Courts & Litigation Criminal Justice & the Rule of Law

From Arguments to Instructions

Anna Bower, Tyler McBrien, Katherine Pompilio, Benjamin Wittes
Saturday, June 1, 2024, 2:05 PM
Part I of a final dispatch from the New York Trump trial.
Outside of the New York Supreme Court, Criminal Term on May 30, 2024 (Photo Credit: Tyler McBrien)

Published by The Lawfare Institute
in Cooperation With

Previously on Trump New York Trial Dispatch: “A Witness Implosion Precedes Jury Instruction”

May 28, 2024

The media line today stretches today around the corner and down the block—closing arguments being apparently more popular than evidence. An aggressively antisemitic masked protester bearing a sign about Gaza is walking up and down the line shouting about how Jews control both political parties, the entire administration, and the American government. Andrew Giuliani, the son of the former New York mayor and Trump confidante, is arguing with the protester and filming himself doing so.

It is hot in the press overflow courtroom, where we watch America's Favorite Paralegals™️ arrive with the carts and boxes of stuff. At 9:18 a.m., Assistant District Attorney Joshua Steinglass, who we expect to deliver closing arguments, arrives. Trump is out in the hallway now, repeating his talking points about how Justice Juan Merchan is "conflicted" and corrupt, and attacking the gag order that prevents him from saying similar things about witnesses and jurors. At 9:25 a.m., Trump walks in, wearing a bold red tie, today and he sits between defense counsel Todd Blanche—who will argue for the defense—and the spectral-looking Emil Bove. Susan Necheles is to Bove's left. They all appear to be in good spirits.

The Trump retinue arrives as well. Trump's usual crew of Jason Miller, Boris Epshteyn, Alina Habba, and Susie Wiles, is joined today by Donald Trump, Jr., Eric Trump, Lara Trump, Tiffany Trump, son-in-law Michael Boulos, and commentator Deroy Murdock.

At 9:31 a.m., Justice Merchan sweeps in, resplendent in his robes, judicial authority radiating from his very being, and yada yada yada.

Steinglass and Blanche make the typical introductions.

Justice Merchan wishes everyone a good morning, and mentions for the record that he sent both parties the Court's proposed jury instructions. Before we get started, he asks each side for time estimates on its summation.

Blanche says he needs around two-and-a-half hours, maybe less.

Steinglass, by contrast, says that while his time needs will be responsive to the defense's summation, he anticipates needing about four-and-a-half hours for his. An audible, pre-exhausted groan washes over the entire press overflow room, as people realize that it’s going to be a long night.

As we wait for the jury, Justice Merchan reminds the parties: "[P]lease do not go into the law, okay. Stay away from the law. Stay away from the law. That will be my job. I will take care of that."

The jury is here now and Justice Merchan gives them instructions: You will now hear summations, following that I'll instruct you on the law, then you'll begin your deliberations. Under our law, the defense must sum up first, followed by the prosecution. The lawyers may not speak to you after that. Summations are an opportunity for lawyers to submit for your consideration the facts, evidence and the inferences and conclusions that may be drawn from it. It's up to you whether it's reasonable, logical, and consistent with the evidence.

You are the finders of fact, and it is for you and you alone to determine the facts from the evidence. Thus, you should remember that whatever the lawyers say and however they say it,  are simply arguments for your consideration. During summations, the lawyers’ recollection of evidence may differ. It is your own recollection that matters. Under our law, I’m responsible for explaining the law, not the lawyers. It’s your duty to follow my instructions. During summations, if an objection is sustained, that argument will be stricken from the record, and you must disregard it.

We may not finish today, Justice Merchan says, but we may be able to if we work late. It's up to the jury whether we run late today, but it’s no big deal if not. We can wrap it up tomorrow morning.

And with that, Blanche stands to deliver Trump's closing argument.

*           *           *

I hope that everyone had a nice long weekend, Blanche begins. He starts by thanking the jury—for its service, for paying close attention all day every day.

Our criminal justice system is unique, he says, in that a group of citizens decide the facts. President Trump is innocent. He did not commit any crimes, and prosecutors have not met their burden of proof. Period.

