Trump’s New York Trial Nearing End
Closing arguments start today and a verdict and possible sentencing could come this week.
With Donald Trump’s hush money trial winding up, several reports are out speculating as to what’s next.
POLITICO Playbook (“Trump trial ends, Biden alarm accelerates“):
Closing arguments begin this morning in Trump’s Manhattan hush money case and could continue into tomorrow. Following the summation of the case, Justice JUAN MERCHAN will then deliver the heavily-litigated instructions to the jury. We could have a decision by the end of the week.
Here’s what our experts see as the big factors shaping the final stretch:
The gag order … James Romoser reminds us that even though the trial is almost over, Trump could still be jailed for violating Merchan’s gag order: “In recent days, Trump appears to have twice violated the gag by publicly assailing prosecutor MATTHEW COLANGELO. And on Monday evening, he again arguably violated it by posting on Truth Social about a witness in the case. Early in the trial, prosecutors had diligently notified Merchan about every potential violation. Now, it seems they just want to get the case to a verdict. But as Ben Feuerherd reported over the weekend, if Trump is convicted, his continued defiance of the gag could be a reason for the judge to enhance his sentence.”
Framing the closing arguments … Ankush Khardori tells us he’s watching two things. First, how will prosecutors set up MICHAEL COHEN’s importance to their case and the substance of his testimony? They’ll possibly argue to jurors that they don’t need to believe Cohen, just the documents and other circumstantial evidence. “The problem is,” Ankush notes, “that on some level, that argument is self-refuting, because no sane prosecutor would make Cohen a key witness in their case unless they thought they had to. It’ll be interesting to see what they do.”
Second, he’ll be watching if Trump’s lawyers repeat some of their earlier mistakes: Rather than laser-focus on Cohen’s credibility, they’ve “diluted their own defense in very Trumpian fashion — by implausibly contesting pretty much everything, including whether Trump had an extramarital sexual encounter with STORMY DANIELS, and by making relatively peripheral witnesses appear important through disproportionately long cross-examinations. It would be unwise to do that all over again in closing argument, but Trump himself may give them no choice.”
The all-important jury instructions … Josh Gerstein shares this learned take on what to watch for as Merchan prepares the jury for deliberations: “The jury instructions from Merchan seem potentially pivotal both to the verdicts the jury will reach and to the outcome of any appeal if Trump is convicted. The defense asked the judge to essentially import the mens rea required for a criminal campaign finance violation in federal court, while the prosecution is resisting that and favors a more open-ended instruction under which Trump could be convicted for a variety of different reasons that the jury won’t have to spell out.”
How it could end … Erica Orden explains all of the possible outcomes. Some are straightforward enough: conviction on all counts, acquittal on all counts and mixed bill. But she notes there’s some texture that could inform how the jury acts. For instance, while “prosecutors have offered three possible underlying crimes — violations of state or federal election law and a tax crime … the jurors do not all have to agree on what that separate crime was” — which could make securing convictions easier.
And then there’s the two wild-card outcomes: the much-discussed hung jury, which could in fact be a partially hung jury, reaching verdicts on some counts but not others, and this unlikely but possible scenario: “Merchan could take the decision out of the jury’s hands by issuing a ‘directed verdict’ for acquittal — in essence, a determination by the judge that no reasonable jury could find that the prosecution has proved its case.”
The iced-out jury … Given the fact that the jury has been sitting around waiting (and probably mulling the evidence individually) for a week now, Kyle Cheney tells us he wouldn’t be surprised to see a quick verdict. But he adds a caveat.
“One thing about high-profile trials: Juries almost always do something unexpected or parse evidence differently than conventional wisdom dictates. So don’t be surprised either if the outcome is mixed or the jury bought certain arguments from prosecutors but not others. We may only be able to guess at their analysis, unless any of them go public afterward.”
CBS News (“What happens if Trump is convicted in New York? No one can really say“):
When the judge overseeing Donald Trump’s criminal trial found on May 6 that Trump had violated a gag order for a 10th time, he told him that “the last thing I want to do is to put you in jail.”
“You are the former president of the United States and possibly the next president, as well,” said Justice Juan Merchan, reflecting on the momentous weight of such a decision.
Whether to jail the Republican Party’s presumptive nominee for president is a choice that Merchan may soon face again, if jurors in Trump’s “hush money” case vote to convict him. Closing arguments and jury deliberations start this week.
What exactly would happen if the jury finds Trump guilty is difficult to predict. Trump is being tried in New York state court, where judges have broad authority to determine when sentences are handed down after convictions and what exactly they will be, according to former Manhattan prosecutor Duncan Levin. That differs from federal court, where there’s typically a waiting period between a conviction and sentencing.
