Trump NYC Trial: ‘These Are The Facts Of The Case, And They Are Undisputed’

Despite “colorful” (notorious even) personalities, and scandals involving sex with Playmates and Porn Stars at its heart Trump’s criminal trial in Manhattan is a white collar documents case. Witnesses can authenticate documents, and even add some context but despite talk of “star” witnesses (and I maintain the prosecutions main witness was David Pecker, not Daniels or even Cohen) the true “star” is the documents. Checks. Invoices attached to said checks. Memos. Emails. Documents. So how did all this wind up in a Manhattan court room with Donald Trump on trial for felonies? Let’s examine some very basic facts:

• There are laws governing the reporting and payment of state and federal taxes, as well as laws governing both state and federal campaign finance laws. Violations of these laws can result in civil and/or criminal penalties.  Some of the penalties can be civil, and some criminal including at the felony level.
• Donald Trump played in a celebrity golf tournament in Nevada in 2006, and during his round met Steffanie Clifford, aka Stormy Daniels who at the time was a top adult film actress/performer.
• In 2011, a minor gossip publication (In Touch) had gotten wind of a tryst between Trump and Daniels at that same golf tournament and was going to write about it. Since they were going to publish the story one way or the other Daniels cooperated with it. It drew little notice, at least at the time.
• In 2015 after decades of toying with the notion, Trump decided to actually run for President.
• That same year Trump, who had enjoyed stoking notoriety about his decades of sexual exploits was media savvy enough to realize this could be a problem with women voters. So he had a meeting with his long time (back to the 1990s) friend David Pecker who’s tabloid empire was wide reaching. Michael Cohen took part. An agreement was reached. Pecker would publish stories damaging to Trump’s opponents, and also look out for stories that would be “problematic” to Trump and work to prevent them from becoming public. Cohen would be the go-between.
• We don’t know just how many stories there are of Pecker employing the “catch and kill” strategy, but we do know he used it with former Playmate of the Year Karen McDougal who had a nine month affair with Trump back around the time of the Daniels encounter. Pecker also employed it with a former doorman at Trump’s building who spoke about a “love child.” Again, we don’t know if there were other scandalous sex stories Pecker hushed up but we learned about these two years ago.
• In October 2016 on the heels of the release of the Access Hollywood tape Pecker got word that Daniels, with people having gone back and found the 2011 In Touch article was willing to go on the record. Pecker relayed what Daniels’s then lawyer Keith Davidson had told The Enquirer to Michael Cohen.
• Cohen/Trump wanted Pecker to pay off Daniels (to the tune of $130k) to employ the “catch and kill” strategy and Pecker balked at shelling out the money himself, noting he’d never been paid back for the $150k to McDougal or the $30k for the doorman. He told Cohen he wasn’t “Trump’s bank.”
• Cohen had to find some other way to pay off Daniels to keep quiet.  A payoff agreement was reached. Daniels initially kept quiet. (And even issued a “more or less denial” at one point when things stared to come out.)
• Cohen, facing a time crunch paid Daniels with personal funds he got from a home equity loan, expecting he’d be reimbursed by Trump. Eventually, an agreement was reached for Trump to pay back Cohen.
• The payoff (to Cohen) agreement was designed to hide the fact of it covering Cohen’s payoff to Daniels. And avoid tax reporting (both state and federal) and campaign finance law, again both state and federal.
• Because documents/white collar cases are usually boring to the point of tediousness prosecutors often don’t bother. It can be difficult for juries to pay enough attention to understand mountains of paperwork. That’s not the case here.  This time we’ve got sex scandals. An actual (former) Porn Star testified. And of course there’s Cohen who the jury has seen over the years more than they probably care to remember. The guy who once bragged he’d take a bullet for Trump, to a guy who’d gladly riddle Trump with bullets. Truly sensational stuff, with all those documents mixed in. THIS jury is definitely not bored! Also, for all the documents, those emails and social media posts it really boils down to a series of checks for $35k each (many signed by Trump himself) and the invoices attached to them.

As the headline says, these are the facts of the case and they’re undisputed. 

For all the window dressing, including and especially the defense’s efforts at distraction have been part of this case it’s a white collar documents case about crimes committed filing false business records. Team Trump’s problem is that they can try to spin a story via painting over the actual facts with their own painting. However, this trial isn’t taking place in KellyAnne Conway’s “alternative facts” world she helped Trump/MAGA create. No, it’s taking place in a court of LAW with rules of evidence. And Trump doesn’t get to make the rules. He also doesn’t get to be the “referee” (judge) making sure the rules of evidence are followed. Or instruct the jury on the law before handing the case to them for deliberation.