You should want and expect more, Blanche tells the jury, than the testimony of Michael Cohen. You should expect more than the word of a woman that something happened in 2006.

You should expect more than Keith Davidson, an attorney who was just trying to extort money from Trump in the leadup to the election.

This case is about documents—it's a "paper case"—it's not about an encounter with Stormy Daniels 18 years ago, an encounter Trump has repeatedly denied. It's not about an eight-year-old NDA.

The reason why we're here is whether and to what extent President Trump, while he was living in the White House as the leader of the free world, made payments to his personal attorney from his personal ledger with intent to defraud. And the answer to those questions is: Absolutely not.

The bookings were accurate. There was no intent to defraud and beyond that, there was no election influence conspiracy. The proof there doesn't add up.

Blanche has now set his agenda. He has three broad thematic points knitted together with an overarching argument about Cohen. Blanche says that he will talk about Cohen a lot today—and that shouldn't surprise you, he says to the jury. The words that Cohen spoke matter.

Blanche asks the jury to start with two key elements: that the documents contain false entries, and that Trump acted with an intent to defraud. Because if you don't find those elements, he argues, you can stop right there. That’s an acquittal even without more.

To pull off this trick, Blanche urges the jury to consult three types of documents: invoices, vouchers, and checks. The invoices were prepared and sent by Cohen. Trump Organization accountants stamped them.

The vouchers were prepared by Deborah Tarasoff, using the company’s internal accounting system. The vouchers were simply derivative of the invoices. Not a single invoice was sent to Trump directly. Of course, the government will say that you know that Trump saw these invoices, because Tarasoff said she would staple them to the back of checks. But that was just her general practice. She didn't have any specific recollection about how she handled the invoices related to these particular charges. General practice, ladies and gentlemen, is not proof beyond a reasonable doubt.

Cohen always invoiced "for services rendered," Blanche argues, because (and this isn't in dispute) Cohen at the time was rendering services to Trump as his personal attorney. The government wants you to believe that Cohen wasn't working for the $35,000 monthly fee, that he was working for free.

"Cohen lied to you," Blanche says. "Cohen Lied. To. You. On direct examination," he repeats.

Even if the amount of work that Cohen was doing in 2017 was minimal, there was a retainer agreement; that's how retainer agreements work. Blanche references Cohen's other consulting gigs, including with Novartis (which paid him more than a million dollars and involved only six interactions). When the government talks to you about invoices, Blanche says, when you see "for services rendered," that's a true statement—period. It wasn't secret. Cohen "broadcast this fact to the world."

Blanche now reads an email from Weisselberg to Cohen: "Thank you. You never stopped in for a Bro hug. Please prepare the Agreement we discussed so that we can pay you monthly."

Blanche's message is simple: Cohen billed for services rendered, and there was a verbal retainer agreement. "As you heard from multiple witnesses," Blanche says, the lack of a written retainer "doesn't matter." An objection from Steinglass is sustained.

Cohen was President Trump's personal attorney. Period, Blanche says for emphasis.

Trump gave Cohen $50,000 for "some online poll," and by the way, Cohen stole some of that, Blanche says. Usually the simplest answer is the right one, and the simplest explanation here is that Cohen really was being paid $35,000 per month to be Trump’s attorney in 2017.

Blanche now moves on to the vouchers, which were run on an antiquated accounting system, even for 2017, Blanche says. There's no evidence at all that Trump even knew about this voucher system. How will the government address this lack of evidence about Trump's knowledge of the voucher system? When the government reads to you quotes from books that are more than a decade old, Blanche ventures, "You should be suspicious. That’s a red flag....Proof beyond a reasonable doubt does not include a passage in a book from decades earlier, ladies and gentlemen."

Blanche now points out how Tarasoff logged expenses in the system, which was from a dropdown menu. It had a slot for “LEGAL EXPENSE.” And all payments to lawyers were categorized that way.