“It’s much more informally done in state court. I’ve had cases where the jury comes back and says, ‘guilty,’ and the judge thanks the jury, and excuses them, and says, ‘Let’s sentence the defendant right now,” said Levin. “Obviously, everything’s a little different about this case than the typical case.”
Each of the 34 felony falsification of business records charges that Trump is facing carries a sentence of up to four years in prison and a $5,000 fine. He has pleaded not guilty.
Norm Eisen, an author and attorney, recently analyzed dozens of cases brought by the Manhattan District Attorney’s Office in which falsifying business records was the most serious charge at arraignment. He found that roughly one in 10 of those cases resulted in a sentence of incarceration. But he also cautioned that those prosecutions often involved other charges and noted the dynamics at play in Trump’s case make his sentence particularly hard to forecast.
If Trump is found guilty, Merchan would have fairly wide leeway in determining a punishment, including sentencing Trump to probation or house arrest.
Levin said the option of confining Trump to his home, followed by a period on probation, might be appealing to Merchan, who has repeatedly indicated he’s concerned about limiting a presidential candidate’s ability to speak freely. Such an option would allow Trump to do interviews and access social media from his home.
I don’t have a lot to add here. I’ve paid attention to the trial but haven’t followed it in minute detail. It seems pretty clear to me that Trump directed his minions to pay hush money to Stormy Daniels (which probably isn’t a crime) in order to keep her from speaking out during the 2016 campaign (which complicates matters considerably) and then had other minions hide the payments in his business accounting (which is definitely a crime under New York law). Whether the evidence is enough to convince all twelve members of a jury—or whether at least one juror is a rabid Trumper who will nullify the law—is beyond my ken.
Eisen’s analysis is interesting. If most people convicted of the crimes Trump is charged with don’t get jail time, it’s reasonable to think Trump won’t.
At the same time, while Merchan has bent over backward—too much, in my estimation—to avoid stifling Candidate Trump’s speech, one would think the standard would shift for Convicted Felon Trump. Further, Defendant Trump’s repeated violations of the gag order should certainly come into play at sentencing, should he be convicted. At that point, his status as the presumptive Republican nominee for President should be subsumed under his status as a convicted felon.
That Trump is continually roiling his supporters should only add to that. See, for example, his latest outburst on Truth Social at 6:20 yesterday evening:
WHY IS THE CORRUPT GOVERNMENT ALLOWED TO MAKE THE FINAL ARGUMENT IN THE CASE AGAINST ME? WHY CAN’T THE DEFENSE GO LAST? BIG ADVANTAGE, VERY UNFAIR. WITCH HUNT! DJT
While I actually think he’s right in this instance, this is how trials have worked since time immemorium. The state has the burden of proof in a criminal trial and thus opens and closes the conversation with the jury. Surely, his attorneys have explained this to him.
By now I suspect that trying to explain anything to private citizen Trump
is a lot like pissing into the wind.
When I read today int he news that the jury may begin deliberations tomorrow, this popped into my head at once:
There’s a great, big, beautiful tomorrow
Shining at the end of every day.
It’s part of the song in Disney’s old Carousel of Progress attraction.
While I agree that it is possible the jury will reach a verdict this week and it could be a guilty verdict, I would be shocked if Merchan summarily moved to sentencing.
Moreover, if the jury convicts on any of the felony counts, I think the prosecution would want the ability to put Trump’s behavior during this trial – his lack of remorse, his attacks on the system, his skirting or violating the gag order – on the record as an unending string of aggravating factors. While I am not surprised that few defendants for these sorts of crimes get jail time, it is hard to treat Trump as a first offender with a straight face.
There’s been a lot of talk about whether the crimes in this trial are “serious” enough such that a conviction would matter to voters. I was thinking about this over the weekend and realized that to the engaged voter, for or against Trump, this will have no effect. But to the majority of voters who are unengaged, seriousness might not enter into it. “Convicted felon” is all that might matter (assuming he is convicted on the felony as well as misdemeanor counts). Will it affect many people? Almost certainly not. “Disengaged” is the operative word, after all. But to the extent that it has any effect, it will be negative to Trump.
@MarkedMan:
I never bought the narrative that this was all helping Trump. A conviction won’t destroy him, but it might shave off a point.
It’s difficult to predict what a jury will do. Generally speaking they tend to focus on what they “feel” is right. Being real, I think the most likely outcomes are either a hung jury or a partial conviction.
