By James D. Zirin
It is the 21st day of trial in New York during the 22nd week of the year. It is a historic trial, perhaps the trial of the century—the first ever of a former president charged with criminal conduct.
The prosecution’s case is that documents were falsified to make it appear that there were payments to Trump attorney Michael Cohen for legal services when, in fact, they were reimbursements for the $130,000 Cohen paid to silence porn star Stormy Daniels and prevent her sexual encounter with Trump from becoming public in the heels of the Billy Bush “grab ‘em” tape, and the run-up to the 2016 election.
The trial’s end game was the occasion for a political brawl.
Congresswoman Marjorie Taylor Greene was quick to summarize the state of play:
Closing arguments begin today in the New York case against Pres Trump. The only argument that needs to be made is that Democrats have weaponized justice systems and are abusing power in order to attempt steal the election again.
Actor Robert De Niro held a press conference outside the courthouse. So did the Biden campaign. DeNiro called Trump a “grubby real estate hustler masquerading as a big shot. A two-bit playboy lying his way into the tabloids.” “A loser.” “A tyrant.” New Yorkers make room for clowns. But, not a person like Trump.”
While entertaining, it’s not as simple as that. The administration of justice is a serious business. The proof had ended on a good note for the prosecution. Susan Hoffinger’s cross-examination of attorney Robert Costello was a cookbook lesson on tampering with a witness. Trump wanted to keep star witness Michael Cohen in the fold because Michael Cohen had a story to tell.
It is time for summations—the last chance counsel will have an opportunity to address the jury. The summations were long; in my opinion, too long. They went on for seven-plus hours. The prosecution in a criminal case always gets the last word because he has the burden of proof to establish guilt beyond a reasonable doubt.
Donald Trump viciously attacked this time-honored procedure as another example of the unfairness done him.:
“WHY IS THE CORRUPT GOVERNMENT ALLOWED TO MAKE THE FINAL ARGUMENT IN THE CASE AGAINST ME?” he seethed on his Truth Social platform, “WHY CAN’T THE DEFENSE GO LAST? BIG ADVANTAGE, VERY UNFAIR. WITCH HUNT!
Because Donald, that’s the way it is and has always been for everyone else, and that’s the way it will have to be for you. You may not think so, but you are not above the law.
When I was a federal prosecutor, the defense always summed up first, the prosecution last. This is the procedure followed by Judge Juan Merchan, although some judges order the prosecutor to sum up first, followed by the defense, and then the prosecutor in rebuttal. I have always found the former procedure works best, even though the defense counsel must anticipate rather than answer the prosecutor’s arguments.
So defense lawyer Todd Blanche led off with what court observers called a “ponderous” summation. Former Alabama U.S. Attorney Joyce Vance, now a legal analyst, called Blanche’s summation “pedestrian.”
Blanche argued to the jury today that Trump paid Michael Cohen $35,000 a month “for legal services.” But what bona fide legal services were rendered? None of significance was introduced in the evidence.
True, Cohen, the prosecution’s star witness, is an admitted liar, perjurer, and thief. But, prosecutors found him with Trump, not in some witness store. Is the jury to believe that everyone in the Trump organization was a liar and a thief except the big enchilada? If you believe that one, I’ll sell you a bridge in Brooklyn for a song. Most importantly, Cohen’s testimony is circumstantially corroborated by the documents, the “mute witnesses” that speak for themselves. As prosecutor Josh Steinglass told the jury in summation: “It is hard to conceive of a case with more corroboration.”
And Steinglass had more to say about Cohen. On cross-examination, Cohen appeared flustered about an October 24 telephone conversation he said he had with Trump in which Trump approved his going ahead with the Stormy deal. Documentary evidence showed that the call lasted about 49 minutes and was placed to Trump’s bodyguard, Keith Schiller who it was established was standing by Trump at the time. Steinglass brandished a timer explaining what happened and acted out the same conversation, adding plenty of asides and silences as he played the role of Cohen, talking first to Schiller and then to Trump. The call felt as if it lasted a long time. But when Steinglass stopped the timer, it had only been about 49 seconds, about as long as the call in question. He was trying to illustrate the point that Cohen could have easily talked to Trump about Stormy. To paraphrase Johnnie Cochran’s great summation in the O.J. Simpson case: “If the call fits, you must convict.”
We have juries because they are asked to employ their God-given common sense. This is a common sense case. Where does the truth lie?
In summation, Blanche denied that Trump ever had sex with Stormy, a denial evidently desired by Trump, who did not take the stand. The jury could not have been impressed. Their common sense should tell them that you don’t pay $130,000 to someone you just took a photograph with on the golf course.
The prosecution’s argument to the jury is simple: “Have you ever been cheated?” “Is there evidence of fraud?” “Is the excuse for it sufficient?” The jury must answer these questions by applying their experience, knowledge, common sense, and, most notably, their own standard of honesty.
What makes more sense, payments for legal services or the Cohen version corroborated by Weisselberg’s handwritten notes detailing exactly how Cohen would be reimbursed for the payoff to Stormy, that Cohen did what he did for free, that payment through the lawyer was a disguised payoff of $130,000 to Stormy; and that the grossed up payment was to cover Cohen’s taxes plus a bonus?
Then, there is the corroborative testimony of Trump-friendly publisher David Pecker, who testified that he attended a meeting with Trump and Cohen in August 2015, shortly after Trump announced his campaign for president, where they agreed to spend money for “catch and kill” stories that could be harmful to Trump’s campaign. Pecker told of a similar hush money payment to Playboy model Karen McDougal regarding a 2005 relationship, made only after the campaign announcement, which is further evidence that the payments were made to influence the campaign. In the prosecutor’s view, Pecker’s National Inquirer became an arm of the Trump campaign. The McDougal episode set the table for the Stormy Daniels transaction.
Neither of those items of evidence requires the jury to believe Cohen’s testimony.
Were the 11 monthly payments, nine by checks that Trump personally signed, an honest transaction or a dirty deal? Cohen’s story just adds up. The opposite theory is just shoveling water.
Blanche tried to rely on tidbits of individual evidence and suggestions that tend to contradict the prosecution’s narrative. The prosecutor ably sought to assemble all the evidence so that the jury understood that the truth lies in its totality.
The prosecution strategy was to present the case with corroboration first and Cohen last. In the Alpha, we find the Omega.
They were smart to start with the corroborating evidence, the Weisselberg writing, the Pecker testimony, and finish with the pièce de la resistance, the star witness Michael Cohen, the man of whom Pecker testified: “Cohen was not authorized to buy lunch without Trump’s approval.” That told the story with maximum impact.
Juries generally don’t like florid speeches or appeals to passion and prejudice. But when the words of a simple argument are constructed properly, they have a crushing force that is virtually irresistible. Steinglass did what was expected of him. He told the story in simple terms to arouse interest, clear away suspicion, show the relationship of facts, and assemble them into an understandable and readily perceptible Mosaic.
The prosecution must prove that the records were falsified with intent to commit another crime. Interestingly enough, to convict, the jury must unanimously agree that the documents were falsified with the requisite intent, but they needn’t be unanimous in their conclusion as to which of the three crimes alleged in the indictment, tax fraud, election interference, and federal campaign finance violation were intended, so long as each juror believes that one of the laws was violated. If the jury finds unanimously that Trump intended to conceal any one of these crimes when he caused a false document to be made, they must find Trump guilty.
The coda of the peroration: Prosecutor Josh Steinglass, in ringing words, told the jury if they ever thought this was a minor crime:
“This scheme could very well be what got President Trump elected.”
The case is now with the jury.