He zeroes in on the Jeff McConney email: "Please pay from The Trust." This was after the inauguration, February 2017, a confusing time when all of Trump's assets moved into the Trust to avoid conflicts of interest. Don Jr. and Eric were signatories for the Trust, yet this is one of the documents for which Trump has been charged with a felony, Blanche says. If there was some sort of conspiratorial agreement, why didn't we also hear from Trump's sons? That is reasonable doubt, Blanche says.

After the first three payments were made from the Trust, someone realized that Cohen was Trump's personal attorney, so the payments switched to Trump's personal account, Blanche says. He depicts this as an honest mistake that was corrected when found, though nothing in the case turns on which account the payments come from.

Blanche moves on to the Trump-signed checks starting April 2017. This was a period, he argues, during which Trump was very busy; he was running the country. Madeleine Westerhout said that sometimes Trump would look at the checks, but sometimes he would not. Sometimes checks were stacked up half an inch thick. You can't convict President Trump because sometimes he looked at invoices. That is a stretch ladies and gentlemen. It matters where Trump was during this time. He was busy. He was moving around. He was constantly interrupted. He was President of the United States. The government wants you to take a "leap" that Trump was part of this "scheme"—that he was somehow in on it. That is absurd.

Blanche now turns in full force to Cohen. Even if you believe Cohen, Blanche says, there's reasonable doubt, but how can you convict Trump based on the words of Cohen? What the People did for the past five weeks is ask you to believe the man who testified two weeks ago. Cohen, in turn, asked you to ignore emails, to ignore what the invoices said. Do you believe for a second, Blanche asks the jury, that after getting stiffed on his bonus in 2016, that Cohen thought, "I'm gonna work for free"?

Blanche points out that Cohen didn't even pretend that Trump was part of the conversation regarding his supposed reimbursement. He only said that it's to be a wild ride in DC, Blanche says. The idea that Trump would agree to pay Cohen $420,000, even though he only owed him $130,000, is absurd. Cohen wants you to believe that Trump saw this paper, which includes $50,000 to RedFinch, which Trump hadn’t wanted to pay, and then he said "out of the blue," let's double it. "That. Is. Ab. Surd."

We heard about how closely Trump watched his finances, he says. Blanche now displays the First Republic statement with the handwritten notes of the alleged reimbursement scheme. "The point of this document is: it contains lies," Blanche says.

Blanche now turns to the gross up, and displays Cohen's testimony about it: "I didn't know. And to be honest, I didn't really even think about it. I just wanted to get my money back." What proof or evidence do you have that this gross up had anything to do with taxes? Blanche asks. The slide header reads “Case Turns on Cohen.”

Blanche displays the photo of Cohen at the White House in February 2017. Cohen told us that he was going to the Oval Office for the first time in his life, Blanche says in an awed tone, and you want us to believe they discussed checks? But just six days after that supposedly confirmatory meeting about the checks and payments in the Oval Office, Blanche says, Cohen emails McConney: “Please remind me of the monthly amount?” Blanche displays a splitscreen of the First Republic statement and notes and McConney's notes on Trump stationery, pointing out discrepancies and gaps between them.

Blanche asks why we even have this evidence: McConney didn't get rid of these notes. He didn't try to destroy them. Why not? This is a case about false filings, and yet the supposed evidence of the false filings were in the records of Trump's personal account and McConney's payroll cabinet.

Blanche now moves on to whether Trump made or caused these entries to be made with an intent to defraud. There's no intent to defraud, Blanche argues, displaying the 1099 the Trump Organization sent to Cohen and the IRS. There's nothing false or misleading in the 1099. If there had been some deep-rooted intent to defraud, why was it reported to the IRS as exactly what it was?

Blanche now moves on to the object offense, which is to say the crime Trump allegedly caused the records to be falsified with intent to violate or cover up. There is no crime. Period, Blanche says. So you don’t need to reach the question of the object crime. But even if you get to ask yourself about any conspiracy to influence the 2016 election, you will find that Trump is not guilty. The charges relate to 2017 documents, and the government wants you to believe that Trump did this to conceal his successful candidacy in 2016, the year before.

