The Weekly Sift

I had doubts about this indictment. But they’re being answered.

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The New York state trial of Donald Trump for 34 felony counts of falsifying business records has now completed its first full week of testimony. There’s still a lot to come, but already the case appears much stronger than I had expected.

Before the trial started, I (and a lot of other people) thought prosecutors faced two big potential problems:

• Their case depends on the jury believing Michael Cohen, who is a convicted perjurer.
• Falsifying business records is only a felony if the false records were intended to support or cover up some other crime. Establishing that other crime might be difficult.

Well, I shouldn’t have worried. By the time Cohen takes the stand, he’ll just be coloring in a picture that has already been outlined by other evidence. Documents and more trustworthy witnesses will establish that meetings were held, topics were discussed, agreements were made, and money was paid. Very little of the case relies on believing things purely on Cohen’s say-so.

As for the other crime, at least one is already well on its way to being established. National Enquirer publisher David Pecker has told the jury that the catch-and-kill scheme that kept several bad-for-Trump stories out of publication was intended to influence the 2016 election, and that he knew at the time their agreement violated campaign finance laws.

Simultaneously, the defense looks weak. Trump’s apparent strategy is to challenge the prosecution’s points piecemeal, but his lawyers are offering no alternate narrative that pulls everything together. So it’s already easy to picture what will happen when the jury deliberates: Some juror will repeat the defense’s challenge to some detail in the prosecution’s case, and another juror will respond, “Maybe. But then why did this other thing happen?” If there was no agreement with Trump, why did The National Enquirer suppress stories that would have sold a lot of papers? If Trump didn’t order it, why did Michael Cohen borrow money to pay Stormy Daniels? (And what about that document where Allen Weisselberg added up all the numbers to arrive at Cohen’s reimbursement?) If there was no crime, then what did Cohen go to jail for? And so on.

To the extent that it tells a story at all, the defense is claiming that Trump did nothing wrong, while all around him other people were doing odd things they had no reason to do. Believing that is not impossible, I suppose, but it requires something well beyond reasonable doubt of the evidence presented. [1]

This scattershot approach is a tactic Trump uses in all his scandals: He never settles on a single explanation of what happened, leaving himself free to spin different stories at different times to different audiences: I didn’t do it. I did it, but it’s not illegal. Maybe it’s not legal, but everybody does it and gets away with it, so singling me out is political persecution. Biden, Hillary, Obama, or somebody else I don’t like has done worse. In fact, it was the right thing to do and I’m proud I did it; nobody else would have had the guts to do it.

That works in a political world of short news cycles and shifting attention spans, but in court it fails. (We’ve already seen it fail in his civil trials.) The jury is required to sit there for weeks and keep paying attention, so distracting them for a moment or two doesn’t get him off the hook. They get to see all the evidence, and they want to form a complete picture of what happened. So if one side can paint them a complete picture and the other side can’t, they notice.

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[1] One thing I remember from my own jury experience was the judge’s explanation of “reasonable doubt”, which is literally doubt that has some rationality behind it. Just being able to imagine that the defendant might not be guilty is not good enough. That’s why evil-twin theories don’t usually fly in court.