Opinion: How Trump’s Defense Could Salvage Its Inept Case at Hush-Money Trial

Mark Peterson/Reuters
Mark Peterson/Reuters

No one can predict a criminal jury verdict with anything approaching scientific accuracy. This includes lawyers, judges, and, most certainly, political commentators.

This is the mystery of the truth-divination system we call a criminal justice system. We let two white knights (the presumption of innocence clothes both prosecution and defense in white) joust and whoever wins is determined to be representing the side of truth. Juries decide which side wins.

After the Trump trial verdict, we will never know exactly what factored into the jury’s decision—whether it be conviction, acquittal or hung jury—because no one account can capture even how one human mind makes decisions, much less twelve of them.

But here’s what to watch for.

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The prosecution bears the burden of proof and in some jurisdictions that means they go first and last—meaning the prosecution gets to rebut the defense. However, in New York, the defense goes first and then the prosecution—no rebuttal. Then judge Juan Merchan will instruct the jury on the law before giving them the case to decide.

The best defense closings are not scattergun approaches that rely upon lofty rhetoric or anecdotes about the meaning of reasonable doubt. Nor do they talk much about the prosecution bearing the burden of proof and the fact that a defendant is presumed innocent. The reality is defendants tend to face a “presumed guilty” attitude that the defense must overcome. To do so, defense counsel needs to present a coherent theory or theories. For example, the defendant wasn’t present at the crime scene and the eyewitnesses are suspect because they either have bad eyesight or are biased against the defendant. What the defense should not do is present multiple, conflicting defenses: The defendant was not present at the murder scene, but if they were then it was self-defense.

Thus far, Trump’s defense team seems to use a throw-everything-at-the-kitchen-wall strategy with a particular emphasis on Trump’s favorite foods: insult and shame. The cross-examination of Stormy Daniels tried to discredit her not through inconsistencies in her testimony but by trying to make the jury believe that her acting and directing were shameful pursuits that should preclude anyone from thinking she can tell the truth. It didn’t go well for the defense. Daniels came across as genuine and smart and slam-dunked a few times right in the defense counsel’s face.

For Michael Cohen, the defense seemed to have so embraced the media and former Trump attorneys’ disparagement of Cohen’s honesty that they focused on calling him a liar instead of showing the jury where he might have been wrong or lied.

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To salvage their inept case, the defense needs to give a closing which is tightly focused on facts and not their client’s penchant for insult. The best way for them to treat the Stormy Daniels testimony is to argue it is not really relevant to whether Trump engaged in falsification of business records since she has no knowledge of accounting details. If, on the other hand, they try to satisfy Trump by arguing that the sexual encounter never took place, then they not only put the jury’s focus on a legally irrelevant factor but also risk setting up a credibility contest between Trump and Daniels. That’s not a contest Trump is likely to win. With Michael Cohen, they need to play up the slim amount of testimony that Trump gave specific instructions given to falsify the reimbursements to Cohen as legal invoices.

That leads to the defense’s strongest argument, which is that there is insufficient evidence of Trump directing or knowing how the reimbursements were recorded. It’s their best argument because it attacks the foundation of the case. The prosecution theory requires the misdemeanor falsification being proven and then proof that the falsification was meant to further another crime: election interference. So without a determination by the jury that Trump knew about the falsification then the prosecution cannot win. Such an approach allows the defense to parry the onslaught of records and testimony—some by witnesses sympathetic to Trump—evidencing that the falsification happened and Trump likely knew about it.

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In contrast, the prosecution has an abundance of actual evidence—versus personal attacks—to use in its closing, but the evidence must be carefully woven into a simple tale the jury understands. Something along the lines of: Trump tried to cover up his payments to cover up his sexual encounter because he worried the publicity might hurt his election chances. The timeline they walk the jury through needs to be both easy to follow and densely documented by supporting evidence.

Stormy Daniels’ testimony will be a gift to the prosecution’s closing. They can simply reference it as part of the story and let her excellent performance speak to the contrast in credibility between her and the defense arguments as well as the defense witness Robert Costello—who came across as so arrogant and disrespectful that Judge Juan Merchan had to dress him down after clearing the courtroom.

Michael Cohen should be used by the prosecution as both a guide to and a victim of Trump’s world. Cohen weathered his cross-examination well and the prosecution would be smart to reference his testimony without any defensiveness. Certainly any snark thrown at Cohen by the defense can be handled by prosecutors literally pointing to Trump and saying: “If you don’t like Michael Cohen, if you found what he did to be distasteful, then just remember who hired him.”

The jury instructions—which we have not yet seen—sound like they will be particularly helpful to the prosecution on the element of “unlawful means.” Namely, the judge will not require the jury to agree unanimously on which unlawful means were used in the crime. Some jurors may conclude that tax fraud arising from Trump’s treatment of the reimbursements as invoices paid to Cohen was the unlawful means for the case while others may conclude that the unlawful means was that the falsification concealed what should have been reported to the Federal Election Commission as an “in-kind” campaign contribution.

This lack of a unanimity requirement is very helpful to the prosecution because the jury can pick and sample as it chooses from evidence of unlawful means without having to agree on only one. This also provides insulation on appeal should there be a conviction.

As one experienced legal commentator has observed: “Juries surprise—sometimes.” The New York Trump jury is no exception. They may acquit or they may hang. But for me, any outcome other than a conviction will be a surprise given how the prosecution’s evidence has been presented, combined with the likelihood that Trump’s defense team will likely continue its scattergun tactics in their closing.

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