Begin with the end in mind.
That’s good advice for most things in life, but it’s particularly true for prosecutors who are trying a criminal case. At the end of the trial comes the closing argument, which for Donald Trump begins Tuesday in Manhattan. The evidence Alvin Bragg’s prosecutors have elicited during the trial has set them up well for a grand finale.
Even before the case was filed, prosecutors were clearly thinking about the evidence they would need to prove that Trump falsified business records with the intent to conceal election and tax crimes. During seven weeks of trial, every exhibit and every witness is building toward this finale. Even jury selection was conducted with the end in mind. When prosecutor Joshua Steinglass asked prospective jurors if they could accept the legal concept that a person can be convicted for murder by hiring a hit man to kill his wife, he was advocating for his theory of the case against Trump, who allegedly directed others do his dirty work in order to influence the outcome of the 2016 presidential election. You can expect prosecutors to return to that theme in their closing argument.
The law is a little tricky in this case, with its 34 counts prosecutors must prove beyond a reasonable doubt. But overall, the law is favorable to the prosecution.
The law is a little tricky in this case, with its 34 counts prosecutors must prove beyond a reasonable doubt. But overall, the law is favorable to the prosecution.
First, the New York statute regarding business records requires proof that Trump knowingly caused business records to be falsified. Each of the 34 records, consisting of invoices, ledger entries and checks signed by Trump, will be considered separately. The jury need not find that Trump himself falsified the records, just that he caused someone else to do so.
Just like hiring that hit man.
According to the prosecution’s case, these documents were falsified to make it appear that they were payments to Trump attorney Michael Cohen for legal services when, in fact, they were reimbursem*nts for the $130,000 Cohen paid to silence adult actress Stormy Daniels and prevent her sexual encounter with Trump from becoming public. And, if the prosecution can prove that Trump knew that even one of the records was falsified, that is sufficient to overcome the first hurdle.
Second, the prosecution must prove that the records were falsified with intent to commit or conceal the commission of another crime. The prosecution will argue that this other crime may be any one of a number of violations of federal and state election laws and state tax law. And here is where the law is particularly favorable to the prosecution. New York law treats these predicate crimes as what is known as the “manner and means” of the commission of the crime rather than elements of the offense. That means the jury need not be unanimous in deciding which law was violated, so long as each juror believes that one of the laws was violated.
Based on its pretrial filings and opening statement, I expect the prosecution will argue that Trump intended to violate several laws: accepting Cohen’s contribution of $130,000, which exceeded the legal limit of $2,700; failing to report Cohen’s payment as a campaign contribution; reimbursing Cohen in violation of prohibitions on “straw” donors; paying a portion of Cohen’s reimbursem*nt with Trump corporate funds, which is a prohibited source for campaign contributions; and falsely reporting Cohen’s reimbursem*nt as income on state tax returns. So long as the jury finds that Trump intended to conceal any one of these other crimes when he caused a false document to be made, the jury may find him guilty.
In proving these charges, the prosecution has two key obstacles to overcome. First is the credibility of its star witness. The defense no doubt will portray Cohen as a convicted liar who is out for vengeance against his former boss. Cohen admitted on the stand to lying and even to stealing from Trump while still in his employ. But the prosecution clearly began the trial with the end in mind when it comes to Cohen. Prosecutors strategically made Cohen their last witness, providing corroboration for his story even before he took the stand. As a result, the jurors have enough evidence to return a conviction, at least circ*mstantially, even if they tend to disregard Cohen’s testimony because of his baggage. Prosecutors will also paint Cohen as Trump’s guy, not theirs.
To overcome concerns about Cohen, the prosecution would be wise to hammer home two key pieces of evidence: the testimony of former AMI publisher David Pecker and the handwritten notes of Trump Organization CFO Allen Weisselberg. Both men have strong credibility in light of their continued allegiance to Trump.
Pecker, the first witness in the case, testified that he attended a meeting with Trump and Cohen in August 2015, shortly after Trump announced his campaign for president, where they agreed to suppress negative stories that could be harmful to Trump’s campaign. Although Weisselberg did not testify, his handwritten notes detailed exactly how Cohen would be reimbursed to conceal the payment to Daniels. This is compelling evidence that shows the way the records would be falsified to conceal the payments. Neither of those pieces of evidence requires the jury to believe the testimony of Cohen.
The second obstacle is the potential defense that Trump made the payment to Daniels and kept it secret not to influence the election, but to protect his family from the pain and embarrassment of the allegation. The law does not require the prosecution to prove that an intent to influence the campaign was the sole reason for the falsification of records, but it does require proof of what’s called the “indispensability test,” that is, but for the campaign, the payment would not have been made.
Neither of those pieces of evidence requires the jury to believe the testimony of Cohen.
Here, even without regard to Cohen’s testimony that the payment was made to protect the campaign, other evidence supports this conclusion. The story of the affair had existed since 2006, but it was only after Trump declared his campaign for president in 2015 that he paid to kill it. If the payment had been made to protect Trump’s family, it would have been made long before then. Pecker’s testimony about a similar hush money payment to Playboy model Karen McDougal regarding a 2005 relationship, made only after the campaign announcement, is further evidence that the payments were made for the purpose of influencing the campaign.
Predicting how any particular jury will decide a case is always difficult because 12 individual jurors bring with them their life experiences and their unique worldviews. But the prosecution has positioned itself well throughout this trial, systematically building toward its final summation —and a finding of guilt beyond a reasonable doubt.
Barbara McQuade is an MSNBC columnist and NBC News and MSNBC legal analyst. She is the author of "Attack from Within: How Disinformation is Sabotaging America,"as well as a professor at the University of Michigan Law School and a former U.S. attorney for the Eastern District of Michigan.
