Last week, both the prosecution and the defense rested their cases in former President Donald Trump’s New York trial for allegedly falsifying business records (FBR) in his effort “to unlawfully influence the 2016 presidential election,” in the words of Manhattan Supreme Court Justice Juan Merchan’s case summary. At closing arguments starting Tuesday morning, Trump’s defense team (likely lead counsel Todd Blanche) will go first and make its final bid to the jury. They will be followed by the People, led by their most experienced prosecutor, Joshua Steinglass (as was stated during the opening statement). Then at the end of the day Tuesday or more likely Wednesday morning, Merchan will charge the jury with reaching a verdict according to legal instructions he will provide.

While the jury instructions have not yet been publicly issued by the judge, the broad parameters are now sufficiently set due to the “charging conference” at which these issues were discussed, the proposed jury instructions submitted by both sides which were released Friday night, and standard jury instructions in New York courts. On that basis, we can analyze the likely defense and prosecution closings. In this article we do that, providing the most extensive publicly available forecast of what to expect, with detailed references to the trial transcripts identifying the relevant evidence for both sides.

The DA’s office charged Trump with 34 counts of violating New York Penal Law § 175.10 (Falsifying Business Records in the first degree). For each count, per New York’s standard jury instructions, the elements that must be proven are:

(1) On or about the date in question, Trump made or caused a false entry in the business records of an enterprise; and
(2) Trump did so with intent to defraud that
(3) included an intent to commit another crime or to aid or conceal the commission thereof.

The intent elements are complex. The jury must determine not only that Trump had an intent to defraud, but also that this intent included an intent to commit another crime, or to aid or conceal the commission of another crime. The DA of course needs to meet the burden of proof beyond a reasonable doubt, so the defense will underscore that the jury need only find a morsel of doubt to acquit. The People will argue they have eliminated any such scintilla.

We turn now to what the experienced attorneys will likely each argue based upon the openings, what they have said in court since, the evidence, and the law—and on our observations in both of us attending court daily.


1. General Attacks on the DA’s Theory of the Case

The defense will need to present its arguments as to each of the legal elements of the jury instructions. But first, our observation of the defense team across 20 days of trial has led us to expect they will attack the credibility of key evidence.

The defense will argue that all of the events that the witnesses recounted occurred long ago, echoing the very beginning of the opening of their case: “most of what you are going to hear about in this trial, most of the conversations, most of the documents are from 2015, 2016, 2017, years and years ago, pre-COVID” (4/22 Transcript at 889).

The defense will likely center their attack on Michael Cohen, whom some have termed the prosecution’s star witness. The defense will describe how believing Cohen is necessary to find Trump guilty, and Cohen’s testimony is not credible at all. (Note that the parties here have agreed that if the jury “find[s] that any witness has intentionally testified falsely to any material fact, you may disregard that witness’s entire testimony. Or you may disregard so much of it as you find was untruthful.”) Nothing about Trump’s intent at the key moments of the alleged document falsification and alleged underlying crimes is corroborated without Cohen, they will claim. There is no written or recorded evidence of any of what Cohen claims he said to Trump and what Trump said to him regarding the Stormy Daniels payment itself and its alleged documentary coverup. True, there is supporting and corroborating evidence such as call logs with timestamps of communications between Cohen and Trump, but the defense will note that the content of the conversations themselves rely on Cohen’s word (5/20 Transcript at 4290).

The defense will especially hammer Cohen’s recollection of his Oct. 24, 2016 call — the part of the cross that garnered the most media attention. Although we were present in the courtroom and thought that the jury’s reaction was not as extreme as that of some commentators, it was a major moment. As Blanche has said to the court, Cohen had “testified on direct about a phone call [during which] he remembers specifically a key part of this crime that took place” in that approximately 90-second call (5/20 Transcript at 4282). The defense will reiterate that the call was really about the 14 year-old who was pranking Cohen, as the text messages between Cohen and Schiller definitively show. They will contend that Cohen lied or was willing to say things he did not really know when he said on direct that the call was about the Daniels payment and was caught when confronted with the full record about the 8:02 PM conversation on Oct. 24. They will point to the words he used during that dramatic confrontation as proof that he waffled because he was making it up, such as that the Daniels “could“ have been discussed or that he “believes” it was or “there was more than potentially just this” or “I am not certain that is accurate” in response to Blanche saying he did not speak to Trump that night (5/16 Transcript at 3894, 3895). The bottom line, the defense will claim, is that they proved that the purpose and content of the call was about another topic with Trump’s bodyguard Keith Schiller and that Cohen made false statements about that in his testimony, after being put up to it by the prosecution.

The defense can bolster that line by attacking Cohen’s motives and character. First, they will assert that Cohen was out for revenge against Trump for whatever specific reason, including wanting to be White House Chief of Staff and feeling grievously wounded when he was not even considered for the role (5/16 Transcript at 3855). Further, he lied many times over and, the defense will argue, is a shady cheat who stole from Trump, pointing to his admission that he saw reimbursement for a much larger amount than he actually paid to a vendor, RedFinch, stealing $60,000 there as part of the total $420,000 he obtained from Trump in 2017.

