Below is my column in the New York Post on the closing arguments scheduled for today in the trial of former President Donald Trump. The column explores the key elements for a closing to bring clarity to the chaos of Judge Juan Merchan’s courtroom.
Here is the column:
With the closing arguments set for Tuesday in the trial of former president Donald Trump, defense counsel are in a rather curious position.
There is still debate among legal experts as to the specific crime that District Attorney Alvin Bragg is alleging.
Trump’s lawyers are defending a former president who is charged under a state misdemeanor which died years ago under the statute of limitations. It was then zapped back into life in the form of roughly three dozen felonies by claiming that bookkeeping violations — allegedly hiding payments to Stormy Daniels to ensure her silence about a supposed affair with Trump — were committed to hide another crime.
But what is that second crime?
Even liberal legal analysts admitted that they could not figure out what was being alleged in Bragg’s indictment. Now, after weeks of trial, the situation has changed little.
Originally, Bragg referenced four possible crimes, though he is now claiming three: a tax violation or either a state or federal campaign financing violation. The last crime is particularly controversial because Bragg has no authority to enforce federal law and the Justice Department declined any criminal charge. The Federal Election Commission (FEC) did not even find grounds for a civil fine.
Judge Merchan has ruled that the jury does not have to agree on what that crime is. The jury could split into three groups of four on which of the three crimes were being concealed and Merchan will still treat it as a unanimous verdict.
The jury has been given little substantive information on these crimes, and Merchan has denied a legal expert who could have shown that there was no federal election violation.
This case should have been dismissed for lack of evidence or a cognizable crime. The jury will be reminded that the burden is on the government, not the defense.
However, the presumption of innocence is often hard to discern in criminal cases. Most jurors believe that clients are sitting behind the defense table for a reason. That is why many prosecution offices have conviction rates in the 80%-90% range.
That presumption is even more difficult to discern when the defendant is named Trump and the jury sits in Manhattan.
Three-legged Stool
A classic closing pitch by lawyers is to use a physical object like a three-legged stool. If any leg is missing, the stool collapses.
In this case, the government needs to show that there was a falsification of business records, that the records were falsified to conceal another crime and that Donald Trump had the specific intent to use such “unlawful means” to influence the election.
Even a cursory review of the evidence shows this case does not have a leg to stand on.
The First Leg: Falsification of Records
The dead misdemeanor that is the foundation for this entire prosecution requires the falsification of business records. It is not clear that there was such falsification or that Trump has any knowledge or role in any falsification.
Witnesses testified that Trump would sign checks prepared by others and that the specific checks in this case were signed while Trump was serving as president. Some of these checks, labeled “legal expenses,” were allegedly for attorney Michael Cohen to pay off Stormy Daniels.
Most importantly, Jeffrey McConney, the Trump Organization’s retired controller and senior vice-president, testified that it was not Trump who designated these payments as “legal expenses.” Rather, the corporation used an “antiquated” drop-down menu where any payments to lawyers were designated “legal expenses.” There is a plausible reason why payments to an attorney were listed as legal expenses.
The government also cites the designation of payments to Cohen as part of his “retainer,” which included reimbursement for the payment of the Daniels non-disclosure agreement. However, that designation was the result of discussions between Cohen and former Trump Organization CFO Allen Weisselberg, who is sitting in a jail cell in New York City. The government could have called Weisselberg, but did not.
The government has made a big deal over the fact that retainer agreements are supposed to have written contracts. However, that was the failure of Cohen, who was later disbarred as an attorney.
For a businessman like Weisselberg, monthly payments to an attorney could have seemed perfectly logical. Once again, there was no evidence that Trump knew of how the payments were denoted.
The Second Leg: The Secondary Crime
The government must also show that any falsification was done to further or conceal another crime.
This is where the defense needs to bring greater clarity to its own narrative. Trump’s team needs to drive home that a non-disclosure agreement is common in political, business and entertainment circles. The payment of money to quash a story before an election is neither unlawful nor unusual.
