Opinion: Trump’s fate now hinges on these three questions

Opinion by Norman Eisen

(CNN) — On Tuesday, we at last came to closing arguments in the Manhattan criminal trial of former President Donald Trump after 20 days of trial, testimony from 22 witnesses and over 200 exhibits.

That is a vast amount of terrain to traverse, but ultimately the case boils down to three questions on which the lengthy closings of defense counsel Todd Blanche and Assistant District Attorney Joshua Steinglass turned.

Trump is facing 34 felony document falsification charges in an allegedly illegal repayment scheme to conceal the history of the $130,000 hush money payment made to adult film actress Stormy Daniels via former Trump lawyer Michael Cohen to keep her silent before the 2016 presidential election about allegations that she and Trump had a sexual encounter (which Trump denies).

Were the 34 allegedly false records actually false?

The first pivot point is whether the 34 business records at the heart of the case actually contain false information.

Blanche argued to jurors that the prosecution had not met their burden of proof on this threshold issue. He said the records describe the payment to Daniels using the words “legal expenses,” “retainer” and “for services rendered” — and the evidence shows that was accurate. If those words accurately describe the payments, then there is no crime; if they are false, then the records containing them are also false and that element of the crime is proved.

For example, Blanche pointed to Cohen’s testimony and documents referencing that he did legal work on a Trump Foundation matter, on a case involving Summer Zervos (a former contestant on Trump’s former TV show “The Apprentice”) and on an agreement to create former first lady Melania Trump’s figurine at Madame Tussaud’s. And Blanche said that when Cohen testified that the work he did on those issues was gratuitous or minimal, he was lying — an oft-heard theme from the defense on Tuesday.

In his closing, Steinglass came back hard at the claim that Cohen lied. He pointed to the testimony that all that legal work amounted to less than 10 hours, which would have amounted to a fee of $42,000 per hour! And Steinglass pushed back on Blanche’s emphasis on the much-discussed October 24, 2016, Cohen call to Trump’s bodyguard, Keith Schiller. Steinglass argued that Cohen was credible and that there was plenty of time in a 96-second call to discuss both prank calls Cohen had been receiving from a teenager, which Cohen and Schiller text-messaged about before the call, and the Daniels deal. In a bit of trial theatrics, Steinglass re-enacted the call, demonstrating his point (and using less than 50 seconds to do it).

He also fought back with perhaps the DA’s strongest piece of evidence: People’s Exhibit 35, the handwritten notations of the “grossed up” payment to Daniels as written down by former Trump Organization chief financial officer Allen Weisselberg and Cohen. Steinglass argued that these contemporaneous notes proved that the hush money payment with the intent to keep Daniels from revealing the potentially damaging story of her alleged liaison with Trump during the presidential campaign amounted to an illegal campaign contribution and was repaid to Cohen after being doubled for taxes.

Steinglass argued that was anything but “legal expenses” or a “retainer” for “services rendered” by Cohen, as Blanche claimed. Trump “didn’t really pay a lawyer,” the prosecutor said. “He paid a porn star by funneling money through a lawyer.”

“Documents don’t lie, and they don’t forget,” Steinglass said, and I think the prosecutors got the better of this exchange.

Did Trump possess an intent to defraud?

Even if the documents were false, the prosecution must also prove that Trump had an intent to defraud under the statute — that is, to intentionally lie in his business books and records. The second major pivot point in the closing arguments and the case is whether Trump possessed the requisite fraudulent intent.

Here, too, Blanche argued that the prosecution had not established proof beyond a reasonable doubt, because if you subtracted Cohen’s testimony about Trump’s role in the scheme (given Cohen’s long history of lies) there was no other proof of Trump’s intent. Indeed, Blanche continued, Trump repeatedly disclosed the reimbursement — including on Twitter, a 1099 form to the IRS and a federal financial disclosure form.

But as Steinglass was quick to point out, those were actually “repeated admissions” that this was a reimbursement, and therefore help prove that Trump knew the business records were false when they stated the payments were income. (Moreover, many of those disclosures came after the scandal broke in 2018 — and that hardly constitutes innocent intent.)

And Steinglass argued that the jury did not have to take Cohen at his word alone, because every critical point he made is supported or corroborated by other proof — or by common sense.

Steinglass told jurors that “it’s difficult to conceive of a case with more corroboration than this one.” He pointed to, for example, records that corroborate Cohen’s calls and meetings with Trump and the testimony of other witnesses about how closely the former president watches his money, and to the damning fact that nine of the checks bear Trump’s own signature.

Intent is a harder issue for the prosecution. I felt the prosecution had the better of it. But if there is a juror who will hang the jury (resulting in a mistrial), this may well be where they do it.

Did Trump cover up an election conspiracy?

A third and final pivot point: In order for the 34 allegedly falsified documents to be felonies, they have to be created to cover up another crime. Steinglass began his summation after lunch by reminding the jury of that: “This case at its core is about a conspiracy and a cover-up — a conspiracy to corrupt the 2016 election, and a cover-up … to disguise the payment to Stormy Daniels.”

Blanche likely knew that was coming, and spent substantial time in his morning closing argument on it. He has argued that “there has to be something illegal about the efforts by the co-conspirators to influence the election” under the New York election conspiracy statute and said that the DA had failed to establish proof beyond a reasonable doubt. Blanche pointed to testimony from former White House communications director Hope Hicks and Trump’s former personal secretary Madeline Westerhout that Trump wanted to protect his family from Daniels’ allegations that she had an affair with Trump, which is lawful, and to the fact that nondisclosure agreements and campaign protection of the kind we had here are hardly unusual and not illegal.

Steinglass rebutted Blanche by proceeding in chronological order and spending hours meticulously documenting the details of the alleged conspiracy dating back to August 2015 and the unlawful means that were allegedly utilized. Those include: Federal Election Campaign Act (or FECA) violations because the hush money advanced by Cohen was $130,000, whereas the legal limit for an individual campaign contribution that year was $2,700; tax law violations because the reimbursements were misclassified as income to hide what was really happening; and what Cohen said was his creation of other false documents to facilitate the payments, such as his bank and corporate records.

If the defense’s theme was that Cohen lied, the prosecution’s was corroboration of Cohen — and they hammered it home discussing the unlawful means by which they allege the conspiracy proceeded, going through extensive testimony of other witnesses and what felt like the majority of their hundreds of exhibits.

The prosecution had the better of the argument here as well, helped by the applicable law. Even if Trump paid hush money to Daniels to protect his family, for example, the law still allows conviction if the intent of the conspiracy was to help the campaign as well.

The prosecution was ahead on points going into the closing arguments and Tuesday did not change that calculus. Yes, the closing left off-ramps such as the question of intent if a juror wants to hang the case — but a hung jury is unlikely.

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