Furthermore, they will add, his record of seeking financial advantage through the former president has not ended. They will argue Cohen is now profiting off of criticizing Trump. “Apart from his work for President Trump and the Trump companies, he cheated on his taxes, he lied to banks, he lied about side businesses he had with taxi medallions” (Blanche: 4/22 Transcript at 900). Cohen lied under oath to Congress, and he said he would be willing to lie out of loyalty, so surely he likely did the same to this jury (5/16 Transcript at 3792).

During its cross-examination, the defense also invoked the millions of dollars Cohen made on two books, a potential TV deal, more than 200 episodes of weekly podcasts, and daily TikToks. We can expect to hear about that again on closing. For example, Blanche asked Cohen, “Do you have a financial interest in the outcome of this case?” To which Cohen answered, “Yes, sir” (5/20 Transcript at 4123). Justice Merchan did not allow Blanche, in the defense’s opening statement, to bring in Cohen’s testimony that he lied under oath to the now-late U.S. District Judge William H. Pauley III in pleading guilty to crimes he now says he did not commit. But the judge cautioned that Blanche could use it in summations if it was properly brought in during the course of the trial (4/22 Transcript at 904). Blanche and Cohen had a tug-of-war over the false testimony to the federal judge (5/16 Transcript at 3804), so it is likely Blanche tries to press his advantage during closing.

The defense will then discuss its own case, which almost exclusively focused on Cohen’s role and legitimacy. In the defense’s view, Cohen is the lynchpin for the entirety of the DA’s case, and without him it all unravels. First, they called Blanche’s paralegal to establish that Cohen had dozens of phone calls with Robert Costello, the lawyer who attempted to represent Cohen in the aftermath of the FBI raid on Cohen’s office and residence. Though Merchan said that Costello was not permitted to speak to Cohen’s state of mind, he did allow Costello to potentially impeach Cohen through testimony about Cohen’s prior inconsistent statements (5/20 Transcript at 4225). Costello reported that Cohen said “quote: ‘I swear to God, Bob. I don’t have anything on Donald Trump’” (5/20 Transcript at 4231).

In its last broadside on the prosecution’s evidence, the defense will say that other non-Trump Organization witnesses, not only Cohen, were biased against Trump. Especially Stormy Daniels. “[S]ince this story came out in 2018, became public, she’s made hundreds of thousands of dollars because of it. She also wrote a book. She was paid for a documentary” (4/22 Transcript at 906).

2. False Entries

The defense will also likely go point by point rebutting the DA’s characterization of the legal elements for felony falsification of business records. They will address the first element by contending that all the business filings were accurate and not false and, even supposing they were false, that Trump was not the cause of their entry.

The money that Trump paid Cohen in 2017 was for legal services Cohen rendered to Trump and the Trump family, not as part of a reimbursement scheme. “There is no dispute that Mr. Cohen provided legal services to President Trump in 2017. Not only did Mr. Cohen admit that, but Miss Tarasoff when she booked the records that are part of at least 12 of the counts said the same thing” (Blanche: 5/20 Transcript at 4275). If Trump is such a frugal penny pincher, why would he pay Michael Cohen $420,000 for a $130,000 hush payment? (4/22 Transcript at 892). During Cohen’s cross-examination, Blanche established that Cohen was paid a similar amount, $425,000, the previous year in 2015, including his bonus that year. At a minimum, the defense will argue, Trump thought the payments were for legal services being billed by his personal attorney.

Though it was all above board, the defense will argue, even assuming any of the alleged activity was a false entry, Trump was not the cause. This was all business as usual done by Trump Organization employees – the accountants, Allen Weisselberg, and Cohen. “President Trump had nothing to do, had nothing to do with the invoice, with the check being generated, or with the entry on the ledger” (4/22 Transcript at 894). They will say that Michael Cohen himself corroborated this version of events to Costello: “Michael Cohen said, numerous times, that President Trump knew nothing about those payments [to Stormy Daniels], that he [Cohen] did this on his own” (5/20 Transcript at 4235). While they did not seek a jury instruction on the implications of a missing prosecution witness, expect the defense to criticize the People for not calling Weisselberg and to argue the failure to do so leaves a hole in proving the case.

3. Intent to Defraud

For the first portion of the intent element, the defense will contend that all the records at issue were overt and above board, signifying transparency and devoid of any intent to defraud.

In the motion for a judgment of acquittal hearing, Blanche highlighted how “the invoices are going to The Trump Organization, a check is being generated for him to sign in the White House, for the President to sign in the White House, and then – which he does, which he signs in the White House” (5/20 Transcript at 4276-7). This is simply a case of Michael Cohen billing the Trump Organization for his legal fees as the president’s personal attorney, going through all of the proper and usual channels, they will say. Trump only had to sign the checks because he was the sole signatory on his account. If there had been any intent to defraud, there would not be such a standardized, business-as-usual paper trail.