Indeed, Keith Davidson, Stormy Daniels’ attorney, described the NDA as routine and said that it was not hush money but a simple contractual transaction: “It wasn’t a payoff. It wasn’t hush money. It was consideration.”
This is where the testimony of David Pecker, the former publisher of the National Inquirer, was particularly damaging to the government.
Pecker detailed how killing such stories was a common practice at the National Inquirer and that he had done so for Trump for over a decade before he ran for president. He also killed stories for an impressive list of other celebrities, including Tiger Woods, Mark Wahlberg, Rahm Emanuel and Arnold Schwarzenegger.
Merchan has allowed the jury to repeatedly hear of “election violations,” while blocking a legal expert to explain that there is no federal election law violation. The payment of hush money is not a campaign contribution and, again, the federal government not only declined to bring any criminal charge, but found no basis for even a civil fine.
Had he been allowed to testify, Bradley Smith, the former Federal Election Commission (FEC) chairman, would have explained that, even if it were a campaign contribution, it would not have been needed to be filed until after the election — demolishing the notion that this was an effort to influence an election that would have run before any filing had to be made.
The defense has to hammer away on the fact that no one has testified that it was a federal campaign violation.
Various witnesses, including former Trump aide Hope Hicks, testified that Trump was motivated to protect his family from embarrassment. She recounted how Trump even “wanted me to make sure the newspapers weren’t delivered to their residence that morning.”
Pecker testified that he previously killed stories about Trump going back over a decade. That included stories that were demonstrably untrue, such as a claim of a doorman that he fathered a child out of wedlock.
In addition to being a married man, Trump was the host of a major television program subject to a scandal clause. He was also an international businessman. Given all of those interests, it is impossible to claim absolutely that the campaign was the reason for the NDA, which was chump change for a billionaire.
The Third Leg: Criminal intent
The government spent considerable time proving facts not in dispute. There is no dispute that there was a NDA or that Trump signed checks on these payments. It is like repeatedly telling a court that a driver drove 55 miles an hour down a highway and elected to change lanes with a signal. The intent is to convince the jury that somehow proving that an NDA was paid and that an affair occurred is proof of an offense. It is not.
The supervisor in charge of processing payments said that permission to cut Cohen’s checks came not from Trump, but from Weisselberg and McConney. Trump’s White House secretary, Madeleine Westerhout, testified that it was common for Trump to sign checks in the White House without reviewing them.
The entire basis for the alleged criminal intent is Michael Cohen, a disbarred lawyer and serial perjurer.
Yet even Cohen did not offer a clear basis for showing a criminal intent to use unlawful means to influence the election.
Everything Cohen described could be true and only show a desire to kill an embarrassing story before an election — again, not a crime.
Cohen described the mechanics on the payments, but the only person who discussed these payments in detail with Cohen was Weisselberg.
Even liberal experts on CNN admitted that Cohen was trashed on the stand. The only crime that was clearly established in this trial was the grand larceny that Cohen admitted to under oath (after the statute of limitations had run out). Cohen said that he stole tens of thousands from the Trump corporation, a crime far more serious than the dead misdemeanor or even the felonies alleged against Trump.
However, the most significant testimony by Cohen may be his latest alleged perjury in front of the jury.
Many of us guffawed when Cohen claimed that he secretly taped Trump to protect him and keep Pecker honest. No one can explain how that could possibly be true. If it were, he would have told Trump. There is nothing in the call that would have any impact on Pecker, and Cohen admitted to regularly taping others without telling them.
Another alleged perjury came with the key telephone call in which Cohen claimed Trump was informed that the Daniels deal was concluded. The defense showed that that 96-second-long call was to Trump’s bodyguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that clearly shows that the conversation was about a teenager harassing Cohen, not the NDA.
Other witnesses trashed Cohen as unprofessional, prone to exaggeration, bitter against Trump, at times suicidal over being denied positions like attorney general and simply “a jerk.” Hope Hicks, a former aide to Trump, said that Cohen “used to like to call himself Mister Fix It, but it was only because he first broke it.”
Those were the government’s witnesses.
