Ben Protess, Jonah E. Bromwich, William K. Rashbaum and
Donald J. Trump is on trial for 34 felony counts of what could be the dullest sounding crime in New York’s penal code: falsifying business records.
Yet, across nine witnesses and two weeks of testimony, jurors have been treated to hours of mesmerizing courtroom theater.
There was talk of a sex scandal with a porn star, a surreptitious recording of a future president and the tearful testimony of a former confidante in the glare of the witness stand. There was even a celebrity roll call: Charlie Sheen, Lindsay Lohan and the reality television star Tila Tequila were all name-checked this week, drawing chuckles in the Lower Manhattan courtroom.
The phrase “falsifying business records,” however, was not uttered to the jury during testimony. Not even once.
That striking omission underscores the prosecution’s strategy for the opening phase of testimony: Spotlight the sleaze, and soft-pedal the records. Although the defense has already taken a swipe at the approach, legal experts say it represents the prosecution’s best shot at winning the case, the first criminal trial of an American president.
In their opening statement, prosecutors from the Manhattan district attorney’s office previewed the false records to the jurors, casting them as straightforward paper “lies” that covered up a hush-money payment to the porn star. But tying Mr. Trump to those records is hardly simple. Only one witness directly links Mr. Trump to falsifying the records, and that person, as the defense is fond of noting, is a convicted liar.
So the prosecution started with the strongest card in its hand, eliciting testimony about the sordid stories that Mr. Trump is accused of covering up. Prosecutors say he concealed them to shield his 2016 campaign from scandal, orchestrating an “illegal conspiracy to undermine the integrity of a presidential election.”
Mr. Trump is not charged with conspiracy, but New York law requires prosecutors to show that Mr. Trump falsified the records to conceal another crime. The purported election conspiracy, in all its lurid detail, would essentially establish his motive.
By foregrounding the conspiracy, prosecutors are captivating the jury while laying a foundation for evidence about the business records to emerge. As soon as next week, prosecutors are expected to begin connecting the dots between the smut and the substance.
“It was a smart way to start the case,” said Marc F. Scholl, who served in the Manhattan district attorney’s office for nearly four decades, specializing in white-collar crimes and working on dozens of cases that included the false business records charge.
Likening the trial to a jigsaw puzzle, Mr. Scholl added that, before it is over, the prosecution “will have to provide all the pieces.”
The strategy carries risks, including that jurors could blame the prosecutors for subjecting them to a parade of filth. Two members of the jury are lawyers, the type of arbiters who might tune out what the defense calls “salacious” noise.
Mr. Trump’s lawyers also argue that prosecutors are using a sleight of hand, leveraging the titillating election conspiracy to compensate for a lackluster false records case. They portrayed the records as innocuous paperwork, the drafting of which was “not a crime.”
“This business records violation that the people have brought against President Trump, the 34 counts, ladies and gentlemen, are really just 34 pieces of paper,” Mr. Trump’s lead lawyer, Todd Blanche, told the jury during his opening statementThose pieces of paper all stem from the $130,000 hush-money payment to the porn star, Stormy Daniels, who in the waning days of the 2016 campaign was shopping her story of a sexual encounter with Mr. Trump. Mr. Trump is not charged with making the payment — his fixer, Michael D. Cohen, was the one to buy her silence — but the former president stands accused of falsifying the 34 records while reimbursing Mr. Cohen.
Those records, 11 checks to Mr. Cohen, 11 invoices from Mr. Cohen and 12 entries in Mr. Trump’s general ledger, disguised the true purpose of the repayment, prosecutors say. The invoices and ledger entries claimed that Mr. Cohen earned the money as legal fees accumulated from a retainer agreement in 2017.
“Those were lies,” Matthew Colangelo, a prosecutor, told the jury during his opening statement. “There was no retainer agreement. Cohen was not being paid for legal services. The defendant was paying him back for an illegal payment to Stormy Daniels on the eve of the election.”
Prosecutors need not prove that Mr. Trump personally falsified the records, only that he “caused” someone like Mr. Cohen to do so. Mr. Cohen, who had a falling-out with Mr. Trump and is expected to be the prosecution’s star witness, will most likely testify that in early 2017 he and Mr. Trump met in the Oval Office and confirmed the scheme. They had agreed that Mr. Cohen would submit the bogus invoices to Mr. Trump’s company, prosecutors say. Soon after, Mr. Cohen received his first check.
Mr. Blanche, who has argued that Mr. Trump “had nothing to do with” the records, has attacked Mr. Cohen’s credibility at every turn, calling him a felon and an “admitted liar.” Mr. Cohen, however, has argued that he committed most of his crimes for Mr. Trump, including a guilty plea to federal charges involving the hush money.
