Guilty!

Sharing my New York Times column

Yesterday Donald Trump was found guilty by a New York state jury on 34 felony counts of creating false business records.

Trump in Court (Credit: Michael M. Santiago/Getty images)

The jury deliberated for only two days after a five week trial. That’s a very fast verdict. It’s a testament to the strength of the government’s case and the convincing story the prosecutors told of a much broader conspiracy to influence the 2016 election.

As regular readers know, I’ve long been skeptical about this prosecution, although I also expected Trump to be convicted once the judge accepted the DA’s legal theories. But during the course of this trial, the prosecutors brought me around and changed my mind. I wrote about why for the New York Times today, and wanted to share a free link with all of you:

I Was Skeptical of the “Zombie” Trump Case. I Stand Corrected.

As I noted in the column, the DA did a great job - but I also believe the defense blew it. Trial attorneys talk about whether you have a “triable case” - is there a real dispute where you might prevail in front of a jury? Or will a trial, in a criminal case, just be a long guilty plea because you have no chance?

This case was triable for the defense. But they didn’t put on the defense that would have given them the best chance of at least persuading one or two jurors to have a reasonable doubt and hold out against conviction. I discussed that in the column and also in last Sunday’s Weekend Wrap, but let me expand on it a bit more.

The most credible defense would have been to admit almost everything: the sex with Stormy Daniels, the hush money, and that Trump knew about and approved the repayment plan. Then the defense could have focused on the weakest part of the prosecution’s case: proof that Trump himself knew the details of these false documents and caused them to be made to cover up another crime.

But the defense didn’t go that route. Instead they insisted on fighting about almost everything, even details that didn’t matter and where the evidence seemed overwhelming. Trump’s attorneys seemed to be flailing, looking to poke random holes in the government’s case without regard to whether their arguments were consistent or credible.

For example: Trump attorney Todd Blanche observed in his opening statement that whether Stormy Daniels had a sexual encounter with Trump didn’t matter for these charges. That’s true. So a smart cross examination of Daniels would have involved maybe a half-dozen questions to establish that she didn’t know anything about false Trump Organization documents, and that’s it. Five minutes, at most, and then sit down. Instead, the defense kept her on the stand for hours with an ineffective cross that only served to highlight the salacious details of her encounter with Trump and bolster her credibility. 

The defense also insisted from the start that the monthly payments to Michael Cohen were not hush money reimbursements but legitimate payments for legal services. Not only was this flatly contradicted by all the evidence, but Trump himself has made earlier public statements calling them reimbursements and his attorneys called them reimbursements in other litigation. Yet defense counsel would not back away from that claim, even when it had become clearly ridiculous.

Finally, in a decision destined to enter trial attorney folklore under, “What were they thinking?”  the defense called attorney Robert Costello as their only substantive witness. A Trump ally who tried to represent Cohen after his home and office were searched in 2018, Costello’s boorish and contemptuous behavior on the stand led the angry judge to clear the courtroom to try to bring him in line. On cross he was confronted with his own emails indicating that while purporting to act in Cohen’s interest he was really working to keep Cohen on the team while taking direction from Trump and Rudy Giuliani. His behavior, if not obstruction of justice, certainly appeared obstruction-adjacent.

This was one of those “O.J. trying on the glove” moments. By the time he was done, Costello had done what many might have thought impossible: he made Michael Cohen look sympathetic and more believable.

As I noted in my column, the defense never gave the jury a cohesive, logical alternative explanation for what happened. I doubt they ever could have gotten an acquittal. But they had a shot at a hung jury. I think they had a triable case.

What Happens Next?

Judge Merchan set sentencing for July 11 - just a few days before the Republican National Convention, where a convicted felon presumably will be nominated to be president of the United States. Trump will have to participate in the preparation of a presentence report for the judge, which will lay out all the relevant facts about the case, the defendant, and the crimes for which he was convicted.

Trump could face up to four years in prison on each count, but a jail sentence is not required. Most defendants convicted of this crime are not sentenced to prison. Personally, I’ll be surprised if Judge Merchan decides to jail Trump. But many commentators are noting that the aggravating circumstances in the case — including ten contempt citations, daily diatribes against the judge and prosecutor, and complete failure to accept responsibility — might lead the judge to impose a prison sentence.

Even if Trump is sentenced to prison, he would almost certainly be allowed to remain free pending appeal. He won’t be campaigning from a jail cell. And nothing prevents a convicted felon from running for, or being elected, president.

For now, we await the sentencing and continue to watch the Supreme Court for a ruling on presidential immunity. Depending on when we get that decision and what it requires, there’s still a slight chance the D.C. Trump prosecution could go to trial this fall. But it looks increasingly likely that this New York prosecution will be the only one to be concluded prior to election day.

It’s a shame that this verdict won’t be accepted by such a large share of the country, because it really was an example of the system working just as it should. A criminal defendant had a fair trial before a jury of regular citizens and a good and impartial judge, and the jury reached a unanimous verdict. That verdict, and the criminal justice system that produced it, deserve to be respected.