Cohen’s lack of credibility and his admitted financial interest in attacking Trump only highlight again the absence of Weisselberg, whom Cohen references repeatedly as the key person making decisions on how these payments were made and described.
If what Cohen said was true, corroboration was sitting a car ride away in Rikers Island. Traffic may be bad but it is not that bad. The only reason not to call Weisselberg was that he would contradict Cohen.
The prosecution preferred to use a serial perjurer who roughly half of the country views as dishonest as almost the entirety of their case. Even beyond Weisselberg, there is no corroboration for Cohen’s vague allegations on the record.
In the end, this three-legged stool is the very thing that all of us must stand on when accused. Who on the jury would want to stand on this stool with their own liberty at stake?
In the end, the defense needs to be honest with these jurors. The question is whether hatred for this man is enough to ignore the obvious injustice in this case. They may have come to this case with little doubt about Donald Trump, but the question is whether there is not any reasonable doubt about the crimes alleged against him.
In the end, we are all standing on that wobbly stool when the government seeks to convict people without evidence or even a clear crime. If we allow a conviction, it is more than a stool that will collapse in this Manhattan courtroom.
Jonathan Turley is an attorney and professor at George Washington University Law School.
A link from the Smithsonian on a fellow named Eugene Debs. “Unprecedented” has been a much used and abused word, but the only thing about this sham trial in New York is that now the “Leftists” in government are using the courts to jail those on the “Right,” while in 1920 it was the “Rightists” in government used in the courts to jail those on the “Left.”
History not only rhymes, it has a sense of humor as well.
Forgot the link. Here you go . . . . maybe somebody could share it with the “journalists” in the mainstream media.
https://www.smithsonianmag.com/smithsonian-institution/run-president-prison-ask-smithsonian-180974594/
It wasn’t “rightists” who put Eugene Debs in prison, it was the Progressive Woodrow Wilson, the worst president of the 20th century.
ATS – Eugene Debbs was Jailed by Wilson – a Progressive Democrat. He was released in 1921 by Harding a republican.
Alan Bragg is conflicted and a corrupt prosecutor, Judge Merchan is conflicted, unethical and has shown he is prejudice against the defence, and now for the trifecta, it is for the two lawyers who are on the jury for forsake their legal ethics and ignor both federal and state laws. This trial is a travesty and confirms that everything politics touches, it destroys. In this case, it is the entire legal system.
There is great Irony here, Turley gleefully participated in the sham Impeachment trial one, said nothing on Impeachment two. One was a trial where, REMARKABLY, most of the participants were Ukrainian, Ukraine Connected or Supportive of Ukraine and the subtext, Victoria Nuland looking at you, was that Ukraine needed money, weapons and support to kill Putin – an elected leader Nuland, Ciaramella, and the rest of the Ukrainian mafia wanted dead.
At the time Turley found no conflict in any of it, even if the trial itself was as bad as these four post Presidency trials are.
Now, seemingly when the theater of the absurd reaches heights even Stalin and Mao would find too absurd to even try, Turley finds himself siding with, who exactly?
Lawyers are having a day of reckoning, the real world lives in the real world, and the lawyer class, especially the scholarly class live in fantasy world, what is coming is going to be MUCH worse for them, as they wind up on the other end of the Mao Stalin tactics for good.
After working for Americas top law firms for 35 years, I know there are no rules. They hand out law degrees like toilet paper. Any idiot can get one. Thats the problem. Theres no filter. Anyone can get a law degree and become a jidge, for any motove at all. Its a dirty profession. There is no honor among thieves.
Judge Merchan’s confounding and hazy Jury Instructions are literally Biden Gold.
The discussion here reminds me of the haggling over the 2000 election in Florida. I watched the courtroom of judge Sanders Sauls and found two things. First, that the talking heads journalists on TV could not even calculate percentages — but now 24 years later we are expected to beleive anything they say about much more complex topics. Second, that these “journalists” watching the trial, who kept talking about a “Perry Mason” moment, missed entirely the biggest such moment in the trial because their ideological blinders would not allow them to see it.
