A Guide to the Trump Hush-Money Trial
Sex, lies, and
videotape—what you need to know about Alvin Bragg’s case.
APR 08, 2024
DONALD TRUMP APPEARS to be in full
panic mode over the rapidly approaching trial of Manhattan District Attorney
Alvin Bragg’s criminal case against him. Bragg has charged Trump with 34 counts of
“falsifying business records.” The trial is scheduled to begin next Monday,
April 15.
Trump’s manic outburst over Easter
weekend, seemingly triggered by the approach of the trial, dialed up the crazy
to a level unusual even for him. His “lengthy holiday
temper tantrum” featured a stream of social-media posts raging
against the usual cast of perceived enemies, but he “saved the brunt of his
ire” for Bragg. Morning Joe counted
seventy-seven posts, a “shock opera” of grievance that included Trump likening
himself to Jesus. And it didn’t stop there. Even an expanded gag order entered
by the trial judge after Trump’s holiday meltdown didn’t stop him from promoting a video attacking
the judge’s daughter.
Why the freakout over a trial about
something as mundane and boring as “falsifying business records”?
Don’t let the yawn-inducing concept of
a trial about business records fool you—this case will be packed with drama,
some of it quite salacious. And the stakes couldn’t be higher. The trial could
expose Trump to a much wider audience as a liar and a cheater utterly lacking
in decency and moral character. It could cripple his presidential candidacy,
and even land him in jail.
Compared to other high-profile
white-collar crimes you may have heard of, the charges in this case are
relatively uncomplicated. Trump is the only defendant. The entire case revolves
around a single set of payments made by him or his company to reimburse his
former attorney Michael Cohen for hush-money payments he made on Trump’s behalf
to keep porn star Stormy Daniels from going public with her story about Trump’s
infidelity. All of the counts allege that he violated the same New York
criminal statute (New York Penal Law
175.10):
A person is guilty of falsifying
business records in the first degree when he commits the crime of falsifying
business records in the second degree, and when his intent to defraud includes
an intent to commit another crime or to aid or conceal the commission thereof.
Falsifying business records in the
first degree is a Class E felony,
meaning it can result in a sentence of up to four years in a state prison.
Under the terms of the statute, in order to convict Trump of falsifying records
in the first degree, Bragg must first prove that he committed the crime of
falsifying records in the second degree, a misdemeanor under
New York law. Under that statute,
Bragg must show that Trump made or caused one or more of the false entries to
be made with “intent to defraud.”
Everything will come down to proving
four essential facts:
1.
The Trump Organization falsely recorded payments made to
reimburse Michael Cohen for hush-money payments he made on Trump’s behalf as
fees paid for legal services;
2.
Trump personally either made or caused
those false entries to be made;
3.
Trump acted with intent to defraud; and
4.
Trump’s intent to defraud included an intent to commit,
aid, or conceal the commission of another crime.
If Bragg can prove these four facts,
Trump will be convicted. Let’s take a look at each of them.
1. False Entries
This should be the easiest element of
the case for Bragg to prove, but getting there will be filled with low drama.
Salacious tales of sex, lies, and videotape will grab the jury by the . . . uh,
well, let’s not go there quite yet.
Let’s start with the boring stuff.
Bragg will prove that the Trump Organization made a series of payments to Cohen
in the months leading up to the 2016 presidential election. The payments were
recorded in the company’s business records as payments for legal services
supposedly performed pursuant to a retainer agreement that, in fact, never
existed.
None of that will be disputed. The
proof will come from the business records themselves.
The initial dispute may be over
whether those entries were false, although it seems quite obvious that they
were. Cohen will testify that the payments were made to reimburse him for
hush-money payments he made to Daniels on Trump’s behalf, and his testimony
will be well corroborated. That’s where the sex, lies, and videotape will make
their initial appearance:
- Stormy Daniels says
she is “absolutely ready” to testify about her sexual encounter with Trump
shortly after his wife Melania gave birth to his youngest child. Not just
ready, but “hoping with all my heart” to testify. Trump’s attorneys tried and
failed to convince the judge presiding over the case,
Justice Juan Merchan, to prohibit Daniels from testifying, so it appears
virtually certain that she will tell her story on the witness stand.
- Daniels and
others will testify that about a month before the 2016 presidential
election and just days after the public airing of the infamous Access
Hollywood “grab ’em by the pussy” videotape,
Cohen paid Daniels $130,000 for the rights to her story—in other words,
for the right to “catch and kill” the story to keep it from being made
public. In addition to Daniels, witnesses are likely to include David
Pecker, then-chairman and CEO of American Media Inc.; Daniels’s lawyer;
AMI’s editor-in-chief; and possibly even Hope Hicks,
Trump’s former protégée and adviser.
