The Weekend Wrap: May 26, 2024

The best closing argument for the Trump defense

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

New York State Case - Hush Money/False Business Records

At the beginning of the week Judge Merchan announced that closing arguments would not take place until this coming Tuesday. With the long holiday weekend coming up, he sensibly wanted to avoid a situation where the jurors heard closing arguments but then had a long break before, or in the middle of, their deliberations.

Both sides have rested their case and the presentation of evidence is over. Beginning on Tuesday we should hear closing arguments and jury instructions, and then the jury will begin deliberations.

The Best Defense Closing Argument: Here is a condensed version of the closing argument I’d make if I were Trump’s defense attorney. I don’t think they will make this kind of argument, for reasons I’ll discuss below, but in my view it would give them their best shot:

Ladies and gentlemen, there are many things in this case you don’t need to decide. You can assume, if you want to, that the encounter with Stormy Daniels happened. You can assume Mr. Trump and others agreed to enter into a legal contract to pay her for the rights to that story. You can assume they did it because they thought if the story came out it might hurt him in the election. You can even assume that Mr. Trump later approved a plan to repay Michael Cohen for that and other things, including his bonus, through 12 monthly payments.

Mr. Trump disputes those things, but you don’t have to decide them. For the purpose of this case, you can assume they are all true. And you must still find Mr. Trump not guilty. 

Because this case is not about so-called hush money payments. It’s about whether allegedly false business records were knowingly made or caused to be made by Mr. Trump with intent to defraud and cover up another crime. And the state has utterly failed to prove two critical things about those actual charges: 1) that Mr. Trump knew those records were false; and 2) that he caused those false records to be made with the intent to defraud and cover up another crime.

The state wants you to conclude Mr. Trump must have known these records were false because they contain the words “legal expense” and “retainer.” But what’s the evidence Mr. Trump focused on those words, or would have thought they were false if he did? He was paying his lawyer, who had paid a contract fee on his behalf, for that and other matters, including his bonus. Is it criminally false to call that payment a “legal expense?” The state wants you to say he’s a felon because of that bookkeeping entry!

And what about “retainer” - what evidence did you hear about the importance of that term? Does it make any difference to anyone if the payments to Cohen are pursuant to some written retainer agreement, as opposed to an informal retainer arrangement he had as personal counsel to Mr. Trump? Where is the evidence that Mr. Trump ever focused on the word “retainer,” or would have thought it was false if he did?

Mr. Trump was a busy man - CEO of a major corporation, presidential candidate, and then president of the United States. Sure, he wanted to know where his money was going, but do you think he worried about the details of accounting and bookkeeping entries? He has people working for him who handle those kinds of details, and he relied on them, such as his Chief Financial Officer, Allen Weisselberg.

Oh, and speaking of Weisselberg: where was he? You heard a lot about him - he and Michael Cohen allegedly cooked up the repayment plan. His handwriting is on the document that supposedly explains how the repayment was calculated. He was right at the center of all the critical events here. 

But the DA didn’t call him as a witness. Why not? Remember, they have the burden of proof. Mr. Trump doesn’t have to prove anything. Allen Weisselberg was an absolutely critical witness to what the government says was a conspiracy - and they didn’t ask him to testify. Why not? Was it because he wouldn’t support Michael Cohen’s lies?

But even if you think the records are false, AND you think Mr. Trump knew it, that’s still not enough. The state has to prove that he caused those records to be falsified with the intent to defraud and cover up another crime. And you’ve heard no evidence of that at all. 

The state claims there was a conspiracy to influence the election by unlawful means, and that the payment to Daniels was a federal campaign finance violation. But where was the evidence that the reason for setting up the payments this way was to conceal a campaign finance violation? Where was the evidence of Mr. Trump discussing with anyone that they needed to call these payments “legal fees” pursuant to a “retainer” to cover up a campaign finance crime?

Maybe Mr. Trump and others wanted to influence the election - but that’s not a crime. It’s called campaigning. Candidates try to keep negative stories out of the news all the time. Did you hear any evidence that anyone discussed how this payment to Stormy Daniels was a campaign finance violation and that’s why the repayment to Michael Cohen needed to be called “legal fees”? There was no such evidence, because it didn’t happen. In fact, there’s no evidence there was discussion of the need to cover up ANY crime.

If you believe the documents were false, you might be thinking, “Well, why else would they falsify the documents if not to conceal a campaign finance crime?” But politicians, and others, conceal things for all kinds of reasons. Another former president, Bill Clinton, repeatedly lied to conceal an affair with an intern that was perfectly legal but would have been politically damaging. The fact that someone tries to keep a damaging story from becoming public doesn’t mean a crime took place.

And speaking of that - how would any crime, even if one took place, be covered up by these documents? These were the internal records of a private company. It’s like making a false entry in your own checkbook ledger. No one had a right to see them. The records weren’t submitted to any government agency. The voters certainly didn’t have a right to see them, and the records weren’t even made until after the election. Who exactly was “defrauded” by these records, even if you think they were false? If there is supposedly an intent to defraud here, who is the intended victim?

We submit there’s no evidence that these records were actually false. If you think they were, there’s no evidence that Mr. Trump knew it or considered them false. And even if he did, there is no evidence he caused those records to be falsified in order to conceal another crime.

This is nothing more than a trivial bookkeeping matter that the state has tried to dress up as some grand election interference conspiracy.

To try to make up for the complete lack of evidence, who does the state offer you? Michael Cohen. Convicted felon, admitted perjurer, who has lied repeatedly about many, many things, including under oath. He admits stealing from the Trump Organization, his employer. He admits that he wants to see Mr. Trump in prison, and that he has a personal stake in the outcome of this case.

When it comes to the state’s claims about these supposedly false documents and what Mr. Trump supposedly knew about them, their entire case comes down to Cohen. And he has shown, by his own actions, that he is not worthy of your belief.

Finding someone guilty of a felony is a grave decision. It’s a life-altering decision for the defendant. If you had to make such a critical decision in a matter that affected your own life, would you rely on the word of someone like Michael Cohen? Of course you wouldn’t.

Mr. Trump is simply asking that you give him that same consideration when you sit in judgment of his case. And if you do, you must find him not guilty.

This closing highlights what I see as the weaknesses in the government’s case. I think it would give the defense the best chance for at least a hung jury.

But I doubt this is the kind of closing the defense will make, due to the demands of their client. I suspect Trump is insisting that his lawyers deny the encounter with Stormy Daniels ever took place, deny that Trump knew Cohen was being reimbursed for the hush money payments, and claim that the invoices from Cohen were for legitimate legal services. That’s what defense counsel said during his opening statement - everyone is lying and just out to get Trump.

I don’t think the jury will find any of these arguments credible, and that will hurt the defense. If the defense insists on denying even those things the prosecution has clearly proven, the jurors are more likely to conclude they just shouldn’t believe the defense about anything.

Robert Costello (Credit: Seth Wenig/AP)

Costello Testimony Backfires on the Defense: Cohen finished testifying on Monday and the prosecution rested it case. The defense called only one significant witness: Robert Costello, a New York attorney who is in Trump’s orbit and has represented people like Rudy Giuliani and Steve Bannon. The defense called Costello hoping to use him to discredit Cohen.