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Trump Legal News: The Trial (Day 16 preview)

This is going to be a big week in the Trump criminal fraud trial. Probably the biggest. And that's not just ridiculous hyperbole from a participant who may, or may not, have a habit of declaring everything he's involved in to be the biggest and bestest ever.

Yep, this is the week that star witness Michael Cohen takes the stand. The prosecution has done pretty much everything it can to corroborate the story he's going to tell, but he's the heart and soul of the thing, and there are many elements of the scheme that only he can speak to. In addition to getting his story out there, the prosecution will do everything it can to bolster his credibility while the defense will do everything it can to destroy it.

You can never know what will happen until it actually does, but lawyer Norman Eisen, who has been covering the case for CNN, had an interesting piece over the weekend. In it, Eisen notes that he has personally cross-examined Cohen, and Cohen is... very good on the witness stand. Eisen describes him as "candid, remorseful and funny." Plus, Cohen was a sleazy lawyer for 30 years, so he knows all the sleazy lawyer tricks.

Also, referring back to last week's testimony, lawyer-reader A.R. in Los Angeles sent in some comments on Stormy Daniels' testimony, and its purposes:

Thank you for pointing out that the truth of Daniels' unfortunate encounter with Trump is irrelevant to the question of whether Trump paid for her silence and why. But it still has evidentiary value and is relevant to explain his motive in doing so. The prosecution would have preferred not calling her to the stand but part of Trump's defense is that it never happened and he doesn't know her, so he wouldn't have paid her off.

The prosecution, then, needs to establish that Daniels is different and more like Karen McDougal, as opposed to the myriad of other women who weren't paid off. Beyond just the incident itself are the details of how it was arranged, the continued interactions and the many times they appeared together after that. Short of calling a bunch of people who saw them together on multiple occasions, it was better to have her testify as to all of it. While the media is focusing on those 30 seconds in the hotel room, to me, the more important testimony was: (1) the fact that Trump continued to call Daniels, as evidenced by the fact that they both had each other's numbers—and Trump's secretary confirmed that; and (2) other, later encounters as evidenced by photos of them together in public. Also crucial is that he never told Daniels to keep it secret until 2016, after the Access Hollywood tape came out. In truth, he was probably bragging about it himself.

The defense has kind of boxed themselves in here. Had they taken a more nuanced approach, they could have avoided her testimony altogether. They could have acknowledged the affair but argued that either: (1) Trump had no idea Cohen paid her off; or (2) Trump paid her off but it was to protect his family, not the campaign. Now they're stuck with this story that a guy who built his reputation as a womanizer was too loyal to his wife to sleep with a porn star who he met at a golf tournament sponsored by the porn industry. Yeah, right.

Also, it's worth keeping in mind what the prosecutors actually have to prove. I found this article at LawFare really helpful. They point out that, to make this a felony, Bragg is likely looking to show an intent to commit an election law violation, most likely New York election law, which prohibits "conspiring to promote... the election of any person to public office by unlawful means." Notice the wording there: "an intent to commit." So, they don't have to prove the violation, just an intent to do so. The intent part is further defined to mean to "[act] with a conscious aim and objective to commit another crime." So, if the prosecution can prove that Trump acted with a "conscious aim" to conspire to get himself elected by paying off Daniels and falsifying records to cover it up, they can secure a conviction. And her testimony, including the lurid, creepy details (I'm guessing she wishes she had just waited to use the bathroom in her own room), make it more likely he would have wanted to keep her quiet, especially as the election approached and more was revealed about his misogyny.

As an aside, hats off to her for several jabs during the clumsy cross—"if it weren't true, I would have made up a better story" and "not unlike Trump" when asked if she were selling wares online. Those are lines most people only come up with hours/days later, if at all.

Thanks, A.R.!

Note, incidentally, that we say that this will "probably" be the biggest week because if Trump were foolish enough to take the stand in his own defense next week, that would almost certainly be bigger. We don't imagine he'd be that dumb but, then, we wouldn't have imagined he would be that dumb in the E. Jean Carroll trial. And yet... (Z)

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