It appears a number of those folks are now retired and commenting here under the name of George.
By the way, the biggest moment in that trial was when the attorney for Bush, Beck was his name I think, cornered the very full of himeself Yalie statistician and got him to admit that he had signed a false affidavit attesting to having examined the ballot and found it wanting in design when he had done no such thing and had been manipulated by the attorneys for Gore. Good times.
Tremendous amount of perpetrated courtroom chaos.
It has to be an effort to mold jurors.
While I agree with the basics — that this case is “trumped up” — the weakest part of the defense case that Jonathan makes in this column is that Trump just signed checks w/o knowing what he was signing. What is the point of a signature if not to establish that the given payment is authorized by the signer? Yes, he probably signed scads of checks at a time. Nonetheless, he did sign them and knowledge should be presumed. The boss is ultimately responsible (respondeat superior). We are all aware of the tactic of placing layers of plausible deniability between the boss and acts taken in his/her name, but this tactic of placing the blame on underlings and claiming the boss didn’t know what he was signing is weak.
Yep, its Trumps fault that Cohen stole $50k from him.
If Cohen had been charged for that crime, he could have used your logic as defense.
“… Trump just signed checks w/o knowing what he was signing …”
Do you really think that Joe Biden actually knows what the hell He’s signing – any of the things he signs – Really?
Come on man, you can do better than that.
i’m freaking out. what is the big deal? what do they think Morens was trying to hide? Only lunatics think Covid wasn’t real, dangerous and fatal to over a million Americans. Fauci and his cohorts got it right. Vaccines saved lives. They were in an all out panic to find therapeutics. We have come a long way, but fighting these modern viruses is a nightmare. I know someone intimarely involved in that effort. They are trying to prevent people from perishing in a burning building. America has gone insane. Covid as a menace. Who cares where it came from, initially, in terms of trying to protect Americans. That was our first and number 1 goal. We can nuke China at our convenience.
The supposed case relies on paying 130, 000 for a celebrity photo and NDA to protect the Trump brand. It’s an ALLEGED accusation and embarrassing . SD is an embarrassment and anyone would just buy the photo. There’s no real evidence the event happened.
The swindlers in the Emperors New Clothes have been stitching thin air. Is Trump being prosecuted for adultery as in Scarlet Letter? It’s not a crime.
The justice system is a racket funneling swindled tax money and payola to friends, family, and other actual criminals. Bragg is naked, Merchan.
Merchan’s jury instructions permit the jury to convict without reference to a specific underlying crime let alone proof an underlying crime was permitted. In sum, the jury could elevate a books/records misdemeanor to a felony if the jury finds an inferred intent to commit an unspecified, unproven underlying crime that never happened. Testimony of inferred intent? Well, there’s Daniels who testified she knew nothing about NY’s books/records law, and Cohen, a convicted perjurer, who testified his income depended on anti-Trump podcasts and that he stole from Trump’s company. This entire case is the legal personification of barnyard waste. One can only wonder how and why both Colangelo and Blanche let two lawyers onto this jury.
That Biden will speak from the Oval Office after the jury announces the verdict shows that the fix is in.
Jonathan: Every criminal defense attorney would love to to make the closing arguments in DJT’s case in Manhattan today. You are no exception if your column is any indication. Unfortunately, it will left to Todd Blanche or whoever is chosen for that ignoble task. What is curious is that in your entire litany of defense arguments you don’t mention two key witnesses in the case–Stormy Daniels and Robert Costello.
As to the former you are correct that “the defense needs to honest with these jurors”. But Blanche can’t be honest with the jury. Why? Because from the very beginning, under orders from DJT, Blanche argued his client never had the tryst with Stormy Daniels. Never happened. Most legal experts agree the better trial strategy would have been to admit the sex with Daniels in that hotel room and the only purpose for the hush money was to protect DJT’s family. But DJT couldn’t do that because it would expose him as a liar. If the jury believes Daniels, and I think they will, it will have a big impact on the jury deliberations.