The defense will also attack the DA’s position that the object of Trump’s intent to defraud was the voting public. They will argue instead that “a person acts with intent to defraud, when his or her conscious objective or purpose is to lead another into error or disadvantage,” such that an individual has to be the target of an intent to defraud (5/22 Transcript at 4386), and there is none.

4. Intent to Aid, Commit or Conceal Another Crime

The defense will point to a myriad of possible motivations Trump had for arranging the nondisclosure agreement and the hush money payment. None of them was a motivation to help his campaign, they’ll say, or at least there’s reasonable doubt as to that being his motivation. Even if he did intend to help his campaign, it was not a conspiracy but rather a commonplace arrangement that politicians have among friends and allies.

First, Trump intended to protect his family, not the campaign. In Blanche’s opening statement, he emphasized that Trump is “a husband… a father” (4/22 Transcript at 889). “Trump fought back, like he always does and like he’s entitled to do, to protect his family, his reputation and his brand” (4/22 Transcript at 897).

Alternatively, this was a legal NDA. Given that Trump did not enter false records and had no intent to defraud, it is perfectly fine that part of his intent was to influence the election: “I have a spoiler alert. There is nothing wrong with trying to influence an election. It’s called democracy” (4/22 Transcript at 896). It was permissible for Trump to have this motive, since there was no conspiracy, just an understanding among friends and business associates. As Blanche highlighted, “There’s nothing illegal about a scheme. There’s nothing illegal about what you will hear happened among AMI and National Enquirer and Mr. Pecker and President Trump. It happens – I expect you will hear shortly, this sort of thing happens regularly, that newspapers make decisions about what to publish, when to publish, and how to publish. It happens with politicians, with wealthy people, with famous people” (4/22 Transcript at 907).

Even if Trump intended to benefit his own campaign, the defense will challenge that he did not do so using the “unlawful means” required by the main predicate offense upon which the DA seems to be relying, N.Y. Elec. Law § 17-152: Conspiracy to promote or prevent election. Under that statute, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

But as the defense has stated, “There has to be something illegal about the efforts by the co-conspirators to influence the election. And what the evidence shows is that they all got together in 2015 and agreed that they would talk about positive and negative stories, and that there would be positive stories pushed and negative stories pushed” (5/20 Transcript at 4278). The defense team characterized the three payoff incidents that followed as “not a catch and kill, your Honor, certainly not a criminal catch and kill” (5/20 Transcript at 4281).

They can also attack the formation of a conspiracy because, crucially, one of the alleged co-conspirators did not even want to participate. “As it relates to Ms. Daniels, AMI wanted nothing to do with that. There’s lots of testimony about that” (5/20 Transcript at 4281). Each of the meetings that allegedly shows conspiratorial intent either was a normal conversation, or the jury has to rely on Cohen’s false testimony, or David Pecker didn’t even want to be involved.

Lastly, the defense will highlight how its witnesses rebutted the idea that there was a coordinated pressure campaign against Cohen to fall in line with a conspiracy or scheme. The defense first called Blanche’s paralegal, Daniel Sitko, to lay the foundation of call logs between Cohen and Costello. The two men spoke many times at length, and the defense asked, “Mr. Costello, did you ever put any pressure on Michael Cohen to do anything?” Costello answered, “No.” “Did you ever pressure him to interact with Rudy Giuliani in a certain way?” “Not at all.” (5/20 Transcript at 4255). And when the defense asked Costello, “Did you care about President Trump’s interest while you were dealing with Michael Cohen?” Costello testified, “No. My obligation was to Michael Cohen” (5/20 Transcript at 4256).

5. Defending against other unlawful means (including FECA and tax violations)

The DA continues to discuss other possible crimes that Trump intended to commit and that enhance the charges to felonies including the Federal Election Campaign Act and tax violations. It appears that they will argue these as “unlawful means” with respect to the alleged § 17-152 conspiracy, with that statute as the sole predicate for the falsifying business records violation. (The alternative, previously used by the DA both in the charging documents and in the briefing on the motion to dismiss, would have been to argue FECA and tax violations as both unlawful means under the § 17-152 predicate and separately as independent predicates for falsifying business records under § 175.10.) 

The defense will attempt to counteract both. FECA occupied a far greater proportion of attention during trial and at the charging conference, and both sides have submitted detailed jury instructions on point. The defense had wished to call former FEC Commissioner Brad Smith to explicate certain portions of FECA, but only the judge can instruct the jury on the law in a criminal matter. Since his testimony would have been restricted, the defense chose not to call him.

