A Trump conviction doesn’t hang on Michael Cohen

The Manhattan district attorney’s case against Donald Trump has unfolded like a north-of-the border telenovela, with lurid tales of sex, spankings, hush money and silk pyjamas, as well as the occasional detour into the editorial practices of supermarket tabloids. But the case, provocative as it has been, may turn on something a great deal more mundane than the testimony.

The key question the jurors will soon be considering is a straightforward one: Did the former president “cause” the creation of false business records? The prosecution has answered half of that question. There’s no reason to doubt the records were false. But the verdict is likely to turn on the other half — whether Trump caused the false information to appear on the invoices and vouchers. The evidence there is murkier.

According to the prosecution, on the eve of the 2016 election, Michael Cohen, Trump’s onetime lawyer and fixer, paid $130,000 to Stormy Daniels, the porn star, to guarantee her silence about a tryst she and Trump allegedly had a decade earlier. Trump then reimbursed Cohen for his outlay, plus a bonus and additional funds for taxes. The business records of those payments to Cohen called each one a retainer for legal services, rather than what they were: a reimbursement for the hush money paid to Daniels.

The prosecution has done an excellent job of proving these details. Was the information on the documents false? Absolutely. Several witnesses support the government’s claim that Trump’s payments to the lawyer were not legal fees. Trump himself tweeted in 2018 that Cohen received a “reimbursement” and said as much in a White House financial disclosure form.

The government also introduced a document in the handwriting of Allen Weisselberg, the former chief financial officer of the Trump Organization, detailing the reimbursement scheme.

Cohen laid out his own money — $130,000 to Ms. Daniels and about $50,000 in another expense. Weisselberg jotted that the reimbursement would break down as $180,000 in income to Cohen, $180,000 to cover Cohen’s taxes, and a $60,000 bonus. The total of $420,000 was exactly what Cohen received in 11 checks. The prosecution also made a strong showing that the payoff to Ms. Daniels was designed, above all, to help Trump win the 2016 election. That’s especially important in this case because if the jury finds that Trump was motivated to violate election laws, that elevates his crime from a misdemeanour to a felony.

Trump’s defence team barely disputed this evidence. At times his lawyers seemed to be trying harder to please their client than to win their case. In cross-examining Daniels, Susan Necheles did a fine job of showing Ms. Daniels’s anger at Trump and her financial interest in a conviction in this case. But then Necheles began a long and unpersuasive attempt to show that Daniels was lying about the underlying sexual encounter. Daniels’s story of that night was solid, including such details as her whacking Trump with a magazine when he condescended to her and his louche outfit when she arrived at his hotel room. “Does Hugh Hefner know you stole his pyjamas?” she recalled asking Trump. (Trump denies having an affair with Daniels.)

Given the structure of the case, it almost doesn’t matter whether the two had sex in 2006, which made the defence assault on Daniels even more unnecessary. All that the jurors needed to know was that her story, true or not, represented a threat to Trump’s 2016 campaign, and that’s why he wanted to pay to shut her up.

The prosecution went to a great deal of effort to prove that Trump, notwithstanding his great wealth, was a tightwad who kept a close eye on every expenditure. The jury heard quotes from Trump’s own book recounting how he personally signed his own checks. In an email, an assistant brought up the purchase of something as minor as a picture frame for “about $650 minus 15% discount. Does DJT want to spend that much?”

This testimony was aimed at shoring up the principal weakness in the government’s case. The defence has argued that while Trump signed the checks to Cohen, there was no direct evidence that he knew about how those payments were recorded by the bookkeepers at the Trump Organization. He had no reason to check how the payments were categorised.

This is where Cohen’s testimony was vital. The three days he spent on the stand so far resembled a prose opera of love, betrayal and revenge. Cohen said that Trump knew about a plan to lie about the payments and described how he prepared invoices that falsely characterised the payments as legal fees, even though both men knew that the payments were reimbursements. If the jury believes Cohen, despite a brutal cross-examination that underlined his history of lying, then conviction is almost assured.

But even if the jury writes off Cohen or discounts his testimony, the government can still prove its case. Under the law, Trump can be convicted if he “caused” the false records to be created.

The jury has to believe that Trump knew any documents characterising the payments as legal fees were false.

The government has argued that Trump couldn’t have missed at least some of the false statements, because the word “Retainer” was on the stubs attached to the checks he signed.

That’s a persuasive argument because someone as penurious as Trump surely would not spend $420,000 without knowing the reason, and thus he had to know that records describing those expenditures another way were false.

Juries surprise — sometimes. This one, especially with two lawyers on it, is likely to be fastidious about examining the evidence and following the law. Despite the sensational surrounding drama, the issue for these 12 Manhattanites is likely to come down to the prosaic business of invoices and vouchers, and how they came to tell a story that was different from the one that actually happened.