What you don’t mention anywhere in your column is either Daniels or Robert Costello’s testimony. Costello was a disaster witness for DJT who thought he would provide proof Michael Cohen was a “serial liar” who should not be believed. Instead, Costello got “trashed” on cross and his claim he was representing Cohen’s interests were exposed to be false–his real role in the conspiracy was to protect DJT’s interests by preventing Cohen’s from cooperating with the feds.
In the end the key to the case will be all the docs, the checks and the audio recording showing DJT was intimately involved in every aspect of the plan to keep Daniels quiet because he was really concerned that if the tryst was exposed it would be a “disaster” for his chances to get elected in 2016. I am confident that 12 ordinary citizens will be able to sort it all out and arrive at the correct decision—notwithstanding anything you say in your column.
By the way Dennis, 72 is no where near 90. Even your math is horrible.
Here, Dennis the pathological liar, lies again. If he were as old as even 82, which would still make him only 4 years old at the end of WW2, he would have been 27 when he claims to have still been in college and dodging the draft.
And here he brags about the glorious pinnacle of his long life, “Doing his job and poking holes” and “sticking the proverbial stick…”
He admits that his lifelong dream of having his own Supermarket Tabloid column (albeit on someone else’s property) culminates in the doo doo he wakes up every morning to share with Turley’s readers.
He is truly a legend in his own mind.
So far we have Dennis working at the Presidio near san Fran. Then we have him saying that the Colonel who ran the “outfit” wanted him there, but he failed his draft physical. Then we have him claiming that somehow this less than flag level officer was going to hand pick him for duty, and keep him out of Vietnam. We also have him claiming to live in an open carry state (clearly not California) and then claiming that he has long lived “in the city” and taking over his parents “vineyard”, out in the country.
The dude is a pathological liar on the scale of Cohen.
Dave – A year ago DM wrote that he was 85 years old. But that was probably a different robot.
Dennis writes his usual meandering free thought typing.
NEVER touching on the Prosecution failing miserably to produce any evidence of a single fraudulent document.
In the end the key to the case will be all the docs, the checks and the audio recording showing DJT was intimately involved in every aspect of the plan to keep Daniels quiet because he was really concerned that if the tryst was exposed it would be a “disaster” for his chances to get elected in 2016.
Here, Dennis doubles down on his ignorant assessment of this case.
First, what he just described is a misdemeanor under NY Law, since keeping Stormy quiet is not a crime, even if it was to affect the election.
I look forward to TRUMP bringing back the rule of law and jailing these criminal democrats from across government by the 10,000’s
Jon it is so quaint you think there is a rule of law and fascist democrat judges abide by them.
The Egyptian word for the space between anus and genitals is “wpt mtny”.
No sale. They’ve been enforcing this statute for 35 yers, and general criminal intent has been good enough. Why should that change now?
Look at law dog, who was earlier a CPA, also using the phrase “no sale”.
Lawn Boi
Trump can only hope that at least one of the two lawyers in the jury remembers his oath and his ethics.
But the DA, the judge and all of the prosecutors are also lawyers and so your hope is a dream that will not be fulfilled.
PS. I agree with your wish that one of the two lawyers will act honorably, but I am afraid they won’t.
There are honest, ethical and intelligent lawyers, both Democrats and Republicans, and there are the other kind (e.g., Michael Cohen). I have met both kinds, even in New York City. Roll of the dice.
Closing arguments have begun. Blanche is starting his argument to sow reasonable doubt. So far he’s doing an ok job. So far.
Really??
Exactly what did he say, Mr Court Reporter?
Thats what I thought.
If you want to follow the closing arguments, here’s a good link.
https://www.nbcnews.com/news/amp/live-blog/rcna153996
Decide for yourself.
It appears that the prosecution doesn’t even have a stool; instead, they have the seat upon the stool, without the legs. They are asking for a complete suspension of disbelief in the lack of evidence in their entire case.
Merchan did it before:
https://youtu.be/Fgpbq2hd0yY
Goebbels ordered filming trial, but then forbade showing in theaters after Merchan exceeded expectations.