Both sides have now rested in the Donald Trump hush money trial in New York. The parties will fight over jury instructions and then there will be closing arguments beginning right after Memorial Day, on May 28. Having expressed some serious skepticism about this case before the trial, some have asked if the evidence at trial has changed my view. I attended a morning of trial in person and followed the news coverage, although I have not read through all the trial transcripts. So my answer is somewhat hedged, but in a word, my views have not changed. I’d summarize them like this:
There is ample evidence that Donald Trump committed misdemeanors by falsifying business records under New York law. He listed payments to his former lawyer Michael Cohen as legal expenses when they were instead payments to keep Stormy Daniels quiet about an alleged sexual liaison. If the case were just this, jail time for a first time offender would almost certainly be off the table, and this indeed could have ended with a whimper.
As I explained in my LA Times piece, to make this into a felony, Trump had to be falsifying the records to further or conceal another crime. From the beginning, the NY district attorney was not that forthcoming about what those other crimes are. Eventually, the DA settled on three: violations of federal campaign finance law; a state election law, and a state tax law. The prosecutors’ emphasis has been on violation of federal campaign finance law.
There are both legal and factual issues related to the federal campaign finance law charges. Legal questions include whether these payments were indeed campaign related; it’s not a violation of Cohen paid Trump’s personal expenses. If they were campaign related, then Cohen potentially made an excessive in-kind contribution to Trump’s campaign when he paid Daniels, and Trump in funneling money to him facilitated a conduit contribution, potentially using impermissible funds to do so. And the information was not disclosed. An appeals court could rule as a matter of law that these expenses cannot be considered campaign related. After all, imagine if the payments were reported: no doubt someone would file a complaint stating that paying off someone to keep quiet about sex cannot be an expense that a campaign can pay for.
There are also issues of federal preemption and supremacy. Some of these were ruled on by a federal judge when Trump tried to remove the case to federal court and Trump did not appeal. This raises the question of whether he’s waived his right to keep fighting those issues. In essence, the question is whether you can take a federal campaign finance violation and make it a crime (or an enhancement of a crime) in state court.
Factually, there are questions as to Donald Trump’s state of mind, about which there was mostly the testimony of Cohen. For a federal campaign finance law violation to be a crime, one has to wilfully violate the law. It’s not enough to be careless about it. Was there enough evidence of what Trump was thinking about if he was violating federal campaign finance laws? That’s not quite the same as whether he was doing it to help his election chances. He could have thought that without knowing he was violating the law. (The judge excluded Trump’s statements from 1999 on Larry King that he was very familiar with campaign finance laws.)
Trump’s lawyers will likely argue in closing that the payments were not campaign related expenses but personal, aimed at his marriage. That may be a fact question for the jury, depending on what shakes out in the jury instructions. My understanding is that the judge has not been too focused on jury instructions, and that’s a potential big problem. Incorrect jury instructions are a major ground for reversals on appeal, because if the jury is told what the law is incorrectly, courts cannot defer to their determinations of guilt under an incorrect standard. The exclusion of Brad Smith’s testimony about FEC practices (such as when the payment to Daniels would have been reported—if after the election, then this could not have mattered for affecting the outcome of the election) could also be grounds for appeal.
There’s been much less attention paid to the state election law claim. As I’ve written, no one seems to be prosecuted under this New York law. This raises issues of potential selective prosecution. And more importantly, no one knows how appeals courts will say this New York law could be violated and whether what Trump did qualifies. Can violation of a federal campaign finance law constitute a state election law violation? Another serious issue on appeal.
I cannot speak to the state tax law violations, but we’ve heard very little about them in the prosecution’s case. Will those claims even go to the jury? What will the jury instructions there look like?
Trump could well be convicted, depending on the jury instructions and how the jury reads the evidence. That conviction could well be overturned on legal grounds on appeal, eliminating the felony aspects of the charges (potentially for a new trial), leaving only misdemeanors. Given the normal pace of appeals, this is not likely to be resolved before the election. But if Trump is convicted, watch him argue for a fast track appeal, even as he has slow walked the important election interference case against him in DC. If Trump gets a reversal before the election, could that give him an electoral boost? And we know what Trump would say if he loses election and later gets a reversal on appeal: election interference.