Here are the challenges prosecutors face in cinching conviction against Trump: experts
After securing an indictment against Donald Trump, Manhattan prosecutors still face an uphill battle to cinch a conviction — including untold public scrutiny and fighting any perception the case is a political “witch hunt,” experts tell The Post.
The unprecedented indictment — the first ever criminal case against a former US president — is “going to be unparalleled in its scrutiny and effort,” said Jeremy Saland, a former prosecutor in the Manhattan District Attorney’s office and a current criminal defense lawyer.
Manhattan District Attorney Alvin Bragg’s office has been presenting witnesses and evidence in connection to an alleged “hush money” payment that Trump made in 2016 via his attorney Michael Cohen to porn star Stormy Daniels to silence her about claims she had an affair with Trump.
The jury also heard evidence about a “catch and kill” payment made to former Playboy model Karen McDougal in 2016 to keep her quiet about claims she had a 10-month affair with Trump in 2006.
The indictment won’t be made public until after Trump is arraigned – which won’t happen until after he surrenders.
Trump’s lawyers have said their client will surrender next week.
“He did not commit any crime,” Trump’s lawyers Susan Necheles and Joseph Tacopina said in response to the indictment on Thursday. “We will vigorously fight this political prosecution in court.”
Saland said the difficultly is not just in proving the charges, but the legal issues, the high-profile nature of the case “and all the backstory that, for better or worse, hangs like a cloud over this case.”
Prosecutors must ensure that the case is above board so the public doesn’t buy into Trump’s accusations that it’s a political “witch hunt,” he said.
“There needs to be a clear understanding that this is based in justice not in politics,” Saland said.
“Just because Trump asserts it, doesn’t make it true at all but unfortunately it’s an added element that the DA’s office has to deal with because if public trust is compromised you may win the battle in the courtroom … but you could lose the war and it’s not worth it,” Saland said.
For Bragg, “it’s not an easy walk,” Saland said.
Other experts agreed that the world will be watching the trial and the DA’s office must do everything by the book – just as prosecutors are expected to do in every case.
“The DA is always supposed to be above board in any criminal case that they prosecute or choose not to prosecute,” former Brooklyn prosecutor and current criminal defense attorney Julie Rendelman told The Post. “Obviously everyone’s eyes are going to be on them so they better be dotting their i’s and crossing their t’s.”
And when you consider the extraordinary nature of prosecuting a former sitting president and current presidential candidate, the DA’s office should be sure their case is airtight, another former Manhattan prosecutor, Michael Bachner, told The Post.
“When you are bringing a case of this significance I believe the prosecution should be convinced even more than beyond a reasonable doubt of the defendant’s guilt,” Bachner said. “This is a very politically charged defendant. If you are going to go after him you better be sure you can win.”
Prosecutors face a slew of other obstacles — including the fact that convicted felon and admitted liar Michael Cohen will be the star witness against Trump, the experts said.
There could be challenges surrounding the statute of limitations, and the difficultly in proving the specific type of charges against Trump.
Rendelman said the case will be difficult to prove, “on multiple fronts” including that Cohen – who in 2018 pleaded guilty to lying to congress and violating campaign finance law in connection to payments he made to Daniels and McDougal – “is going to be subject to an incredibly incredibly blistering cross-examination.”
The defense will try to paint Cohen – Trump’s one-time lawyer and “fixer” – “as a witness that is simply not reliable,” she said. And they will likely pull from the many public statements he’s made about Trump to reveal his alleged, “own bias against” his former boss.
Dealing with the credibility of Cohen – who was disbarred in 2019 as a convicted felon – could be problematic for the DA’s office “but it’s not a problem prosecutors do not face on a daily basis,” Bachner added.
Saland agreed that dealing with allegedly shady witnesses is just one part of the job of a prosecutor.
“If you are in the swamp, you use swamp things to infiltrate,” Saland said. “You aren’t using choir boys to get into the swamp.”
But both Saland and Bachner said the DA’s office will attempt to corroborate Cohen’s testimony with hard evidence and other witnesses to show his testimony is credible.
Trump, 76, has claimed the alleged crimes are already outside of the statute of limitations – which experts say is a legal hurdle that must be cleared.
While the stature of limitations in a case like this would normally be five years, when the defendant is outside of New York State on a “continuous basis” the clock can be paused, the jurists explained.
Bachner said there will likely be a legal battle about what classifies a continuous basis.
Saland noted the statute of limitations will be a viable “line of attack” and there “may be legal arguments to be made to dismiss that case.”
But Bachner said prosecutors already likely vetted the case wasn’t time-barred and believed they had good legal standing against this potential defense angle.
Rendelman said finding an unbiased jury could be difficult for both sides since “no one is going to not know who Donald Trump is,” adding it’ll also be hard for people to not have opinions about him personally and politically — or opinions about the DA’s case.
In New York, a traditionally Democratic state, the challenge of getting a fair jury might be tough.
“I think for the most part, Donald Trump has become persona non grata in the city of New York,” Saland said. “There are probably a lot of folks who tend to not like his politics or his person.”
He said it’s “critically important” for both the prosecution and Trump that they get an impartial jury.
Still, Bachner said he believes Trump will get a fair trial from a fair jury, because “people know what’s at stake here.”
Another challenge in securing a conviction, is for prosecution to prove the elements of the crime he was indicted on.
Specifically, prosecutors will have the challenge of connecting the dots on timing to prove that Trump had Cohen make the hush-money payment to Daniels in 2016 right as his campaign was heating up and that it should have been disclosed as a campaign contribution. They will likely also try to prove that he tried to cover up the payment by making it look like a personal expense.
Bachner said Trump’s lawyers will likely try to argue that their client would have made the payment to Daniels regardless of the campaign. But he added, “so long as even part of the motive was to protect the campaign that would be a problem for Trump as far as the campaign violation.”
