Trump’s trial commences: Exploring the potential weaknesses in the hush money case

Donald Trump is preparing to embark on a new chapter on Monday: the start of the first criminal trial for a former president and one that he will seek at every juncture to discredit during the six-to-eight-week event.

Monday will mark the start of jury selection, where the court will summon hundreds of prospective jurors and narrow them down to a pool of 12 jurors and six alternates. Manhattan District Attorney Alvin Bragg, an elected Democrat, charged Trump with 34 counts of first-degree falsifying business records, a low-level felony that could result in up to four years behind bars if convicted.

Trump, who will be represented in court by attorneys Todd Blanche and Susan Necheles, has pleaded not guilty.

“It’s a scam,” Trump said Friday in reference to the case, teasing that he “would testify” at some point during the multiweek trial that could last until June.

The core of the case features allegations of various alleged sex scandals that prosecutors say Trump attempted to conceal with the help of his former attorney and fixer Michael Cohen and ranking executives at the National Enquirer. Cohen paid $130,000 to adult film star Stormy Daniels in the final days of the 2016 election to keep her silent about her allegations of an affair with Trump in 2006, which Trump denies ever happened.

Following Trump’s 2016 victory, he reimbursed Cohen through a series of checks from his trust that were processed via the Trump Organization and marked as payments for “legal services rendered,” a claim that the Democratic district attorney says was false.

Unlike the former president’s recent civil cases, such as the defamation lawsuit brought by former Elle magazine columnist E. Jean Carroll or the civil business fraud trial, Trump will be required to attend court every day to participate in his defense. The trial is off on Wednesdays, but Trump will be required to be in court for the four other days of the court week. The trial days are anticipated to last from 9:30 a.m. to 4:30 p.m.

The case will be presided over by New York Supreme Court Justice Juan Merchan, who has imposed a gag order on the former president that keeps him from bad-mouthing potential witnesses, attorneys, court staff, or other family members of prosecutors or lawyers. While Trump can still speak about Bragg, it blocks Trump from raising concerns inside and outside the court about Merchan’s daughter Loren, who Trump claims creates a conflict of interest for the judge due to her years of work for a consulting firm that accepts millions of dollars from Democratic lawmakers.

Trump, the Republican presumptive nominee for president, has called Bragg’s case a “witch hunt” in pursuit of denying him another term in office. The former president has even suggested he might do campaign events at night after attending court during the day.

Here are the strategies Trump could seek to employ in the multiweek trial:

Defense expected to trash Cohen’s reputation

Cohen is expected to be prosecutors’ star witness because his payments to the porn star are at the very center of Bragg’s indictment. But the problem for prosecutors, which Trump has already made loud and clear, is that Cohen appears to have lied to multiple branches of the federal government in just the past few years.

The former attorney pleaded guilty in 2018 in federal court to lying to Congress, tax evasion, and campaign finance violations. Cohen wanted a deal with the Justice Department to shake off some of his prison sentences, but agency prosecutors deemed he had lied in his interviews.

To make matters worse for Cohen, a federal judge overseeing his criminal case found on March 20 that Cohen had “committed perjury” in relation to his guilty plea to tax evasion charges, quashing his bid to obtain early release from probation.

And because Cohen can no longer practice law due to his prior conviction and subsequent disbarment, the career he has built in the media could create the appearance of a financial motivation to accuse Trump falsely. Cohen has made a name for himself as a frequent Trump basher during television appearances and wrote a book titled Revenge that was highly critical of Trump.

A recent poll by Politico-Ipsos found that nearly 40% of respondents said Bragg’s case would be weaker if it is based “in large part” on Cohen’s testimony. However, a former legal adviser to Cohen, attorney Lanny Davis, indicated to Politico that the former Trump fixer’s testimony is only the tip of the iceberg for prosecutors to try and corroborate the allegations against the former president.