Critical details of the defense strategy as to FECA appear in their proposed jury instructions and have yet to be resolved. The defense insisted that the conspiracy would have to undertake a criminal violation of FECA, not a civil one, in order to meet the requirements of 175.10. (5/22 Transcript at 4346). And the defense requested the word “willfully” be used to instruct the jury on the level of intent the People must show for Trump’s violations of FECA. (5/22 Transcript at 4345). A willful violation would require the potential violator to act with “knowledge that [one’s] conduct was unlawful.” Should they obtain this instruction, the defense will likely argue that Trump in 2016 had no idea any of this conduct violated FECA and no evidence was introduced on that point. (5/22 Transcript at 4355). 

Whether or not they prevail on a “wilfully” instruction, expect the defense to rely on the argument that there were no unlawful means here because non-disclosure agreements (NDAs) are perfectly legal; indeed, Cohen admitted as much on cross. And as a backstop, look for them to point to the evidence in the record that Trump did this to spare himself and his family embarrassment. They will likely combine that argument with the contention that if the jury disbelieves Cohen, as it must, the prosecution has not met its extremely high burden to establish proof beyond the reasonable doubt that Trump intended to benefit his campaign. 

As for the tax offense, here the prosecution has conceded that willfulness must be established as to a federal tax crime. (5/22 Transcript at 4347). Like with FECA, the defense will likely argue that there’s no evidence in the record of Trump being aware of the tax statute and intending to violate it. Here, they have a bit of a tougher row to hoe because of the smoking gun document detailing the “grossed up“ reimbursement that Cohen testified he and Weisselberg reviewed with Trump in early January 2017. (Moreover, the People are also seeking to show state and local tax violations, where no willfulness is required; this was a contested issue and it remains to be seen if the judge will allow it in his final instructions although it appears from the charging conference that the defendant is no longer pressing his objection on that narrow point.) In response to all this, the defense is likely to point to Cohen’s testimony suggesting that he was not focused on the tax treatment and simply wanted to be repaid, and the lack of any direct evidence of what was on Trump’s mind, to once again argue that the prosecution simply has not met its burden as to the defendant.

We now turn to how the People will counter these and the many other arguments that we have anticipated the defense will make, as well as how prosecutors will put their own best foot forward.


The prosecution closes after the defense. Expect ADA Steinglass, if as we anticipate he is tapped with the closing, to remind the jury of the evidence at a granular level, detailing witness testimony and exhibits, and arguing common sense inferences that the jury should draw from the evidence.

We expect the People’s closing to center on three main disputed issues in terms of proving the elements of the crimes: (1) Were the records false? (2) Did Trump make the false entries — or cause them to be made? And (3) Did Trump have the required intent to defraud, including the intent to commit or conceal either a campaign finance or election violation or a tax one. And just as the defense will seek to tear Cohen down, the prosecution will attempt to bolster him, arguing his testimony was credible and is heavily supported and corroborated.

1. The Records Were False

Whether the records in question — the 34 total invoices, checks, and ledger entries — were false is a straightforward question: was the $420,000 paid to Cohen reimbursement, or payment for his legal services? The evidence is straightforward, too. Former Trump controller Jeffrey McConney and Cohen each testified how the $130,000 hush money payment to Daniels became $420,000 owed to Cohen. The jury saw handwritten notes from former Trump Organization CFO Allen Weisselberg and Cohen (the crucial Exhibit 35) made in January 2017 and handwritten notes from McConney (Exhibit 36) also from January 2017, calculating a payment to Cohen totaling $420,000. Weisselberg noted his calculations on an October 2016 bank statement for Essential Consultants — Cohen’s shell LLC — including a line item for the $130,000. And although McConney testified that he did not know the $130,000 line item corresponded to the Daniels payment, he was clear that the payment was to reimburse Cohen for money already owed, not for ongoing legal expenses. McConney testified that, “Allen said we had to get some money to Michael, reimburse Michael… he had a complaint about his prior year bonus, so he wanted to get paid for that. And then there was some other money he was owed” (5/6 Transcript at 2290-1). (Unlike Cohen, McConney did not testify that he was aware of the underlying purpose of the hush money repayment, just that it was to repay Cohen for a payment to Keith Davidson (5/6 Transcript at 2299.))

McConney also testified how he sent the invoices to Deborah Tarasoff, who handled accounts payable, to cut the monthly checks. Jurors saw the checks, invoices, and ledger entries, each purporting to be connected to Cohen’s legal expenses, including that the money was paid from the Trump Organization’s legal expenses account—the “51505” account (5/6 Transcript at 2319). But as the jury knows, the money was not for legal services.

