Opinion: Trump’s fate now hinges on these three questions | CNN (2024)

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On Tuesday, we at last came to closing argumentsin the Manhattan criminal trial of former President Donald Trump after20 daysof trial, testimony from 22 witnessesand over 200 exhibits.

Thatisavast amountof terrain to traverse, but ultimately the case boils down to three questionson which the lengthy closings of defense counsel Todd Blanche and Assistant District Attorney Joshua Steinglass turned.

Trump is facing34 felony document falsification charges in an allegedly illegal repayment schemeto conceal the history of the$130,000 hush money payment made to adult film actress Stormy Danielsvia former Trump lawyer Michael Cohen to keep her silent before the 2016 presidential election about allegations that she and Trump had a sexual encounter (which Trump denies).

Were the 34 allegedlyfalse records actually false?

The firstpivotpoint iswhether the 34 business records at the heart of the case actually contain false information.

Blanche argued to jurors thattheprosecution had not met their burden of proof on this threshold issue. He said the recordsdescribe the payment to Daniels using the words “legal expenses,” “retainer” and “for services rendered” — and the evidence shows that was accurate.If those words accurately describe the payments, then there is no crime; if they are false, then the records containing them are also false and that element of the crime is proved.

Norm Eisen

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For example, Blanche pointed to Cohen’s testimony and documentsreferencing that he did legal work on a Trump Foundation matter, on a case involving Summer Zervos (a former contestant on Trump’s former TV show “The Apprentice”) and on an agreement to create former first lady Melania Trump’s figurine at Madame Tussaud’s. AndBlanche saidthat when Cohentestifiedthat the work he did on those issues was gratuitous or minimal,he was lying — anoft-heard theme from the defense on Tuesday.

In his closing, Steinglasscame back hard at the claim that Cohen lied. He pointed to the testimony that all that legal work amounted to less than 10 hours, which would have amounted to a fee of $42,000 per hour! And Steinglass pushed back on Blanche’s emphasis on the much-discussed October 24, 2016, Cohen call to Trump’s bodyguard, Keith Schiller. Steinglass argued that Cohen was credible and that there was plenty of time in a 96-second call to discuss both prank calls Cohen had been receiving from a teenager, which Cohen and Schiller text-messaged about before the call, and the Daniels deal. In a bit of trial theatrics, Steinglass re-enacted the call, demonstrating his point (and using less than 50 seconds to do it).

He also fought back with perhaps the DA’s strongest pieceof evidence: People’s Exhibit 35, the handwritten notations of the “grossed up” payment to Danielsas writtendownby former Trump Organization chief financial officer AllenWeisselbergand Cohen. Steinglass arguedthat these contemporaneous notes proved thatthehush money payment with the intent to keep Daniels from revealing the potentially damaging story of her alleged liaison with Trump during the presidential campaign amounted to an illegal campaign contribution and wasrepaidto Cohenafter being doubled for taxes.

Steinglass argued that wasanything but “legal expenses” or a “retainer” for “services rendered” by Cohen, as Blanche claimed.Trump “didn’t really pay a lawyer,” the prosecutor said. “He paid a p*rn star by funneling money through a lawyer.”

“Documents don’t lie, and they don’t forget,” Steinglass said, and I think the prosecutors got the better of this exchange.

Did Trumppossessan intent to defraud?

Even if the documents were false, the prosecution must also prove that Trump had an intent to defraud under the statute — that is, to intentionally lie in his business books and records.The secondmajorpivot pointin the closing arguments and the caseiswhether Trumppossessedthe requisite fraudulent intent.

Here, too,Blanche arguedthatthe prosecution had notestablishedproof beyond a reasonable doubt, because if you subtracted Cohen’s testimony about Trump’s role in the scheme(given Cohen’s long history of lies) there was nootherproof ofTrump’s intent. Indeed, Blanche continued, Trump repeatedly disclosedthe reimbursem*nt — including onTwitter, a 1099 form to the IRS and afederal financial disclosureform.

But asSteinglasswas quick to point out, those were actually “repeated admissions” that this was a reimbursem*nt, and therefore help prove that Trump knew the business records were false when they stated the payments were income. (Moreover, many of those disclosures came afterthe scandal brokein 2018 — and thathardly constitutes innocent intent.)

AndSteinglassarguedthat the jurydidnot have totakeCohenat his word alone, because every critical point he made is supported or corroborated by otherproof — orbycommon sense.

Steinglass told jurors that “it’s difficult to conceive of a case with more corroboration than this one.” He pointed to, for example, records that corroborate Cohen’s calls and meetings with Trump andthe testimony of other witnessesabout how closely the former president watches his money, and to thedamningfact that nine of the checks bear Trump’s own signature.

Intent isa harder issue for the prosecution. I feltthe prosecutionhad the better of it. Butif there is a juror who will hang the jury (resulting in a mistrial), this may well be where they do it.

DidTrumpcover up an election conspiracy?

A third and finalpivotpoint: Inorder for the 34 allegedly falsified documents to be felonies, they have to be created to cover up another crime.Steinglass began his summation after lunch by reminding the jury of that:“This case at its core is about a conspiracy and a cover-up — a conspiracy to corrupt the 2016 election, and a cover-up … to disguise the payment to Stormy Daniels.”

Blanche likely knew that was coming, and spent substantial time in his morning closing argument on it. Hehas arguedthat “therehas tobe something illegal about the efforts by the co-conspirators to influence the election” under the New York election conspiracy statuteand said that the DA had failed toestablishproof beyond a reasonable doubt. Blanche pointed to testimony from former White House communications director Hope Hicks and Trump’s former personal secretary Madeline Westerhout that Trump wantedto protect his family from Daniels’ allegations that she had an affair with Trump, which is lawful,and to the fact that nondisclosure agreementsand campaign protection of the kind we hadhere are hardly unusual and not illegal.

Steinglassrebutted Blanche byproceeding in chronological order and spending hours meticulously documentingthe details of the alleged conspiracy dating back to August 2015 and the unlawful meansthat were allegedly utilized. Those include:Federal Election Campaign Act (or FECA) violations because the hush money advanced by Cohen was $130,000, whereas the legal limit for an individual campaign contribution that year was $2,700; tax law violationsbecause the reimbursem*nts were misclassified as income to hide what was really happening; and what Cohen said was his creation of other false documents to facilitate the payments,such as his bankand corporate records.

If the defense’s theme was that Cohen lied, the prosecution’swas corroboration of Cohen — and they hammered it home discussing the unlawful means by which they allege the conspiracy proceeded, going through extensive testimony of other witnesses and what felt like the majority of their hundreds of exhibits.

The prosecution had thebetter of the argument here as well, helped by the applicable law. Even if Trumppaid hush money to Daniels to protect his family, for example, the law still allows conviction if the intentof the conspiracywasto help the campaign as well.

The prosecution was ahead on points going into the closing argumentsand Tuesday did not change that calculus.Yes, the closing left off-ramps such as the question of intent if a juror wants to hang the case — but a hung jury is unlikely.