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The Case Against Trump is Strong and Has Been Proven Beyond a Reasonable Doubt: Former NY Prosecutor
Now that the evidence has been fully presented to the Jury, the proof of Trump’s guilt is strong. The trial gave us a window into Trump’s world that included a playboy model, porn star, fixer, tabloid journalist and adultery. At times it felt like a reality TV show rather than a trial about a former President of the United States.
Layered among the salacious, indecorous details of Trump’s life, the trial highlighted a criminal conspiracy, designed to hide crucial information from voters. They cooked the books of the Trump Organization, to bury a hush-money paper trail without a trace. Looking back, one can only wonder whether it would have made a difference since Trump’s 2016 victory was won by only 80,000 votes, in 3 swing states.
The evidence presented at trial was compelling, and for the most part corroborated by other evidence. In NY, corroboration is not required to convict of most crimes if the jury finds a witness credible. However, given the cast of characters Trump associated himself with, prosecutors corroborated as many details as they could, especially Michael Cohen, his personal attorney and fixer.
Prosecutors of course would prefer if crimes were witnessed by a bus full of nuns, however, those who commit crimes tend to associate with other like-minded individuals, thus the reality is many witnesses come with their own baggage and credibility challenges. Evaluating credibility will be up to the jury who will take into consideration many factors including consistency, corroboration, demeanor and motivation.
The prosecution methodically presented a compelling case, primarily consisting of witnesses from Trump’s world. They faced several hurdles especially with the testimony of Michael Cohen. Some characterized Cohen’s bombshell testimony, particularly the cross examination, as potentially creating reasonable doubt. I would caution anyone counting on a Trump victory (or hung jury) not to pop the champagne cork quite yet; based on my experience as a trial lawyer, the case is strong, and the evidence of Trump’s guilt is powerful.
But will this be enough for the jury to convict a former President of the United States?
With the caveat that I have only attended the trial once, (the courtroom temperature was quite pleasant), the irrefutable evidence against Trump is powerful and any other explanation defies common sense and logic. Most substantive witnesses were either current or former Trump loyalists, many with no axe to grind. Former Trump associates David Pecker, Stormy Daniels and Cohen provided context and color to the case, with essential testimony for the most part corroborated. In other words, you don’t have to only rely on their words.
Although Trump availed himself of his 5th Amendment right against self-incrimination, (despite having an absolute right to testify, and contrary to his claim the gag prevents it), the jury had the benefit of hearing from Trump’s own words.
They heard a surreptitiously recorded 47-second conversation between Trump and Cohen discussing the conspiracy to pay off his former mistress Karen McDougal.
Excerpts were read from Trump’s autobiographies confirming he watched every dime, signed every check, evaluated women in terms of sexual potential, was frugal, and that when someone crosses him, he “retaliates as viciously and violently as [he] can.”
Jurors were read the transcript of the now infamous Access Hollywood tape where Trump boasts of sexual assault. They were read several Trump Tweets, including one calling the payment to Daniels a “reimbursement” (not a legal expense).
Similarly, the jury was shown Trump’s civil court filing in another case where he affirmed the Daniels’ payment was a “reimbursement.” The jury will use this evidence to evaluate Trump’s motivation and intent.
The jury will assess whether the prosecution has proven beyond a reasonable doubt, Trump, with the intent to defraud, and commit, aid or conceal another crime, he made or caused a false entry to be made in the business records of an enterprise, alleged as false checks, invoices and ledger entries. The prosecution does not have to prove Trump and Daniels actually had a rendezvous, nor does it matter whether he had an affair with Karen McDougal. Nor does the prosecution have to prove Trump himself made the false entries, so long as he “caused” them to be made.
The jury does not have to unanimously agree on which other crime Trump intended to conceal or commit, just that he had the general criminal intent to do so. Cohen, Pecker and Hope Hicks all testified that the payment to Daniels was for the purpose of influencing the election – making this an illegal in-kind campaign donation. The Feds also thought this was a crime when they (under Trump’s DOJ), prosecuted Cohen for these very crimes, among others.
In my opinion, the prosecution has proven beyond any doubt, let alone a reasonable one, that a crime occurred; they have certainly proven that both Cohen and Alan Weisselberg, Trump Org long-time CFO, are guilty of the charged crimes. Whether the jury also finds Trump complicit, will be nothing short of a nail-biting-tea-leaf-reading speculative torture session over the next several days.