The defense has argued that the records were accurate because Cohen was in fact being paid for legal services, but there is no evidence to support that claim. The prosecution can counter that it makes little sense to call hush money reimbursement “legal services.” There was no legal retainer agreement, and there was no ongoing legal work for which Cohen was actually being paid. Cohen testified he did some separate and minimal legal work gratuitously. (Prosecutors asked, “How would you characterize the amount of work that you did generally on that matter, if any?” Cohen: “Very minimal.” “Did you ever bill Mr. Trump or The Trump Organization for that minimal work that you said that you did on that?” “No, ma’am.” (5/14 Transcript at 3542-3)). A February 14, 2017 email exchange between Cohen and McConney discussing the first two monthly payments shows Cohen did not remember the amount he was to be paid; McConney had to remind him it was $35,000 per month (5/6 Transcript at 2315). This is further evidence that the repayment was not for services Cohen had rendered or pursuant to a retainer agreement, where in either situation Cohen would have known how much to invoice. The same day Cohen sent a false invoice to Weisselberg claiming the two monthly $35,000 payments were pursuant to a retainer agreement (5/6 Transcript at 2315), and both sides agree Cohen never had a retainer agreement.

In his opening, defense attorney Todd Blanche said Tarasoff was told by another accountant – “someone who has nothing to do with this” — to call it a legal expense, and she did (4/22 Transcript at 893). That Tarasoff and other administrators who “had nothing to do with this” believed the money to be legal expenses helps prove the prosecution’s point: that the people who actually knew—Weisselberg, Cohen, McConney, and Trump—prove the records were false.

The prosecution has such a strong claim that these payments were reimbursements that we expect them to make a big point that Blanche had promised the jurors the opposite in the defense’s opening statement. Blanche had told the jury, “More significantly than that, ladies and gentlemen, you’re going to learn that this was not a payback. The $35,000 a month was not a payback to Mr. Cohen for the money that he gave to Ms. Daniels” (4/22 Transcript at 892). The prosecution can remind jurors that Trump himself made statements over Twitter acknowledging it was a “reimbursement” and admitted the same in court filings in civil litigation against Stormy Daniels and in a federal government ethics filing.

2. Trump Is Responsible For The False Entries

The prosecution will surely concede that Trump was not the one submitting the invoices, cutting the checks (although he did sign them), or making the ledger entries. But they will argue that Trump was responsible for the false records; he “caused” them to be made, as the statutory element requires.

While the catch-and-kill scheme was hatched in August 2015, the falsification of the 34 records at issue did not begin until after the 2016 election. In December 2016, Cohen testified, he “actually had to take a double take and then immediately went to Mr. Weisselberg’s office in the back and in some very colorful language expressed to him how truly pissed off and angry I really was” about his bonus being cut by two-thirds (5/13 Transcript at 3476). Then in January 2017, he went to Weisselberg again to discuss repayment for the $130,000, and Weisselberg agreed (5/13 Transcript at 3485). The two men then went to Trump’s office with Weisselberg’s calculations, and the three agreed to the repayment. Prosecutors asked, “What, if anything, did Mr. Trump say at that time?” To which Cohen answered, “He approved it. And he also said: ‘This is going to be one heck of a ride in D.C.’” (5/13 Transcript at 3492). Then on February 8, 2017, Cohen met with Trump in the White House to confirm the repayment. Cohen testified in detail about sitting in the Oval Office, where Trump told Cohen to deal with “Allen” (Weisselberg) and that a check would be coming for January and February (5/14 Transcript at 3513). Several pieces of evidence corroborate Cohen’s visit: a photo of Cohen and Trump outside the Oval Office, Cohen’s electronic calendar reflecting the “Meeting with POTUS,” and testimony from Madeleine Westerhout, who served as the presidential executive assistant, sitting outside the Oval Office and sent Cohen an email saying, “Michael. We’re confirmed for 4:30 on Wednesday” (5/9 Transcript at 3006). The following week, the February 14 email exchange between Cohen and McConney discusses the repayment, and the first check was dated the same day.

The jury also heard a recorded call between Cohen and Trump from September 2016 in the context of the payment to McDougal discussing the need for Cohen to open up a shell company and that he talked about the arrangement with Weisselberg. It’s indisputable that Cohen and Trump discussed opening a company in connection with money being transferred for a transaction involving David Pecker, and that Trump took an active role in requesting more detailed information about “financing” that payment (5/13 Transcript at 3339). Although this conversation is not directly connected to any of the 34 false records underlying the counts, it reinforces Cohen’s testimony about the two conversations he had with Trump in January and February 2017 regarding reimbursement for the Daniels payment. It stands to reason, the prosecutors will say, that Weisselberg and Cohen surely kept Trump informed of the Daniels payment as well. Why would they, including the ultra loyal Weisselberg, possibly hide it from him? What’s more, the prosecutors can show Trump was in the loop on the Daniels payment and reimbursement scheme, as David Pecker testified that Cohen specifically asked Pecker in November/December to entreat Trump to pay Cohen back for it. And Hope Hicks confirmed that it would not be consistent with Cohen’s character to make the $130,000 payment from his own money never to be reimbursed.

Trump’s own statements — in multiple sworn documents and tweets — confirm he personally knew the payments to Cohen were reimbursements. Trump signed and certified a government ethics form (PX 81), which describes in a footnote in general terms the reimbursement. He made public statements acknowledging the reimbursement (PX 407G) and did so in the context of the civil suit against Daniels, as mentioned above.

