Opinion

A Trump Conviction Doesn’t Hang on Michael Cohen

The Manhattan district attorney’s case against Donald Trump has unfolded like a north-of-the-border telenovela, with lurid tales of sex, spankings, hush money and silk pajamas, as well as the occasional detour into the editorial practices of supermarket tabloids. But the case, provocative as it has been, may turn on something a great deal more mundane than the testimony.

The key question the jurors will soon be considering is a straightforward one: Did the former president “cause” the creation of false business records? The prosecution has answered half of that question. There’s no reason to doubt the records were false. But the verdict is likely to turn on the other half — whether Mr. Trump caused the false information to appear on the invoices and vouchers. The evidence there is murkier.

According to the prosecution, on the eve of the 2016 election, Michael Cohen, Mr. Trump’s onetime lawyer and fixer, paid $130,000 to Stormy Daniels, the porn star, to guarantee her silence about a tryst she and Mr. Trump allegedly had a decade earlier. Mr. Trump then reimbursed Mr. Cohen for his outlay, plus a bonus and additional funds for taxes. The business records of those payments to Mr. Cohen called each one a retainer for legal services, rather than what they were: a reimbursement for the hush money paid to Ms. Daniels.

The prosecution has done an excellent job of proving these details. Was the information on the documents false? Absolutely. Several witnesses support the government’s claim that Mr. Trump’s payments to the lawyer were not legal fees. Mr. Trump himself tweeted in 2018 that Mr. Cohen received a “reimbursement” and said as much in a White House financial disclosure form.

The government also introduced a document in the handwriting of Allen Weisselberg, the former chief financial officer of the Trump Organization, detailing the reimbursement scheme. Mr. Cohen laid out his own money — $130,000 to Ms. Daniels and about $50,000 in another expense. Mr. Weisselberg jotted that the reimbursement would break down as $180,000 in income to Mr. Cohen, $180,000 to cover Mr. Cohen’s taxes, and a $60,000 bonus. The total of $420,000 was exactly what Mr. Cohen received in 11 checks. The prosecution also made a strong showing that the payoff to Ms. Daniels was designed, above all, to help Mr. Trump win the 2016 election. That’s especially important in this case because if the jury finds that Mr. Trump was motivated to violate election laws, that elevates his crime from a misdemeanor to a felony.

Mr. Trump’s defense team barely disputed this evidence. At times his lawyers seemed to be trying harder to please their client than to win their case. In cross-examining Ms. Daniels, Susan Necheles did a fine job of showing Ms. Daniels’s anger at Mr. Trump and her financial interest in a conviction in this case. But then Ms. Necheles began a long and unpersuasive attempt to show that Ms. Daniels was lying about the underlying sexual encounter. Ms. Daniels’s story of that night was solid, including such details as her whacking Mr. Trump with a magazine when he condescended to her and his louche outfit when she arrived at his hotel room. “Does Hugh Hefner know you stole his pajamas?” she recalled asking Mr. Trump. (Mr. Trump denies having an affair with Ms. Daniels.)

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