Unreasonable Doubt

Prosecutors have told a compelling story and backed it up with witnesses and receipts. Now it’s the defense’s turn. But what will it argue?

Illustration by Elizabeth Williams via AP

Throughout the first criminal trial of Donald Trump, we’ve heard the prosecution’s story, and it’s a straightforward one. But we’ve heard little from the defense, other than to attack the credibility of witnesses like Stormy Daniels and Michael Cohen. 

So far, Trump’s side has offered no explanation for how things came to be the way they are with the trail of payments to Cohen. And technically, it doesn’t really have to. The defense could simply rest after Michael Cohen’s testimony is over. After all, it’s the state’s job to prove guilt beyond a reasonable doubt, and Trump’s lawyers could argue that it has failed to meet its burden. All the state has is a chief witness who is a liar and a felon with an ax to grind, they might argue.

But this would be a risky strategy. That’s because it isn’t just Cohen’s word against Trump’s. The state spent weeks presenting corroborating evidence that supports Cohen’s account. That means even if the jury were skeptical of Cohen, it would have to discount all of the other evidence, too.

In today’s piece, I’ll briefly recap what the prosecution has presented and why it will be difficult for the defense to explain it all away. Then I’ll discuss what Trump’s attorneys claim and why that feels like a lot of B.S. for the jury to swallow.

The state’s case

The prosecution has a fairly simple story to tell, one that aligns with how ambitious people act when they have something to hide.

Donald Trump conspired with Michael Cohen and his friends at the National Enquirer to “catch and kill” negative stories, including his affair with Karen McDougal and his sexual tryst with Stormy Daniels. The goal was to keep Trump’s 2016 campaign from being tarnished by further scandal, especially after the Hollywood Access “grab ‘em by the p*ssy” tape came out.

The Enquirer and Cohen made payments to these women in exchange for their silence, but these were in excess of campaign contribution limits and they failed to disclose the money transfers. That was a violation of federal and state election law, and Cohen went to prison in part for that crime. 

In the case of Stormy Daniels, in the waning days of the election, Cohen had to scramble to pay her and close the deal. After all, he was Trump’s “fixer” and this was something that needed fixing badly. So he took out a home equity line of credit and made the payment through a shell company he controlled.

Cohen naturally wanted to get reimbursed for paying Daniels, but Trump wanted the hush money to stay hushed. So Trump approved a scheme, cooked up between Trump’s CFO Allen Weisselberg and Cohen, to falsify business records and pass the payment off as legal expenses. To make Cohen whole, the payments were “grossed up” to account for the taxes he would have to pay. They were then spread out over a year, with Trump signing many of the checks personally.

The prosecution will argue that this shows Trump is guilty of falsifying business records in order to conceal an illegal scheme to cheat in the election.

The defense’s story

Throughout the cross-examinations of the state’s witnesses, I’ve been waiting for even a hint of the story the defense will tell. Why exactly would Cohen pay off Daniels with his own money, but expect nothing in return? Why was he in such a hurry to pay her off before the election? Did Trump really only want to keep the news from Melania? What explains the legal fees that Cohen received, if not the Daniels reimbursement? Why would Trump sign checks every month to Cohen if he didn’t know what was going on?

So far, the defense has provided little guidance on the above and instead has focused on attacking the credibility of witnesses like Daniels and Cohen. Trump’s attorneys have sought to show these two witnesses are unreliable, money grubbing, and want to punish Trump and profit from it.

Even if that succeeded to some extent (and it didn’t go very well so far) there were other witnesses, too. These include The National Enquirer’s David Pecker, Trump Organization Controller Jeffrey McConney and former Trump Campaign press secretary Hope Hicks. These witnesses were credible on the stand and had no motive to betray Trump. Their testimony undercut a lot of whatever story the defense wants to tell.

There’s also the physical evidentiary trail, including bank statements, handwritten notes by CFO Allen Weisselberg, phone logs, and of course copies of checks with Trump’s signature on them. There’s even a “smoking gun” pair of exhibits, which I discussed in an earlier piece, in which Weisselberg and McConney do the math step by step, showing how Cohen’s reimbursement would be “grossed up” and paid out to him under the guise of legal services.

Right now, it seems to come to this: Trump is asking the jury to believe he never slept with Daniels, that Cohen paid her out of the goodness of his heart, that Trump knew nothing about the illegal reimbursement scheme, and that the documents don’t mean what they say. But from everything the jury has seen and heard, that story makes no sense at all. 

