What will be the outcome of the Trump NYC trial?

I don’t know, but I’m amazed at how few people – including television talking heads – understand the case.

First – why was Stormy Daniels’s testimony necessary? The defense actually made it necessary – or more to the point – made it an issue. Trump supporters love to ask “what is the crime?” The crime is filing falsified documents to cover up campaign money that should have been reported to the FEC. It sounds “technical,” but it’s a bigger deal than most people want to acknowledge, and it’s a felony, not a misdemeanor as you will hear over and over again on Fox News. The law is New York Penal Code section 175.10 and people have been charged in approximately 10,000 cases since 2015.

And no, the prosecutor did not miss the statute of limitations to charge for section 175.05, the misdemeanor version. The misdemeanor version doesn’t apply at all. It involves falsifying documents when the defendant:

1. makes or causes a false entry in the business records of an enterprise; or
2. alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
3. omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
4. prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.” N.Y. Penal Code § 175.05

It’s a felony when the defendant “is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

The underlying state crimes that he had intended to commit were misdemeanors and it may be that those statutes had run, but it would still be a felony under 175.10 even if the underlying crime is a misdemeanor. As it turns out, the statute had not run on the federal FEC crime, but that was also the more egregious crime – hiding the money from the voting public. And yes, that is a serious crime.

So, why was the Daniels testimony necessary? The jury had to understand why Trump wanted to bury the story to benefit the campaign. He had called her a liar in public, and the defense attorneys (stupidly) doubled down in calling her a liar in opening statement. The defense then they had to bring out details about the sexual encounter in order to shore up her credibility in response to the defense’s attack inside the courtroom and Trump’s years of attacks in the media. This serves as a defense of the prosecutions investigation, and also attacks the the defense’s credibility.

It was stupid for the defense to deny the sexual encounter. And the cross-examination was even more stupid. They assumed she was stupid, and that line about her “faking sex” or whatever on film for a living was just embarrassing. Conservatives think they won the day slut-shaming her and calling her a “prostitute,” but the jury is an educated liberal group from NY City and they aren’t impressed with that crap.

And ultimately, it doesn’t even really matter of Daniels was telling the truth!

Cohen is another matter. We know he’s a liar and has lied under oath. But then so has Trump. The question is the motivation to lie – the context. Lawyers so often assume that when they’ve caught a witness in a lie that a jury is going to dismiss everything else that witness has to say. Not always the case. Especially not an educated jury. The average human being tells three lies a day according to the American Psychology Association, and contexts and motivations bring out certain lies. The prosecution brought out the earlier lying and contextualized it, and set up the context for why he isn’t lying today. Did the defense destroy that context? They established that Cohen doesn’t like Trump anymore. But they will need more than that. They have to come up with a reason that Cohen would have acted on his own, and then why he would lie about it when he really has nothing to gain at this point.

The defense in the meantime really didn’t think through their cross-examination, as this hilarious exchange shows. But the jury does have to believe that Cohen was acting under Trump’s authority to convict Trump – beyond a reasonable doubt. I’ll have to read more of the testimony to have a sense as to whether that’s likely.