I came across this article this morning:
A Trump Conviction Doesn’t Hang on Michael Cohen
NYT/GUEST ESSAY By Jeffrey Toobin
The Manhattan district attorney’s case against Donald Trump has unfolded like a north-of-the-border telenovela, with lurid tales of sex, spankings, hush money and silk pajamas, as well as the occasional detour into the editorial practices of supermarket tabloids. But the case, provocative as it has been, may turn on something a great deal more mundane than the testimony.
The key question the jurors will soon be considering is a straightforward one: Did the former president “cause” the creation of false business records? The prosecution has answered half of that question. There’s no reason to doubt the records were false. But the verdict is likely to turn on the other half — whether Mr. Trump caused the false information to appear on the invoices and vouchers. The evidence there is murkier.
According to the prosecution, on the eve of the 2016 election, Michael Cohen, Mr. Trump’s onetime lawyer and fixer, paid $130,000 to Stormy Daniels, the porn star, to guarantee her silence about a tryst she and Mr. Trump allegedly had a decade earlier. Mr. Trump then reimbursed Mr. Cohen for his outlay, plus a bonus and additional funds for taxes. The business records of those payments to Mr. Cohen called each one a retainer for legal services, rather than what they were: a reimbursement for the hush money paid to Ms. Daniels.
The prosecution has done an excellent job of proving these details. Was the information on the documents false? Absolutely. Several witnesses support the government’s claim that Mr. Trump’s payments to the lawyer were not legal fees. Mr. Trump himself tweeted in 2018 that Mr. Cohen received a “reimbursement” and said as much in a White House financial disclosure form.
The government also introduced a document in the handwriting of Allen Weisselberg, the former chief financial officer of the Trump Organization, detailing the reimbursement scheme. Mr. Cohen laid out his own money — $130,000 to Ms. Daniels and about $50,000 in another expense. Mr. Weisselberg jotted that the reimbursement would break down as $180,000 in income to Mr. Cohen, $180,000 to cover Mr. Cohen’s taxes, and a $60,000 bonus. The total of $420,000 was exactly what Mr. Cohen received in 11 checks. The prosecution also made a strong showing that the payoff to Ms. Daniels was designed, above all, to help Mr. Trump win the 2016 election. That’s especially important in this case because if the jury finds that Mr. Trump was motivated to violate election laws, that elevates his crime from a misdemeanor to a felony.
Mr. Trump’s defense team barely disputed this evidence. At times his lawyers seemed to be trying harder to please their client than to win their case. In cross-examining Ms. Daniels, Susan Necheles did a fine job of showing Ms. Daniels’s anger at Mr. Trump and her financial interest in a conviction in this case. But then Ms. Necheles began a long and unpersuasive attempt to show that Ms. Daniels was lying about the underlying sexual encounter. Ms. Daniels’s story of that night was solid, including such details as her whacking Mr. Trump with a magazine when he condescended to her and his louche outfit when she arrived at his hotel room. “Does Hugh Hefner know you stole his pajamas?” she recalled asking Mr. Trump. (Mr. Trump denies having an affair with Ms. Daniels.)
Given the structure of the case, it almost doesn’t matter whether the two had sex in 2006, which made the defense assault on Ms. Daniels even more unnecessary. All that the jurors needed to know was that her story, true or not, represented a threat to Mr. Trump’s 2016 campaign, and that’s why he wanted to pay to shut her up.
The prosecution went to a great deal of effort to prove that Mr. Trump, notwithstanding his great wealth, was a tightwad who kept a close eye on every expenditure. The jury heard quotes from Mr. Trump’s own book recounting how he personally signed his own checks. In an email, an assistant brought up the purchase of something as minor as a picture frame for “about $650 minus %15 discount. Does DJT want to spend that much?”
This testimony was aimed at shoring up the principal weakness in the government’s case. The defense has argued that while Mr. Trump signed the checks to Mr. Cohen, there was no direct evidence that he knew about how those payments were recorded by the bookkeepers at the Trump Organization. He had no reason to check how the payments were categorized.
This is where Mr. Cohen’s testimony was vital. The three days he spent on the stand so far resembled a prose opera of love, betrayal and revenge. Mr. Cohen said that Mr. Trump knew about a plan to lie about the payments and described how he prepared invoices that falsely characterized the payments as legal fees, even though both men knew that the payments were reimbursements. If the jury believes Mr. Cohen, despite a brutal cross-examination that underlined his history of lying, then conviction is almost assured.
But even if the jury writes off Mr. Cohen or discounts his testimony, the government can still prove its case. Under the law, Mr. Trump can be convicted if he “caused” the false records to be created. The jury has to believe that Mr. Trump knew any documents characterizing the payments as legal fees were false.
The government has argued that Mr. Trump couldn’t have missed at least some of the false statements, because the word “Retainer” was on the stubs attached to the checks he signed. That’s a persuasive argument because someone as penurious as Mr. Trump surely would not spend $420,000 without knowing the reason, and thus he had to know that records describing those expenditures another way were false.
Juries surprise — sometimes. This one, especially with two lawyers on it, is likely to be fastidious about examining the evidence and following the law. Despite the sensational surrounding drama, the issue for these 12 Manhattanites is likely to come down to the prosaic business of invoices and vouchers, and how they came to tell a story that was different from the one that actually happened.
rfenst wrote:
