The 3 Questions That Will Decide Trump's First Trial
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The jurors will just start talking about the case and the charges, the evidence, right? And they could start by doing a straw poll and sort of see if they're all on the same page. We love a poll. We love a poll, right? ♪

Hello and welcome to the 530 Politics Podcast. I'm Galen Druk, and I hope everyone had a nice Memorial Day weekend. As we sit down to record this podcast, closing arguments are wrapping up in former President Trump's criminal trial in Lower Manhattan. The question at hand is whether Trump is guilty of falsifying business records in connection to hush money payments to Stormy Daniels during the 2016 presidential election.

This, of course, marks the beginning of the end of the first criminal prosecution of a former American president. And it will soon be up to the jury to decide exactly how this all ends. On one hand, the stakes are historic. As I mentioned, the first criminal prosecution of a former president.

But for our purposes today and in the coming months, the focus is in many ways on Trump's other role, which is a current candidate for president. According to our current polling average, Trump leads Biden by about a point nationally and a little bit more in the battleground states.

According to a recent ABC News poll, 16% of Trump supporters said they would reconsider their support for the former president if he were convicted of a felony, and 4% said they would withdraw their support altogether. That's not a huge number, but we're talking about the margins here, and of course, there's no way of really knowing how this is going to impact folks' opinion until it actually all happens.

happens. And hopefully, we assume, that's just a few days away, or even less. Here with me to talk about how this is all wrapping up and what to expect in the coming days is Jessica Roth, professor at Cardozo School of Law and former federal prosecutor. Welcome back to the podcast, Jessica. It's a pleasure to be with you.

We're in the middle of this right now. The courthouse just broke for lunch. And so we're taking the opportunity to record this podcast now before much more of the day slips away. We heard the defense's closing arguments, and we are about to hear the prosecution's. I should say that in general, closing arguments are a place for

the attorneys to sum up the arguments that have been made and the evidence that has been presented. So hopefully we're not jumping the gun here by talking before the prosecution gets to go. But just to kick things off, what did we hear this morning? What was the defense's closing argument? Well, the defense's argument was pretty much as I expected and as many observers expected, which was that it was in a sense a total takedown of Michael Cohen. The

The defense attorney, Todd Blanche, said Michael Cohen and liar essentially in the same breath many, many, many times. So a big thrust of the defense is Michael Cohen is a liar and you can't believe anything he says and therefore you must acquit. But the defense

defense summation said more than that and basically said that everything you've heard, including from Stormy Daniels as well as other witnesses, is essentially a fabrication. Trump never actually had intercourse with Stormy Daniels. So there was a lot of sort of denying basic facts about the prosecution's narrative that it's presenting. But then also there were other attacks on did Trump actually know that these records were false?

Were they false? There was an attack on them actually being false at all. The defense attorney was arguing, in effect, that these were payments for legal fees, but that even if the jury were to find that they were false, Trump didn't know they were false. He had no connection to the falsification of the record. So I would say it was just a broad-based takedown of the government's case, but with a particular focus on Michael Cohen's credibility.

Yeah, I mean, how much is Michael Cohen's trustworthiness key to the verdict in this trial? Because it seems like that was a big theme, of course, in his cross-examination and in the few witnesses that defense ultimately brought to the stand. It was largely about trying to discredit Michael Cohen. Is it as easy as you discredit Michael Cohen, you get an acquittal?

It's not that easy, but there is one critical piece of the prosecution's case that really does rely on Michael Cohen's testimony. And that's where I think the prosecution's case is weakest, precisely for that reason. There has been a lot of corroborating evidence introduced by the prosecution of the basic narrative that Michael Cohen is telling, including about the scheme to pay Stormy Daniels to remain silent.

Michael Cohen's testimony about that scheme was corroborated by David Pecker, who was with AMI, who was part of that scheme. It was corroborated also by testimony from Hope Hicks, who used to work for the Trump campaign, who knew about the scheme and also critically testified about the fact that it was essentially campaign-related, that is, the decision to pay Stormy Daniels to remain silent

that was made by Trump and his campaign with Michael Cohen right after the release of the Access Hollywood video in the weeks before the November 2016 election, that all of that was essentially a campaign-related decision, which is a critical piece of the charges. So that part of the story is corroborated.

The piece that's not corroborated directly by testimony of other witnesses is this piece about the falsification of the records of the Trump Organization, which of course is the heart of the case. These are 34 counts of falsification of business records. And so if the jury is not persuaded beyond a reasonable doubt that Trump was part of the scheme to falsify the business records, then they should acquit.

And Michael Cohen testified that he had a conversation with Donald Trump where Allen Weisselberg was present, in which essentially Trump signed off on the scheme that Weisselberg and Cohen had concocted for how Cohen would be repaid for the payment to Stormy Daniels.

And because Allen Weisselberg didn't testify at this trial, the jury is going to be relying on Michael Cohen's testimony about Trump's sign-off in that critical moment. So that's where, in a sense, Michael Cohen's testimony is least corroborated, at least by direct evidence. Why didn't Allen Weisselberg testify in this case? It's a really great question. And I'm sure the jury is going to be wondering about it. It's

It's a question in my mind about whether the judge is going to give it an instruction to the jury about what, if anything, they may make of Allen Weisselberg's absence. I suspect he may tell them that they should essentially not speculate about why Allen Weisselberg is not there and they should just base their decision on the evidence that was presented in this case. Now, stepping back from what the jury is actually going to be told by the judge about this,

I think that there are some practical reasons why Allen Weisselberg was not called by either party to testify.

The DA's office thinks that if he testified, he probably wouldn't tell the truth, right? The truth that the DA's office has been pursuing is that Donald Trump was part of this scheme to falsify the records and that if Allen Weisberg told the truth, that's what he would say. But the DA doesn't think he would say that. And in fact, they've prosecuted him fairly recently for perjury for a testimony he gave in the civil fraud case that was brought by the New York attorney general.

And so they think not only that he would not tell the truth, but he's also just in general somebody who engages in perjury. And so why would they put him on the stand?

So then why doesn't the defense bring him? Right. And arguably, the defense has at least equal, if not more, access to Allen Weisselberg. Trump entered into a severance agreement with Allen Weisselberg, whereby Allen Weisselberg essentially is agreeing to continue to be cooperative with Trump and specifically in that severance agreement not to voluntarily cooperate with prosecutors and investigators.

So pursuant to that agreement, Allen Weisselberg is getting a schedule of payments that will make him, continue to make him a fairly wealthy man, right? So he is going to prison, but at the end of the day, he will come out and have considerable money from Trump so long as he honors that agreement.

Interesting. So one of the key pieces of this story that we're just never going to know. I want to step back and sort of ask a question that we've been considering since the first time you came on the podcast to talk about this. And you said at the very beginning that the jury is going to have to assess three main questions regarding the 34 counts of falsifying business records. And they are whether there was falsification of business records, just period.

Two, whether Trump was part of the falsification and did so with the intent to deceive. So that's the piece that we were just talking about. And whether that crime was in violation of federal campaign finance laws. For example, whether the payments were made to further the Trump campaign in 2016 because they would have exceeded the permissible limits that an individual can contribute to a campaign. We talked about number two. What sort of evidence or counter arguments have been made

as regards number one and number three? So number one, you're testing my memory. Number one was that the records were false, correct? Yeah. So even though Todd Blanche, Trump's lead attorney, did argue in his summation today that there was not sufficient evidence that the records were false, I think that the DA has actually done a good job in demonstrating that the records were false. The records say that they were payments for legal fees pursuant to a retainer agreement with Michael Cohen.

Evidence, I think, is quite clear there was no retainer agreement and that these were not for legal fees. These were a reimbursement to Michael Cohen spread out over 12 months and grossed up for tax purposes and also to give him a bonus, essentially to reimburse him, make him whole for the payment he made to Stormy Daniels to keep her quiet before the November 2016 election.

Now, Todd Blant has suggested to the jury that these were payments for legal fees, that Michael Cohen was a lawyer after all. He had been a lawyer for Donald Trump in his personal capacity for many years. And so, you know, it's sort of a nicety to say, well, these weren't really legal expenses. This was a reimbursement, right? It's not materially false to categorize them as legal.

payments for legal fees, so long as they were a payment to a lawyer. And he's also added into that some discussion or sort of raised the possibility that maybe Michael Cohen was doing actual legal work for Donald Trump and his family during this period of time. So I think he's trying to sow some doubt about whether or not these records have been proven beyond a reasonable doubt to be false. But there, I think the prosecution really has the better of the argument.