Expect the DA to argue that Trump’s micromanagement of expenses confirms his knowledge of the reimbursement and tax scheme. Tarasoff, who still works for the Trump Organization and had a favorable impression of Trump, explained how Trump insisted on signing checks personally and would sometimes refuse to sign them even when approved by Weisselberg. Westerhout, who worked just outside the Oval Office, testified how Trump paid attention to details. She also described how especially in the first months of the administration in early 2017 Trump was still doing a lot of work with the Trump Organization. Additionally, the jury was provided excerpts from Trump: Think Like a Billionaire which, in a chapter titled “How To Pinch Pennies,” contained Trump saying, “I received a check for fifty cents, and we at The Trump Organization deposited it. They may call that cheap; I call it watching the bottom line…. As I said before, I always sign my checks, so I know where my money’s going. In the same spirit, I also always try to read my bills to make sure I’m not being overcharged” (5/7 Transcript at 2527).

3. Trump’s Intent Was Fraudulent

Proving intent will be the most difficult issue for the prosecution. First, proving what was in someone’s mind is almost always more difficult than proving what he did. And second, in this case the jury instructions may be confusing because there are two layers of intent: the intent to defraud by falsifying the records, and whether that intent included an intent to commit or conceal another crime. (A further complication is that it is as yet unclear exactly how the judge will instruct the jury on this intent, and whether the instructions will make clear that the intent to commit or conceal another crime by itself sufficiently establishes the required level of intent for the falsification of records.)

The prosecutors will likely try to simplify the intent required by translating the jury instructions from legalese to common sense. As the instruction for falsifying business records provides, “intent means conscious objective or purpose.” Fraudulent means with deception or dishonesty. And there is no requirement that Trump know what laws he was breaking or even whether he was breaking any laws. Ignorance of the law is no excuse in New York. Rather, prosecutors need only show he consciously and purposefully undertook the actions that in turn violated the statute.

Trump didn’t memorialize his fraudulent intent; he didn’t write down he knew what he was doing was wrong. Neither Cohen nor Pecker nor any other witness testified they had conversations where they openly and expressly discussed with Trump that what they were doing was illegal. But expect prosecutors to argue that common sense tells us that is not how people operate. Just as common sense tells us that we can discern Trump’s intent from his actions: what he did shows why he did it. And why he did it was obvious: to hide potentially damaging information about his affair with Daniels from voters because he was worried it would cost him the election.

The evidence of Trump’s intent begins with the August 2015 Trump Tower meeting where Pecker, Cohen and Trump conceived the catch and kill scheme–with the singular focus of helping Trump win the election. Pecker described a “mutually beneficial” arrangement where he would be the eyes and ears of the campaign to kill negative stories about Trump, write positive ones, and publish negative stories about his political opponents (4/23 Transcript at 1017). He testified that after the Trump Tower meeting he returned to his office and told the Editor-in-Chief of the Enquirer, Dylan Howard, that “that we were going to try to help the campaign, and to do that, I want to keep this as quiet as possible” (4/23 Transcript at 1020). He explained how, pursuant to their agreement, he would have held publishing the story from doorman Dino Sajudin until after the election (4/23 Transcript at 1064). The McDougal and Daniels stories were discussed for the same purpose—helping Trump’s electoral chances. Pecker admitted as much in no uncertain terms: his “principal purpose” in entering into an agreement with McDougal was to “suppress her story as to prevent it from influencing the election” (4/26 Transcript at 1455). The “mutual” part of the benefit went to the National Enquirer’s audience, which thrived on Trump fandom from his days at The Apprentice, but Pecker’s testimony showed that the tabloid suppressed stories that were “Enquirer gold,” in a favor to Trump’s campaign that, the prosecution will argue, amounted to an unreported donation (4/26 Transcript at 1475). When the prosecution asked Pecker, did Trump “ever say anything to you that made you think that his concern about these stories getting out was for his family, rather than for his campaign?” Pecker answered, “I thought it was for the campaign… the conversations that I had directly with Mr. Trump, his family wasn’t mentioned” (4/24 Transcript at 1214). The prosecution will find a way to remind the jurors of the federal non-prosecution agreement with AMI, in which the document and Pecker in his testimony admitted the federal election law violations.

Keith Davidson testified about his negotiations with Pecker and Enquirer editor-in-chief Dylan Howard about selling the McDougal and Daniels stories. After the Access Hollywood tape scandal broke, Davidson texted Howard that “Trump is f**ked,” to which Howard responded “wave the white flag, it’s over people!” (4/30 Transcript at 1755-6). This exchange further demonstrates how people connected to Trump’s orbit perceived the scandal as potentially fatal to the campaign, and Davidson explained how the desire to suppress Daniels’ story spiked after the scandal. (“It wasn’t until Access Hollywood that interest sort of reached a crescendo” (4/30 Transcript at 1755).)

