What you need to know about Trump's trial before the verdict
The defense really struggled. But all it takes is one juror.
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After six wild weeks and innumerable citations of Jonathan Turley, Donald Trump’s criminal trial in New York is finally coming to an end.
Yesterday, the prosecutors and defense made their closing arguments, and this morning Justice Juan Merchan will instruct the jurors and then send them to consider the 34 counts of creating a false business record to cover up the hush money payment to Stormy Daniels in October 2016.
Trump’s lawyers routinely overstepped in court, even earning a rebuke from the judge during their summation on Tuesday for improperly suggesting jurors could not send a man “to prison” based on the word of a notorious liar like Michael Cohen.
“You know that making a comment like that is highly inappropriate. It's simply not allowed,” Justice Merchan said, calling the remark “outrageous.”
Merchan has ably handled Trump’s antics, finding him in contempt of the gag order and cutting off his attorneys’ attempts to derail the proceedings. Regardless of the verdict, the trial will serve as a template for Trump’s other three pending cases.
And, if nothing else, it’s been a fun civics lesson for the former president.
The panel of 12 jurors and six alternates has listened to the sordid tale of Trump’s desperate scrabble to keep Daniels quiet about their 2006 sexual encounter during the lead up to the 2016 election, followed by a protracted effort to cover it up once he was in the White House.
In a sense, it’s anti-climactic: the broad contours of the story have been public since 2018, when Rudy Giuliani told Sean Hannity, “When I heard Cohen's retainer of $35,000, when he was doing no work for the president, I said, 'That's how he's repaying, that's how he's repaying it, with a little profit and a little more for paying taxes, for Michael.'"
But seeing all the players save one in this long-ago drama testify is a potent reminder just how inured we have all become to sleaze over the past eight years.
If you weren’t following every detail from the trial — and it’s understandable if you didn’t follow it closely, especially since it wasn’t televised — here’s what you need to know as we await a verdict.
The charges
On March 30, 2023, the Manhattan District Attorney indicted Donald Trump on 34 counts of creating a false business record.
The criming backstory begins in 2017, when Cohen created monthly invoices for $35,000 (except for January, which was paid in a double invoice along with February) in the Trump Organization’s ledger, and paid them via a check. Each of those invoices, ledger entries, and checks was charged as a separate violation of New York Penal Law § 175.10, falsifying business records in the first degree, a Class E felony.
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But § 175.10 is something of a hybrid statute. It says that falsifying business records in the second degree, a misdemeanor which involves “intent to defraud,” gets plussed-up to a felony when the defendant acted with “intent to commit another crime or to aid or conceal the commission thereof.” And so the prosecution had to prove that Trump not only knew that Cohen wasn’t getting paid for legal work, but that he signed those checks and induced his employees to create the false invoices and ledger entries to cover up “another crime.”
The plus up
The prosecution introduced three possible crimes as predicates for the plus up to a felony.
The first is a violation of the Federal Election Campaign Act (FECA), which in 2016 limited campaign contributions to $2,700. Cohen’s payment of $130,000 to Daniels far exceed that, of course, as did the $50,000 Cohen claimed to have paid to a computer guy from Liberty University to rig an online poll during the 2016 primary. (In fact, Cohen gave the tech guy somewhere between $12,000 and $20,000 in a blue Walmart shopping bag, plus a single boxing glove purportedly worn by a Brazilian mixed-martial arts fighter. But he stilled billed Trump for the full $50,000.)
If you believe that these payments were made to help Trump get elected — and clearly poll-rigging is a benefit to the campaign — they constitute excessive campaign contributions. And thus making payments to cover them up in 2017 serves as an appropriate predicate crime.
The second crime is a violation of New York Election Law § 17-152, which makes it illegal to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Here, that conspiracy involved hiding the truth from voters by making an illegal campaign contribution and committing tax fraud, the third criminal predicate.
That third offense is perhaps the least compelling, in that it involves Cohen paying an extra $180,000 in taxes to the IRS and the state of New York. It’s also the easiest to prove if you believe that Cohen was doing no real work for Trump in 2017, because it’s undisputed that Cohen declared $420,000 of ordinary income from these payments, filing false tax returns in 2018 — itself a felony. And Trump’s lawyer Todd Blanche admitted during closing arguments that the Trump Organization deducted the payments to Cohen as a business expense.
The jurors need only agree that Trump intended to commit one of those predicate crimes, and they don’t need to be unanimous as to which one. Trump and his allies in the press have seized on this as alleged error by the court.
“This is wrong — jury must be unanimous on every element (it can’t be 4 believe one predicate and 8 believe another); judge is wrong,” Newsmax anchor Greta Van Susteren tweeted confidently, citing an unrelated Supreme Court case having to do with juror unanimity as to a "continuing criminal enterprise" under federal drug statutes.
“The reason the Radical, highly Conflicted Judge Juan Merchan had to come up with three FAKE options for the jury to choose from, without requiring them to be unanimous, which is completely UNAMERICAN AND UNCONSTITUTIONAL, is because the Corrupt, Soros backed D.A., Alvin Bragg, couldn’t come close to proving that any crime was committed. THERE WAS NO CRIME,” Trump posted on Truth Social.
