What prosecutors have to prove in the Trump hush money trial

CNN
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Donald Trump will make history when he arrives in lower Manhattan Monday morning as the first former president to go on trial for criminal charges.

Despite a blitz of last-minute attempts to derail the trial, jury selection is expected to get underway and will continue until a panel of 12 New Yorkers and alternates are seated, a process that could take at least a week.

The historic trial centers on a potential sex scandal coverup that took place just days before the 2016 presidential election. Prosecutors allege Trump falsified business records to hide the reimbursement of hush money payments that were made to influence the election outcome. Trump has pleaded not guilty and has denied having an affair with adult film star Stormy Daniels.

The case will be a major test for Manhattan District Attorney Alvin Bragg, a Democrat, as it may be the only one of Trump’s four criminal cases to face a jury before Election Day. Trump will trade the campaign trail for the courtroom, where the presumptive Republican presidential nominee is expected to be four days a week for the next two months.

The former president has used his court appearances to rally supporters for his campaign but, despite his showmanship, the stakes for Trump are high. Trump is charged with 34 felony counts of falsifying business records in the first degree. If convicted, Judge Juan Merchan, the no-nonsense judge overseeing the trial, could sentence Trump to probation or a maximum sentence of 1 1/3 to 4 years on each count in state prison. A president has no authority to pardon state crimes.

The trial will pit witnesses once in Trump’s inner circle against the former president, including his onetime attorney and former fixer Michael Cohen, who pleaded guilty to federal campaign finance charges; long-time friend and former CEO of the company that published the National Enquirer, David Pecker, who executed “catch and kill” deals; and campaign confidante Hope Hicks.

It will also take the jury inside the Oval Office, where prosecutors allege then-President Trump signed-off on the cover-up that involved falsifying business records – invoices, ledger entries and checks – to reimburse Cohen for phony legal services. And it may feature at least one audio recording of Trump and Cohen allegedly discussing a catch and kill deal.

Despite the salacious nature of the allegations, a lot of testimony will likely focus on mundane back-office recordkeeping. Prosecutors said there are 18 witnesses they may call to enter financial documents into the case if both sides aren’t able to reach an agreement about their authenticity.

Prosecutors need to prove beyond a reasonable doubt that Trump falsified business records with the intent to commit or conceal another crime, but they don’t have to prove that Trump committed that crime. The prosecution theory is that second crime could be in violation of federal and state election laws or state tax laws for how the Cohen reimbursement was handled.

Trump’s attorneys have kept their defense close to the vest, but in court filings they’ve indicated that they plan to attack the credibility of Daniels and Cohen and paint them as liars who are motivated by grudges and money.

His legal team is led by Todd Blanche and Emil Bove, two former federal prosecutors from New York, and Susan Necheles, a veteran criminal defense lawyer with deep experience in New York and before Merchan. Necheles represented Trump’s business at its tax fraud trial in 2022. The company was convicted.

Outside lawyers who have been following the case closely say Trump is likely to argue that hush money payments are legal and distance Trump from the repayment scheme and bookkeeping handled by his trusted employees. They may also argue the payments were made to prevent embarrassment to Trump’s family and not to influence the election.

Trump’s lawyers said they plan to call at least two witnesses in their case: Bradley Smith, a former commissioner of the Federal Election Commission, and Alan Garten, the top legal officer of the Trump Organization. Merchan has limited the scope of Smith’s testimony to describing the role and function of the FEC and defining certain terms, such as campaign contributions, but has blocked him from testifying about whether the law was violated in this case.

Trump could also testify in his own defense. He has testified in two recent civil trials, after regretting not taking the stand in a prior civil trial, but the stakes are higher in a criminal case.

The doorman, the model, and the porn star

The trial goes back to the final days of the 2016 presidential election when Stormy Daniels was about to go public with allegations that she had sex with Trump in 2006 at a golf tournament in Lake Tahoe. The Access Hollywood tape catching Trump on a hot mic speaking graphically about his proclivity to grope women had just come out, sending panic into his campaign as it sought to limit the impact on female voters, prosecutors allege.

Trump’s allies scrambled to pay Daniels hush money to prevent her from speaking out, the indictment alleges.

It was the third “catch and kill” deal to come after a key meeting at Trump Tower in August 2015 between Trump, Cohen and Pecker. At the meeting, which was held one month after Trump announced his candidacy, Pecker allegedly agreed to be the “eyes and ears” for the campaign to look out for negative stories, according to the indictment.

In 2015, American Media, the then-publisher of the National Enquirer, paid a doorman to bury a false story and the following year the publisher paid Karen McDougal, a former Playboy playmate who said she had a sexual relationship with Trump while he was married, $150,000 for her silence and offered her two magazine cover stories.

Two months later, on October 7, the Access Hollywood tape was released. On October 27, 2016, Cohen wired the money to Daniels and 12 days later Trump won the election.

Prosecutors allege that Trump agreed to reimburse Cohen, who hammered out the details with Allen Weisselberg, the former longtime chief financial officer of the Trump Organization. As part of the alleged scheme, the Trump Organization paid Cohen $420,000 to reimburse him for the payment, some political work, taxes and a bonus. According to prosecutors, the Trump Organization noted on the checks to Cohen and in their books that the payments were legal expenses pursuant to a retainer agreement.