Trump Goes to Trial
A historic and controversial prosecution begins in NY
After a dozen or so failed defense efforts to postpone the trial, the first criminal prosecution of a former U.S. president began today in a New York state courtroom.
Of the four criminal cases currently pending against former president Donald Trump, this was the first to be indicted. I and many others also consider it to be the weakest of the four. It would not have been my choice for the first to go to trial. But with the Florida case crawling along with a foot-dragging judge, Georgia bogged down by an unwieldy indictment and sideshows about the DA’s love life, and D.C. on hold pending Supreme Court review of presidential immunity, the New York prosecution that had lurked in the background for months suddenly jumped to the head of the line.
I think the trial is very likely to result in Trump’s conviction on at least some counts. The trial judge has accepted the prosecution’s legal theories for now, and on the facts the case is very strong. My concerns about the case relate to legal issues that will most likely be resolved only on appeal. In the long run, I’m not convinced the charges will stick.
As jury selection kicks off today, here’s a rundown of what the case is about, what we can expect, and the potential legal issues and pitfalls that I see.
Factual Background
The charges arise from Trump’s hush-money payoff to adult film star Stormy Daniels in October 2016. In 2015 David Pecker, the publisher of the National Enquirer, agreed to work with the Trump campaign to head off negative stories about the candidate and his past relationships with women. In August 2016, Pecker’s company paid former Playboy model Karen McDougal for the rights to her story about a ten-month affair with Trump in 2006, and then didn’t publish the story. This is a so-called “catch and kill” scheme - buying the rights to a story so no one else can publish it, and then declining to publish it yourself. Standing alone, a catch and kill scheme is not illegal; the purchaser buys the story rights with a valid contract and has the right to decide what to do with it — including burying it.
In late October 2016, with the election just days away, Daniels was preparing to go public with her own story about a sexual encounter she says she had with Trump in 2006, shortly after his wife Melania gave birth to their son. In the aftermath of the release of the “Access Hollywood” tape, the campaign was particularly worried about another story of sexual misconduct becoming public. Working with Pecker, Trump’s attorney and fixer Michael Cohen arranged another catch and kill scheme, using a shell company to pay Daniels $130,000 for the rights to her story. Cohen got the money from his personal home equity line of credit, with the understanding that Trump would reimburse him.
Following the election, Trump, Cohen, and Trump Organization CFO Allen Weisselberg devised a plan for Trump to reimburse Cohen by falsely characterizing the payment to Daniels as legal fees. They agreed to “gross up” the amount owed to $420,000: the $130,000 hush money payment, $50,000 to reimburse Cohen for payments to an IT firm used during the campaign, $180,000 to cover Cohen’s taxes on the falsely reported income, and a $60,000 bonus for Cohen. They agreed Trump would pay the $420,000 in twelve monthly installments of $35,000 each.
Over the following year, Cohen sent the Trump Organization false monthly invoices for $35,000 for legal services, saying those services were provided pursuant to a retainer agreement that did not exist. Throughout 2017 Trump paid these invoices with monthly checks from Trump Organization entities. The checks and related documents were falsely recorded in the books of the Trump Organization as payment for legal services.
Is the Case About Hush Money or Election Interference?
You will see some call this a hush money case, while others claim it’s really about election interference. Neither is completely correct.
The hush money provides the salacious factual underpinnings of the case. Paying off a porn star to keep her quiet about your sexual encounter makes for good tabloid headlines. But as I noted above, a catch and kill scheme, standing alone, is not illegal. So while there will be lots of testimony about hush money, the scheme itself did not result in the criminal charges.
District Attorney Alvin Bragg and commentators who support the prosecution insist that it is really about election interference. Bragg has said the core of the case is not hush money but “conspiring to corrupt a presidential election and then lying in New York business records to cover it up.” Judge Juan Merchan, who will preside over the trial, appears to have adopted this framing. In his recent proposed preliminary instructions to the jury panel, he wrote: “The allegations are in substance that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 election.”
The prosecution’s theory is that Cohen’s hush money payment to Daniels was a campaign contribution that exceeded the lawful maximum amount of $2,700. That unlawful contribution was made to conceal potentially vital information about the Daniels allegations from the voters and thus allegedly constituted election interference. But just as none of the charges are based on the hush money payments, so too none of the charges are election crimes.