In Manhattan, Mr. Trump is one of dozens of defendants to face the falsifying business records charge over the past decade. Prosecutors can charge it as a felony, rather than a misdemeanor, only if a defendant falsified the records to commit or conceal another crime — and the district attorney’s office almost always charges it as a felony.
In a conversation with the judge last week, Mr. Bragg’s prosecutors confirmed that they have seized on a little-known election law that makes it illegal to “conspire to promote or prevent the election of any person to a public office by unlawful means.”
New York’s law does not require prosecutors to prove that election conspiracy, even though the felony charges are built on it.
Mr. Bragg did not include the election conspiracy in the charges, partly because Mr. Trump’s conduct is too old. A legal deadline to file those charges expired years ago, whereas the false business records law provides greater leeway.
Still, in the first two weeks of testimony, there has been no shortage of evidence suggesting that the conspiracy existed, and worked just as Mr. Trump planned.
The prosecution began its case last week with David Pecker, the former publisher of The National Enquirer, who took jurors behind the scenes of the plot to protect Mr. Trump’s campaign. Soon after announcing his candidacy, Mr. Trump met with Mr. Pecker and Mr. Cohen in his midtown Manhattan office tower, where they hashed out a plan to buy and bury any damaging stories that might arise and imperil the campaign, Mr. Pecker said.
Prosecutors called it “The Trump Tower conspiracy.”
Over several days of testimony, Mr. Pecker laid bare the shady supermarket tabloid practice of “catch and kill,” in which The Enquirer bought the rights to stories that it did not publish. For $150,000, Mr. Pecker caught and killed the story of Karen McDougal, a former Playboy model who said she had a monthslong affair with Mr. Trump while he was married.
Mr. Trump was supposed to repay Mr. Pecker, and on Thursday, prosecutors played the recording Mr. Cohen surreptitiously made of him discussing the deal with Mr. Trump. Mr. Cohen suggested they buy not just Ms. McDougal’s story, but all of the dirt Mr. Pecker had accumulated on Mr. Trump over the years, speaking obliquely about “the transfer of all of that info regarding our friend, David.”
Mr. Trump agreed the transfer would cover them in case something happened to Mr. Pecker or his magazine. “Maybe he gets hit by a truck,” Mr. Trump said.
But when Mr. Cohen suggested they line up “financing” to cover the deal, Mr. Trump balked: “What financing?” he asked, before directing Mr. Cohen to “pay with cash.”
(Mr. Pecker, the jurors already know, was never repaid.)
The prosecution also called Keith Davidson, the lawyer who negotiated the hush-money deal for Ms. Daniels. He offered jurors a window on the machinations, portraying Mr. Trump as the hidden hand controlling the process.
“Michael Cohen didn’t have the authority to actually spend money,” Mr. Davidson told the jury, adding, “My understanding was that Mr. Trump was the beneficiary of this contract.”
On cross-examination, Mr. Trump’s lawyers attacked both Mr. Pecker and Mr. Davidson, questioning their credibility and ethics. One defense lawyer, Emil Bove, even painted Mr. Davidson as a serial extortionist, accusing him of shaking down not only the Trump campaign, but Tila Tequila and Mr. Sheen as well.
Yet those attacks could sully not only the witnesses, but the man they were testifying about, the former and possibly future president, who had allowed them into his circle.
“The fundamental truth is that you take your witnesses as you find them, and inevitably the sleazy, unethical and dubious conduct that was carried out by the witnesses will leave them vulnerable to attack by the defense,” said Steven M. Cohen, a law professor and former federal prosecutor. “But those witnesses will no doubt be quick to remind the jury that they were not the authors of that conduct. Mr. Trump was.”
On Friday, prosecutors questioned Hope Hicks, Mr. Trump’s former spokeswoman, about the Trump campaign’s frenzied effort to contain the fallout when the stories of Ms. McDougal and Ms. Daniels leaked. During cross-examination by Mr. Bove, Ms. Hicks began to cry as she recounted working for the man who launched her career.
But Mr. Bove used his final question of the week to highlight something she said she knew nothing about — the records. The question appeared meant to convey that whatever dramatic details she provided for the jury, none proved that Mr. Trump had committed a crime.
In the coming days, prosecutors are expected to pivot to the accusation that Mr. Trump falsified the records related to Mr. Cohen’s reimbursement. They are likely to question employees at Mr. Trump’s company who handled the payment, and then, in what could be the crucial moment of the trial, call Mr. Cohen to the stand to say that the former president engineered the false records.
At the climax of Mr. Colangelo’s opening statement, after detailing the prosecution’s evidence of the conspiracy, the deal-making and the made-for-tabloid scandal, he returned to the business records.
“Read the documents, the emails, the text messages, the bank statements, the handwritten notes, all of it,” he implored the jury. “It inescapably leads to only one conclusion: Donald Trump is guilty of 34 counts of falsifying business records.”
THE NEW YORK TIMES
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