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Opinion | I Was Skeptical of the ‘Zombie’ Trump Case. I Stand Corrected.


When it came to the New York prosecution of Donald Trump, I was skeptical.

I was among the commentators who criticized the case. It was old, the so-called zombie case that had been kicking around for years. It appeared to rest on several untested and controversial legal theories. It seemed like a relatively trivial bookkeeping charge, unworthy of a prosecution of a former president.

But I have to hand it to the Manhattan prosecutors. Over the course of this trial, they convinced me — as they clearly and overwhelmingly convinced the jury. There will be an appeal, of course, and Mr. Trump may have some persuasive legal arguments.

But the jury’s quick decision reinforces the district attorney’s view that this was a righteous prosecution and about much more than mere accounting entries.

Every trial is a human story. The successful trial attorney presents that story to the jury in a way that’s internally consistent, supported by the evidence and aligns with the jurors’ life experiences and common sense.

The prosecutors here did a masterly job of telling a compelling story not of faulty bookkeeping but of criminal election interference. They presented evidence of a criminal conspiracy to influence the 2016 presidential election. It began when a major publishing company, American Media Inc., through its chief executive, David Pecker, agreed to help the Trump campaign manipulate the information that voters received by using unlawful means. Information harmful to the Trump campaign was suppressed, while false stories were spread about his rivals.

That scheme went far beyond the hush-money payments to Stormy Daniels. It included purchasing and suppressing other negative stories (like the one from the former Playboy model Karen McDougal).

Although these so-called catch-and-kill schemes were not inherently illegal, prosecutors demonstrated that the scheme was carried out through several unlawful methods. These included creating false documents in A.M.I.’s records; false statements that Michael Cohen, who was then Mr. Trump’s lawyer and fixer, made to a bank related to an account he opened for a shell corporation to handle the payments; and false documents reflecting the tax status of the payments to Mr. Cohen.

And the scheme also included the primary allegation: that the catch-and-kill payments amounted to illegal contributions to the Trump campaign — a crime for which A.M.I. was investigated and Mr. Cohen was later convicted.

In this light, prosecutors argued, the false documents in the records of the Trump Organization should be viewed as some of the final criminal steps in an ultimately successful scheme to suppress damaging information. After Mr. Trump won the election, the conspirators needed to cover their tracks by falsifying paperwork to explain the reimbursements to Mr. Cohen.

Speaking of the state’s star witness Mr. Cohen, it’s an understatement to say he arrived at the courthouse with some baggage. But during his testimony, the prosecutors handled him in textbook fashion. They didn’t run from his flaws as a witness, including prior false testimony under oath. They demonstrated why, despite all his previous lies, the jurors could believe what they heard him say on the stand. And the prosecutors were able to corroborate almost everything he said with multiple documents and other witnesses.

I think the prosecutors took a tough case and put on a seamless, coherent and persuasive presentation. But I also think that even the prosecutors, if they were being candid, would agree they got an assist.

The defense case, like Churchill’s infamous pudding, had no theme. The defense didn’t have to prove anything, but Mr. Trump’s lawyers failed to suggest any coherent, alternative explanation of events that might have raised a reasonable doubt in the minds of one or more jurors.

The defense might have had a shot with a targeted argument, admitting to an indiscretion with Ms. Daniels and the hush-money payment but insisting that the state had failed to prove that Mr. Trump knew his company’s internal bookkeeping documents were false or that he caused them to be made with intent to cover up another crime.

Instead, the defense was vintage Trump: I’m a victim. Deny everything. Everyone else is lying and out to get me. Witnesses who could safely be largely disregarded must instead be attacked and destroyed.

Whether this was at the insistence of the client or the counsels’ own decision, it led the defense to make inconsistent arguments that simply were not credible. Once you lose your credibility with jurors by denying things that seem clear and obvious, they are less likely to believe what you say about the things that are really in dispute.

There is most likely a chapter yet to be written in this case. I remain something of a skeptic when it comes to whether these convictions will survive long term — although I’m the first to admit I’ve already been proved wrong once.

In presiding over the case, Justice Juan Merchan largely accepted the prosecution’s legal theories. Within that legal framework, the prosecutors did a great job presenting their case, just as the judge did in handling the trial. But I think some of those legal theories are potentially vulnerable.

There are questions about the proper meaning of intent to defraud under New York law, and whether that standard could be met by these internal documents. There’s a potential issue with using a federal campaign finance law as the basis for turning a state misdemeanor into a felony. This case raised these and other novel questions, and the defense will now have a chance to argue those questions before a higher court.

But during this trial, the prosecutors made a convincing case. They demonstrated why, as part of a successful, larger conspiracy to criminally interfere with the presidential election, these false business records really mattered. They told a compelling story, and they told it well.

Randall D. Eliason is a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebars.



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