There’s been a lot of talk about what the jury is thinking in Donald Trump’s New York abomination-of-a-criminal trial after being subjected to days of salacious but largely irrelevant testimony from a porn star and a perjurer.
But if the prosecution rests, as expected, after Cohen’s testimony, this case shouldn’t even go to verdict.
That decision will be up to Judge Juan Merchan.
While the odds are low that he’ll follow the law, given his blatant disregard for it throughout the trial, now that even the left-wing media has begrudgingly flipped their opinions on the propriety of this case, we might be in for a surprise that will save the integrity of the justice system after all.
Most legal experts expect that the defense will file a motion for a directed verdict once the state rests its case.
In simple terms, this is a request that the judge make a finding that — even if the jury were to believe all the evidence that prosecutors introduced — they nonetheless have failed to present evidence on some or all of the elements of the charged crimes.
If even one element has no proof, the case should be summarily dismissed.
That’s exactly what happened in this case.
In order to prove their case, the state must prove two things beyond a reasonable doubt: (1) That Donald Trump, with an intent to defraud, made or caused to be made a false entry in a business record; and (2) that he did so with an intent to commit or conceal another crime.
Before your eyes start to cross trying to make sense of these legal standards, let us simplify it for you: Regardless of anything else, the state has to prove that there was, in fact, a “false entry” in Trump’s business records.
There is, affirmatively, no evidence of this at all.
The case centers around whether it was false to call the payments to Cohen “legal expenses.”
The prosecution attempted to get Michael Cohen to claim that this was false, because the payments were actually a reimbursement for the lawful non-disclosure agreement (NDA) payments to Stormy Daniels.
As with most legal matters, though, Cohen — and apparently the prosecution — seem to have a fundamental misunderstanding of the law.
Lawyers often front legal costs for their clients and are repaid after the fact.
Lawyers are also paid retainers in advance for legal services.
Both types of payments are, in fact, “legal expenses.”
The lack of a written retainer agreement between Cohen and Trump is also no fault of the client — lawyers are obligated to execute such agreements or risk not being paid for their services.
If anything, Trump probably could have stiffed him on the payback, and Cohen would have no grounds to complain.
The prosecution’s insinuation that the legal expense entry is fraudulent relies upon another fundamental misunderstanding of the law: that a political candidate must reveal an extortion attempt against them or else be charged with unlawfully “interfering with an election.”
While it was clever of Manhattan District Attorney Alvin Bragg to try to couch this case as some sort of attempt by Trump to “steal democracy,” the reality is that the negotiation of an NDA with Stormy Daniels might have been one of the few lawful things Cohen ever did in his career as a lawyer.
Again, his misconceptions of the law apparently know no bounds.
Perhaps the prosecutors should have presented the testimony of a forensic accountant or a CPA to tell the jury that designating such reimbursements as “legal expenses” was false and fraudulent.
But they didn’t. Likely because they couldn’t find any credible expert to make such an assertion under oath.
Forget what Stormy and Cohen had to say. It never mattered in the first place.
Without proof that the entries were false — the very first thing the prosecution needs to prove on all 34 counts — there is no case.
The only question that remains is whether Judge Merchan will swoop in as the unlikely legal hero to dismiss this case as the law demands, finally putting the prosecution — and the country — out of its misery.
Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are military veterans, former federal prosecutors and current criminal defense attorneys. They are authors of the new book, “Woke Warriors.”