- The prosecutors
will be allowed to elicit testimony about the Access Hollywood tape
and how Trump feared that it would negatively impact his presidential
aspirations, although Justice Merchan has ruled that he will not allow
Bragg to introduce the tape itself into evidence.
- Bragg will
introduce documentary evidence, including handwritten notes by the Trump
Organization’s CFO, Allen Weisselberg, corroborating Cohen’s testimony
that the payments he received from Trump were falsely recorded in the
Trump Organization’s books as legal fees when in fact they were
reimbursement of the money Cohen paid Daniels on Trump’s behalf.
- It’s unclear
whether Weisselberg will testify—he has not entered into a cooperation
agreement with Bragg, and he appears to remain loyal to his benefactor. It
is likely, however, that Jeffrey
McConney, the Trump Organization’s former controller, will
testify. He was up to his neck in facilitating the payments to Cohen and
likely knew exactly what they were for. McConney testified for four days
in Trump’s civil trial last year in New York. Although he resigned from
the Trump Organization last year, he has not openly broken with Trump, so
it isn’t clear how damning his testimony will be.
- If Weisselberg
has a change of heart and decides to testify, he could corroborate almost
all of Cohen’s testimony and add more damning evidence of his own. For
instance, Bragg says that Weisselberg, Cohen, and Trump met to confirm the
hush-money payment arrangement; Trump allegedly even discussed the
payments with Cohen in the Oval Office.
Despite all of this corroboration,
Trump’s lawyers may try to convince the jury that the payments were indeed for
legal services, not hush money—or at least that they might have
been, or that there’s some doubt as to exactly what they were for. Or something
like that.
This could be a perilous road for
Trump’s attorneys. They would be staking their credibility on an argument that
looks preposterous on its face—that the jury should disregard the overwhelming
evidence that these were hush-money payments and believe instead that it was
all just a coincidence, that Cohen really was due payments for wholly
undocumented legal services that just happened to be exactly in the same amount
as the payments he advanced to Daniels to kill her story.
But this is a criminal trial, and it’s
Bragg’s burden to prove that the business entries were false, not Trump’s to
prove that they were not. Trump’s lawyers may well believe that they can more
than match any challenge to their own credibility by destroying Cohen’s.
Cohen’s central role in the case will
provide Trump’s lawyers with a rich target. Significant portions of the trial
will look like Cohen, not Trump, is on trial.
Trump’s motion to
preclude Cohen’s testimony, although denied by Justice Merchan last month,
provides a roadmap to his plan of attack at trial. In 2019, Cohen pleaded
guilty and was sentenced to three years in prison for crimes including lying to
banks and Congress. Last fall, Cohen admitted that he lied under oath during
his sworn plea allocution in that case. And as recently as last week, a federal
judge in New York reportedly accused
Cohen of committing perjury.
Trump’s lawyers will try to turn Cohen
into Trump’s Mark Fuhrman.
The idea will be to convince the jury—or at least a single juror—that Bragg’s
case is so tainted by the presence of Cohen at its center that nothing else
really matters. Call it jury nullification, call it reasonable doubt, or call
it the O.J. defense. Call it whatever you want, it will be an appeal to the
jury’s subjective sense of fairness, not its objective view of the evidence.
2. Trump’s Direct Personal Involvement
Once Bragg proves that the Trump
Organization’s business records were falsified, he will need to prove that
Trump, not Weisselberg or other officers of the company, is personally
responsible. A person is guilty of the crime of falsifying business records
only if he or she “makes or causes” a false entry.
The statement of facts filed
along with the indictment alleges that Trump “orchestrated” the false records
scheme and “caused his entities’ business records to be falsified,” but those
are conclusions, not facts. Bragg will have to back up those conclusions with
concrete facts showing Trump’s personal involvement in the falsification of his
company’s business records.
Bragg probably has more evidence than
he showed a year ago when he filed the statement of facts, but based on that
statement alone, proof of Trump’s direct involvement in the falsification of
records looks thin—not nonexistent, but thin.
Weisselberg, of course, could blow
Trump out of the water on this, but there’s no reason to believe he’s willing
to do so. Unlike Weisselberg, Cohen is raring to go, but it’s unclear how much
he knows about Trump’s involvement in the falsification of the Trump
Organization’s records—he can definitely implicate Trump in making the
hush-money payments, but that’s not the same as implicating him in his
company’s bookkeeping. And putting all of his eggs in the Cohen basket would be
dangerous for Bragg anyway, given Cohen’s credibility problems.
If neither Weisselberg nor Cohen—nor
some other witness we don’t yet know about—provides credible evidence linking
Trump to the false bookkeeping entries, Bragg will be left with some relevant,
but not necessarily conclusive documentary evidence.
Trump personally signed nine of the
checks paid to reimburse Cohen for the hush-money payments. That’s strong
evidence that Trump participated in making the hush-money payments in the first
place, but it doesn’t prove that he later had anything to do with falsely
recording those payments in his company’s records.
