Can a mountain of evidence convict Trump?
Monday will see opening statements in the People of the State of New York vs Donald J. Trump. The state’s case seems strong, but a conviction is far from assured. Prosecutors will confront a shrewd defendant with a decades-long track record of skirting legal consequences
In the official record, the case is known as the People of the State of New York v. Donald J. Trump, and, for now, the people have the stronger hand: They have insider witnesses, a favourable jury pool and a lurid set of facts about a presidential candidate, a payoff and a porn star. On Monday, the prosecutors will formally introduce the case to 12 all-important jurors, embarking on the first prosecution of an American president. The trial, which could brand Trump a felon as he mounts another White House run, will reverberate throughout the nation and test the durability of the justice system that Trump attacks as no other defendant could.
Though the district attorney, Alvin L. Bragg, has assembled a mountain of evidence, a conviction is hardly assured. Over the next six weeks, Trump’s lawyers will seize on three apparent weak points: a key witness’s credibility, a president’s culpability and the case’s legal complexity. Prosecutors will seek to maneuver around those vulnerabilities, dazzling the jury with a tale that mixes politics and sex, as they confront a shrewd defendant with a decades-long track record of skirting legal consequences. They will also seek to bolster the credibility of that key witness, Michael D. Cohen, a former fixer to Trump who previously pleaded guilty to federal crimes for paying the porn star, Stormy Daniels.
Daniel J. Horwitz, a veteran defense lawyer who previously worked in the Manhattan district attorney’s office prosecuting white-collar cases, said prosecutors can be expected to corroborate Cohen’s story wherever possible. “The prosecution has layers upon layers of evidence to back up what Michael Cohen says,” Horwitz said. Both sides will lay out their cases in opening statements on Monday, offering dueling interpretations of the evidence some six years after the payoff to Ms. Daniels entered the public consciousness and briefly imperilled Trump’s presidency.
But in previewing the case for prospective jurors last week, Manhattan prosecutors emphasized neither the payoff that secured Ms. Daniels’s silence, nor the sex scandal that was buried in the process. One prosecutor, Joshua Steinglass, instead distilled the trial’s stakes to a fundamental question: “This case is about the rule of law and whether or not Donald Trump broke it.” Steinglass’s boss, Bragg, has offered a loftier interpretation, casting Trump’s actions as election interference. Trump, he argues, orchestrated a scheme to conceal simmering sex scandals from voters as they headed to the polls in 2016. All told, his allies struck three hush-money deals, paying off people who had stories to tell — stories that could have derailed Trump’s candidacy.
Bragg’s prosecutors will seek to turn that 2016 campaign strategy against Trump: The tactics that helped propel him to victory will be admitted as evidence and reconsidered far beyond the courtroom. Aides and friends who lied on Trump’s behalf will take the witness stand to testify against him. They include: David Pecker, the tabloid publisher who bought and buried damaging stories about Trump; Hope Hicks, a spokeswoman who tried to spin reporters; and Cohen, the fixer who paid Ms. Daniels. Pecker, who ran the company that owned The National Enquirer, is set to go first, and is expected to recount for the jury several conversations with Trump about the hush money, according to a person familiar with the plan.
Trump faces 34 felony counts, and up to four years behind bars, but more than just his freedom is at stake. If convicted, he might lose the right to vote, including to cast a ballot for himself. If he were to win back the White House, he would be the first convicted criminal to serve as commander in chief. And the question of how he might serve a prison sentence, should it come to that if he does not receive probation, could throw the country into turmoil. America has grown accustomed to Trump smashing through its customs and is now witnessing a first-in-248years phenomenon. Presidents have been impeached, driven from office and rejected at the polls. Trump is about to be the first to have his fate decided not just by voters, but by 12 citizens in a jury box. And they all hail from Manhattan, the borough that made Trump famous, and where he is now deeply unpopular. A favourable jury pool, legal experts say, has given Bragg a leg up at the trial.
Yet the jury, which was finalised on Friday and includes six alternates, is no rubber stamp: It includes at least two people who have expressed some affection for the former president, and it takes only one skeptical member to force a mistrial, an outcome that Trump would celebrate as a win. Susan Necheles, one of Trump’s lawyers, began that campaign during jury selection. She referenced Cohen’s 2022 book “Revenge,” questioning the credibility of “someone who says that they want revenge against President Trump.” Yet the prosecution is expected to note that Cohen told many of his lies for Trump. And prosecutors will offer evidence corroborating the broad strokes of Cohen’s story, which could persuade jurors when they are weighing his testimony about the crucial Oval Office meeting.
Trump’s White House executive assistant, Madeleine Westerhout, who has been identified as a potential witness, could confirm that Cohen did indeed meet with Trump, even if she cannot confirm what they discussed. Pecker can support at least some of Cohen’s testimony about Trump’s involvement in the hush-money deals.
“The prosecution’s argument is that you can trust Cohen beyond a reasonable doubt as to their isolated conversation,” said Horwitz, the former prosecutor. He called the approach “Prosecuting 101.”
Protess is an investigative reporter; Bromwich covers criminal justice in New York The New York Times