Every campaign is a “conspiracy” of people working together to help somebody win an election. You still need to prove that this was done by "unlawful means." But what’s unlawful here? The August 2015 meeting with David Pecker was the same thing AMI has been doing for decades, and for President Trump since the 1990s; Pecker told you that they purchased stories all the time—about Tiger Woods, Mark Wahlberg, and others. It was just good business. The slide header now reads “AMI: Standard Operating Procedure.”

It's not uncommon for campaigns to work with the media. It's a regular practice. And it's not surprising, says Blanche. You want to amplify the good things about your candidate and expose the bad things about opponents. He runs through other catch-and-kill schemes Pecker mentioned in his testimony. And anyway, many of the Enquirer's stories were "recycled," published elsewhere. The idea that the Enquirer could corruptly, criminally influence an election by republishing stories that had been out there in other forms should hopefully make you shake your head.

Blanche next turns to attacking the notion of “catch-and-kill.” Remember how that was the heart of the agreement? But they didn't even discuss catch-and-kill at the August 2015 meeting, Blanche says, citing Pecker’s and Cohen’s testimony. There were no financial arrangements discussed then. Rather, Pecker testified that the first time he heard the term “catch and kill” was from a prosecutor; then, on redirect, he revised that to saying he learned it from reading it in an article. But either way, the phrase was not mentioned in the allegedly conspiratorial meeting.

What’s more, Pecker testified that half the stories the National Enquirer buys, they don’t publish. Half the stories, Blanche repeats, and then a third time: Half the stories.

This brings us to Dino Sajudin. Sajudin's story could have sold ten million magazines, Blanche says Pecker had testified. So the first opportunity Pecker gets to work this conspiracy to help Trump he thinks, “I'm publishing this.” What kind of a conspiracy is that?

Blanche's idea here is that this first catch and kill scheme was nothing of the kind. Pecker may have caught the Sajudin story, but he did so fully intending to publish it if it was true. He only "killed" it because it wasn't true. It was dead anyway. "That. Is. Not. A. Catch. And. Kill. It's just not," Blanche says.

Blanche moves on to the second catch-and-kill item; the slide header changes to “McDougal.” "This was not a catch and kill, either," Blanche says. Everyone said the same thing: Karen McDougal herself didn't want her story to be published. She wanted to kickstart her career and be on magazine covers. You later learned that one of McDougal's friends forced her hand, Blanche continues, but to be clear, it was not McDougal's intention to publish her story.

The reason why this matters, Blanche says, is that there was never any risk that McDougal's allegations would influence the election, because she didn't want them published in the first place.

After two sustained objections from Steinglass, Blanche's momentum flags slightly, but he picks it back up quickly and reminds the jury that Pecker received immunity from prosecutors in exchange for his testimony.

Blanche now announces what he wants to discuss next: AMI's non-prosecution agreement. Remember what the judge said: That agreement is evidence of nothing as relates to Trump's guilt—an objection is sustained, and Justice Merchan asks Blanche to rephrase, which he does.

With that in mind, what does the McDougal story tell you? It's just more evidence that Cohen is a liar. He told you time and time again about conversations he claimed he had around this agreement that are just not true. So let's talk about another lie, Blanche suggests. Remember when Cohen said he had lunch with Pecker in September 2016? That lunch did not happen.

Blanche explains: Key meetings and key conversations remembered with clarity from 2016? Think about that. Clear memories from 2016? You have to be skeptical.

Blanche now turns to Cohen’s recording of Trump, which Cohen says he took as evidence Trump would pay back Pecker, but there was just one problem: Cohen says he never actually played the tape for Pecker.

Blanche challenges the logistics of the recording. Cohen explained to you, he argues, that he put on his Voice Memos app, and that Trump assistant Rhona Graff came "in and out" of that meeting. Yet Graff testified, and there wasn't a single question as to whether she remembered that meeting, Blanche says. He plays the clip with Graff in it.

He plays more of it now, and we hear Cohen say "transfer of all the stuff." That was supposedly about AMI's box of Trump stories. Blanche plays more of the recording. If $150,000 was already determined as the price, Blanche says, then why does Cohen say to Trump that ‘We'll have to pay him something’?”