The jury was presented with compelling corroboration of most of the testimony. In particular, exhibits 35 and 36 containing Weisselberg’s and Cohen’s handwritten notes, spelling out the illegal scheme in detail, written on the very bank document reflecting the shell corporation created solely to facilitate this single transaction –a porn star payoff. The true nature of the payment was hidden by tripling Cohen’s reimbursement, to falsely claim it as income from legal services, structured over 12 months. If the jury agrees with this assessment, the only open question will be whether the prosecution has proven this case against Trump beyond a reasonable doubt as well.
To link Trump to this criminal conspiracy the prosecution has introduced both direct and circumstantial evidence, in testimonial and documentary form. Cohen’s testimony, as a co-conspirator, is critical to the case as Weisselberg, the other co-conspirator, was not called as a witness at trial (he could have been subpoenaed by either party, despite being incarcerated, and his unexplained absence will surely be noticed by the jury).
It is worth noting, it does not matter if Trump himself made the illegal false entry (or omission) so long as he “caused” it. See, People v. Barto, 144 A.D.3d 1641(App. Div., 4th Dept., 2016), a NY false business records case where the defendant did not file a false record himself, but he caused the false entry to be made on his behalf.
Let’s review compelling highlights from the trial:
The prosecution’s first witness, David Pecker, testified in detail about his agreement with Trump and Cohen to be the “eyes and ears” for the Trump presidential campaign and engage in checkbook journalism on the campaign’s behalf. Daniels testified that there was no market for her Trump sex story until just before the election, demonstrating her payoff was motivated by the election. Hope Hicks, a Trump ally, confirmed Trump shared his relief that the story hadn’t come out until after the election. All of this proves an essential element of the crime, that it was election related.
Cohen began working for Trump as his personal attorney and fixer in 2006. Testimony from several witnesses added that Cohen was unpleasant to deal with and would do anything for Trump, no matter how unseemly. The defense had to walk a delicate balance in attacking Cohen because the worse they made him out to be, the more the prosecution will view this is a reflection of the type of person Trump kept in his orbit. Cohen was close to, trusted by and completely devoted to Trump to handle issues and problems as they arose; the consummate “fixer” who would lie, cheat and steal on his behalf
The criminal conspiracy began after Trump declared his candidacy for President in June of 2015. Pecker, a Trump friend and admirer, as well as CEO of AMI and the National Enquirer, testified that in August 2015, he met with Trump and Cohen and formulated a plan for Pecker to be the “eyes and ears for the campaign.” Fast forward to June 2016, a mere 5 months prior to the election, Hicks, testified she overheard Trump congratulating Pecker regarding stories about Trump and his rivals.
According to plan, on June 16, 2016, Dylan Howard, Pecker’s number two, texted Cohen about playboy model and former Trump girlfriend, Karen McDougal, wanting to sell the story of their year-long affair. Text messages from Cohen to Keith Schiller (Trump’s bodyguard) asking for “the Boss,” who replied that he is next to him, was followed by a 2.5-minute telephone call, shown in call logs – confirming Trump’s knowledge and involvement.
Pecker testified that the following week, Trump called him to discuss the McDougal story and whether he should buy the story. Pecker said that he should, and Trump said he would think about it and have Cohen call him back in a few days, which he did, giving Pecker the greenlight to go forward.
September 6, 2016, Cohen surreptitiously recorded a 47-second conversation with Trump discussing the plan to reimburse AMI for the $150,000 payment to Karen McDougal, buying her silence. On the recording, Trump is heard asking whether to pay the money in cash and Cohen said he spoke to Weisselberg about how to set it all up and that it would be a check. This is all evidence showing Trump’s knowledge and complicity in the conspiracy.
September 23, 2016, messages and calls between Cohen, a banker, and Pecker, corroborate the payment to McDougal through her attorney Keith Davidson was executed. Cohen testified that on September 29, 2016, he and Trump spoke on the phone for over 7 minutes, as reflected in call records. Later that same afternoon, Cohen executed the plan from the call and formed Resolution Consultants, LLC, the shell corporation created to facilitate the McDougal transaction, and finalized documents cementing the deal.
On October 7th, 2016, the now infamous Access Hollywood tape came out, causing extreme stress to the campaign. At about the same time Stormy Daniels re-surfaced, using the election as leverage to finally sell her story. On October 8, 2016, records of multiple calls and text messages, reflect a flurry of communications between Dylan Howard, Cohen, Pecker and Trump. The number of calls, texts and testimony during this period reflect the urgency of the situation to keep the Daniels story from the voting public. Hope Hicks testified that the Access Hollywood tape was devastating for the campaign, and they were desperately trying to contain the damage.
