My earlier post pertained to the problem that Michael Cohen’s immense credibility problems pose for the criminal case brought by elected progressive Manhattan DA Alvin Bragg against the de facto Republican 2024 presidential nominee, former president Donald Trump. Here are a few things to watch for in terms of Cohen’s substantive testimony — i.e., the evidence Bragg needs to prove the 34 counts of falsifying business records with fraudulent intent to conceal another crime (which other crime Bragg intimates was a conspiracy to violate federal campaign-finance laws).
At a minimum, the state has to prove that the business records were false, that Trump had fraudulent intent in making them false, and that this fraudulent intent included concealing a campaign expenditure.
Falsity of the records: The state needs Cohen to say he discussed with Trump and Allen Weisselberg (the Trump Org CFO) that the $130,000 reimbursement for the Stormy nondisclosure agreement (NDA) payment from 2016 would falsely be made to look like legal fees paid pursuant to a retainer for work done in 2017. The state needs Cohen to say that, although the invoices he submitted referred to a “retainer agreement,” there was no retainer agreement, and that he did no legal work for Trump in 2017.
On this point, note the following: At the moment there is no evidence that Trump knew how the payments were booked on Trump’s records. Moreover, retainer agreements need not be in writing. Regardless of whether Trump gave him any actual legal work to do, Cohen will have to explain why, if he was not on a retainer arrangement, he was holding himself out as Trump’s lawyer in 2017. I assume the only possibilities are that (a) he did have an understanding that he needed to be available to do legal work for Trump while Trump was paying him throughout 2017 (i.e., something at least similar to a retainer), or (b) he was embellishing — or flat-out lying about — his relationship with the then-president of the United States in hopes of drumming up business for his new private law firm. I don’t see how either explanation would help the prosecution.
Fraudulent intent: At the moment, there is no evidence that Trump intended to defraud anyone. The state needs Cohen to fill that gap.
As I’ve noted a few times, Bragg is an election denier who claims Trump conspired with Cohen to steal the 2016 election by suppressing politically damaging information. But New York State has not enacted a penal statute criminalizing election theft by suppressing politically damaging information; ergo, one cannot be guilty of conspiring to commit such “theft” (a criminal conspiracy is simply an agreement by two or more people to commit a statutory crime).
Even though Bragg’s narrative is election-theft conspiracy, what the indictment actually charges is a specific fraud scheme in which Bragg must prove beyond a reasonable doubt that Trump not only employed deception to steal money or property, but also that this deception included willfully violating the federal campaign-finance laws.
Bragg needs this proof from Cohen because he hasn’t come close to establishing it through other witnesses and documentary evidence. Prosecutors have tried to hoodwink the jury into believing the campaign violations are already established because Cohen pled guilty to them. But Cohen’s guilty pleas — in addition to their foundational problems, which I described in the last post and in my weekend column — are not admissible evidence against Trump.
In sum, Bragg will need Cohen to testify that he and Trump had conspiratorial conversations about executing fraud and violating federal campaign law. So far, Bragg only appears to have testimony from Cohen that he and Trump discussed “hush money” deals — i.e., nondisclosure agreements. NDAs are legal; they do not constitute criminal fraud, much less fraudulent violations of federal campaign law.
Campaign-finance-law violation: There is currently no evidence that Trump was even thinking about the federal campaign-finance laws, much less scheming to violate them. The state needs Cohen to say that (a) he and Trump believed that the payment to Stormy, and Trump’s reimbursement of Cohen, were campaign expenditures and (b) the point of labeling the reimbursement to Cohen as legal fees was to cover up the failure to disclose the Stormy NDA as a campaign expenditure.
With that bank shot, Bragg’s prosecutors would argue to Judge Juan Merchan, and ultimately the jury, both that Trump had fraudulent intent and that this fraudulent intent included covering up felony violations of the federal campaign laws.
Note: This is among the most dishonest parts of the state’s prosecution: (1) Bragg has no authority to enforce federal law; (2) the NDA payments were not campaign expenditures under federal law; (3) that’s why the FEC and DOJ — which do have exclusive authority to enforce federal law — took no action against Trump; (4) Bragg is making up his own version of federal campaign law; and (5) to repeat, Bragg seeks to mislead the jury into believing that federal campaign crimes have already been established because Cohen pled guilty to them (as prosecutors told the jury in the opening statement), even though Bragg well knows that Cohen’s guilty pleas are not admissible evidence against Trump.
(Similarly, former American Media Inc. CEO David Pecker’s entry into a non-prosecution agreement with the Justice Department and AMI’s later payment of a $180,000 fine to the FEC — a settlement made when AMI was trying to get out from under a federal investigation so it could sell the National Enquirer — are not admissible evidence against Trump. Merchan nevertheless wrongly allowed prosecutors to elicit testimony about these matters from Pecker — purportedly only on the issue of Pecker’s credibility . . . not that that will stop prosecutors from using them to try to intimate Trump’s guilt.)
Cohen took the stand shortly after 9:30 a.m. in Manhattan. He could be on direct examination all day, and his testimony could take all week — the trial is sitting only today, tomorrow, and Thursday this week.