This week will see opening statements in the People of the State of New York v. Donald J. Trump. The state’s case seems strong, but a conviction is far from assured.
In the official record, the case is known as the People of the State of New York v.
Will a mountain of evidence be enough to convict Donald Trump?
By Ben Protess & Jonah E. Bromwich
New York Times·
9 mins to read
Former President Donald Trump is accused of 34 felonies, but a conviction is no sure thing. Photo / AP
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Daniel J. Horwitz, a veteran defence lawyer who previously worked in the Manhattan district attorney’s office prosecuting white-collar cases, said prosecutors can be expected to corroborate Cohen’s story wherever possible.
“The prosecution has layers upon layers of evidence to back up what Michael Cohen says,” Horwitz said.
Both sides will lay out their cases in opening statements Monday, offering duelling interpretations of the evidence some six years after the payoff to Daniels entered the public consciousness and briefly imperilled Trump’s presidency.
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But in previewing the case for prospective jurors last week, Manhattan prosecutors emphasised neither the payoff that secured Daniels’ silence nor the sex scandal that was buried in the process. One prosecutor, Joshua Steinglass, instead distilled the trial’s stakes to a fundamental question: “This case is about the rule of law and whether or not Donald Trump broke it.”
Steinglass’ boss, Bragg, has offered a loftier interpretation, casting Trump’s actions as election interference. Although Trump’s lawyers might claim he was merely trying to hide embarrassing stories from his family, Bragg says Trump orchestrated a scheme to conceal simmering sex scandals from voters as they headed to the polls in 2016. All told, his allies struck three hush-money deals, paying off people who had stories to tell — stories that could have derailed Trump’s candidacy.
Bragg’s prosecutors will seek to turn that 2016 campaign strategy against Trump: The tactics that helped propel him to victory will be admitted as evidence and reconsidered far beyond the courtroom. Aides and friends who lied on Trump’s behalf will take the witness stand to testify against him.
They include: David Pecker, the tabloid publisher who bought and buried damaging stories about Trump; Hope Hicks, a spokesperson who tried to spin reporters; and Cohen, the fixer who paid Daniels. Pecker, who ran the company that owned The National Enquirer, is set to go first and is expected to recount for the jury several conversations with Trump about the hush money, according to a person familiar with the plan.
Trump faces 34 felony counts and up to four years behind bars, but more than just his freedom is at stake. If convicted, he might lose the right to vote, including to cast a ballot for himself. If he were to win back the White House, he would be the first convicted criminal to serve as commander in chief. And the question of how he might serve a prison sentence, should it come to that if he does not receive probation, could throw the country into turmoil.
America has grown accustomed to seeing Trump smash through its customs and is now witnessing a phenomenon that is a first in the 248 years of its history. Presidents have been impeached, driven from office and rejected at the polls. Trump is about to be the first to have his fate decided not just by voters, but by 12 citizens in a jury box.
And they all hail from Manhattan, the borough that made Trump famous and where he is now deeply unpopular. A favourable jury pool, legal experts say, has given Bragg a leg up at the trial.
Yet the jury, which was made final Friday and includes six alternates, is no rubber stamp: It includes at least two people who have expressed some affection for the former president, and it takes only one sceptical member to force a mistrial, an outcome that Trump would celebrate as a win.
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The stakes are high for Bragg as well. He is betting his career and his legacy on a prosecution he inherited, rejected and then transformed.
When he took office in 2022, he declined to bring a financial fraud case against Trump that his predecessor had prepared, prompting an uproar when two prosecutors resigned in protest.
But Bragg continued to investigate and soon revisited the hush-money deal — an episode that had become known internally as “the zombie case,” because it kept coming back to life. Little more than a year after taking office, Bragg indicted the former president.
Three other indictments followed in three other cities, but with those cases mired in delay, Bragg’s trial may now be the only one that Trump will face before Election Day.
The Manhattan case comprises the three hush-money deals: with Daniels, with a former Playboy model and with a onetime door attendant who told a tale of Trump fathering a child out of wedlock.
