Former President Donald Trump’s four criminal cases have created an unprecedented legal gauntlet for him to run before voters have a chance to decide if he should return to the Oval Office. While Democrats cheer what they see as long-overdue accountability for the former president, some legal experts have expressed concerns that the cases — half are brought by partisan district attorneys, and the other half are overseen by the Biden Justice Department — are built on novel and unfair interpretations of the law. In this series, the Washington Examiner will take a look at the flaws that could unravel the cases against Trump. Part three will look at the Manhattan case.
The New York criminal hush money case against former President Donald Trump has drawn skeptics from the start.
Once prosecutors with Manhattan District Attorney Alvin Bragg’s office brought their star witness to the stand, former Trump attorney Michael Cohen, the testimony exposed a potentially even weaker case than widely believed.
Trump was indicted in late March 2023 over an alleged scheme during the 2016 presidential campaign to create false business records to conceal an alleged affair with porn star Stormy Daniels with the “intent to commit another crime and aid and conceal the commission thereof.”
By day 18 of the trial on Thursday, more than a year after the indictment and potentially days away from a jury verdict, prosecutors are still no closer to explaining what exactly is the other “object offense” Trump committed in relation to the alleged falsification of business records.
“The prosecution has been poor,” Berkeley Law School professor Jonathan Yoo told the Washington Examiner, adding that “the DA has yet to identify what great felony was covered up by Trump’s alleged bookkeeping shenanigans.”
The glaring question over the “other crime” is just one of many flaws that have come to light in the course of the weekslong trial, which has kept the presumptive Republican presidential nominee off the campaign field and stuck in the “icebox” of Manhattan County Criminal Court, as Trump calls it.
Below is a look at the case’s top shortfalls.
For more than five hours of cross-examination this week, Todd Blanche, Trump’s lead defense attorney, sought to depict Cohen as a liar, pointing out that Trump’s former fixer lied under oath in numerous venues, including courts and Congress.
Thursday afternoon, Blanche presented evidence of call logs and text messages while cross-examining Cohen and compared them to details Cohen gave prosecutors two days earlier about a key conversation he allegedly had with Trump about Daniels.
The evidence revealed that on the evening of Oct. 24, 2016, the same time as the alleged conversation about Daniels, Cohen messaged Trump’s bodyguard Keith Schiller about harassing calls Cohen had been receiving from a 14-year-old.
Phone logs revealed the bodyguard called Cohen again a few minutes later and left a voicemail. Cohen then returned Schiller’s call, and the two had a conversation that lasted about a minute and a half.
Blanche was certain there was no chance a call that short was actually about Daniels despite Cohen telling prosecutors earlier this week that he called “to discuss the Stormy Daniels matter and the resolution of it.”
“That was a lie,” Blanche said as he paused between words about Cohen’s prior testimony. “You can admit it.”
The Oct. 24 call is just one of several instances Bragg can point to that could prove Trump was informed about Daniels and the payment. But that evidence rests entirely on Cohen’s word, and his credibility has been a glaring concern for Bragg’s team.
One day earlier, Cohen’s truthfulness was called into question in the court of public opinion after his former lawyer Robert Costello told a congressional committee that Cohen lied repeatedly about him during the trial. It’s unclear at this time whether the defense plans to call Costello as a witness.
Yoo said the case is inherently “weak” because the prosecution has turned it into “an assault on Trump’s character in the hopes that the jury would convict him of something.” But at this point in the trial, it’s Cohen’s character that is facing intense scrutiny.
“Trump’s lawyers should be very happy that the last prosecution witness whom the jury hears is Michael Cohen, a convicted perjurer,” Yoo added.
Blanche still isn’t done with Cohen. He told Judge Juan Merchan on Thursday that when the trial resumes Monday, he expects to continue his cross-examination until roughly 11 a.m. local time.
After that point, prosecutors will have the chance to try to rehabilitate their star witness’s credibility before Trump’s attorneys can present their own case for Trump’s defense.