When you get right down to it, as this Newsweek article describes it boils all the way down to one document in particular.  I can’t embed the tweet so you’ll have to click on the link to see the document in question but it’s the proverbial “smoking gun.” It’s a bank statement of Michael Cohen’s he took into Trump CFO Alan Weisselberg’s office to prove he’d paid the money to Daniels. Long before this trial we knew Trump famously pinched pennies and didn’t pay out jack unless he had to. HE would want receipts, even from long-time associates.

What makes this so devastating is that there are handwritten notes on that bank statement (that have been verified as Weisselberg’s) showing how $130k got “grossed up” to over $400k. And that Cohen would get $35k monthly until he was paid in full for all the Trump Org owed him. Basically, it was a “settling of accounts” with Cohen who realized any dreams he might have had in a Trump administration were just that. Dreams.

The way I see it that’s the case right there. Sure, there is other corroborating evidence about what a cheap bastard Trump’s always been. That he’d never sign off on such a deal, much less check after check of that amount without checking the invoice to ensure he had no choice but to go ahead.  And there’s the whole overall scheme that started it all, that 2015 meeting with Pecker that Cohen and Trump had. How Pecker balked at paying off Daniels. All kinds of damning testimony against Trump about the whole mess, and most of it from people still loyal to Trump!

Ok, so you had some like Pecker and Hope Hicks who had their own NON-Trump attorneys (and each could afford the best) who felt bad about it BUT not enough to risk their own butts on Trump’s behalf. Then you had Daniels, and now Cohen (who inexplicably, to me at least) is still on the stand with axes to grind. The thing is, in the cross of Daniels Team Trump actually made her sympathetic to the jury. And while with Cohen the defense has raised some bruises and on one point maybe drawn a tiny bit of blood there is extensive corroboration.

The jury will be instructed that as a matter of law it doesn’t matter at all whether Daniels and Trump had sex, but only that the Trump campaign was afraid she’d tell the world in the aftermath of the Access Hollywood tape and that would be the end of things for him.  With Cohen Prosecutors supplied a ton of corroboration before he even took the stand. Someone correct me if I’m wrong, but about the only detail Cohen has provided on which we have to take his word is that after Weisselberg scribbled those notes with his arithmetic on that bank statement they walked into Trump’s office and he said Okay. That’s fine.

That testimony is evidence. Legally it counts every bit as much as those documents. Oh, the defense can try to discredit Cohen’s credibility and are going to great lengths to do so but Cohen’s statement that he and Weisselberg went to Trump and he approved the payoff to Cohen and for the reasons (to hide what it was really for) is evidence. The only way for the defense to properly counter it is to have one of the other people Cohen says was present to take the stand and testify differently, which would give greater weight to the ‘Cohen is a known liar out to get Trump’ narrative.

Weisselberg as you know is serving a second stint at Rikers (because like Cohen he lied under oath for Trump) and prosecutors never intended to call him. That leaves Trump himself. HE can get on the stand and claim Cohen is lying.  We all know damn well Trump’s lawyers will do anything short of convincing his Secret Service detail to spirit him away to some ship out in the middle of the ocean to keep him off the stand. As for Trump part of him WANTS to get up on the stand. Another part, the one he hates himself for having is that he’s scared sh*tless of doing so. For all his self-delusion about being the master of everything deep, deep down inside he knows prosecutors would carve him up and fry him like a sushi chef putting on a show in front of the customers he’s cooking for!

However in the end it’s the documents that are the star of this trial. The emails and texts, leading up to the NDA Daniels signed, the payment made to Daniels, that infamous back statement with the handwritten notes and ultimately that series of invoices and checks, most of which were signed by Trump himself. Anyone with a lick of sense doesn’t need Michael Cohen to say Trump approved the whole scheme, and that it was designed to get around tax and campaign finance reporting. In jury instructions the judge will provide the applicable laws that were broken, and more than any testimony the documents will tell the story that witnesses have narrated.

The prosecutors will lay out the timeline as I did. There are documents to back up damned near every bit of the relevant testimony no matter how much the defense tries to cloud things up with irrelevancies. That’s why I can’t help but think of Kevin Bacon’s devastating opening statement in A Few Good Men, and his emphasis on the basics: “These are the facts of the case, and they are undisputed.”

I think of that movie and that opening statement. The prosecution would have done just as well to copy it  using the particulars of this current trial. I can see why they would have wanted to speak in more detail about the distractions they knew Team Trump would try to created. In theory they could have not called Cohen but had they not done so Team Trump would have made a stink about it in closing in the hopes of getting at least one juror on their side – at least enough to hang the jury. However, when the defense finally finishes dirtying up Cohen prosecutors can quickly hose him off with a short re-direct to focus on the FACTS of the case. The one that were in evidence before Cohen took the stand. Fact that are not in dispute. And they should imagine what, had the defendants in A Few Good Men have been guilty, had not just followed orders and got cut loose when things went bad what the closing would have been.

A variation: These are the facts of the case. And for all their efforts of the defense to distract you from them they are not in dispute.

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