October 8, 2016, Cohen, Pecker and Dylan Howard spoke several times on the phone after Cohen had spoken with Hicks. Cohen lobbied Pecker to purchase (catch) Daniels’s story and not publish (kill) the story as he had with McDougal and another now-debunked story about a Trump love child. Cohen informed Pecker via text that a “woman wants $120K.” Pecker testified he told Trump he wasn’t his piggy bank (Trump never reimbursed him), and he didn’t think being affiliated with a porn star was good for AMI.
Cohen testified that on October 17th, 2016, they were losing control of the Daniels’ story, and received an email from Keith Davidson, Daniels’ and McDougal’s attorney saying the deal was off because the money had not been paid. Multiple calls, emails, texts and voicemails (all reflected in records introduced at trial) followed. Cohen left Trump a voicemail that he could no longer delay the Daniels matter.
Cohen then dissolved the shell company used to pay McDougal and formed Essential Consultants, LLC to create a different paper trail for the Daniels payoff. Cohen testified he then called Trump to apprise him of the situation. On October 18th at 8:53am, Cohen received a text from Melania Trump that stated, “can you please call DT on his cell.” 5 days later, on October 23rd, Cohen received a long voicemail from Weisselberg regarding the structure of the Daniels payment, followed by several calls between Cohen and Weisselberg.
A bump in the prosecution’s case occurred surrounding an October 24th telephone call made by Cohen to Trump. After receiving an invoice reflecting the formation of Essential Consultants, LLC, Cohen testified he called to tell Trump, after texting with Schiller (to reach Trump), knowing they were together. On cross examination, the subject of this call caused Trump’s defense attorney to raise his voice and dramatically call into question Cohen’s credibility (apparently quite effectively).
Cohen testified he called Trump to discuss they were moving forward with the Daniels’ deal, however, text messages immediately prior to the call suggest Cohen is either mistaken, incomplete, or outright lying. Trump’s attorney dramatically confronted Cohen with these texts that contain no mention of Daniels, and instead mention Cohen was being harassed by a 14-year-old. Many courtroom observers report this as a dramatic Perry Mason moment, making it appear Cohen was lying about the topic of the call. The prosecution on re-direct introduced a photo taken minutes before this call showing Trump and Schiller were indeed together at the time, neutralizing some of the sting on cross.
The topic of this 10/24 call is not necessarily essential to the case, however, the defense will argue that it calls into question Cohen’s credibility making everything Cohen says untrustworthy. The prosecution on the other hand will argue any essential or critical testimony from Cohen is corroborated by other witnesses or records. The jury is the ultimate decider of credibility, and the judge will inform them that if they find any witness has lied, they can reject their entire testimony based on the legal concept “falsus in uno” – if a witness willfully lied about a material fact, you can disregard their entire testimony.
Surprisingly, despite having a lot to work with (rarely does a witness have a conviction for lying and literally hundreds of hours of prior recorded statements about the facts of the case), the defense barely made a dent in Cohen’s testimony. By most accounts, Cohen remained calm, credible, consistent and most importantly, corroborated. Although Cohen’s credibility was called into question several times, it was not nearly as much as one would have expected given the ammunition Cohen himself created through books, podcasts, emails, prior testimony and far too many public statements to count.
Not to digress, but in addition to Cohen’s testimony, it defies common sense Cohen would have called Trump on 10/24, mere days away from the election, about something as unimportant as being pranked by a 14-year-old. Cohen is Trump’s fixer, not the other way around. It makes much more sense Cohen would call Trump to reassure him Daniels was taken care of and under control. It also makes sense Cohen would tell Schiller about the prankster, since he was security for Trump. In other words, jurors don’t have to only take Cohen’s word for it, they can also use their common sense.
Back to the evidence.
October 25th continued a flurry of text messages and calls between Schiller, Cohen, and Howard. If Schiller were to have been called as a witness (he is presumably still a Trump ally), he could have confirmed whether the calls were about a 14-year-old harasser, or about Daniels, or both. (Schiller could have also testified about the Daniels rendezvous since she said he both facilitated the encounter and stood guard outside the hotel room.)
October 26, 2016, call records reflect Cohen called Trump and Cohen testified that this call was to get Trump’s final approval before he executed the Daniels’ plan. Trump and Cohen spoke twice that morning as reflected in phone records. Shortly after the calls, Cohen received Essential Consultants, LLC formation paperwork and used it to open a company bank account. That afternoon a $130K wire was initiated; plan executed, all documented and time stamped in evidence.
On October 28, 2016, Cohen arranged a side-letter agreement creating pseudonyms for both Daniels and Trump and call records reflect a 20-minute phone call with Trump. Cohen testified the subject of the call was to let Trump know the details of the Daniels matter and that it was finalized and handled. Common sense would suggest the call was about the Daniels matter with days left before the election.