The DA’s office is relying on a pretty novel charging theory—something Blanche does a good job of pointing out in his closing statement (from the summaries I’ve seen). That can easily lead to a hung jury. Likewise, the inability to consider alternatives like misdemeanors may be a challenge for the jury as well.
Likewise, I could see a jury carving off some of the charges as cases of Cohen going rogue and still convicting on other charges.
If the jury can’t reach a decision, chances are that has as much to do with the novelty of the charges as it has to do with any political loyalty one way or the other.
While both sides did pretty well with the cards they were dealt, neither side really made a decisive argument for or against. The State did a great job building a case, but at the end of the day they are making a really complex argument and who knows if that will land. Clifford/Daniels was not a great witness.
The defense was in part kneecapped by Trump’s refusal to admit that the affair happened. And that creates a host of problems. Choosing Blanche versus Bove to do the cross on Cohen was a mistake (given how thin-skinned and meandering Blanche was). And Costello was a terrible witness.
I’d honestly be pretty surprised if we see either a completely guilty or a completely not guilty. And of the two, I suspect completely not guilty is probably more likely–and if that happens, I suspect it will largely be on the complexity of the charging theory.
If he gets some sort of fine and probation instead of jail time, will we see our most loathed Orangefuhrer picking up trash along a south Florida highway?
Not a “hush money trial” as paying someone for blackmail is not illegal. And is only illegal in the context of federal election law if there is absolutely no other reason the money would have been paid except for the election. And any bookkeeping misdemeanor error under NY law happened 2 years after the election.
The trial is over a bookkeeping dispute.
Perhaps the prosecutors will tell the jury what the crime was in their closing arguments. Seasoned legal experts as still unsure that the crime is and what the elements of the crime are that the supposed prosecution case was suppose to prove.
Interesting that the judge refused to let a former head of the FEC testify regarding the election law violation. Unfortunately for the judge and Democrats, he was going to point out there was no violation of federal law.
And we know the fix is in as Old Joe has his speech all set to use this state court action for his electoral benefit.
@JKB:
You shouldn’t waste that kind of insight here, you should save it for an IRS audit. It’ll totally convince them.
@Kathy:
No.
@JKB:
Tell us you don’t understand the difference between State Law and Federal Law (not to mention jurisdiction) without telling us you don’t understand the difference between State Law and Federal Law.
Incorrect statement of law, JKB, not that it would matter to you.
Apparently, in closing argument, Trump’s attorney is back to spending time on whether encounter with Daniels actually occurred. That just seems like legal malpractice to me since it is (a) irrelevant and (b) uncontested that the Trump organization paid her $130,000 not to say publicly that it did occur. Where the defense has a decent argument about Cohen’s credibility, why make this about Trump’s credibility which is so seriously compromised by the admitted facts of the case? If that is just client-pleasing, Trump deserves every piece of bad karma he gets out of that argument.
@JKB, out of curiosity, which is it? Is Joe Biden a devious mastermind who is pulling all the strings to corruptly imprison his opponent (but, oddly enough, not pardoning his son), or is Joe Biden a senile old man with dementia who requires a cocktail of drugs to get out of bed in the morning? I can’t help but think of this SNL skit.
@Kevin:
TBH, this is a common line of thinking about political opponents that a lot of people fall into. We’ve see it before with accusations launched at Obama and even to some degree with Trump.
I’ve been following the trial updates on TPM and while, Joe said above, Blanche did spend some time on trying to sow doubt on whether the Stormy liason ever occurred, he is spending much more time, almost all of it, trying to call Cohen’s testimony into question. I don’t know how that sits with the jury, but it makes me wonder if he is just conceding all the other evidence. After all, Cohen’s testimony lends credence to the documentary evidence and other testimony, but it doesn’t stand alone.
Oh, and he is also going over how long he said it would take. I don’t know if the jury was there when he said he expected to take about two hours but he is closing in on three and still not done. And keeping them from lunch! Doesn’t sound like a great strategy to me.
@Matt Bernius: Mutually exclusive reasons for hate are by no means uncommon. As a kid on the South Side of Chicago, even I could see the problems with “Those hispanics are shiftless and lazy and hate to work!” and “They are taking all of our construction jobs!”
@MarkedMan:
Todd Blanche made a massive mistake. He said David Pecker was a credible witness in a way that Cohen wasn’t. Pecker said, flat out, that the payments were due to the election.
Blache screwed up royally.
@CSK:
Why not?
he has a long record of picking only the best garbage.
@Matt Bernius:
Bragg was only able to revive the two NY misdemeanors whose statute of limitations had run out by tying them to a federal election law violation that the FEC and DoJ declined to pursue.
