Trump's Trials - Has the prosecution proved its case against Trump?

Episode Date: May 18, 2024

For this episode of Trump's Trials, host Scott Detrow speaks with NPR political reporter Ximena Bustillo and Boston University law professor Jed Shugerman. The prosecution's star witness, Michael Cohen was on the stand for three days this week. He testified about the alleged scheme to pay off adult film star Stormy Daniels and the alleged business fraud that followed. Cohen placed former President Trump at the scene saying he was aware and involved in the alleged cover up. But Cohen is an admitted liar and the defense called into question his credibility.Cohen is expected back on the stand on Monday and is likely the prosecution's final witness. Closing statements may begin as soon as Tuesday.Topics include:- Michael Cohen testimony- What prosecution needs to prove- What's nextFollow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

From fixer to foe, Michael Cohen takes the stand. From NPR, it's Trump's Trials, I'm Scott Detro. We love Trump! We love Trump! This is a persecution. He actually just stormed out of the courtroom. We want him! Innocent until proven guilty in a court of law. The prosecution has just about wrapped up its case this week with days of testimony from the key witness, Michael Cohen, former president Donald Trump's one-time lawyer,

fixer, gopher, and enforcer. Cohen spent the entire week on the witness stand, first trying to connect key dots for the prosecution and then undergoing intense hostile cross-examination from Trump's legal team. Remember, Cohen is at the center of this case because it was Cohen who paid off adult film actor Stormy Daniels in 2016, and it was Cohen who was reimbursed with the alleged falsified documents in question. And then it was also Cohen who later turned on Trump after Cohen was raided by

the FBI in 2018. Ahead, we will talk about what Cohen said, whether it was enough for the prosecution's case, and what comes next. I'll be joined by NPR's reporter at the trial, Jimena Bustillo, as well as Boston University law professor, Jed Sugarman. On this week's episode of Wild Card,

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We don't just want to tell you what happened, we tell you why it matters. Join the NPR Politics podcast every single afternoon to understand the world through political eyes. And we are back with NPR political reporter, Jimena Bustillo. Hey, Jimena. Hey, Scott. And Boston University Law Professor Jed Sugarman. Jed, thanks for coming back. You're solely invited back because of your jury pool joke from last week. Yeah, I appreciate that you like my legal analysis and my humor.

Let's talk about Michael Cohen week and more importantly, the clear conclusion of the prosecution's case here. Jimena, you've been covering the case every single day. You were in the courtroom all week. What would you say the big themes of the prosecution's case here. Jimena, you've been covering the case every single day. You were in the courtroom all week. What would you say the big themes of the week were? Well, the biggest theme also happened outside the courtroom, which was all the guests and quote unquote friends, as I've been calling them, of Donald Trump that have been coming

in to support him. They are not gag ordered and they made sure to show that by hosting press conferences. Yeah. gag ordered and they made sure to show that by hosting press conferences. Yeah, this was a broad collection of Republican officials, people who clearly want to be Trump's vice president, people who are congressional leaders, all walks of high profile Republicans, including House Speaker Mike Johnson, made a point to come sit behind Trump at court and talk outside the courtroom. This is the fifth week that President Trump has been in court for this sham of a trial. There is literally no branch of government that Michael Cohen has not lied to.

We're seeing today what lengths the Democrat Party will go to to try to rig or steal another election. And these are significant people who want to be in leadership in the Republican Party, members of the Florida delegation, which is Trump's new home state, and in some instances, attorneys general of other states, which he has been citing as legal experts coming in to support him. So this was an interesting high profile example of kind of the dual track presidential election that's taking place here. And this is impacting, but let's shift to what happened inside the courtroom. Jimena, Michael

Cohen spent the entire week testifying. The prosecution has said that he could likely be their last witness. Either way, he's definitely the last key part of the case the prosecution is making. Before we get into the specifics of Cohen, now that we've heard just about all of the prosecution's case, can you summarize the argument that they're making to the jury? The prosecution is wanting to paint a picture that Trump knew about a deal created to Silence Adult film star Stormy Daniels about an alleged story that she had an affair with Trump, and she was going to come out with this ahead of the 2016 election. The story here is that Trump authorized, allegedly was involved with silencing her

and the negotiations behind that. And when he paid Michael Cohen back for the settlement agreement with Stormy Daniels, he did so in a way that concealed the true nature of the payments by calling them legal retainers. The prosecution alleges that they were not legal retainers and that he did so in order to influence the election results.

So how did Cohen's testimony play into that story? What gaps did it fill in this week? So Cohen testified to various alleged conversations that he had had in person and on the phone with Trump and others that connected that that bridge between what Trump knew, what he may have been involved in, and then the actual person that carried out the deal on behalf of him. And so that was kind of the missing information that was needed was to hear from Cohen himself. We've been hearing for weeks about Cohen playing this role, and now he finally

got to take the stand in front of the jurors. Jared Slauson Jed, when we talked last week, you said that the prosecution needed Cohen to tie everything together to prove their case beyond a reasonable doubt. Do you think he did that? Jared Slauson Well, with the caveat that I was not in the courtroom and just following the many journalists' accounts of how the testimony went. I'm concerned that they did not establish clearly what they needed to establish.