(Cohen actually pleaded guilty in 2018 to a federal campaign finance violation for the payment to Daniels, admitting that it was an illegal contribution. During his guilty plea he said he made the payment at Trump’s direction, and prosecutors alleged that as well. But federal prosecutors in the Southern District of New York never charged Trump himself with that violation, even though they had plenty of time to do so after he left office. It’s never been completely clear why - but that’s a whole different article.)
It’s not surprising the DA has chosen to frame the case as about election interference. The actual criminal charges — falsifying internal records of a private company — are not terribly sexy and seem relatively trivial. Standing alone, they’re not the sort of charges you might think would justify the first criminal prosecution of a former president. When characterized as part of a cover-up of an illegal campaign contribution that might have tipped the scales in a razor-thin election, the charges suddenly sound a lot more significant.
But as I’ll discuss more below, I think this “election interference” argument has some problems.
So What Are the Actual Charges?
All 34 counts of the indictment charge Trump with falsifying business records in violation of a New York state law, Penal Law § 175.05. The statute prohibits making or causing to be made a false entry in the business records of any enterprise, with intent to defraud. It’s a misdemeanor, but becomes a felony under § 175.10 if the intent to defraud “includes an intent to commit another crime or to aid or conceal the commission thereof.”
All 34 counts in the Trump indictment are felonies. They are based on allegedly false records the Trump Organization maintained concerning the reimbursements to Cohen. Eleven are based on false invoices from Cohen, purporting to reflect legal services provided. Twelve counts are based on false ledger entries about the payments. Eleven more are based on the checks written to Cohen, most of them signed by Trump after he was elected president.
What’s the Other Crime?
As I noted, to make the charge a felony the state must prove that Trump’s intent to defraud in falsifying the records included the intent to commit or aid in concealing another crime. The state has identified three different crimes it alleges the false records were intended to conceal:
a violation of federal election campaign finance law, as discussed above
a violation of a New York election law that makes it a crime to conspire to elect or defeat any candidate through unlawful means
a violation of New York state tax law, based on Cohen falsely reporting on his tax return that the reimbursement payments were income from providing legal services
During pretrial motions the defense challenged all of these theories. They argued that a federal election crime can’t serve as the basis for this state charge and that the state election law did not apply to the election of federal candidates. They also argued the tax law claim was flawed because there was no evidence New York actually lost any tax revenue — remember that part of the scheme was to give Cohen additional money so he could pay the taxes. Judge Merchan rejected these challenges, so the state presumably will proceed on all three theories.
Prosecutors seem primarily focused on the alleged election crimes and don’t emphasize the tax theory. That’s understandable. It appears there probably was no tax loss as a result of the scheme. It’s still a crime to file a false tax return even if the state doesn’t lose any money. But a claim of tax fraud where there was no loss is not particularly compelling or likely to move a jury.
The state does not have to prove that these underlying crimes were successfully completed. It only needs to show that intent to commit the crime, or to conceal its possible commission, was part of the motivation for falsifying the records. It’s analogous to obstruction of justice: you can be prosecuted for obstructing an investigation into your behavior even if that underlying behavior never ends up being prosecuted as a crime. Just ask Martha Stewart.
How Strong is the Case?
Factually I think it’s very strong. In a documents case like this, the documents tend to speak for themselves. There won’t be any real dispute about what the documents say, the fact that they are false, or that they were maintained as part of the Trump organization records.
The biggest factual challenge for the state will be proving Trump’s intent to defraud. I expect the defense will argue that the scheme was primarily hatched and carried out by Cohen, Pecker and others, and that Trump was not involved in or aware of the details. After all, they’ll say, he’s a busy guy and has people who handle these things for him. They will claim Trump signed the checks put in front of him but never had any intent to defraud or knowledge that the payoff might have been illegal. The state will counter this primarily with evidence about discussions that Cohen and others had with Trump about the scheme, to show his awareness and involvement.
Alternatively, the defense will argue that even if Trump did intend to falsify the documents, he had no intent to further another crime and the jury should find him guilty only of a misdemeanor. The jury will have that option as to each count; the misdemeanor charge is what’s known as a lesser included offense.