Now Blanche is discussing the references in the tape to “financing” and “cash,” and he says that while Cohen testified that cash literally meant “green,” it actually just refers to the absence of financing. But the prosecution is focusing on cash here because it sounds a lot more criminal and sinister if there are duffel bags of cash, he says.

And then supposedly the recording cuts off because a phone call comes in, Blanche says, so the last word you hear is "Check." We don't hear anything else. Trump could have said "Check...with my people," but we'll never know what was said. Blanche plays the end of the clip, and there's actually another few words from Cohen that are not on the transcript. Cohen told you that the call was from a bank manager at Capital One, Blanche says, and that he interrupted this very important meeting to take the call. But here's the thing, Blanche says: Cohen didn't actually take that call. He pulls up Cohen's phone records, and a line says NIOP (incoming call):CFNA (call forward no answer):VM (voicemail).

He lied to you about answering that call, Blanche says. Would it have been a big deal for Cohen to say that it was a long time ago and I don't remember? No. But Cohen didn't do that. He lied to you instead. If anything, the McDougal story tells you a lot about Mr. Cohen.

And with that, we turn at last to Stormy Daniels.

Trump and Daniels have both repeatedly denied that the alleged sexual encounter between them took place, Blanche says, and yet the story was published in 2011—long before 2016, long before the August 2015 meeting at Trump Tower. So how could an agreement concerning this story have influenced the election? People already knew about the allegations.

Even Cohen believed the Daniels story threat was an extortion tactic, Blanche says, and it was another opportunity for Cohen to "take advantage." He made a decision to pay Daniels the money, and he didn't tell Trump about it; he just wanted to take credit for it at a later date.

The only person who testified that President Trump knew all about this at the time is Michael Cohen himself, Blanche says. There is no other evidence. There's no way you can find that Trump knew about this other than believing Michael Cohen's words. Period.

It doesn't matter if it was The Dirty, the DailyMail, or In Touch Magazine, Blanche says. By the time of the election, Daniels's story was already public.

Blanche here is trying to flip the 2016 pre-election timing on its head. In his version, it is evidence that Daniels was using the timing to extort Trump, rather than that Trump was worrying about the timing because he wanted to avoid negative publicity in run-up. Blanche shows texts between Davidson and Howard. Howard wants to help Daniels and Rodriguez get money, says Blanche; that's not a conspiracy involving Pecker, Trump, and Cohen. And anyway, you didn't hear from Rodriguez and Howard—so a lot of this is speculation from the prosecution.

Blanche continues to talk about the more unsavory sides of Davidson and Howard: the Hulk Hogan sex tape, the meetings with a sex tape broker, and similar icky things. As Blanche comes to a natural pause in the ick, Justice Merchan gently cuts in and asks if it's a good time to take a break.

It is, as things turn out, and we break for 15 minutes.

*           *           *

At 11:45 a.m., Trump strides back into the courtroom, entourage in tow, and two minutes later, Justice Merchan returns, asking Blanche how we're doing on timing. Blanche estimates that he has about 30 more minutes to go.

Justice Merchan mentions that the jurors have agreed to work late, so it looks like we’re going to be here for a while.

The jury is now back, and Blanche continues with the "Daniels situation in 2016." The slide header simply reads: “Daniels.” The question for you, Blanche says, is whether what happened with Daniels in 2016 is consistent with the conspiracy that the People tell you Cohen, Trump, and Pecker entered into in 2015?

Blanche displays Daniels's two denial statements. The prosecution wants you to believe these were coerced, but Daniels decided to go public after these statements, because she was supposedly trying to protect herself from a threat someone made to her in a gym parking lot in 2011. We fast forward to 2018, when Blanche says that something happened that was worth a lot more than $135,000: Larry Flynt offered to pay Daniels's legal fees to encourage her to "make her false accusations" public.

Blanche plays the "settler's remorse" clip. At the end of the day, what really happened is that someone offered more money to Daniels, says Blanche. Someone offered to pay her legal fees. And then she wrote a book. And she now has a podcast and a documentary. This was about extortion, and it ended very well for Daniels, financially speaking.

