Editor's note: Joey Jackson is a criminal defense lawyer and legal analyst for CNN. The opinions expressed in this commentary are his own. Read more opinion pieces on CNN.
CNN —
Closing arguments in former President Donald Trump's hush money trial begin Tuesday in Manhattan Supreme Court. After 22 witnesses have testified — 20 for the prosecution and two for the defense — the 12-person jury will reach a verdict. But before that happens, each side will present competing arguments for the jury's consideration.
Jeremy Freeman/CNN
Joey Jackson
After hearing closing arguments from both sides, the jury will decide whether Trump is guilty of the 34 charges outlined in the indictment filed by District Attorney Alvin L. Bragg. Prosecutors allege that Trump falsified invoices and business books and issued false checks to repay his former lawyer, Michael Cohen. They must also prove that Trump did so to conceal other crimes. Prosecutors have not specified what those “other crimes” are, but have alluded to campaign finance violations.
Prosecutors say Trump engaged in a conspiracy and cover-up to bribe Stormy Daniels to cover up his alleged affair with the adult film actress. Daniels received $130,000 in hush money. Prosecutors allege Trump's motive was to hide this information from voters and improve his chances of winning the 2016 election. If the jury agrees, Trump will be a convicted felon and could face up to four years in prison. Although there are multiple charges, the sentences will run concurrently for each charge, so the four years would represent Trump's entire revelation.
But Trump's defense team will have much to say on Tuesday about the evidence the prosecution has presented to avoid that outcome. Trump has two ways to win. First, the jury could acquit him on the basis of a reasonable doubt about the crimes he is alleged to have committed. Second, there could be a mistrial if one or more jurors refuse to convict, which would mean Trump would get a new trial before a new jury.
If that happens, Trump will effectively be acquitted. That's because there won't be enough time to try him again before the November election. And if he wins, prosecutors will almost certainly put the case on hold until after his term, in accordance with Justice Department guidelines that prohibit trying a sitting president. If he loses, it's hard to imagine there would be any interest in trying him again. What would the point be?
The defense makes its closing argument first. The burden of proof is on the prosecution, so the prosecution makes the closing argument. Once the trial begins, neither side has the right to refute the other.
Based on my experience in court, here is what I expect to hear from both sides.
The defense is likely to maximize the importance of Trump's former fixer, Cohen, in this scheme. In doing so, they will argue that the entire case is based on Cohen's word. And they will say that all the charges must fail because his lies are documented and therefore have zero credibility. But the prosecution will likely minimize Cohen's importance by pointing out that the testimony of nearly every other witness supports Cohen's claims, along with emails, text messages, audio recordings, and other documents.
The defense will argue that Trump did nothing illegal. They will emphasize the fact that catching a damaging media story and killing it (buying the rights to the story and then ceasing its publication) is an acceptable and legal act, just like signing a non-disclosure agreement. It is not illegal to want to win an election or to protect your family or yourself from embarrassing revelations.
Meanwhile, Daniels' defense will likely continue to argue that Cohen made the bribery deal on his own accord while disputing the affair, which Trump has consistently denied. They will likely argue that Cohen did so without Trump's knowledge or consent. And while Daniels' details of the alleged affair may have been salacious and entertaining, the affair was not illegal even if a jury believed it actually happened.
As for paying invoices or reimbursing Cohen for expenses, again, there is nothing illegal in and of itself — Trump wrote the checks, Sharpie or otherwise, which is entirely appropriate.
As for the books and invoices that track these checks, Trump is the owner of the organization, not the bookkeeper or treasurer. Trump has nothing to do with the books and invoices, and by the way, in 2017 he was too busy running the free world to have much time for micromanagement or handling business records. None of Trump's financial people have testified that Trump told them to falsify anything.
The defense will remind jurors that the only witness directly implicating Trump is Cohen, and they will have a lot of fun pointing out that Cohen is a Trump-hating, disbarred lawyer and convicted felon who lied to Congress, lied to banks, lied to business associates, and even hid information from his own wife. The thousands of dollars he stole from the Trump Organization will no doubt be mentioned, along with the millions he made bashing Trump.
In short, the defense will likely argue that Cohen, whose credibility is questionable, is desperate to convict Trump and holds a grudge against him for not offering him a White House job.
