
As to the nature of that conspiracy, Steinglass called the Daniels NDA "a subversion of democracy." He said it was an "effort to hoodwink the American voter." He told "a sweeping story about a fraud on the American people," as The New York Times puts it. "He argue[d] that the American people in 2016 had the right to determine whether they cared that Trump had slept with a porn star or not, and that the conspiracy prevented them from doing so."
Did the American people have such a right? If so, Trump would have violated it even he had merely asked Daniels to keep quiet, perhaps by appealing to her sympathy for his wife. If Daniels had agreed, the result would have been the same. As the prosecution tells it, that still would amount to "election fraud," even though there is clearly nothing illegal about it.
There is a glaring mismatch between the charges against Trump and what prosecutors describe as the essence of his crime, which is not a crime at all. Because they cannot charge him with "election fraud" merely because he tried to hide embarrassing information, they have instead built a convoluted case that relies on interacting statutes and debatable assumptions about Trump's knowledge and intent.
In the end, the jury may well buy it. Steinglass "knows that many of these jurors, who have promised to be fair and unbiased, may hold opinions about Trump that they are not supposed to take into account at this trial," Times reporter Jonah Bromwich writes. "But he is linking the case against Trump to what his political opponents say about him more generally—and he is trying to play on the jurors' potential political sympathies while still talking about the evidence that entered the courtroom."
In a jurisdiction dominated by Democrats, those "potential political sympathies" could be crucial. But if the jurors take their responsibilities seriously, they may notice the gaps in the state's case.
Steinglass defended the prosecution's decision to walk Daniels through the salacious and unflattering details of her story about sex with Trump, saying they were relevant in establishing his motivation in trying to silence her. He said the same was true of the leaked Access Hollywood tape in which Trump bragged about sexually assaulting women, which prosecutors brought up repeatedly. Coming on the heels of that revelation, they suggested, Daniels' account might have been a fatal blow to Trump's campaign.
The legal logic here is that Trump was mainly worried about the election and therefore should have recognized the Daniels payoff as a campaign expenditure, which made it an excessive campaign contribution by Cohen. That, in turn, made it a misdemeanor under New York's election law. Trump supposedly understood all that, which is why he agreed to disguise his reimbursement of Cohen. And although that happened after the election, it somehow served "the end of keeping information away from the electorate."
We can debate the legal relevance of making the jurors picture a presumptuous Trump in his underwear, imagine him having "brief," condomless sex "in the missionary position," and recall what he said about grabbing women "by the pussy." But like much of the testimony—including Cohen's claim that Trump "wasn't thinking about Melania" at all when he decided to pay Daniels—that evidence certainly reinforced the impression that Trump is an awful person.
If that is what prosecutors were trying to prove, the evidence they presented would be more than sufficient. It may also be enough to conclude that Trump falsified business records. But there is plenty of room for reasonable doubt as to whether those records were aimed at covering up "another crime." Contrary to what prosecutors have implied, their commodious definition of "election fraud" does not count.
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