As the jury began deliberations on Wednesday, Donald Trump appeared to have little room to extricate himself from the mass of evidence presented in the weeks-long case.
A recording of Trump directing hush money to be paid in cash. Handwritten notes by Trump’s ex-chief financial officer about how to reimburse Cohen. A parade of witnesses who testified the Trump campaign was desperate to suppress the story of his affair with the adult film star Stormy Daniels.
That evidence fitted in to the Manhattan district attorney’s case that Trump caused false entries to be made in the Trump Organization’s business records and that the falsifications were done as part of a plot to influence the outcome of the 2016 presidential election.
Trump has pleaded not guilty to 34 counts of felony falsification of business records. And the jury will now have to decide whether prosecutors proved their case beyond a reasonable doubt, or whether the Trump’s defense lawyers poked enough holes in the prosecution’s case.
The 12 jurors will be guided in their determination by a specific set of jury instructions, which require them to unanimously agree that Trump falsified records to commit a second crime, but, crucially, do not require them to be unanimous on the second crime, or the means to commit the second crime.
Falsification of business records
The jury will first have to determine whether prosecutors proved beyond a reasonable doubt that Trump falsified business records, which, under New York state law 175.10, requires prosecutors to show a defendant “makes or causes a false entry in the business records of an enterprise”.
Business records are defined as a writing or article or computer data of an enterprise for the purpose of reflecting its activity. Trump contested, but lost, a pre-trial motion arguing that the Trump Organization ledger entries he was accused of falsifying were not for an enterprise.
For Trump’s side, his lawyers argued there was no records falsification because the repayments to Cohen were correctly labelled as “legal expenses” in the Trump Organization’s ledger, and Trump himself was not directly responsible since he did not handle how the payments were recorded.
And Trump’s lawyers also elicited testimony on cross-examination of the former Trump Organization controller Jeffrey McConney that it was the company’s practice to record any payments to lawyers as “legal expenses”, because that was the designated entry on their accounting system’s dropdown menu.
The prosecution offered evidence to rebut each claim: the repayments were not “legal expenses” pursuant to a “retainer”, with Cohen testifying it was a sham excuse designed to hide that they were for hush-money reimbursements and there was no retainer. Cohen added that Trump personally signed off on the scheme.
Second crime
If the jury decides that prosecutors did prove beyond a reasonable doubt that Trump was guilty of falsifying records, they would then move to whether the falsification happened with an intent to commit a second crime.
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The prosecution’s main theory is that Trump intended to violate New York election law 17-152, which makes it a crime to “promote the election of any person to public office” through “unlawful means” – and contended that Trump engaged in at least three unlawful means:
by violating the Federal Election and Campaign Act, which in 2016 made it a crime for any person to make contributions to a campaign in excess of $2,700 per year, or for a corporation to make a contribution of any amount to any candidate’s campaign in a federal election.
by causing the falsification of other business records, including bank records for the shell companies that Cohen established on false pretenses to pay the hush money to Daniels.
by violating federal tax and New York state tax law 1801(a)3 and 1802 since Cohen’s reimbursement for the hush money was “grossed up” to compensate him for taxes he would have to pay on the $130,000 when he recorded it as income on his tax returns.
Notably, the jury does not have to be unanimous on what unlawful means were used. But the first example could be the most perilous and the only one needed to convict Trump, even though prosecutors presented evidence for all three theories of the case.
The judge defined in the jury instructions “contributions” to mean anything of value, purchase, loan, advance or payment made to influence the outcome of the election. Since Cohen allegedly paid $130,000 to Daniels at Trump’s behest to benefit the campaign, that would be a clear violation of the statute.
The prosecution’s argument has always been that Trump violated the campaign contributions limit through Cohen, by having him suppress a story that was likely to negatively affect his 2016 campaign with women voters in the wake of the release of the infamous Access Hollywood tape.
Trump’s lawyers have suggested Trump would have paid Daniels anyway, irrespective of the campaign, because he did not want to embarrass his wife, Melania. And Trump could benefit from the jury instruction requiring jurors to convict only if Trump “willfully” or expressly knew he would violate contribution limits.
But even Trump’s ex-aide Hope Hicks testified that Trump was only motivated to pay Daniels since the story surfaced on the eve of the 2016 election.