By the time the jury was dismissed on Thursday, there were key signs that defense attorneys felt overall confidence about the prospects of their client, the first former president to face a criminal trial.
Blanche told Merchan he is still not ready to decide if Trump will testify during the trial. Legal experts told the Washington Examiner it is typically unwise to send a defendant to the stand, especially in light of the litany of past courtroom misdeeds the judge has said prosecutors can question Trump about if the former president takes the stand.
Daniels testified last week about her alleged affair with Trump in 2006. Her appearance in court has arguably been the most explosive part of the trial thus far, despite her testimony not being related to the actual criminal charges at issue.
Former Trump impeachment attorney Alan Dershowitz told the Washington Examiner that bringing Trump to the stand would be a dire mistake due to Daniels’s testimony alone, suggesting it would create a perjury trap.
“Of course he shouldn’t take the stand,” Dershowitz said. “The first question that will be asked is: ‘Did you have sex with Stormy Daniels?’ And if he says ‘no,’ he will be indicted for perjury. So he can’t take the stand.”
A second sign of confidence is the amount of significant admissions Blanche was able to elicit from Cohen. The former Trump attorney confirmed the contract for the Daniels hush money payment was a legally binding document. Cohen even said he believed Daniels was attempting to extort Trump.
Another key signal of the defense team’s confidence is that they may decide to bring only one witness to testify next week. Court filings show that witness is Bradley A. Smith, a former Federal Election Commission chairman who could testify about laws the agency is responsible for enforcing and definitions.
The prosecution has four theories for the other crime Trump might have committed. The leading theory is that Trump “violated federal election laws” because the nondisclosure agreement payments to Daniels and Karen McDougal “violated FECA’s restrictions on corporate and individual contributions,” according to prosecutors.
FECA is the 1971 Federal Election Campaign Act, which established the FEC as the main enforcer of federal election law.
The prosecution’s theory is that if Cohen paid Daniels $130,000 in the fall of 2016 to keep her from going public with her story that she and Trump had a sexual encounter and then Trump repaid Cohen in 2017, then that was a campaign contribution that should have been reported to the FEC.
The payments were made “for the purpose of influencing any election,” according to prosecutors, and the Trump campaign should have filed a document with the FEC listing among its campaign contributions and expenditures that it received and spent $130,000 for “hush money.”
Tearing down this theory is likely where Smith will come into play for the defense, if they choose to call him, according to former federal prosecutor Katie Cherkasky.
“The FEC in this case specifically looked into the Stormy Daniels payments as it related to Donald Trump and his culpability, and they declined to take any action against him at all, including fining him,” Cherkasky said.
Smith would be able to testify about whether the payment to Daniels was considered a campaign finance violation, which is one of the key escalating offenses that the prosecution is trying to prove, according to Cherkasy. However, Merchan has put limits on what Smith can say that could hurt the defense.
The jury will likely convene for a decision in the case as early as next week or the week after Memorial Day, as Merchan told parties to be ready for a charge conference that could take place on Monday. Charging conferences are for discussing instructions to be given to the jury.
“The judge’s instruction is crucial, but not as it relates to Michael Cohen,” Dershowitz said, noting it is more crucial as it relates to figures in the case such as former Trump Organization Chief Financial Officer Allen Weisselberg.
The 76-year-old former Trump executive is currently serving a five-month jail sentence on Rikers Island for perjury, having lied during testimony in a separate case that ultimately resulted in a judgment of nearly $500 million against Trump. Prosecutors say Weisselberg was crucial to helping manage the hush money deal with Cohen in the weeks before the 2016 election.
While Merchan stressed last week that he’d like to see Weisselberg testify, the prosecution and defense offered different reasons about why they wouldn’t like that to happen. Prosecutors tried unsuccessfully to convince the judge to let them blame a generous retirement package Weisselberg received from the Trump Organization, for example.
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Dershowitz said if Merchan gave a missing witness instruction for Weisselberg, “I think it would be very strong” for the defense, adding, “I think he should also give one to Schiller,” referring to Trump’s bodyguard.
The trial will resume at 9:30 a.m. local time on Monday.