“Anyone who believes that this trial of Mr. Trump’s alleged crimes under New York state law is dependent, even primarily dependent, on Michael Cohen’s testimony is in for a big surprise,” Davis said.

Others who are expected to testify include Karen McDougal, a former Playboy model who also said she had an affair with Trump, which he also denies. She took money from the Enquirer to stay quiet about her allegations in what Bragg’s office deems a “catch and kill” scheme meant to keep her lips sealed on the alleged affair.

Additionally, Daniels herself, along with her former attorney Keith Davidson, are likely to testify about the negotiations over the payment, according to NBC News.

Who will testify in defense of Trump?

Trump is planning to call on Bradley A. Smith, a former Federal Election Commission chairman who will testify about the commission’s function as well as laws it is responsible for enforcing related to the case. Merchan ruled that Smith will not be allowed to provide his opinion on whether Trump’s actions violated election law, a move that was a blow to the defense.

The former president may also testify on his own since he is the only one who can directly rebut the claims made against him by prosecutors’ witnesses. While he has acknowledged reimbursing Cohen, he contends he didn’t know the details about what Cohen was doing.

“That’s election interference by the Biden administration,” Trump said on Friday after he said he would testify.

Trump could try to sway judge on ‘zombie’ case argument

Bragg’s predecessor Cyrus Vance attempted twice to look into the hush money payment and did not bring charges, in part because winning a conviction would rely on an untested legal strategy, according to a book by Mark Pomerantz, a former prosecutor in the office.

“The bottom line for me was that the ‘zombie’ case was very strong,” Pomerantz wrote in his book. “But was it a crime under New York law?”

Pomerantz has said Vance’s office looked into the payment in 2019 after federal prosecutors in the U.S. Attorney’s Office in Manhattan completed their own case without bringing charges against Trump. Pomerantz has also said that since Trump was a presidential candidate, Vance found it wasn’t clear whether intent to conceal a federal crime would support state-level charges.

Under New York law, falsifying business records with the intent to defraud is a misdemeanor offense and only becomes a felony if the defendant intended to commit, aid, or conceal a separate crime. But Trump is not charged with a separate crime in this case.

The hurdle for prosecutors is to prove that the scheme was intended to conceal violations of campaign finance and tax laws, though it is not all too clear whether any witness can testify that Trump actually knew about the legal implications or specifically intended to sway the election. The indictment lays out how the payments to Daniels would be structured but leaves out any reason as to why that atypical arrangement was adopted.

Ultimately, it will be up to prosecutors to have a card up their sleeve to show more evidence for Trump’s awareness of the legal implications. If they can show this, Trump could ask the judge to give the jury an option to convict Trump instead of the lesser misdemeanor offense of falsifying business records.

Ankush Khardori, a former federal prosecutor at the Justice Department and a senior writer for Politico, wrote that this strategy could be employed if Trump’s defense gets the sense that jurors might have concerns about the strength of Bragg’s case.

Defense attorneys might defer to this strategy toward the end of the trial if they believe that the jury might be “reluctant to fully acquit the defendant on trial (perhaps because he is wildly unpopular in the jurisdiction); and when they want to give the jurors the option to compromise by convicting the defendant on the lesser offenses instead of the more serious ones,” Khardori wrote.

Settling for a misdemeanor conviction would take away the stakes of potential jail time for Trump and could serve as a moment for him to knock the idea of Bragg seeking to bring Vance’s “zombie case” against him. While Trump likely prefers to be acquitted, his acknowledgment that the trial is a “scam” and his eleventh-hour efforts to move the case out of the deeply Democratic Manhattan borough last week show that he might be concerned about the jury selection process.

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Trump on Friday called the jury selection process “mostly luck” as his attorneys sent a letter to Merchan calling for the judge to revise some of the instructions to be given to prospective jurors on Monday, citing the “extraordinarily prejudicial pretrial publicity associated with the case,” according to a letter from Blanche.

Meanwhile, Merchan on Friday declined Trump’s effort to postpone his trial because of publicity about the case.