I was skeptical about the prosecution of Donald Trump in New York.
I was one of the many commentators who criticized the case. It was an old, so-called zombie case that had been going around for years. It seemed to rest on some untested and controversial legal theory. It didn't seem like a good enough case to prosecute a former president for relatively minor, paper-level charges.
But I have to give credit to the prosecutors in Manhattan. They convinced me throughout this trial. They clearly and overwhelmingly convinced the jury. Of course there will be appeals, and Mr. Trump may have a compelling legal argument.
But the jury's swift decision reinforced the district attorney's view that this was a legitimate charge and was more than just an accounting entry.
Every trial is a human story, and successful trial lawyers present that story to jurors in a way that is internally consistent, supported by the evidence, and consistent with jurors' life experiences and common sense.
Prosecutors skillfully developed a compelling story of criminal election interference, not bookkeeping errors. They presented evidence of a criminal conspiracy to influence the 2016 presidential election. It began with the major publishing company American Media, through its CEO David Pecker, agreeing to help the Trump campaign illegally manipulate the information voters received. Information harmful to the Trump campaign was suppressed and false stories about rival campaigns were disseminated.
The scheme went far beyond paying hush money to Stormy Daniels, it also included buying and covering up other negative stories (such as those about former Playboy model Karen McDougal).
These so-called catch-and-kill schemes were not inherently illegal, but prosecutors established that the schemes were carried out through several illegal means, including the creation of false documents in AMI's records, false statements that Michael Cohen, then Trump's lawyer and intermediary, provided to banks in connection with accounts he opened in shell companies to process the payments, and false documentation reflecting the tax status of payments to Cohen.
The scheme also included a key charge that the catch-and-kill payments amounted to illegal contributions to the Trump campaign, a crime for which AMI was investigated and for which Cohen was later convicted.
In this light, prosecutors argued, the false documents in the Trump Organization's records should be viewed as part of the final criminal act in a scheme to conceal damaging information: After Trump won the election, the conspirators needed to cover their tracks by falsifying documents describing the reimbursements to Cohen.
As for Cohen, the state's main witness, it's fair to say he had some issues when he came to court. But throughout his testimony, the prosecutors handled him in textbook fashion. They didn't shy away from his shortcomings as a witness, such as his previous false testimony under oath. They showed why the jury could believe what he said on the stand, even though he had lied so many times before. And the prosecutors were able to corroborate almost everything he said with multiple documents and other witnesses.
I think the prosecution took on a difficult case and delivered a seamless, coherent and persuasive presentation, but I think the prosecution would also, frankly, agree that they were assisted.
The defense's case, like Churchill's infamous pudding, was without theme: The defense did not have to prove anything, but Trump's lawyers failed to present a coherent alternative explanation that would raise reasonable doubt in the mind of one or more of the jurors.
The defense could have made more targeted arguments, such as acknowledging negligence and the payment of hush money to Daniels but arguing that the state failed to prove that Trump knew his company's internal bookkeeping documents were false or that he had them produced with the intent of covering up another crime.
Instead, the defense was classic Trump: “I'm the victim. Deny everything. Everyone else is trying to lie and attack me. We must attack and eliminate witnesses who can, for the most part, be safely ignored.”
Whether this was at the client's request or the attorney's own discretion, the defense ended up presenting contradictory arguments that were completely unreliable. If you discredit the jury by denying something that seems obvious and self-evident, they are less likely to believe what you say about the actual issues at issue.
There are likely many chapters yet to be written on this case, and I remain skeptical about the long-term viability of these beliefs, though I will be the first to admit that I have already been proven wrong once.
The presiding judge, Judge Juan Merchan, largely accepted the prosecution's legal theory, which allowed the prosecution to present its case admirably within the legal framework in the same way that the judge had handled the case, but I believe some parts of the legal theory are potentially weak.
“There are questions about the proper meaning of fraudulent intent under New York law and whether this internal document meets that standard. There are potential problems with using federal campaign finance law as a basis for transforming a state misdemeanor into a felony. This case raises these and other new questions, and the defense will have an opportunity to argue them in higher courts in the future.”
But at this trial, the prosecutors made a compelling case for why these false business records really were important as part of a larger, successful conspiracy to criminally interfere in a presidential election. They told a compelling story, and they told it well.
Randall D. Eliason is the former chief of the Fraud and Public Corruption Section of the U.S. Attorney's Office for the District of Columbia and a professor of white-collar crime law at the George Washington University Law School. He blogs at Sidebars.