November 4, 2016, 4 days before the election, the Wall Street Journal broke the McDougal story. Schiller texted Cohen asking if he could take a call (from Trump) in 30 minutes and Trump and Cohen spoke on Schiller’s phone about the negative impact of the story. After the call, Cohen called and texted Pecker saying the boss (Trump) wanted to speak with him. Pecker testified, and phone records reflect, Trump then called him.
November 5, 2016, Hope Hicks texted Cohen asking for Pecker’s cellphone which Cohen provided. 40 minutes later, Hicks texted Cohen that they had spoken, and all was good.
November 8, 2016, was election day, Donald J. Trump won the presidential election and was to become the 45th President of the United States.
On January 6 (ironically), 2017, at a meeting at Trump Tower, Pecker testified that he and Trump met, corroborated by an appointment in Trump’s calendar and introduced into evidence by Rhona Graff Trump’s long-time assistant. Pecker testified Trump asked, “how’s our girl Karen”? and thanked him for handling both the McDougal and fake doorman story.
Several days prior to the inauguration, Weisselberg and Cohen met and sketched out (link to exhibit 35) the repayment plan to reimburse Cohen and make him whole for the money he paid to Daniels from a personal home equity line of credit. Testimony from Jeff McConney and Deborah Tarasoff (both Trump Org. employees) corroborated that was that Trump had to approve any expenditure above $10k, (let alone one for $420K). Cohen was given the title “personal attorney to the president” and agreed payments would begin in February.
On February 8, 2017, Cohen and Trump met in the Oval Office, corroborated by a calendar appointment entry introduced through Hicks and another Trump assistant Madeline Westerhout. The first of the 12 reimbursement payments was made on February 14, 2017.
One other seemingly effective (for the defense) area of cross examination of Cohen was emphasizing he had stolen money from the Trump Organization when he lied about the true cost of false polling data for Trump, pocketing the difference. Although brought out on direct exam, and not a secret as Cohen wrote about it in his book “Disloyal,” it appears to have been minimized by the prosecution on direct, allowing the defense to land another blow to Cohen’s credibility. The defense will argue in summation that Cohen is a greedy, thieving, liar upon whom you cannot trust to base an important decision like convicting someone of a crime. And, despite the prosecution trying to portray Trump as a penny-pinching micromanager, Cohen was able to steal over $60K right from under his nose.
Trump’s defense will be that Cohen went rogue; however this is belied by much of the evidence including Hicks’s testimony that Trump said he was glad this didn’t come out before the election, and, Cohen wasn’t the type of person who would do this out of the goodness of his own heart. Further debunking this defense, in a 2018 civil court filing in a different Daniels case, Trump admitted to “reimbursing” Cohen the $130,000 settlement payment and tweeted about it. Trump cannot now say he did not know about the payment nor claim it was legal fees. Especially since tripling the dollar amount and structuring the payments to make it look legitimate. This was all part of a plan and an elaborate, false coverup.
A few other points. Much hay has been made that Cohen has extreme animus against Trump for not giving him a White House job nor pardoning him for the crimes he committed on Trump’s behalf. Cohen has made a significant amount of money from his story, including books and several podcasts. Cohen, however, gets no benefit from testifying in this case as he is not a cooperator trying to work off jail time.
One could argue Cohen’s life actually gets worse from testifying against the man who may soon be the most powerful man in the free world. Preparing for and testifying at a trial is a grueling process ultimately resulting intense cross examination and public scrutiny seeking to find any small inconsistency about facts and details that occurred long ago. He is both publicly, and in court, called a liar, pathetic sycophant, bully, and many other unflattering monikers.
The defense has said Cohen is essential to finding Trump guilty; the prosecution says one needn’t solely rely on him because every important fact is corroborated by other evidence. The defense called two brief witnesses in an effort to discredit Cohen, although this appears to have backfired. Although the People have the only burden of proof and the defense does not have to prove anything, the jury surely will wonder where Schiller and Weisselberg are and why they didn’t come in and testify for Trump, if they had favorable evidence.
In the end, the defense can call Cohen a lying, stealing, greedy hooligan at their own peril. The worse they make Cohen out to be, the worse it reflects on Trump who valued the very qualities that he now says you cannot rely upon. It will be for the 12 jurors, all regular people, chosen by both Trump and the prosecution, to determine Trump’s guilt. I believe the prosecution has proven this case beyond a reasonable doubt. If the jury of Trump’s peers believe so as well, will they be able to find former President, defendant Donald J. Trump guilty?