People don’t take out huge personal loans to buy silence over their boss’s one night stands, and they don’t normally do so in such a hurry—unless there’s a very good reason to do so such as keeping it from getting out before the election. And people like Michael Cohen definitely expect to get paid back. 

Someone doesn’t sit in meetings where illegal schemes are discussed, observe them being carried out, then sign the very checks that are part of the scheme, without knowing what was taking place. That’s especially true for a boss like Trump who micromanages everything and typically uses his refusal to pay money, even small amounts of it, as a cudgel to gain leverage.

Picking at the edges

So what is the defense’s strategy, then?

The defense appears to want to make the case that entering into a non-disclosure agreement isn’t illegal, and neither is paying a lawyer, which Michael Cohen surely was, and then recording it as “legal expenses.” In fact, the defense argued, it’s entirely correct to categorize it that way. At least that’s the point the defense made during cross-examination of witnesses from within the Trump Organization’s accounting department. 

But this defense ignores everything that happened up to the point where the payments were mechanistically categorized as legal expenses. And let’s not forget that Trump can be found guilty if he simply knew about the scheme and authorized it or let it happen.

Controller McConney took the stand for three hours of testimony to explain the context for the “legal expense” categorization. He said that Weisselberg had told him that Cohen was owed a reimbursement, but to record payments to Cohen as “legal expenses” in the company’s books and to increase the amount paid to account for taxes on the income. He then instructed Deborah Tarasoff, who prepared the checks for Cohen, to record them as legal expenses, as Weisselberg had ordered. She dutifully did so.

McConney was asked, “Are you aware of another instance where an expense reimbursement was doubled to account for taxes?” to which he answered, “No.” But he still followed Weisselberg’s instructions.

That raises another likely line of defense: Did Weisselberg act on his own or with approval from Trump?

The defense will argue that Trump was not involved in the decision to reimburse Cohen using disguised legal expenses and therefore can’t be held criminally responsible. After all, Trump didn’t tell McConney to do this directly; that came from Weisselberg. And McConney admitted he had no knowledge of what Trump knew about the scheme.

But McConney was a long time employee at the Trump Organization, and he testified about Trump’s obsessive focus on cash outflows from the company, including an instance where Trump “fired” him because the cash balance had dropped from the week before, only to take it back later and warn him against it happening again. Tarasoff, who worked under McConney, testified that Weisselberg had his hands in everything but would run financial decisions by Trump. And of course, Cohen testified that he was in the room with both Weisselberg and Trump when Trump approved the reimbursement scheme.

Then there are the checks themselves. According to McConney, 9 out of the 11 checks originated out of Donald Trump’s personal account and needed to be sent to the White House for Trump to sign, which he did with his signature Sharpie. To believe that Trump didn’t know about the illegal scheme is to believe he would sign checks each month to Cohen while not knowing what they were for. That defies everything the jury has learned about Trump from his longtime employees like McConney, friends like David Pecker, and even Trump’s publisher, who testified about how Trump advised others in his books to micromanage everything. “I always sign my checks, so I know where my money’s going,” Trump wrote in one of the excerpts read aloud in court. 

There are still two principal people who could testify to Trump’s version of the story, whatever it may be: his CFO Allen Weisselberg and Trump himself. Weisselberg is currently serving time in Rikers for perjury. He probably doesn’t want to commit it again for Trump, at least not with his handwriting all over the smoking gun bank statement on which he “grosses up” Cohen’s reimbursements to disguise them as legal fees. Two other witnesses, McConney and Cohen, already have identified Weisselberg’s handwriting on that exhibit.

That leaves Trump. While the defense has announced no decision about whether Trump will testify, the chance of this is slim to none. Should he take the stand, Trump would open himself up to a brutal cross-examination and would likely commit perjury himself. No defense attorney should permit such a client to risk that. 

Besides, Trump has been actively losing the respect of the jury through his inattentiveness and near daily naps in court, even during some of the most important testimony. If Trump can’t be bothered to stay awake, at least out of courtesy to the jury who must also sit through all this, then they shouldn’t be expected to give his testimony much respect either.

Once Michael Cohen’s testimony is over and the defense announces its next move, we will know more about how, or even if, his attorneys intend to explain Trump’s side of the story. Right now, as things stand, it’s not looking very good for the ex-president.