This case began as a result of what can only be described as extortion.
While it’s impossible to predict the outcome of a criminal trial, if we were representing Donald Trump in his New York hush money case, we would be aiming for a full acquittal — and for good reason.
This case, the first criminal trial for any former president, began as a result of what can only be described as extortion. The infamous Stormy Daniels repeatedly threatened that unless she was paid a chunk of money, she would go to the media reporting an alleged affair with Trump. There is no evidence corroborating Daniels’s claim of the affair and her credibility is, likewise, near zero.
Trump, for his part, could have reported this extortion plot to the FBI, but that would have meant putting this salacious story in the hands of his political opponents at the Obama/Biden Justice Department — a terrible position in which to voluntarily place himself.
Instead, Trump entered into a contract with Daniels that was entirely permitted under the law. He treated Daniels’s claims as a nuisance. Businesses do this all the time, electing to pay a “nuisance fee” instead of engaging in the more expensive route of hiring lawyers and defending a story in the media with pricey PR efforts.
Trump is not charged with any wrongdoing in reaching a “hush money settlement” with Daniels. He is charged with entering those payments in his accounting register as “legal retainer” with the specific intent to aid and conceal another crime. The prosecutors are mum about what Trump should have put in his register. Perhaps if he had entered “legal bologna” or “legal extortion payments,” he would be in the clear.
Trump never sought a tax deduction on the payments, and was apparently following the legal advice of his now-discredited and convicted fraudster lawyer, Michael Cohen. Prosecutors must not only prove it was wrong to enter these payments in the manner Trump did, they must prove it was done with criminal intent.
But in order to convict, prosecutors must also prove a second criminal intent in logging the payments as Trump did for the purpose of avoiding campaign finance reporting requirements. Manhattan District Attorney Alvin Bragg does have a plausible argument that the timing of these payments suggests the possibility that Trump was doing it to avoid such requirements. However, Bragg has to prove beyond a reasonable doubt that Trump wasn’t doing it to protect his own image or the image of his companies.
Perhaps this difficult task of proving two layers of specific intent is the reason why other prosecutors at the DOJ, FEC and the State of New York previously balked at prosecuting Trump for these very same allegations. Bragg’s own predecessor, Cyrus Vance, twice looked into the hush money payment and did not bring charges.
While Trump could have been more clear in his accounting register, to call his conduct criminal — and especially “felonious” — is almost unprecedented. Prosecutors did, actually, prosecute former Democratic presidential candidate John Edwards in 2011 for his efforts to cover up hush money payments for an affair he had while his wife was dying of cancer. The evidence of wrongdoing against Edwards was much stronger than the Trump charges — but prosecutors failed to convict Edwards.
Trump is not likely to face a sympathetic jury in the heavily blue Manhattan courtroom. But he is entitled to a jury of his peers, and the judge has to ensure there is a fair spread of political viewpoints in the makeup of the jury that will decide this case. If things are fair (and we’ll see how that goes), Trump should be able to count on at least one or two jurors favorable to the plight of MAGA — and he only needs one.
It takes only one juror to hold out on a vote of guilty in order to hang the entire jury and require a new trial — something that wouldn’t happen before the November election. A conviction requires proof beyond a reasonable doubt for every element of the alleged crime. This standard is remarkably high.
It isn’t hard to imagine that a reasonable juror could see the possibility that Trump was not trying to commit a crime, but, rather, was simply inserting a minimal amount of information in the accounting register to avoid unnecessary attention to Daniels’s extortion attempt. And, if one juror has a reasonable doubt, other jurors may agree. (Most of us have seen the classic movie “12 Angry Men.")
And while his efforts to delay the case have largely failed, Trump may have one last trick up his sleeve. Trump is entitled to fire his defense team — even on the morning of trial — and recruit an entirely new team to take his case. The Supreme Court has been firm in its stance that a criminal defendant has the right to counsel of his selection, and that includes a last-minute change of counsel, especially when there is good cause. Just a couple of weeks ago, Judge Juan Merchan admonished lead counsel Todd Blanche, publicly questioning his qualifications to defend this case.
If Trump wants his trial delayed, he could do so simply by uttering his most famous line: “You’re fired.” If he wants to go, and win, his defense team has the opportunity to step up and make it happen.
Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights-related issues.