Hope Hicks, Trump’s former campaign press secretary and White House communications director, provided further corroboration. She explained how the campaign was in crisis mode after the Access Hollywood tape came out: “there was consensus among us all that the tape was damaging and this was a crisis” (5/3 Transcript at 2156). Although Hicks acknowledged Trump was also concerned about how his wife would react to the news, expect the DA to argue she made clear the impact on the campaign was a primary concern. Hicks also testified that she found Trump’s claim that Cohen secretly paid off Daniels out of the goodness of his heart to be implausible, and that Trump explicitly linked the suppression of that story to the 2016 election. She did so in the devastating end of her direct examination against her former boss — delivered shortly before she cried on the witness stand. “He wanted to know how it was playing, and just my thoughts and opinion about this story versus having the story – a different kind of story before the campaign had Michael not made that payment. And I think Mr. Trump’s opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election” (5/3 Transcript at 2221).

Lastly, Cohen ties everything together in terms of Trump’s intent. The two men had multiple conversations about the Daniels payment. Cohen described how they discussed the need to bury the McDougal and Daniels stories and Trump ultimately approving the payment. Critically, Cohen described how, with Trump’s permission, Cohen and Davidson agreed to the $130,000 payment on October 11, Trump tried to drag out the process until after the election. “Because after the election, it wouldn’t matter,” Cohen said, “According to Mr. Trump” (5/13 Transcript at 3339). Others involved in those negotiations also testified to the foot dragging right in that time period.

This evidence cumulatively shows Trump’s fraudulent intent to commit election fraud by concealing payments, and as discussed above, reimbursements, for a campaign expense. The DA, however, can point to a second intent to commit a crime in connection with Cohen’s tax violations. Trump, as he described in Think Like a Billionaire, is a penny-pincher. Blanche acknowledged in his opening that Trump is a frugal businessman before asking why he would pay $420,000 for a $130,000 debt? (That question is not quite accurate, as the evidence showed Trump paid Cohen $260,000 for a $130,000 debt—the other $160,000 was for other reasons.) But the answer is clear: Trump agreed to pay more because he knew that in order to continue the cover-up, Cohen would have to falsely claim that reimbursement as income and pay tax. That meant Cohen would have to file false tax documents. Trump is a savvy businessman who certainly understands tax basics. Indeed, the mere fact of grossing Cohen up to claim the payments as income is the violation of law. Trump knew disguising Cohen’s reimbursement as income was inaccurate and wrong, thereby establishing more fraudulent intent, the prosecutors will claim.

4. Bolstering Cohen

In its closing, expect the prosecution to confront head-on Cohen’s credibility challenges, as it did in opening. The DA will do the best it can to focus on testimony other than that of Cohen, but it cannot avoid that the case depends in part on Cohen’s credibility. The prosecution may raise at least five arguments to bolster Cohen’s credibility.

First, Cohen admitted and explained his mistakes, crimes, and lies. He owned up to what he did wrong, and he paid the price–having received a three-year prison sentence and three years of supervised release. As importantly, most of Cohen’s misconduct revolved around the work he did for Trump, including his tax and campaign finance violations connected with the Daniels hush money payment and reimbursement. There is no doubt that Cohen worked for Trump, represented him as a lawyer and spokesman, and that Cohen was in Trump’s inner circle. He is not an outsider pointing the finger at Trump from afar; he was Trump’s lieutenant and did his boss’s dirty work dutifully until Cohen’s legal problems–stemming from Trump–finally caught up with him. Additionally, Cohen has admitted his bias. He has been honest with the jury about his hatred toward Trump, which they may see as understandable considering everything that he has been through, whereas Trump has never been held accountable for anything.

Second, witness testimony corroborates Cohen’s account. Pecker and Davidson provided consistent testimony, and even Trump-friendly witnesses like Tarasoff and Hicks confirmed key details of Cohen’s testimony. As did Gary Farro, the banker with whom Cohen worked to open the shell accounts, who was a less significant witness with no skin in the game, as he did not know Trump and did not conduct business with him.

Third, documentary and other evidence corroborates Cohen. There is an extensive paper trial of bank records, emails, text messages, phone logs, and business records that support Cohen’s testimony. There is also the audio recording of one important conversation between Cohen and Trump discussing the McDougal payment in detail.

Fourth, the DA will likely focus on Cohen’s “imperfect” testimony. The defense will as we have noted argue that Cohen is a serial liar who cannot be believed. The prosecution can try to rebut this by pointing out that if Cohen was lying about Trump, he could have invented additional conversations or meetings with Trump. He could have testified that he and Trump specifically discussed campaign finance or tax violations, or the broader illegality of their conduct. He has admitted to lying under oath before, and if he were lying in this trial, what was to stop him from adding just one additional false anecdote that inculpates Trump. But Cohen didn’t do that, prosecutors will argue. Instead, he testified as to what actually happened, and his testimony has been consistent over several years since he first came clean and testified under penalty of law to Congress.