But in court, Trump’s lawyers were singing a different tune. They agreed that binding New York precedent dictates that unanimity as to the plus-up predicate is not required, but they urged Justice Merchan to make an exception and require it anyway.
“We understand the law that's been cited here,” Emil Bove said at last week’s charging conference, adding that it was “important under the circumstances of this case” and within the court’s discretion.
“The importance of the law is not deviating from the law,” countered Assistant District Attorney Matthew Colangelo. “It’s to apply the law as consistently as possible, as the court would do in every other case.”
“What you're asking me to do is change the law, and I'm not going to do that,” the judge agreed, ruling that jurors would be instructed that “although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”
In the event, prosecutors have leaned into the state crime as the “plus up,” while citing the federal and tax crimes as the “unlawful means” of interference in the election.
“This case is not about Michael Cohen,” Assistant District Attorney Joshua Steinglass reminded the jurors. “This case is about Donald Trump and whether he should be held accountable for making false entries in his own business records, whether he and his staff did that to cover up for his own election violations."
Closing statements
As they have been throughout this trial, Trump’s lawyers were boxed in by their client’s political imperatives. They were forced to claim that the sexual encounter with Daniels never happened, even though attorney Todd Blanche’s repetition of that obvious lie paved the way for Daniels to testify expansively on the witness stand — Trump himself had put her credibility at issue by denying her story.
Trump’s lawyers had to insist that Cohen was being repaid for legal work performed in 2017, despite the fact that Trump admitted he authorized Cohen to advance the $130,000 on his behalf.
“NDA’s are totally legal and commonly used, and … virtually every legal Scholar and Expert says, in written form, that this is a case which has NO MERIT and should not have been brought,” Trump babbled during his Sunday social media bender.
This forced Blanche into the awkward position of having to argue in his closing that Cohen secretly paid the $130,000 to Daniels, as well as the $50,000 to rig the poll in 2016, without telling anyone and without expecting to be repaid, simply so that he could brag about it later. As ADA Steinglass pointed out during the state’s close, Blanche was simultaneously arguing that Cohen stole from Trump by billing him for $50,000, and that Cohen had never demanded repayment for the outlay at all.
In short, Trump is asking the jurors to believe multiple contradictory theories of the case and to disregard testimony from Trump haters like Cohen and Daniels, as well as from former National Enquirer publisher David Pecker, who described Trump as his mentor and friend of 40 years.
According to reporters’ accounts, Blanche was also patently obnoxious.
“Have you guys heard of GOAT?” he said, according to Lawfare’s Tyler McBrien. “Greatest of All Time? Beyond all peers? Michael Cohen is the GLOAT: the Greatest Liar of All Time.”
Ba dum tssssssss.
In summation
With few avenues left, Blanche spent most of his closing attacking Cohen. This was perhaps fitting for a lawyer who opened his cross examination of Cohen by saying, "you went on TikTok and called me a crying little shit, didn't you?"
But there are pitfalls to saying that the guy your client chose to employ for a decade is a liar and a crook.
"We didn’t choose Michael as a witness. We didn’t pick him up at the witness store," ADA Steinglass said during his own close. "The defendant chose Michael Cohen to be his fixer because he was willing to lie and bully for Trump. He picked him for the same qualities that the defense now urges you to reject his testimony over."
Then Steinglass meticulously walked the jurors through every piece of evidence they’d seen over the past six weeks, weaving it into a narrative of election interference meant to hide a sexual encounter with a porn star that the campaign feared would doom Trump’s campaign, particularly after the Access Hollywood tape dropped.
The Bulwark’s Mark Caputo reports that Trumpland is pinning its hopes on one juror in particular, who appears highly sympathetic to the defense. If they can get a hung jury, they can spin it as a win, and likely push any retrial off until after the election.
But if Trump does get convicted, he’ll have no one to blame but himself. Or … possibly Justice Merchan for letting the prosecution go last. UNFAIR!
That’s it for today
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Thanks for reading.
This talk of a "sympathetic" juror sounds very desperate. It's possible that one juror is "star-struck" by Trump and his disciples in court but that doesn't mean he or she can't be fair and impartial when faced with the facts. There was another case that Trump lost and one of the jurors, after the verdict was rendered, mentioned that they were sympathetic to Trump but since he broke the law they voted against him. The payments to Cohen were made under false pretenses, Trump micromanages everything so he knew, and he was worried about the election after the Access Hollywood tape. The jury can choose which of three "plus-ups" they believe applies and, in my opinion, all three apply. And, even though the tax aspect is put into third place after election interference, it's something that everyone can relate to. Ordinary people do not like rich people cheating on their taxes. These jurors are aware of Trump's history - he's a cheat, a liar, he bullies everyone, and he has a long history of bragging about his sexual conquests. All of these things are part of the DNA of this case. Now we wait.
I don't think the bar will move that much either way whether he's convicted or if there's a hung jury. The court of public opinion has already made up its mind, IMHO.
OTOH, if he's unanimously Acquitted by 12 of his peers, that might move the bar somewhat.