Bragg will try to fill that gap by
introducing check stubs and invoices that appear to have been attached to or
included with the checks Trump signed. Those stubs and invoices falsely stated
that the payments were for “services rendered” under a nonexistent retainer
agreement. Since Trump knew that the payments were to reimburse Cohen for the
hush-money payments, not for legal services, Bragg will argue those documents
prove that Trump knew about the false entries, and therefore made or caused
them to be made.
Whether this will be enough to
convince the jury of Trump’s direct participation in falsifying his company’s
business records, or whether Bragg introduces additional evidence that hasn’t
yet been made public, will be a central—perhaps the central—issue
in this case.
Team Trump will undoubtedly argue that
Trump never looked at the check stubs or the invoices, he just signed the
checks that were placed in front of him by Weisselberg. They can probably do
that without putting Trump on the stand—Trump Organization employees will
likely be trotted out to say that Trump routinely signed stacks of checks
pre-approved by Weisselberg. Or something like that.
Keep your eye on this issue. The
entire case could rise or fall on it.
3. Intent to Defraud
In order to obtain a conviction, Bragg
will have to prove not only that Trump personally participated in falsifying
his company’s records but also that he did so with intent to defraud.
That may sound daunting, but if Bragg
can clear the hurdle of proving Trump’s direct involvement in making the false
entries, he should have little trouble proving intent to defraud.
The First Department of New York,
where Bragg filed his case, interprets “intent to defraud”
broadly. Bragg can prove intent to defraud by showing that Trump committed acts
for the purpose of frustrating the state’s power to faithfully enforce its
laws. Interfering with the requirement that New York businesses keep accurate
books and records, not to mention the state’s ability to regulate elections,
should meet that standard.
But Bragg will go beyond that at the
trial. Bragg will introduce evidence that Trump had a motive to
disguise the hush-money payments as legal fees, and that he stood to benefit from
it. Bragg isn’t required to prove either motive or personal gain, but doing so
would be compelling evidence of intent to defraud.
Bragg will introduce evidence showing
that Trump’s motive to falsely record the hush-money payments as legal fees was
“to suppress negative stories about him” that could damage his candidacy in the
2016 presidential election. Trump’s hush-money payment to Daniels was made just
weeks after the Access Hollywood tape sent a shockwave through
Trump’s campaign. Trump was “concerned that the tape would harm his viability
as a candidate and reduce his standing with female voters in particular.”
In addition, Bragg will support his
showing of intent to defraud by introducing evidence that the hush-money
payment to Daniels was part of a larger pattern of similar conduct: the
so-called “catch and kill scheme” designed to suppress negative information
from the public “before the 2016 presidential election and thereby influence
that election.”
That will take the trial back into the
seamy, repellant environs of Trump’s character and personal behavior.
Bragg will show, for instance, that
AMI had previously paid hush money on Trump’s behalf to a second woman, Playboy
model Karen McDougal who, like Daniels, claimed to have had a sexual
relationship with Trump while he was married. AMI falsely characterized the
McDougal payment in its books and records, just as the Trump Organization later
did with Daniels.
If Bragg successfully gets all of this
evidence in front of the jury, it should be sufficient to establish Trump’s
intent to defraud.
4. Concealment of a Second Crime
Here’s where the case will get
interesting from a legal point of view.
If Bragg succeeds in convincing the
jury of all of the above, he will win a conviction only for falsification of
records in the second degree, a misdemeanor. (While the indictment doesn’t
expressly include charges of second-degree falsification of records, the judge
could submit such a charge to the jury as a “lesser included
offense.”)
Sure, a conviction is a conviction,
and Trump could theoretically go to jail for up to a year for committing
a Class A misdemeanor,
but convicting Trump of nothing more than a misdemeanor would feed into the
pro-Trump narrative that Bragg’s case is petty and politically motivated.
In order to bump up the crime to a
felony, Bragg will have to prove one additional element: that Trump falsified
business records with the intent to commit, aid, or conceal a second crime.
The indictment doesn’t identify the
second crime that Trump’s falsification of records was intended to conceal, but
Bragg reportedly said
in a recent radio interview that the case is “about conspiring to corrupt a
presidential election and then lying in New York business records to cover it
up—that’s the heart of the case.”
Trump was never charged with an
election interference case arising out of the Daniels hush-money payment, but
Cohen was. In 2018, Cohen pleaded guilty to
federal campaign finance violations related to the coverup of the Daniels
hush-money payments. While Trump wasn’t a defendant in that case, he was
nevertheless a central character in it. Documents submitted
to the court by the Department of Justice in connection with charges against
Cohen repeatedly refer to Trump, his identity somewhat comically disguised as
“Individual 1,” as the person on whose behalf Cohen was acting. And Cohen testified under
oath that he was acting at Trump’s “direction.”