It may not matter if the jury just wants to buy the proof of intent that they could infer from the long line of witnesses, but it doesn't sound like there was clarity for two key components that I thought the prosecutors might draw out of Cohen. Walk me through what those are because I'm thinking of what has kind of clearly been laid out here. The catch and kill stories seem to have clearly been done to help his political campaign. I think that's been pretty well established by the prosecution. There

was a real panic in October 2016 after the Access Hollywood tape. The payments are made to Stormy Daniels. Michael Cohen is repaid in these retainer fees over the following year. What's missing here? So, I agree with all of that. And based on that, I think there were some steps the prosecutors could have taken to clarify the case under New York State law. But here is the concern I'm raising.

And I'm going to just go into a little bit of detail because this is what's going to play out next week is going word by word through the statutes that are the basis for this prosecution. You have to first have a misdemeanor violation of the falsifying business records. And to prove that, you have to show intent to defraud. And there's a colloquial understanding of fraud, but then the lawyers will be arguing over what is the fraud. And so the first problem here is that the prosecutors keep talking about election interference or election fraud.

There is no basis for election fraud as the legal word in any of these steps here. So there is just a timeline problem if what the prosecutors are saying is that Donald Trump was trying to defraud the public with these documents, defraud the voters with these documents, because none of these documents were entered until 2017.

There is a time-space continuum here on this timeline. You can't defraud voters with documents when those voters are voting in November 2016 if those documents don't exist yet. So the argument I was suggesting in my New York Times essay was... Yeah, this was the op-ed that was skeptical of the legal framework that the DA's office was bringing to the case.

That what the crime of intent to defraud was, it was not the voters, but was of state and federal enforcement authorities. That is not an argument that I heard them develop in the courtroom. It's hinted at barely in some of their filings, but I have not seen any sign that they've addressed this of who was the target to defraud. And just to be clear, New York state courts require under the statute, intent to defraud needs a target. They've never applied it to the general public or anything as broad as the electorate. Okay, so this is a good point. The fraud and again, the

key of the case is how is how the payments were were were presented in business documents you're making the argument this happened after the election that's exactly right the documents that weren't made until 2017 could not possibly have been executed in a way that would have affected voters in 2016 the prosecution is not about the hush money payments in themselves. The prosecution is about falsified documents. Prosecutors have seemed to not connect it here,

is how the actual documents were themselves in intent to defraud. There was a way for them to do it, but I don't think they did it. How? Like without going too far into fan fiction, like how do you think they could have made that connection? Because we did hear testimony about conversations between then President Trump and Michael Cohen

about the payments and that got a lot of focus this week. That's right. But the prosecution is on the basis of these documents. What I said in my New York Times essay is that it's not the crime, it's the cover-up. So the documents as a cover-up were intended to defraud state and federal agencies, state and federal investigators in the future, not the voters. So the prosecutors may have one last chance in closing arguments to clarify this intent to defraud. They've left a very big door open for the defense to actually walk, just do what I did,

is walk through the statute that is the basis. This is not prosecuting Trump for a hush money payment. This is prosecuting Trump for a hush money payment. This is prosecuting Trump for the making these False false documents the intent to defraud has to be based on those false documents I don't think they've connected the false documents themselves to a Story of an intent to defraud yet So that is a very big thing to listen to in closing arguments, which we are almost certainly going to get next week. In the meantime, Jimena, the defense tried to poke a lot of holes through Cohen's testimony

during cross-examination. What was the main focus of that, which I should say is continuing into Monday? Jimena Hickman The defense came ready to do what we knew they were going to do, which was discredit Michael Cohen, discredit his testimony right now and his testimonies before. Cohen has a criminal record, a perjurer, which is lying on the stand, lying in front of Congress during congressional hearings, lying during previous courtroom testimonies, and lying during other pleas.

And so all of that was dirty laundry that was already to be aired, had already been aired, and was really confronted over the last few days. And in that process, we got into only a few of the actual key arguments that the prosecution was making in so far. One was a reference to a one minute and 36 second phone call that the prosecution brought up on Tuesday. During this phone call, Cohen says that he directly spoke with Trump about, quote, the Stormy Daniels situation. Now, the defense, after laying out, you know, hours of confronting Cohen's own history of just not being truthful on the stand, questioned whether that was actually what was talked about in that one minute and 36 second phone call.

