To convict Trump, the jury will have to rely on Michael Cohen’s word. Would you?
To paraphrase Barack Obama, I am not against all prosecutions of former President Donald Trump — just the dumb ones.
People v. Trump is a dumb prosecution. Manhattan District Attorney Alvin Bragg has staked his case on the uncorroborated testimony of a convicted felon who is an admitted serial perjurer and highly biased against Trump. (“I want this man to go down and rot inside," he has said.) I am referring, of course, to Trump’s former personal attorney and fixer, Michael Cohen.
The case concerns entries in the Trump Organization’s business records reflecting a hush money payment to porn actress Stormy Daniels. It is undisputed that Cohen personally made the hush money payments, that the Trump Organization reimbursed him with checks signed by Donald Trump and others, and that the reimbursement payments to Cohen were falsely recorded in business records as compensation for legal services.
The dispute is over whether Trump knew of and approved the false entries. Michael Cohen was the only prosecution witness to testify to words or deeds by Trump that could establish his alleged criminal knowledge. According to Cohen, at a meeting in early 2017, he, Trump, and Allen Weisselberg, then the chief financial officer of the Trump Organization, agreed to conceal the reimbursement payments as legal fees.
Q: “Did Mr. Weisselberg say in front of Mr. Trump that those monthly [reimbursement] payments would be, you know, like a retainer for legal services?”
A: “Yes.”
Cohen is an “accomplice witness,” a participant in the crime who seeks to reduce his sentence by testifying against another participant. Indeed, he obtained leniency from federal prosecutors once already by providing them with testimony about the hush money scheme that Bragg is now using.
The Supreme Court has stressed that although the testimony of accomplice witnesses can be the basis for a conviction, given the inherent motive of such witnesses to falsify, courts “should caution juries against too much reliance upon the testimony of accomplices and...require corroborating testimony before giving credence to such evidence.”
This case especially merits such a cautionary jury instruction, because the prosecution has no witness to corroborate Michael Cohen’s crucial testimony. Neither side is calling Weisselberg to testify, evidently, because he would assert his right not to testify under the Fifth Amendment.
The jury will also be hard-pressed to find any documentary corroboration. The prosecution highlighted the word “retainer” on the invoices attached to Cohen’s reimbursement checks signed by Trump, but that puts enormous stress on the word “retainer” as corroborating proof of a criminal state of mind. This is especially so in this case, since former Trump White House aide Madeline Westerhout testified that Trump sometimes signed checks without looking at them.
Remember, a business records conviction is only a misdemeanor under New York criminal law, which would be a defeat for Bragg in a case of such historic significance. This is why his prosecutors are arguing that Trump acted “with a conscious aim and objective to commit another crime,” in which case the misdemeanor “steps up” to a felony. Bragg has alleged four "object offenses," but the “primary” object offense is “conspiracy to influence the 2016 election to help Donald Trump get elected.”
The jury may question how the false entries could have furthered that conspiracy since, by the time they were made, Trump had already been elected. However, the jurors will not even reach this issue unless they first unanimously agree that Trump is guilty beyond a reasonable doubt of the misdemeanor offense.
Anything can happen, but it’s likely that at least one juror will have a reasonable doubt about relying on Cohen’s testimony in the absence of any corroborating evidence. This will mean a hung jury and a victory for Trump.
Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. He is the author of Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia.