After 20 days, 22 witnesses and intermittent courtroom fireworks, the evidence in Donald Trump's New York hush money trial is all in. The case will soon be in the hands of the jury.
Who has the advantage at this critical moment? My assessment, after personally attending much of the trial, is that the prosecution has to lose the case.
With the caveat that only one jury is needed to block a unanimous guilty verdict (and that the law places the greatest burden on prosecutors), the case as it has arrived puts the district attorney's office in the driver's seat. ahead of next week's closing arguments. .
The prosecution's essential achievement was to provide a compelling and credible narrative that points to a single plausible conclusion: that Trump is guilty as charged.
The defense, by contrast, adopted a scattershot approach focused on undermining the credibility of each and every prosecution witness, particularly Michael Cohen, former Trump lawyer and fixer. But what Trump's lawyers didn't do was provide a counternarrative, a story compelling enough to leave jurors with a reasonable doubt about which explanation of events is true.
Of course, providing such a competitive story is not the defense's legal obligation. The judge will instruct jurors that if they have any reasonable doubt about the prosecution's case, they should vote to acquit.
But my experience as a trial lawyer suggests a difference between an independent doubt about one or more witnesses and a broader doubt about the basis behind the charges: an alternative plot that jurors might find credible. That's the kind of defense presented on behalf of Senator Robert Menéndez, for example, who argues that his wife is to blame.
From the first day of testimony, the prosecution has presented a compelling and persuasive story. It begins with an August 2015 meeting involving Trump, Cohen and tabloid executive David Pecker (who explained it to the jury from the stand) in which the parties agreed on a plan to quell negative stories about Trump.
And sure enough, ahead of next year's election, a series of scandals required neutralization to protect Trump from political damage. These episodes are similar to Acts II and III of the script and are located in the footsteps left by Pecker's testimony.
hope hicksThe testimony was brief but powerful given her long-time loyal service to Trump and her evident candor despite her reluctance to harm her former boss, which appeared to make her burst into tears. She confirmed in dramatic terms that Cohen and Allen Weisselberg, the Trump Organization's then-chief financial officer, would not have devised the plan to pay adult film actor Stormy Daniels without Trump's approval.
The prosecution effectively corroborated in advance most of what would come out from its last and most important witness, Cohen. At the same time, prosecutors encouraged their own witnesses to disparage Cohen, lowering expectations before he took the stand.
When he did, Cohen was discreet, receptive and pleasant. With a few exceptions, he accepted the defense's insults and explained most of the discrepancies in his story by explaining that he had been telling the truth since he left the Trump fold.
A couple of low points in Cohen's testimony drew a lot of attention, and it's natural for the media to focus on the dramatic moments. But the jury is more likely to evaluate the evidence in the context of the entire narrative and the witness's overall demeanor.
Most importantly, jurors, like all of us, make general judgments about credibility, which is the heart and soul of the jury system. Taking the measure of the people before them, they decide whether their accounts are basically trustworthy, despite the defects of the messengers. And all of the stories in this case (not just Cohen's but those of other flawed witnesses like Pecker and Daniels) are coherent and ring true.
It follows that the impertinence of Roberto Costelloa defense witness who mumbled in disagreement with Judge Juan M. Merchán's rulings probably caught the jury's attention more than the flaws in Cohen's largely uniform presentation, especially once Merchán forcefully rebuked Cohen's buffoonish bombast. Costello.
The prosecution's cross-examination of Costello and the reorientation of Cohen and Daniels were clear, crisp demolitions of the defense's points. Trump's team was more erratic and given to missed shots, missing more than they hit.
I think the defense still has a largely overlooked escape route: the arcane legal instructions for deciding felony charges. The charges require prosecutors to prove that Trump caused the alleged falsification of documents to further another crime. Prosecutors have offered three different candidates for that other crime, each of whom has flaws. I could see the jury, which included two attorneys, considering the legal instructions very carefully and finding that the district attorney had fallen short. And in any case, the issue will surely figure in an appeal.
But any appeal is felt a millennium away. By the time that happens, Trump will be president, giving him ample options to evade responsibility, or he will be a losing candidate facing three more criminal trials. It seems increasingly likely that this trial will be the only chance for a jury to decide for the first time whether a former president is a criminal. Coming into the final act, I like the chances of him being found guilty.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