Even the misdemeanor charge, however, requires proof that the defendant acted with intent to defraud. Legally, as regular readers know, I have some concerns about the “intent to defraud” aspect of the case. For trial purposes Judge Merchan appears to have accepted the state’s legal theories, so he is unlikely to dismiss any of the charges at this point. But I’m not certain they will hold up on appeal if Trump is convicted.
As I wrote in the post below, it’s not clear how these internal records of a private company establish an intent to defraud. Acting with intent to defraud usually means you intended someone to rely on your actions and be harmed as a result. But no one outside the company, including voters, had a right to see these records. It’s basically the equivalent of making a false entry in your own checkbook register. So who was Trump intending to defraud at the time the false records were created, when the election was already over?
It appears the state’s theory will be that by falsifying these internal records, Trump and the others were creating a phony paper trail that would conceal the payoff scheme IF anyone ever came looking - federal or state investigators, or perhaps private plaintiffs who might subpoena or otherwise obtain the records. So the fraud would be the desire to deceive potential future investigators.
Veterans of the New York DA’s office say this is a common theory and that charging the falsification of purely private business records is not unusual. But it appears to be far less common for this to be the only charge in an indictment. Usually the false business records charge is part of a larger case involving fraud or other crimes. Those other crimes then help to demonstrate intent to defraud in falsifying the records.
The state also apparently will argue the false records were a continuation of the scheme to defraud the voters by depriving them of important information. But that too is a controversial fraud theory, considering the hush money scheme was not otherwise unlawful and did not actively deceive the voters or deprive them of information they had some legal right to know. Voters might have found the information important, of course, but campaigns and politicians squelch bad stories all the time and it isn’t considered fraud. And it particularly seems like a stretch to claim that internal records created after the election furthered a fraud against the voters when the election was over and voters had no right to see them.
The state may also argue that even though the 2016 election was over, Trump had already announced his candidacy for 2020 and also had a general interest in keeping this damaging information from the public. Again, I think that’s an untested and weak fraud theory. If every politician who lies to or conceals damaging information from the public is considered to be committing fraud, we are going to have a lot more fraud prosecutions.
As I noted in this thread on The Platform Formerly Known as Twitter, I’ve become a bit less pessimistic about the case over time. But I still find it concerning that there appears to be no case from the New York appellate courts upholding this kind of fraud theory.
I also think it’s puzzling that the New York model jury instruction for this crime does not define “intent to defraud” for the jury. In a federal case this would be the key issue, but there does not appear to be much New York law on the question.
Was This Really “Election Interference?”
I also take issue with framing the case as involving “election interference.” As I noted above, hush money is not illegal. Trump could have paid Daniels himself and that would not be a campaign finance violation, because a candidate can give unlimited funds to his own campaign. If he had done that, the voters still would not know about Daniels. So how does this become election interference if Cohen makes the payment on Trump’s behalf and is later reimbursed?
The voters had no inherent legal right to know about the Daniels allegations. They could have been lawfully kept quiet through a catch and kill. At bottom this is really about a campaign contribution by Cohen that exceeded the lawful maximum, or a contribution that was not properly reported. It’s a campaign finance violation. (As a side note, it’s not even 100% clear that the payoff would be considered a campaign contribution. John Edwards was charged with a similar crime and a jury failed to convict him.)
The schemers here did not prevent anyone from voting, or give false information to voters, or destroy ballots, or tamper with voting machines. Is it really election interference to make a contribution that is too large or fail to report it properly? Is every campaign finance violation now to be considered election interference?
Election law expert Rick Hasen had an op-ed in the Los Angeles Times on Sunday with which I agree. It’s worth a lengthy quote:
Although the New York case gets packaged as election interference, failing to report a campaign payment is a small potatoes campaign-finance crime. Willfully not reporting expenses to cover up an affair isn’t “interfering” with an election along the lines of trying to get a secretary of state to falsify vote totals, or trying to get a state legislature to falsely declare there was fraud in the state and submit alternative slates of electors. We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form. If every campaign finance disclosure violation is election interference, our system is rife with it.
I certainly understand the impulse of Trump opponents to label this case as one of election interference — that could resonate with voters and make them less likely to vote for Trump. But any voters who look beneath the surface are sure to be underwhelmed. Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.