And it sounds really minor, but we spent a lot of time talking about this phone call and whether or not he was talking about a completely different subject, which at that time Coen had been receiving harassing phone calls. And the phone call wasn't with Trump. It was with Trump's bodyguard. Cohen maintains that he called Trump's bodyguard, talked about the harassing calls, and also in that time period, asked to be past the phone on to Trump and made an acknowledgement about the Stormy Daniels situation. And that was it. the Stormy Daniels situation and that was it. But Todd Blanch Trump's lawyer really focused on that one minute and 36 seconds to just cast doubt on like, do you really remember what happened in that

one phone call? Jay, did that stick out to you? It did. When I read reports of it, it was a moment. It just seems like after a while, you know, the jury has been sitting there for a long time There were lots of reports that the jurors were nodding through a lot of Cohen's testimony. I Think this is sort of you know day-to-day Detail it seems to me that there's if the jurors wanted to believe Cohen they've got plenty of reason to I Don't think this is going to probably affect the jury in any significant way. Are there diminished returns in exceptionally long cases like this?

This wasn't that long. There are lots of cases, I mean, the upcoming cases if they ever happened, the classified documents, January 6, there are lots of trials that go on longer than this. But there's, I think, a second problem that I just want to identify, which is the clarity of intent. And I think this is something that I was imagining that the prosecutors could elicit from Cohen. And it doesn't really sound like they did. One of the key lines that Cohen testified about was that Trump wanted to make this go away. And it seemed like a lot of people have interpreted to make this go away as Trump's intent related to the campaign.

The prosecutors need to show more than that, I think. They need to show more than just that this was campaign related. They have to prove a crime that was being covered up by these documents. And under federal election law, to make this a crime, they have to prove that Trump knowingly and willfully violated the Federal Election Campaign Act. And I don't think that anything that Cohen said showed that level of knowledge or willfulness. This is different from knowing that it was campaign related. They also have to prove that he knew it was a violation of the Federal Election Campaign Act right beyond a reasonable doubt And given what judge Mershon has said earlier about the proof of this case that they have to show criminal conduct

So there are very technical wrinkles that the prosecutors could could get in this case without intent But I'd be skeptical about whether that would either stand up from Judge Murchon at the stage and jury instructions or whether that would be upheld on appeal. So, Jimena, the prosecution's side took up four full weeks and will lead a little into Monday it seems like. The defense has indicated that their presentation might be very, very short. They might call one witness, such a handful of witnesses.

What do we know about what the defense is going to be doing next week? Not a whole lot. They have said that they're still deliberating what it is that they're gonna do, but they have said that it won't take long. That's why Judge Juan Marchand said that closing statements could come as soon as Tuesday, because even if we get through Cohen Monday morning, the defense vowed

to be pretty short. We know that there might be some sort of expert witness brought forward. If they do in any way, that could be on Monday. And it's still up in the air whether or not Donald Trump himself would testify at the very beginning of this trial, he vowed that he would. But that was before prosecutors won the right to question him about a lot of his other legal troubles and particularly other trials in New York City, which would paint him in also a very poor light and would probably not be beneficial for him to testify himself.

So who's to say on that front, but it does seem like it will be quick regardless. Chad, what are the legal pros and cons of Trump testifying? There's legal pros and cons, and then there's just knowing who the witness is. There's no way that the defense counsel wants to put Trump on the stand because he's so unpredictable. At this point, I think they probably see that there are sufficient gaps in the prosecutor's case and putting Trump on the stand could only give prosecutors the chance to close those gaps.

There are many reasons, good reasons not to put Trump on the stand. Soterios Johnson The last question for both of you. If you could get inside the brains of these jurors, what's the first thing you would want to know? Hamanan, I'll start with you. How they're keeping track of everything. That is just what I want to know, because even in the courtroom, in the overflow room,

amongst us journalists that have been keeping a lot of notes, even journalists more experienced than I that have been keeping a lot of notes, even journalists more experienced than I that have been tracking all these cases for the last eight years. At times the timeline gets a little jumbled and a little confusing and I want to know how people who have not been tracking this at all and might be hearing about it for the absolute first time are digesting this and keeping track of the timelines and the characters that at this point we sometimes just refer to by first name on the stand. Jed, same question to you.

I've granted you the magic power to get inside a juror's head. What are you going to use it for? And this is less about my law background and just maybe more about my interest in psychology. I'm interested in what these jurors think about sex and privacy. I think the strategy here was to use Stormy Daniels and those details as a way of scandalizing and showing how damaging this testimony could have been. That may be what many Americans think about this case. I think many New Yorkers who are on this jury, and we have no way of knowing that from I think the questionnaires, but you know, and the Stormy Daniels testimony may have backfired with them.

And if they think that politicians have a right to, like other Americans, to engage in non-disclosure agreements to protect their privacy, some of them may still be wondering, what was the crime here in these business documents? Do voters have a right to hear this or do politicians have the rights to privacy like all other Americans do? I don't know what the right answer is, but I think that might determine more about this result than any legal argument in this case. Well those jurors will be deliberating pretty soon and we will talk about it when they reach a decision. For now though, Boston University Law Professor Jed Sugarman, thanks again for joining us. Thanks for having me. And thank you Law Professor Jed Sugarman, thanks again for joining us.

Jed Sugarman Thanks for having me. Scott Cunningham And thank you to NPR political reporter, Jimena Bustillo. Jimena Bustillo Thank you, Scott. Scott Cunningham We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple podcasts. This show is produced

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