On number three, which was about what's the other crime that the records were falsified in order to further or conceal. Here, the primary crime that the prosecution has been pursuing is, and this gets a little bit complicated, is a state, New York state election law that makes it a crime to conspire

to promote the election of a candidate for office through unlawful means. But that conspiracy statute in turn effectively incorporates by reference other provisions of law because what's the crime there is the conspiracy to promote a candidacy through unlawful means. And so the DA has to specify what those unlawful means are, right? What are the violations of law?

that were used, sort of what conduct violated what law in a way that made this an unlawful conspiracy. That's where we get to the federal election law and the theory that the payment to Stormy Daniels that Michael Cohen fronted, in effect, was an unlawful campaign contribution that exceeded the limit of what an individual can contribute.

contribute to a candidate for office's campaign and also that it would have had to be disclosed. So even though Trump paid back Michael Cohen for this payment, under federal election law, Michael Cohen effectively loaning or fronting that money is still deemed to be a contribution.

On that theory or part of the case, I think the evidence has come in very well because not only did Michael Cohen talk about this being a scheme that he understood to be a violation of federal election law, but David Pecker from AMI sort of talked about that scheme. Hope Hicks certainly talked about that scheme and again anchored it to the campaign of Donald Trump such that they all understood that this payment to Stormy Daniels was being made for the purpose of promoting Trump's election.

All right. So that's the crux of the case that the jury is going to spend either hours, days or weeks trying to figure out. And we're going to get to that in a second. But let's stick with the specifics of the case for a minute longer. Trump didn't end up testifying despite the fact that he said he was willing to, you know, in the press, at least he said to reporters that he'd be happy to testify. Why didn't the defense ultimately decide to bring Trump?

It is often the case that a defendant's best course of action, most strategically sound course of action, is not to testify and simply to remind the jury that it is the government that bears the burden of proof beyond a reasonable doubt of every element of the offense, that the defense bears no burden of proof. That is very often the best defense strategy because once the defense puts on a case at all, let alone testifies themselves, right, there's a sense in which the jury's expectations shift.

Even though the jury still would be instructed that the defense has no burden of proof, it's sort of human nature that once the defense starts to put on a case, the jury is going to scrutinize it and sort of ask, well, what do we really think about that? And if the narrative that they're telling us and their evidence sort of doesn't really meet our expectations, we're going to hold that against them as opposed to just continuing to keep the focus on the quality of the prosecution's case. So that said...

The defense did put on a very minimal case here. There was a paralegal who testified, I think, about certain phone calls between Michael Cohen and other witnesses. And then there was this disastrous witness who was called, I think, Bob Costello, who had at one time tried to represent Michael Cohen and reached out to Michael Cohen when Michael Cohen was under investigation. And his testimony, although it was intended to impeach Michael Cohen by bringing out and putting before the jury that Michael Cohen had said to this witness, Costello, that

Cohen had no information that was bad for Donald Trump and essentially saying that Donald Trump wasn't involved in the payments to Stormy Daniels. At the end of the day, I think that witness did a lot more damage to the defense because he was disrespectful to the judge and just generally just sort of backfired in terms of how he came across.

For Donald Trump to have testified in his own defense, right, really would have shifted, I think, the entire focus of the case to Trump and his credibility. And he is somebody who has said so many inconsistent things in the past, including, in this case, having acknowledged that these payments were to Stormy Daniels for a nondisclosure agreement, right, as opposed to being actually payments to Michael Cohen, right? There's so many things he has said in the past that essentially are concessions.

to the government's theory of the case that would have been put before the jury as they were cross-examining Donald Trump. There are things he's done that the judge had already ruled could be brought out on cross-examination to challenge his credibility, including rulings, for example, in the civil case that he had engaged in fraud.

So, there are so many things that the government would have been able to use in cross-examining Donald Trump to show that he has been inconsistent, that he has engaged and been deemed by a court to have engaged in fraud. And that's to say nothing of just how Trump would have come across on direct examination, where he likely would have been meandering. Who knows what he would have been able to stick to, essentially a script that he would have prepared with his attorneys. He would have been a total wild card.

And so I think that there is no question in my mind that he would have damaged his case. And that's probably why his attorneys strongly discouraged him from taking the stand. All right. So now let's turn to what comes next, which is the jury's deliberation. But first, a break.

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The jury in Trump's trial is, by all counts, going to begin considering the charges on Wednesday. What is that process like? Let's start from the very beginning so folks know what to expect. They're all brought in. The judge directs them sort of in terms of what their job is. And what does he tell them?

So the judge will have instructed the jury about the law, the counts in the indictment, what the elements are of that offense, trying to break it down into sort of plain English. There are a whole bunch of charges also that the judge will give the jury about things like what reasonable doubt means and about the use of circumstantial as opposed to direct evidence, things that are kind of boilerplate charges to the jury that are given in any criminal case.

Then the jury, once they've received those charges on the law from the judge, will be brought into a jury room where they will begin their deliberations. Now, they may be given a whiteboard or just pads and paper, right, to assist them in conducting their work.

They will have a foreperson in New York. It's that person in chair number one who is deemed to be the foreperson. And the jurors will start discussing. And there's no formula for how this has to happen, right? It's entirely up to the jurors. They are the only ones in that room. The foreperson can play a leading role in sort of organizing and moderating the discussions or not.

So the jurors will just start talking about the case and the charges, the evidence, right? And they could start by doing a straw poll and sort of see if they're all on the same page. We love a poll. We love a poll, right? If they're all on the same page, it could be pretty quick, right? They could all say, you know what, we don't want to talk about it anymore. We're all in agreement because they do have to be unanimous. But the

And there may be some jurors who don't want to participate in a straw poll or who say, you know, I'm just not ready yet. I want to talk about the case first. Or they could do a straw poll and find out that they're split.

There are two lawyers on this jury reportedly, and so I'm sort of intrigued to think about what role, if any, those lawyers will play in sort of moderating the discussion. I mean, those lawyers have taken an oath to follow the law as instructed by the court, not what they think they may know about the law. But it could be that the jurors, other jurors, would sort of look to those lawyers for guidance.

I think what's going to be very interesting is if we get any notes from the jury, because if they have questions, they can send out a note through the foreperson. It's literally a handwritten note, right? It's very old-fashioned, that gets brought to the court. And the court will then bring the lawyers in and say, I've gotten this note from the jury. Here's how I think I'm going to respond. And for example, if the note is simply, we want to hear a readback of this portion of the testimony. Let's say we want to hear a readback of what Hope Hicks said about

you know, the agreement to pay Stormy Daniels, then the jurors would be ordinarily brought back into the courtroom and the judge would have the court reporter read back that portion of the testimony. The jurors also could have questions about the jury instructions on the law

And the court would say to the lawyers, here's how I propose to answer their question. Maybe I'll read back a portion of the charge I already gave them. That's usually the first sort of way of responding. It could be that the question is clearly asking for something that goes beyond the original instructions, in which case, yes.

the judge would probably say to the lawyers, "Look, here's how I think I'm going to respond," or, "Do you have any proposals of how I should respond?" And again, ideally looking for an agreement from the lawyers on how best to respond. But those jury notes are often really interesting and can give some sense of where the jury is focusing its discussion. Sometimes we can misinterpret those notes and attach too much significance to them. It could be that there's just one juror who's really interested in some portion of the testimony or the legal instructions.

But even knowing what one juror is most interested in tells us something about what they're focusing on. The jury has to be unanimous. But, of course, it doesn't have to decide that Trump is fully guilty on every count or fully innocent on every count. There could be some sense that he's guilty of some charges, not of others.

Do you have a sense of how that could break down or if there are certain aspects of the case that are weakest that you might expect some disagreement over in this case?

So the jury has to be unanimous in rendering a verdict of either guilty or not guilty, right, as to every charge in the indictment. If they ultimately cannot reach unanimous agreement of guilty or not guilty on any of the charges, then there would be a hung—we'd call it a hung jury and a mistrial would be declared.

It is possible that the jurors would be able to reach a verdict as to some counts and not others. As a matter of analyzing the case and the weaknesses in the case to the extent there are any,

it makes less sense to me that we would see a verdict, a unanimous verdict on some counts and not others than it might in some other cases. Because in a sense, either the jury believes that there was a scheme to falsify the records that Trump was part of in order to conceal another crime, or it doesn't. So there is a little bit of a sense of sort of an all-or-nothing quality to this case. That said...

There are some counts that refer to records that are based on records that Trump is more clearly tied to. So, for example, some of the counts are based on checks and check stubs where Donald Trump himself signed the checks. So the connection of Donald Trump to those false records is clearest.

And so conceivably, we could see a verdict where the jurors might convict on the counts tied to those checks that Donald Trump personally signed, and either a not guilty verdict or a hung jury on the other charges. Because it could be that for some jurors, that direct connection between Donald Trump and those records is what gets them over the hump of proof beyond a reasonable doubt. But as I said, to me, analytically, that doesn't make a lot of sense.

Because if Trump is saying he just wasn't part of the scheme, right, in a sense, that should cover those counts as well, because the argument would be he just unknowingly signed those checks, right? He wasn't paying attention, etc. But we do sometimes see split verdicts.

that don't make a whole lot of sense to those of us who've been studying it in great detail. But to those jurors, it makes some sense, right? Or it's a compromise in some way. So I hesitate to say for sure it's all or nothing. But to me, there's a sense in which it all should hang together as all or nothing. To belabor the point, because this is really the crux of it all, do the jurors, every single one of them, have to believe Michael Cohen in order to find the former president guilty?

It's a really good question. There is an argument that the jury could convict Donald Trump, even putting to the side Michael Cohen. So even if they ignore Michael Cohen's testimony because they don't find him credible, that would be more of a circumstantial case.

They would have heard from David Pecker and Hope Hicks about the scheme to pay Stormy Daniels and the campaign-related nature of that payment. They would have heard from people at the Trump Organization about how the records that are the crux of this case were maintained in the files of the Trump Organization. I

I think they would be able to infer from the testimony of other witnesses, including, again, by some of the people at the Trump Organization, that these were not really payments for legal expenses to Michael Cohen. I think the controller from the Trump Organization testified in a way that suggested he certainly didn't think that Michael Cohen was really a lawyer. So I think that one could make the inference that the records were false.

in that they were not actually for legal expenses through the testimony of other witnesses and also through records. There's this one very important record that was introduced into evidence, actually two pieces, that is in Allen Weisselberg's handwriting. It's on a bank account statement for Michael Cohen's

bank records. And it shows in Allen Weisselberg's handwriting sort of the calculations that were done for how Michael Cohen would be reimbursed for the payment to Stormy Daniels, as well as one other payment he made on behalf of the Trump campaign to this company, Redfinch, I think it was.

And the controller for the Trump organization testified that that was Allen Weisselberg's handwriting. So it's not dependent on Michael Cohen's testimony. And it shows essentially starting with the payment to Stormy Daniels, how that amount was essentially grossed up.

to take into account taxes that Michael Cohen would have to pay, this other payment to a consulting company that was paid by Michael Cohen for the campaign, and then that full amount broken down into 12 payments, which is how we got to these 12, I think, $35,000 payments to Michael Cohen. And so, again, you have this other evidence that's independent of Michael Cohen,

that establishes that the way these records were maintained in indicating that they were for legal expenses was false. So I think you could get there circumstantially without Michael Cohen. And then if you add in the testimony from people at the Trump Organization and the person who worked with Trump on his books, where he talked about how he was sort of a micromanager and was really involved in the details of payments,

You could establish this pattern that Trump was involved in the details of payments and get to a belief that Trump knew what these payments were for and how they were being recorded. But I think it's a much harder case when you take Michael Cohen's testimony out of it because he's the one who can directly say and does directly say Trump knew that these records were false. He knew what they were for and he signed off on it.

How long could a jury deliberate before being allowed to be hung, so to speak?