Tell me you’ve not listened to knowledgeable commentators like Alan Dershowitz on this case but instead gone with MSDNC propaganda.
And now apparently, Biden campaign surrogates are going to do media outside the courtroom.
Trump is going to win so hugely. HUGE!
@Joe:
It’s 100% client pleasing. If they could have convinced Trump to admit to the affair, then things would have been far easier for them. Blanche also seems to have an issues with gilding the lilly–which may create trouble down in Florida as well (in particular his decision to imporperly quote the warrant language).
BTW, this is an ongoing challenge with him. It was a issue as well during the cross examination with Cohen which went on way too long. And you are correct that these are things a jury tends to notice.
No comments on the degree to which that might be tied to his history as a Federal Prosecutor (gasp!).
@JKB:
Please. It’s YUGE.
@JKB:
Bhahahahahahahahahahahahahahaha
*gasp*
Bhahahahahahahahahahahahahahaha
I love how for you any “knowledgeable commentator” is based on if they state an opinion you agree with. Hence your constant return to Turley (though also your strange silence of his authority when he advances a position your disagree with).
All that said, you are right that I had things twisted with regards to the role of the FECA in the prosecution:
Again, this gets to the complexity of the charging theory (something I did note in my first comment) and why I don’t think this is at all an open-and-shut case.
I will also note that the type of testimony that Brad Smith was going to give was not the type of testimony an expert witness is supposed to give, hence the reason he wasn’t called. Either way, Bove did a good job of preserving that for an appeal.
@JKB:
There’s a good chance that he will. Again, I sad this isn’t an open and shut case.
That said, if that winning doesn’t happen, I look forward to reminding you about this prediction.
One thing I have to give Todd Blanche, with his comment to the jurors about their deciding whether or not “to send President Trump to prison” he’s giving the prosecutors a taste of their own medicine.
That’s out of bounds and he knows it. He also knows, from his time as a Federal Prosecutor, that even with a curative instruction, that’s going to stick with the jury.
On that note:
So they are *check notes* copying the Trump strategy of having surrogates go around the gag order and also attack Biden (which Trump was doing as well). And the pearl clutching issues here is…
Todd Blanche just got himself in deep shit with Judge Merchan:
http://www.rawstory.com/merchan-blanche-outrageous/
@JKB: Once again, you demonstrate your personal biases have blocked your ability to understand the issues.
You’ve misunderstood pretty much everything–the difference between state and federal laws, election law, what is admissible, etc.
Oh, FFS. You have to be joking with this.
Frankly, Matt, I am not sure they even needed to admit it. I think they just could have ignored whether or not it happened and skipped straight to the part where she intended to say that it did.
@Joe:
IANAL, but the take I’ve seen from a few attorneys is that the advantage to admitting the affair is it provides a much more believable alternative for why the payment was made (to avoid causing his family pain).
I think not addressing it would have been a challenge. But like I said, IANAL.
@Matt Bernius:
I have a slightly different take. I don’t doubt that Trump’s lawyers’ judgment is being affected by the need to keep their crazy client happy, but I don’t think it’s necessarily crazy for them to question multiple aspects of the prosecution’s case, including the reality of the underlying event. That’s not a strategy designed to win the case, but I would be surprised if they’re counting on an outright defense verdict and suspect they’ll be delighted with a hung jury.
To win, the state needs need a convincing coherent story that is capable of persuading 12 jurors. The defense needs one holdout to refuse to go along. Throwing everything against the wall and hoping something sticks is no way to win a case, but it can be a good way to avoid losing one. Those of us who didn’t sit through void dire don’t know anything close to what the defense team knows about the jurors, and I wouldn’t rule out the possibility that they have reason to think one of the jurors falls in the “bitches be lying” cohort who wouldn’t convict if the coverup was a response to a blackmail attempt based on a lie even though, technically, that may not be a legal defense to the charges.
Or this may just be Trump sabotaging his own defense. What do I know.
@JKB:
Red Wave 2022!!!11!!
@Roger:
Thanks for that insight.
That’s why I appreciate when you, Joe, Ski, and any of our other lawyers join in the discussion. It’s always great to get your perspective.
@CSK: Can someone explain why this was a problem? IANAL so need someone to dumb it down for me. Thanks!
@Kazzy:
My non-lawyer take, because juries are supposed to decide questions of fact only, not the impact of a guilty verdict.
@JKB: “Interesting that the judge refused to let a former head of the FEC testify regarding the election law violation”
No judge would ever permit an expert to testify as to what the law is. The jury is the sole judge of the facts and the judge is the sole judge of the law. When the jury is charged, the judge will specifically instruct them that he is the sole judge of the law and they must apply it as he instructs.
