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Where the Trump trial stands

WHERE THE TRUMP TRIAL STANDS. Now that the trial of former President Donald Trump has finished its fifth week, it is clearer than ever that Manhattan District Attorney Alvin Bragg’s case against the former president rests on one person and one person alone: Michael Cohen. And that means the hopes of Democrats, from President Joe Biden down, that a conviction of Trump would shake up the presidential race and allow them to refer to Trump as “convicted felon Donald Trump” — those hopes, too, rest on Michael Cohen.

Now, after after three days on the witness stand, Cohen is looking like a shaky foundation on which to build the first prosecution of a former president in U.S. history.

Trump’s defense lawyers have revealed two simple but important facts about Cohen. The first is that he has a deep, obsessive, and all-consuming animus toward Trump. “I truly f***ing hope that this man ends up in prison,” Cohen said on his podcast, which is part of a career as a Trump basher that Cohen began after serving a prison sentence for tax evasion and bank fraud, among other offenses. “You better believe I want this man to go down and rot inside for what he did to me and my family.” On another occasion, Cohen said Trump belongs in a “f***ing cage, like an animal.” 

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So Cohen is the critical witness in a case that could put Trump behind bars for a maximum of 136 years — like an animal. Cohen could make something he desperately wants to happen, happen. Clearly, when a witness has such an intense interest in a certain result for the trial, it is supremely important that the witness answer questions honestly. Will he tell the truth and only the truth? If the case depends on that witness, nothing could be more critical. 

Which brings the story to the second fact about Cohen: He has a history of lying about nearly everything. He has lied to business associates. He has lied to judges. He has lied to prosecutors. He has lied to the IRS. He has lied to banks. He has lied to Congress. On Thursday, Trump’s defense created the very reasonable suspicion that Cohen has lied to this trial, too.

The short version is that Cohen testified that on Oct. 24, 2016, he called Trump’s bodyguard Keith Schiller in what Cohen said was an effort to reach Trump. According to Cohen’s testimony, when Schiller answered, he brought in Trump, and then Cohen, again, according to his testimony, told Trump that the Stormy Daniels payment was all taken care of. But the defense produced texts and phone records to say Cohen was instead irritated by a series of harassing phone calls he had received from a prank caller. Cohen appeared to want Schiller to sic the Secret Service on the prankster. All of that raised a lot of doubt about Cohen’s testimony, under oath, that the call was about the Daniels payment. Cohen’s defenders held out hope that the jury might believe Cohen also talked to Trump on the same call, which was one minute and 36 seconds long, but at the very least, he wasn’t straight with the jury about what happened.

The problem with all this for Bragg’s prosecution is that the whole case depends on Cohen. Trump is not charged with paying Daniels to remain silent — he did that, through Cohen, but that is not against the law. Trump is, instead, charged with making, with intent to defraud, false bookkeeping entries about the payments, categorizing them as “legal expenses” in the Trump Organization ledgers when in fact they were, in the prosecutors’ words, “hush money.” Bragg also claims that the payments were falsely labeled payments pursuant to a retainer agreement when, in fact, Cohen had no retainer agreement with Trump. Finally, Trump is charged with doing all that with “intent to commit another crime,” which Bragg has never clearly spelled out. 

There’s one clear problem with the base charge: Some of the money that Trump paid to Cohen was for legal expenses. Cohen was Trump’s lawyer, after all. Beyond that, the prosecution has not produced any evidence that Trump knew about the bookkeeping details of the arrangement Cohen made with others in the Trump organization about how the records of the Cohen reimbursement, plus his payment for other legal services, would be logged in the company’s ledgers.

Actually, prosecutors have produced one piece of evidence: Michael Cohen’s testimony. Cohen said that on Jan. 17, 2017, just a few days before Trump took office, he, Cohen, met with Trump and Trump Organization Chief Financial Officer Allen Weisselberg to discuss Cohen’s payment. “And did Mr. Weisselberg say in front of Mr. Trump that those monthly payments would be, you know, like a retainer for legal services?” a prosecutor asked during Cohen’s first day of testimony. “Yes,” Cohen answered.

Bingo! There it is! The prosecution’s fans became very excited. Cohen had finally made the direct link to Trump actually knowing about the structure of the Cohen payments, at least whether there was a written or unwritten retainer agreement. There were still problems with that — What about the “legal expenses” entries in the ledgers? Did Trump order those? — but to some Trump antagonists, this seemed to be enough to send the former president to prison. (He faces a maximum sentence of 136 years behind bars for this bookkeeping dispute.)

The biggest problem was that the account came from the mouth of Michael Cohen. And that is one of the greatest weaknesses in a very weak case: It really does depend on Cohen. Prosecution supporters can talk about documents all they want, but the only evidence that Trump even knew about the details of the payment recordkeeping is Cohen’s testimony. And that is looking worse every minute.

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