Yeah, there's no magic amount of time. You know, if they came back after an hour of deliberations and said, we're deadlocked, right, the judge is not going to declare a mistrial at that time and excuse them. He's going to give them what's called an Allen charge, where he tells them to continue to try to deliberate, not to give up on their good faith beliefs individually, but to make every effort to deliberate as a group and try to reach a unanimous verdict.

So I suspect that they would be out for several hours, maybe a day, maybe two days, right, before we'd be at the point where we'd be really talking about declaring a mistrial because they're hung.

It depends partly on sort of what the nature of the note, what the notes say, if they're indicating that they are hung, if they indicate that they have some jurors who are just, you know, not deliberating in good faith. I mean, we have to see what it is that the jury says. As I said, there's usually at least one Allen charge where the judge encourages them to continue, not to give up right away. So I can't give you a magic period of time.

If the former president is found guilty, what are the potential repercussions? Well, the law provides for a sentence of imprisonment of up to four years for each count. It seems unlikely that Trump would get that maximum amount of prison time. Most first-time offenders who are convicted of this particular charge do not actually see prison time.

But the judge has a lot of discretion here. He can impose a prison sentence pursuant to New York's sentencing scheme. He can impose a sentence of probation where Trump would be subject to sort of checking in with a probation officer. He can impose a sentence of conditional discharge where Trump is subject to certain conditions of release that he'd have to

abide by lest he sort of get brought back into court and subject to penalties for the violations. He can impose a fine. It's really very much up to the discretion of the judge taking into account all the facts and circumstances of the offense and the individual before him. What is Trump's recourse if he is found guilty and wants another look at the evidence?

Well, he can file a motion for a new trial before this judge, unlimited grounds. You know, if he points to something that was a dramatic error in the trial that clearly would be the kind of thing that would call out for reversal on appeal, he could bring that to the judge's attention.

So that the judge would have the opportunity to correct it, sort of an order a new trial. That's rare that that would be granted. He can appeal to the intermediate appellate court in New York State. That's an appeal as of right, meaning the court has to take that appeal and consider it.

And depending on what happens in that court, if they were to uphold the conviction, he could file an appeal in New York's highest court, the New York Court of Appeals. But that's really where it would stop, right? There's, he could, again, if all of that were upheld, seek, you know, at some point down the road, a federal habeas review of it. But this is a state court.

So in most instances, the state highest court is going to have the final word here. So is what you're saying almost no matter what happens? I mean, if he's acquitted on all counts, it's probably the end of the road. But if he's found guilty on any, he will pursue an appeal and that could take some time. Yeah.

Yes, the appeals would take time. And also, just to be clear, if he's acquitted, that is definitely the end of the road, right? Because of double jeopardy, the prosecution doesn't get a second bite at the apple. He can't be recharged and retried for the same offenses. So it's the whole ball of wax for the prosecution in terms of what the jury decides here.

And I mean, could this entire process be completed before the election or, you know, if he appeals to higher courts within New York state? That seems very unlikely that all the appeals would be completed by the time of the election in November. I mean, thinking about the usual time frame of appeals in the state system.

So we may finally get an answer, but with a whole bunch of asterisks. Wrapping up here, this is the last time we're probably going to speak before we get a verdict, unless this lasts for weeks and we have to touch base and talk about those, you know, try to decipher the jury notes. Final thoughts before we have a verdict in hand.

I think that the trial came in as calmly and smoothly as it could have. I, for one, was very gratified that it didn't seem that there were any major disruptions during the trial. There was this one defense witness, Costello, who was very disrespectful to the judge, and the judge just shut it down immediately. But there were no outbursts or interruptions to the proceedings.

And that was reassuring to see a court of law function in the way that it normally would. There were clearly statements that Trump made outside of the courtroom to the press where he was complaining essentially to his campaign. But inside the courtroom, things proceeded essentially as they normally do in a criminal trial. And that was gratifying to see. And I hope that

as we go into this next phase where the jury will get the case and begin its deliberations, that things continue to function smoothly and without incident. All right. Well, we'll leave it there. Thank you so much for joining me today. Thank you.

My name is Galen Druk. Our producers are Shane McKeon and Cameron Chertavian, and our intern is Jayla Everett. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or a review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon. ♪