If any party wishes to argue the law it is done outside of the presence of the jury, sometimes prior to trial but usually in the jury instructions conference in which the attorney can present argument and written authority for his/her position but never expert testimony.
@Kazzy and Kathy: Depends on what “this” is in your question. If “this” is the jury being told (incorrectly) that they can decide whether to send Trump to jail, Kathy has your answer. If “this” is Blanche getting into deep shit with Judge Merchan, it usually doesn’t help around the discretionary edges to be on bad terms with the Judge. But there is probably nothing useful Merchan can do about it without drawing more attention to it, so I would call it a calculated risk by Blanche.
His argument may turn another direction or at least cover another crime, but I am super-not-very-comfortable with Steinglass featuring “fraud on the American people” as the crime that was supported by these payoffs. I tend to agree with Blanche that all campaigns are conspiracies to get people elected and information is buried by all sorts of campaigns in all sorts of ways. To my mind, the initial fraud were the business records that didn’t happen until after Trump was elected and the second crime was the misreporting of campaign donations and/or the tax impacts of the payments to Cohen.
I feel like Steinglass is trying to make this a saving America issue (and he may be correct in fact), but this is really just a double fraud case. Base hits and scoring, man. Stop swinging for the fences from the outset.
@Kazzy:..
Apparently none of the charges in this case carry minimum mandatory jail time. Blanche knows this as a former prosecutor. Blanche is trying to tell the jury that if they convict Trump he will have to go to prison.
I just heard one of the TV talking heads say this but now I can’t find it. I am paraphrasing to the best that my memory allows.
@Kazzy: It is always inappropriate for a lawyer to argue about punishment for that is the sole responsibility of the judge. It is the jury’s responsibility to determine guilt or innocence and for the jury to consider punishment could unfairly prejudice the decision making process.
@Joe: @Mister Bluster: @a country lawyer:
Thanks.
Exclusive from NBC: Elise Stefanik is requesting a probe into Juan Merchan’s selection as a judge.
@CSK: Her head is so far up Trump’s ass that if he made a sudden left turn, her neck would snap.
Seriously, the level of toadying is just pitiful.
@Joe:
I think I agree with those points as well. I’m still thinking them through.
Also I’m honestly surprised that Steinglass is still going on. I’m currently on a plane and took a break for a while. I wasn’t expecting to log back in and discover the prosecution hasn’t rested yet. I feel for the jurors.
@Matt Bernius:
If the Orangefuhrer is acquitted, all will be blamed on the overly long closing by the prosecution.
In lawyer shows, the closing arguments take far less TV time than everything else. On the other hand, in ancient Greece, trials were just about all argument (and were concluded in a day*)
And on the gripping hand, I seem to recall the closings in the Casey Anthony murder trial went on for two days. So maybe this isn’t as long as it looks.
*And I mean literal daytime. A trial begun in the morning was over before sunset.
The prosecution has concluded its closing argument. Court resumes at 10 a.m. tomorrow. After instructions, the jury will begin deliberations.
Though I have been called for Jury Duty several times, only once did I sit in the jury box for a criminal trial. The prosecution called a witness and put a gun in evidence to make its case. When it was time for the defense to present a case the Public Defender stood up and said: “Your Honor the defense rests.”
The only thing that made the whole affair longer than an episode of Law and Order was that we actually deliberated long enough to get lunch from the Pizza Parlor across from the Courthouse.
It should come as no surprise that we voted to convict.
@Matt Bernius:
Yabbut, for that to work you’d have to believe that someone, somewhere believes that Trump would prefer not to cause someone else pain…
@Kevin: “Is Joe Biden a devious mastermind who is pulling all the strings to corruptly imprison his opponent (but, oddly enough, not pardoning his son), or is Joe Biden a senile old man with dementia who requires a cocktail of drugs to get out of bed in the morning?”
To be fair — although why I’m not sure — I know I’m not the only liberal out there who was able to make the same kind of conflicting arguments against W…
@Matt Bernius:
Eh. He may have had some good points but he buried them in 3-4x the amount of dreck and rambling.
Should have been a tight 45-1 hour. It wasn’t.
@Roger:
Also eh. Maybe but that is a pretty big risk for a bank shot.
IMO, the key issue is Cohen’s testimony. If they muddy that up, the prosecution doesn’t have anything on the intent (election) issues. Going for a single holdout to hang the jury is always a risky strategy given how peer pressure/jury dynamics works.