Donald Trump’s hush money trial was his to lose. Here’s why he did it

Kayla Epstein,BBC News, in the New York courts

Reuters courtroom sketch of Trump on the day of the verdictReuters

A New York jury’s guilty verdict against Donald Trump may have shocked the general public, but some who watched the case closely were not surprised.

With the burden of proof falling on prosecutors, Trump had to lose the case. But his team’s lack of a counter-narrative and a flawed strategy to undermine the case’s weaknesses hampered the defence, lawyers and former prosecutors told the BBC.

And even before going to court, one factor had already prepared a tough battle.

“The biggest problem the defense had in this case,” said Mitchell Epner, a New York civil litigator, “was that Donald Trump was their client.”

Lack of narrative

To convict Trump, the jury had to be sure that he falsified his business records and that he did so with the intent to conceal or commit a second crime.

The Manhattan District Attorney’s case was this: With Trump’s approval, his former lawyer, Michael Cohen, paid adult film star Stormy Daniels $130,000 to keep quiet about an alleged sexual encounter so as not to derail Trump’s campaign in 2016. Trump then approved a fraudulent scheme to disguise the reimbursement to Cohen as legal expenses to hide the hush money.

In doing so, he violated election rules, prosecutors said, which amounted to “voter fraud, pure and simple.”

Prosecutors then called 20 witnesses and offered dozens of crucial documents, including checks made out to Cohen with Trump’s signature.

Trump has pleaded not guilty to all 34 counts of falsifying business records.

But “the defense never had a story that the jury could accept,” said John Moscow, who spent 30 years working for the Manhattan district attorney.

While they did not have to refute the prosecution’s case, giving jurors a plausible reason behind Trump’s repayment to Cohen, for example, would have helped, experts said.

During his closing argument, Trump attorney Todd Blanche provided an alternative explanation for the fraudulent documents: that they were payments for actual work Michael Cohen performed in 2017, and therefore recording them as legal expenses was not fraud.

The defense also argued that Trump paid Daniels only to protect his family, not to defraud voters, but the team never developed that argument, Epner said.

“They never picked a lane, and like Donald Trump he closed all the lanes that could have reasonably been picked,” Epner said. “They tried to throw dust into the air and confuse the jurors.”

The key point is missing

Prosecutors used meticulous documentation to show falsified business records, but evidence that Trump actually intended to commit or conceal that second major crime was “weak or nonexistent,” Randall Eliason, a professor at the School of Law, told the BBC. from George Washington University. .

Trump’s team did not focus on attacking this weakness, although in her summation, Blanche gave the jury a list of reasons to have reasonable doubt. Instead, they argued that the central events of the case never happened or that witnesses had lied.

But the jury may have determined that these claims were not supported by later evidence and testimony.

Pool Donald Trump leaving the court  Pool

Former President Donald Trump leaves court Thursday after being found guilty on all 34 charges

Eliason said a more effective defense would have been: “Let’s assume, for the sake of argument, that all of this happened. Sex happened, hush money happened, and Trump knew it. Good. Those are not the charges. What is the evidence of Trump’s actual intent and knowledge? That’s where the case falls short.’”

In Trump lawyer Susan Necheles’ cross-examination of Ms. Daniels, she sought to portray the actress as a liar seeking money and fame for her story.

“It’s no surprise to anyone that there was likely a lot of pressure from the client to paint certain people as liars,” said Anna Cominsky, a professor at New York Law School. “That’s not necessarily the best defense strategy. “Stormy Daniels didn’t have to lie for (the defense) to win.”

The Cohen factor

The defense’s best chance to win was to discredit Cohen, a star witness.

Cohen certainly created a lot of ammunition over the years: guilty pleas for lying to Congress and other crimes, endless public statements attacking his former boss and questions about whether he had lied to a judge.

M. Blanche insisted on these points. In his closing argument, he called Cohen the “GLOAT,” the “biggest liar of all time.”

During the trial itself, he cast serious doubt on Cohen’s testimony that he had called Trump – who was using a bodyguard’s phone – about hush money on October 24, 2016.

“I thought it was a big win for them because I might catch him lying or misremembering,” Cominsky said.

Reuters Michael Cohen in a courtroom sketch on the standReuters

Michael Cohen took the stand during the trial as the prosecution’s star witness.

But the defense also made some mistakes.

Blanche’s first real question to Cohen was provocative: “‘You went on TikTok and called me a whiny little shit,’ right?”

Cohen responded evenly: “Sounds like something I would say.”

Judge Juan Merchán admonished Blanche in a side comment. “Why are you making this about yourself?” he asked her.

“That was a shockingly bad moment,” Epner said. “It was a confrontation at noon and he was defeated.”

The defense called only one important witness, attorney Robert Costello, to undermine some of Cohen’s claims.

But Costello’s testimony was contradicted by his own emails, and in an unusual and chaotic moment, a furious Judge Merchan cleared the courtroom so he could reprimand Costello for his behavior on the stand.

“The case is what it is.”

However, not all lawyers believed the defense could do much.

“I’m not sure they did anything wrong,” said Karen Agnifilo, who was the senior assistant district attorney in the Manhattan district attorney’s office until 2021. “The case is what it is.”

Others said the evidence linking Trump to the crime was strong.

“People are convicted on much less reliable evidence than this,” Moscow said.

However, not all legal experts were convinced that the prosecution’s legal prowess won the case.

Jed Sugarman, a professor at Boston University School of Law who said he identifies as politically progressive, thought the voter fraud aspect was exaggerated for political effect and that the underlying crimes that justified a felony charge were never they became clear.

He believed that the prosecutors’ victory came down to taking the case to a liberal-leaning jurisdiction and selecting a favorable jury.

“Trump’s mistake,” Sugarman said, “is committing crimes in Manhattan.”

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