In the end this may not matter much to the trial’s outcome. The election interference argument is largely rhetorical; prosecutors don’t have to prove that in order to convict. But it is their theory of the case — their explanation to the jury of the defendant’s motive and of why these relatively trivial charges are actually quite important. I don’t think that theory holds up - and that will leave some openings for the defense to poke holes in the state’s presentation.
Who Will Be the Key Witnesses?
Michael Cohen will be a key state’s witness. He orchestrated the hush money payment and then submitted the phony invoices for legal services to be reimbursed. As I noted above, he pleaded guilty in 2018 to multiple felonies, including a charge that his hush money payment to Stormy Daniels was an illegal campaign contribution. (Because that was a guilty plea, the legal underpinnings of that charge were not challenged or ruled upon.)
Cohen will face some serious challenges to his credibility, of course. He is an admitted liar and convicted felon. But that’s not as big a problem for the state as it might appear. Prosecutors present cooperating witnesses with past convictions all the time, and they know how to handle it. They will seek to back up everything he says, in multiple ways if possible, so the jury doesn’t have to rely solely on his word for anything. The documents speak for themselves and will support his testimony. Prosecutors will also tell the jury that if they don’t like Cohen and think he’s a bad person, they should remember that it was Trump, not the state, who chose to involve him in his criminal scheme.
For what it’s worth, in the recent New York civil fraud case, judge Arthur Engeron said that he found Cohen’s testimony about Trump’s finances to be credible, despite Cohen’s own sketchy past.
Stormy Daniels and Karen McDougal will provide the salacious details about their sexual encounters with Trump and their hush money payoffs. David Pecker will testify about his role in watching for negative stories and participating in the catch and kill schemes.
Former White House Communications Director Hope Hicks reportedly has been subpoenaed to testify for the prosecution. She allegedly took part in phone conversations between Trump, Cohen, and Pecker.
Former Trump Organization CFO Allen Weisselberg could be called to testify, either by the prosecution or the defense. He was involved in handling the financial and bookkeeping aspects of Cohen’s reimbursement scheme. If he testifies he will be wearing a prison jumpsuit - he was just sentenced to five months in Rikers Island prison for committing perjury during the Trump civil fraud case.
Will Trump Testify?
Not if he listens to his lawyers.
Trump recently said he “absolutely” would testify at the trial. There’s no reason to take him at his word, of course. But if he did testify I think it would be a colossal mistake. He would not do well in front of a jury under cross-examination.
When a defendant testifies at his own trial he usually ends up being the prosecution’s star witness. I think that would be doubly true for Trump. Prosecutors can only dream that he takes the stand. Any good prosecutor would be salivating at the prospect.
The defense doesn’t have to let the state know whether the defendant will testify until the trial is almost over, so Trump can continue to keep everyone in suspense and generate more breathless headlines. Unfortunately, I don’t think it will happen.
How Long Will the Trial Take?
Jury selection is expected to take 1-2 weeks. After that, the parties have estimated the trial will last about four weeks. The trial will be in session Mondays, Tuesdays, Thursdays, and Fridays, with Wednesdays off. Barring something unforeseen, we should be looking at a verdict sometime around the end of May.
Will the Trial Be Televised?
No. New York law does not allow for that. Of the four Trump prosecutions, only the Georgia state case allows cameras in the courtroom.
Could Trump Be Acquitted?
Of course that’s possible, but in a case like this it seems extremely unlikely. It would require all jurors to agree unanimously that Trump is not guilty. On these facts it’s hard to see that happening. Trump’s better hope, by far, is that he can get at least one holdout juror who will refuse to convict no matter what the evidence shows. That would result in a hung jury and no verdict, which Trump would proclaim a victory. Although jury selection is not the most interesting part of a trial, this highlights how important that process is for both sides.
What’s the Possible Penalty?
This charge is a Class E felony, the least serious level of felony in New York. On each count of conviction the judge could sentence Trump to anything from probation up to four years in prison.
That means prison time is definitely a possibility if Trump is convicted. In reality, I’d be surprised if the judge gave the former president jail time for this kind of offense. Even if he did, he would almost certainly allow Trump to remain free pending appeal. Trump will not end up campaigning from a jail cell — although nothing technically prohibits that.