Last January, Manhattan District Attorney Alvin Bragg summed up his case against Donald Trump this way: “We allege falsification of business records to the end of keeping information away from the electorate. It’s an election interference case.”
That gloss made no sense, because the records at the center of the caseâ11 invoices, 11 checks, and 12 ledger entries that allegedly were aimed at disguising a hush-money reimbursement as payment for legal servicesâwere produced after the 2016 presidential election. At that point, Michael Cohen, Trump’s lawyer, had already paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump, and Trump had already been elected. The prosecution’s case against Trump, which a jury found persuasive enough to convict him on all 34 counts yesterday, was peppered with temporal puzzles like this one.
A New York Times editorial concedes that “many experts” have “expressed skepticism about the significance of this case and its legal underpinnings, which employed an unusual legal theory to seek a felony charge for what is more commonly a misdemeanor.” Yet the Times also claims the jury found Trump “guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging.” How did records created in 2017 “prevent voters from learning” about the Daniels tryst before they cast their ballots the previous year?
The editorial’s characterization of Cohen’s payment to Daniels is confounding for a similar reason. “A payoff like this is not illegal by itself,” the Times concedes. “What makes it illegal is doctoring business records to mask its true purpose, which prosecutors said was to hide the story from the American people to help Mr. Trump get elected.” Again, the “doctoring” of business records happened in 2017. Contrary to what the Times claims, it did not retroactively make the Daniels payment “illegal.”
The Times also says the verdict “establishes that Mr. Trump committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election.” The verdict does not establish that. Trump was not charged with breaking the law by instructing Cohen to pay off Daniels. And while the contentious characterization of that payment as an illegal campaign contribution figured in one theory for treating the falsification charges as felonies rather than misdemeanors, the other two theories did not hinge on the assumption that the payoff was illegal.
Since the jurors were instructed that they did not need to settle on any particular theory, it is not clear that they unanimously accepted the idea that Trump “committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election.” That description, however, is consistent with the prosecution’s dubious “election fraud” narrative, which falsely implied that “hiding pertinent information about himself” was inherently criminal.
Although it seems clear that the jury accepted that narrative, even the prosecutors sometimes forgot what they claimed the case was about. They argued that Trump violated an obscure, rarely invoked state law by conspiring with Cohen to influence the presidential election “by unlawful means.” They further argued that Trump caused the falsification of business records with the intent of aiding or concealing that crime, which is the element that transformed the charges into felonies. But some versions of that theory were logically impossible.
According to one theory of “unlawful means,” Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. But since Cohen filed those allegedly fraudulent tax returns in 2018, after Trump had been president for more than a year, his misrepresentation could not possibly have helped Trump win the election.
Under another theory, Trump falsified business records to conceal the falsification of other business records, including the 1099-MISC forms in which the Trump Organization inaccurately described Cohen’s reimbursement as income. Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump’s victory.
These logical difficulties were just one of several reasons to question the prosecution’s case, which relied on convoluted theories involving interacting statutes and questionable assumptions about Trump’s knowledge and intent. But instead of zeroing in on those weaknesses, Trump’s lawyers, presumably at his behest, were determined to deny everything, starting with Daniels’ story about sex with Trump at a Lake Tahoe hotel during a celebrity golf tournament in July 2006.
That strategy invited embarrassingly detailed testimony by Daniels, who described a presumptuous Trump abruptly disrobing while she was in the bathroom before engaging in a “brief,” condomless sexual encounter “in the missionary position.” Contrary to her previous accounts, Daniels implied that the sex was less than fully consensual, citing “an imbalance of power,” noting the presence of a bodyguard at the door to Trump’s hotel suite, saying Trump’s failure to use a condom worried her, and describing her own mental state as hazy, although she added that she was not drunk and had not been drugged.
None of this was legally relevant. When it came to the questions of whether Trump had caused the falsification of business records and his intent in doing so, it did not matter exactly what happened in that hotel suite. Even if Daniels had made the whole thing up, Trump still would have been keen to keep her quiet, whether for personal reasons, business reasons, political reasons, or some combination of the three.
The defense team also insisted that Trump really thought he was paying Cohen for legal work, even though Trump had publicly admitted that he reimbursed Cohen for the Daniels payment. And Trump’s lawyers disputed that he “knew about this payment” at the time, even though it defies belief to suppose that Cohen, who was eager to please Trump and conferred with him frequently, would have hatched this scheme on his own, or that he would have fronted $130,000 of his own money without the promise of reimbursement.
Whether Trump approved the misleading records related to Cohen’s reimbursement, as Cohen claimed, is less clear. Trump’s lawyers hammered at Cohen’s credibility on that point, saying jurors should not trust a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss. But because they were also implausibly claiming that Cohen lied when he said Trump approved the Daniels payoff, the jurors may have discounted any doubts about the veracity of Cohen’s account.
If Trump had been willing to concede some of the prosecution’s allegations, his lawyers could have focused on the shaky legal argument for charging him with felonies. They not only failed to do that in a cogent way; they insisted on jury instructions that ruled out convicting Trump of misdemeanors rather than felonies.
“Instead of telling a simple story, Mr. Trump’s defense was a haphazard cacophony of denials and personal attacks,” defense attorney and former federal prosecutor Renato Mariotti observes. “That may work for a Trump rally or a segment on Fox News, but it doesn’t work in a courtroom. Perhaps Mr. Trump’s team was also pursuing a political or press strategy, but it certainly wasn’t a good legal strategy. The powerful defense available to Mr. Trump’s attorneys was lost amid all the clutter.”