Along these lines, expect the prosecution to take on the defense attack on Cohen’s recollection of his Oct. 24, 2016 call. They may say if Cohen were a liar he would have tried to dissimulate. Instead he admitted that he had not recalled it and that his recollection was refreshed. They will rebut the defense claim about the words he used during that dramatic confrontation as simply doing his best to answer honestly. For example, when he said that Daniels “could” have been discussed he was just responding to Blanche’s suggestion that it could not have been given the amount of time (5/16 Transcript at 3895). In fact, a 96-second call is ample time to discuss the two subjects (the entire, detailed back and forth between Cohen and Trump about the financial arrangements with McDaniels lasted half as long). And Cohen was corroborated by a mini-Perry Mason moment of the prosecution’s own that we can expect to hear about: a screen grab of C-SPAN which showed Schiller with Trump immediately before the call at 7:58 p.m. The fact that they were together at that very time bolsters the likelihood that Schiller handed the phone over, making Cohen’s original testimony, at minimum, plausible. What’s more, this was not the crucial call with Trump, especially compared to the Oct. 26 morning phone calls right before Cohen opened the bank account and made the transfer; and the prosecutors can say explicitly that they do not need this Oct. 24 call to prove Trump was in the know about the Daniels payment.

Prosecutors may also note that some of Trump’s attacks on Cohen’s credibility, albeit counterintuitively, back up his account. Cohen’s account of his theft of the Trump Organization — that he falsely claimed a $60,000 reimbursement that he wasn’t entitled to — only makes sense if the jury believes that the $420,000 of which it was a part was not his legitimate legal fees. That corroborates the prosecution case and is contrary to the defense’s apparent claim that these were monthly legal fees. Trump’s defense has depicted Cohen as motivated by revenge, self-promotion and personal interest, but Cohen’s self-interest is the very attribute that made Hicks believe he would never have paid $130,000 to Daniels without expecting reimbursement from the former president. Cohen is a convicted perjurer, but his only conviction for false statements to Congress came for a lie he told for Trump, disguising how Trump’s failed negotiations to build a billion-dollar tower in Moscow extended much longer into 2016 campaign season than the campaign publicly acknowledged. And then there is his pleading guilty to the federal election law crime with the hush money payment, which adds to his credibility in this particular case. In short, the most damaging blots on Cohen’s credibility — his lies, selfishness and admitted theft — may help the prosecution more than the defense.

5. The People’s Bottom Line

At the end of their closing expect the prosecution to make an appeal to the importance of the case and of holding Trump accountable. They will emphasize that this was no minor peccadillo, but as they noted in their opening, was a serious “conspiracy” to “corrupt” the 2016 election (4/22 Transcript at 857). We will never know whether efforts to cover up unfolding scandals after the release of the Access Hollywood tape changed the outcome of the election, but the fact that that question will forever hang over the contest speaks to the gravity of the wrongdoing. In his opening statement, Assistant District Attorney Matthew Colangelo revealed that Daniels’ then-attorney Keith Davidson sent an explosive text message to then-Enquirer editor-in-chief Dylan Howard on election night, when it appeared Trump was destined to win: “What have we done?” Jurors have now seen that text message, along with Howard’s three-word response: “Oh my god,” declining to dispute the premise of the question that their hush money schemes had made the difference. Also on Election Night, Howard told a close relative in a text message that Trump may pardon him for “electoral fraud,” but the jury has not seen that message because of the rules of evidence. (Howard, unwell and in Australia, was unable to testify.)

Though they cannot use the information to find Trump guilty, jurors now know that Cohen pleaded guilty to violating federal election law for related conduct, and Pecker testified that AMI entered into a non-prosecution agreement and admitted to a campaign violation with Trump and Cohen (4/25 Transcript at 1242). Prosecutors may argue that not allowing Trump to get away with covering up campaign crimes of his own and document falsification is important too, for the sake of democracy—and more. New York is the financial center of the world, and we cannot have two sets of rules, one for ex-presidents and one for everybody else. Every business that operates in New York needs to know they must keep honest books and records. Expect prosecutors to finish by emphasizing that this jury is entrusted with the responsibility to make sure there is accountability for all of that.


Although the summations will range across a much broader set of topics, we expect they will hinge on three key issues. First, expect a focus on Cohen’s credibility. Second, look for a debate on whether the business records were or were not false and whether or not Trump was the cause. Third and finally, anticipate the parties to dispute whether Trump intended those documents to cover up predicate crimes—and in particular whether his mental state does or does not not rise to the level necessary for that finding. As the jury lands on those three issues, their verdict will likely follow.

Published at 8:45am ET; updated at 5:30pm ET with some changes to section 5 of Defense Closing

Photo credit: (Craig Ruttle – Pool/Getty Images)