The defense will likely highlight the biggest alleged lie: Cohen's testimony alleging that he had a 96-second phone call with Trump's bodyguard in which he briefed Trump and got his approval for the Daniels deal. Cohen claims that Trump was with the bodyguard at the time and that he handed the phone to Trump. Cohen seemed caught off guard when it was pointed out that prior to that call, Cohen had repeatedly texted the bodyguard about being harassed by a 14-year-old girl, but never mentioned Daniels.
Finally, the defense will emphasize that you can't convict someone because you don't like their politics. That would be anathema to the entire justice system. By the way, what about that other mysterious crime Trump was hiding? Why didn't the prosecution spend more time on that? Not guilty.
But prosecutors will likely say there's no need to rush.
We said this case was about conspiracy and cover-up, and prosecutors will argue they have proven just that.
The defense wants you to believe that this case hinges entirely on Mr. Cohen's word. But that's not the case. Virtually every witness came forward and corroborated almost everything he said.
His motivations were clear. Given the release of the Access Hollywood tape, in which Trump bragged about sexual assaults on a hot microphone, he couldn't afford to be embroiled in another scandal. You heard Trump campaign communications director Hope Hicks talk about the serious problems the campaign faces and how they did extensive damage control after the tape was released. You also heard from her that Trump is a detail-oriented guy who always knows exactly what's going on around him. She also said that Cohen is not the kind of guy who will just advance money out of the kindness of his heart.
Incidentally, we know Trump was fully aware of another deal, his arrangement with Playboy model Karen McDougal. We all heard the tapes of Trump and Cohen conspiring to pay her to keep her from exposing the affair. Is it possible that Trump was fully involved and privy to that arrangement, but had no knowledge at all of the payment to Daniels? Impossible. McDougal and Daniels hired the same lawyer, Keith Davidson, to negotiate the payment.
But amazingly, the defense wants you to believe that Cohen is the only direct evidence showing Trump was involved in this fraud. Nonsense. By the way, didn't you hear the audio of Cohen telling Davidson that Trump was lamenting the payment to Daniels, even though Cohen says everyone else told Trump that it was the right thing to do?
And consider something else that proves Trump was aware of the deal: his frustration at having to make it in the first place. Cohen said Trump made every effort to delay the payment to Daniels, asking that it be postponed until after the election, telling her, “If I win, I'll be president and this deal doesn't matter. If I lose, nobody cares.”
Then there was Cohen's meeting with Trump at the White House just before the compensation payments began. We know that this meeting was not to discuss Cohen's appointment as U.S. Attorney General. And shortly after this meeting, Trump began paying Cohen “fees” in his trademark Sharpie pen. But interestingly, Cohen did not do any legal work for Trump.
The evidence shows that Trump's approval was required to issue the checks to Cohen. And the checks were set up and structured in this way to avoid discovery of what their real purpose was: to pay Cohen back and a bonus for a job well done. And if it was all so innocent, why FedEx an unsigned check to Trump's security chief, who would take it to the White House to sign and then FedEx it back? Seems like a pretty elaborate arrangement with just a “retainer” fee paid to a lawyer.
The defense would have us believe that the man who wrote “The Art of the Deal” didn't actually know what his purpose in writing Cohen $35,000 in monthly checks was, or that he even knew he was signing them because he was busy juggling multiple jobs. How plausible is that? Not only did he know exactly what he was doing, the prosecutors will no doubt argue, but he also knew exactly how he needed to manipulate the books to avoid any suspicion of illegality.
Trump, who directed that the books be structured in a particular way, was involved in a conspiracy of fraudulent books and invoices. Whether Trump personally prepared them is immaterial; Trump personally signed the checks themselves. What could say more about personal involvement than Trump's signature?
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And why did he engage in this conspiracy and cover-up? To circumvent campaign finance laws for a presidential election. Do we need to make Cohen say that? Or is that what our common sense and decency tells us? We can also trust the cell phone records, text messages, emails, audio we have heard, and other documents. There is no denying that Trump is guilty of all charges.
The defense spent a great deal of time and energy trying to undermine Cohen, who claims that he discussed the Daniels scheme with Trump “more than 20 times” in October 2016. If the jury discounts Cohen's testimony, that could be problematic for the prosecution, as Cohen is directly related to Trump's guilt. On the other hand, if the prosecution is successful in discounting Cohen's importance and focusing on all the other evidence that shows that Trump not only knew about the Daniels deal, but also established his motives and reasons to ensure that the agreement was made, the prosecution could win. Why? Because it would make it clear that Trump falsified records, and it would also make clear his motives for doing so.
What will the final verdict be? A jury will decide. In making that decision, the jury will have many things to consider.