Pecker and his tabloid bought the silence of the door attendant, whose story turned out to be false. They also bought the rights to the story told by the model, Karen McDougal, and then never wrote it, a practice known as “catch and kill.”
Then there was Daniels, who was interested in selling her story of a sexual encounter with Trump. Pecker drew the line there: Her price was too high.
Instead, he and a top editor alerted Cohen, who soon paid Daniels US$130,000 ($220,000) not to tell her story about a sexual encounter with Trump a decade earlier.
Cohen has said he acted at Trump’s direction, but the former president is not charged over the payment itself. Instead, he stands accused of covering up the transaction by disguising reimbursements to Cohen.
In internal records, Trump’s company marked those payments as legal expenses, citing a retainer agreement. Yet no such expenses existed, prosecutors say, and the retainer agreement was fictional.
Trump is accused of engineering — or, at least, approving — the cover-up. His company, prosecutors argue, produced 34 false records that underpin the counts against him: 11 checks, 11 monthly invoices Cohen submitted and 12 entries in the general ledger for Trump’s trust.
Trump signed several of the cheques in the White House, as prosecutors will surely point out at the trial.
But directly linking Trump to the plot to falsify those records is another matter altogether.
His lawyers will be likely to argue that he was oblivious and that Cohen handled the specifics. Cohen hashed out the reimbursement plan with Trump’s chief financial officer, Allen H. Weisselberg, who is serving jail time for perjury and will not testify, records show.
The lack of a firsthand witness to confirm Cohen’s account is a potential flaw in the case, but it may not be fatal. Prosecutors plan to introduce a document containing Weisselberg’s handwritten notes about the reimbursements — a key piece of evidence demonstrating that Cohen did not act alone.
And under the law, the prosecutors need not prove that Trump personally falsified the records. Already during the trial’s first week, Steinglass laid the groundwork with a simple analogy: He asked prospective jurors whether they could accept that, if a husband hired a hit man to murder his wife, the husband was just as guilty as the man who pulled the trigger.
“Can you all follow the same kind of logic in this case?” Steinglass asked the prospective jurors. Many said they could.
Cohen is expected to offer the closest thing this case has to a smoking gun: He is likely to say that, in early 2017, he and Trump discussed the repayment scheme in the Oval Office.
If Trump testifies in his own defence, that could pit Cohen’s word against Trump’s — a he-said, he-said story, with two questionable narrators.
Whether or not Trump takes the stand, the trial could become a referendum on Cohen’s credibility, with the verdict possibly hinging on a convincing performance.
In 2018, Cohen pleaded guilty to a variety of federal crimes, admitting to participating in the hush-money deals with Daniels and McDougal and lying to Congress about plans for a Trump business deal in Russia. Trump’s lawyers will seek to emphasize Cohen’s checkered past at every turn.
And, on cross-examination, Trump’s lawyers are likely to portray Cohen as a serial liar with a grudge against his former boss.
Susan Necheles, one of Trump’s lawyers, began that campaign during jury selection. She referenced Cohen’s 2022 book Revenge, questioning the credibility of “someone who says that they want revenge against President Trump.”
Yet the prosecution is expected to note that Cohen told many of his lies for Trump. And prosecutors will offer evidence corroborating the broad strokes of Cohen’s story, which could persuade jurors when they are weighing his testimony about the crucial Oval Office meeting.
Trump’s White House executive assistant, Madeleine Westerhout, who has been identified as a potential witness, could confirm that Cohen did indeed meet with Trump, even if she cannot confirm what they discussed. Pecker can support at least some of Cohen’s testimony about Trump’s involvement in the hush-money deals. And a recording Cohen made of a call he had with Trump will capture the former president discussing the deal with McDougal.
“The prosecution’s argument is that you can trust Michael Cohen beyond a reasonable doubt as to their isolated conversation,” said Horwitz, the former prosecutor. He called the approach “Prosecuting 101.”
This article originally appeared in The New York Times.
Written by: Ben Protess and Jonah E. Bromwich
Photographs by: Jeenah Moon and Dave Sanders
©2024 THE NEW YORK TIMES