If Cohen was acting at Trump’s express
direction when he violated federal election laws, then Trump should be at least
as guilty as Cohen, probably more so. It seems obvious that the fact that he
too wasn’t charged along with Cohen was due entirely to the DOJ’s policy
against indicting a sitting president.
Trump’s attorneys will attack Bragg’s
attempt to use uncharged federal campaign finance violations as the second
crime on two fronts.
First, they will argue that Trump’s
intent in concealing the hush-money payments wasn’t to conceal an illegal
campaign contribution, it was, in the words of one pro-Trump commentator,
merely “aimed at avoiding embarrassment and sparing Melania Trump’s feelings.”
Second, they will argue that Bragg
can’t use an uncharged violation of a federal law—as opposed to a New York
state law—as the second crime.
The argument that Trump just wanted
“to spare Melania’s feelings” is ludicrous on its face. Trump is beyond
embarrassment and indifferent to anybody’s feelings but his own. Cohen will
decimate the “spare Melania” narrative by testifying that Trump directed him to
delay the payment to Daniels as long as possible because “if they could delay
the payment until after the election, they could avoid paying
altogether, because at that point it wouldn’t matter if the story
became public” (emphasis added).
In other words, Trump wasn’t willing
to pay a cent to keep the story from coming out, only to keep it from coming
out before the election. After that it wouldn’t matter. “Melania’s
feelings” be damned.
Trump’s second argument—that Bragg
can’t use an uncharged violation of federal law as the second crime in a New
York case—is at least less cringe-inducing. While there is no requirement that
the second crime be charged in the indictment, it’s somewhat unusual that it’s
not. A New York Times analysis
of some thirty false business records cases brought by Bragg and his
predecessor shows that in all but two of the cases an additional crime was
charged along with the false records charge.
And the question of whether the second
crime can be a federal crime, as opposed to a violation
of state laws, has never been addressed by the New York
courts.
At the end of the day, whether the
“second crime” can be an uncharged violation of federal law will be a question
of law for the judge to decide, not a question of fact for the jury. To date,
Justice Merchan hasn’t shown much sympathy for novel legal arguments advanced
by Trump, and nothing in the statute or the case law indicates that the second
crime can’t be a federal crime.
SO, WHERE DOES ALL OF THAT leave us?
Assuming the case goes to trial, there
are four possible outcomes: (1) Trump is convicted of one or more felonies, (2)
Trump is convicted, but only of misdemeanors; (3) Trump is acquitted; or (4) no
verdict at all is reached due to a hung jury or a mistrial based on some
irregularity that pops up during the trial.
At least two of the four possible
outcomes could have a major impact on the 2024 presidential election, not to
mention Trump’s personal freedom.
A felony conviction could harm Trump’s
bid for the presidency. Recent polling suggests
that if Trump were convicted of a felony, there could be as much as a 7-point
shift from Trump to Biden. That would likely be more than enough keep Trump out
of the White House in an election that otherwise appears to be exceedingly
close.
It’s more difficult to anticipate the
impact of a misdemeanor conviction, but it too would likely reduce Trump’s
support among independent voters. A recent Politico/Ipsos poll on
the likely impact of a conviction in the hush-money trial found that “a
conviction in Manhattan may not doom Trump, but it would do real damage.” The
poll didn’t distinguish between a felony conviction and a misdemeanor
conviction, so it’s somewhat difficult to interpret. Nevertheless, it doesn’t
take a great leap of imagination to believe that a misdemeanor conviction would
do at least some harm to Trump’s election prospects.
Acquittal, on the other hand, could
lend credence to Trump’s claim that he is the victim of a political witch hunt,
and might swing enough voters in his direction to put him back in office.
A hung jury would probably be a wash,
fodder for endless debate but not enough to swing enough voters in either
direction to have a decisive impact on the election.
Predicting which of these outcomes
will prevail on the basis of the factual evidence currently in the public
record is a fool’s errand—far more evidence will be introduced at trial than is
contained in the court documents filed to date, and facts don’t always win the
day in a jury trial, anyway.
The jury’s overall subjective
impression of the evidence is at least as likely to be the deciding factor as a
rigorous parsing of the underlying facts, probably even more so. Both sides
will try to paint their own picture for the jury.
Bragg’s team will try to show that
Trump is such a lying, cheating, soulless asshole that he belongs in jail, not
the White House. Team Trump will try to convince the jury that, facts be
damned, the person at the core of Bragg’s case—Michael Cohen—is so tainted that
nothing else matters.
It is a disservice to the American
people that this trial won’t be televised. The public will have to glean what
it can from the media, and it’s up to each of us to choose where to go for our
news and decide who we trust to deliver it.
Making sense of this trial will take
some work. But it will be worth it.