There's nothing wrong, illegal, or sinister about a nondisclosure agreement, Blanche continues.

Blanche continues to discuss Dylan Howard's role. He had nothing to do with this conspiracy and had no motivation for Trump to succeed in the election. So what really happened? After the Access Hollywood tape came out, Daniels and Rodriguez seized an opportunity—they go back to Howard and say now's the time to strike.

This is not a conspiracy between Pecker, Cohen, Trump to catch and kill stories, Blanche says, his voice laden with mock exhaustion. "That's not catch and kill!"

Blanche turns now to the Access Hollywood tape. This was an extremely emotional time for Trump, Blanche says. Nobody wants their family exposed to that type of story—doesn't matter if you're a presidential candidate, Apprentice host, or a regular person. The Access Hollywood tape was a cause for real emotional distress, not a motive to commit a crime, he argues.

Blanche says that the only contrary account comes from one witness. Who? Cohen. The Access Hollywood tape is being set up in this trial to be something that it is not. It was one of many stressful stories and issues that came up in the 2016 election. It was not a doomsday event.

Back to Daniels, as Blanche asks openly why the district attorney didn't call her to testify at the grand jury but did call her to testify in the trial. Why did they do that? To inflame your emotions, to embarrass Trump—an objection is overruled—that's why, ladies and gentlemen.

Blanche displays two lines from October 2017, from Cohen to Davidson, as supposed evidence that Trump didn't know about the Daniels payments until well after the fact: "Who else would do that for somebody?" "I wasn't gonna play, penny wise pound foolish."

More from Cohen to Davidson: "The amount was just not really that significant."

Blanche now turns to  Cohen's testimony that he didn't want a job in the administration. "But that was a lie—another lie," Blanche says with a dramatic flourish.

In the next slide, we see a bit of Costello's testimony, the part where he says that Cohen said numerous times that Trump knew nothing about those payments. It’s one of the few times Blanche even mentions his one substantive witness. At the time, Cohen was "suicidal," according to Costello. It was a very stressful time, after the FBI raid, with the federal charges looming. I don't know how many lies are enough to just reject Cohen's testimony. Big lies or small lies, meaningful lies or unmeaningful lies.

We see the NDA and sidebar agreement, as Blanche points out that Trump actually never signed the agreement. If he never signed it, how could it ever be enforced? Blanche asks. Did Trump even know it existed at the time? What Trump knew in 2016, you only know that from one source, and that's Cohen.

I spoke to Trump on Oct. 24 at 8:02 pm, Blanche says, impersonating Cohen in a mocking voice, as he displays the call with Schiller. This was his sworn testimony, Blanche says, his voice raising to the highest decibel thus far: THIS. WAS. A. LIE.

Blanche seizes on the "gotcha" moment during Cohen's cross when it came out that the 14-year-old had been harrassing Cohen. Cohen still said the call to Schiller was about Daniels and that he spoke to Trump, as well as to Schiller about the 14-year-old. "That is PUR-JUR-Y," Blanche booms. We put that into evidence, and now you know what the truth is, Blanche continues about the Schiller call. Is there the same amount of evidence for absolute proof of every other lie that this man told you? No, for that we have an oath. The oath matters—to most people.

Cohen has repeatedly lied under oath, Blanche says, launching into a litany of Cohen's lies: He lied to his family, to his kids, to his banker. He lied—Blanche stops himself—if you believe what he said on the stand, he lied to the FEC. He's literally like the MVP of liars. He lies constantly. He's lied to Congress, business associates, his bosses, and federal judges. In fact, he's also a thief. He literally stole on his way out the door tens of thousands of dollars from the Trump Organization. That’s a felony.

He also deeply hates Trump. Blanche plays clips from the Mea Culpa podcast. We march back through some of Blanche's themes during Cohen's cross-examination: Cohen profited to the tune of millions of dollars off of Trump's case. A witness who hates the defendant is actively making money off of that hatred and following what other witnesses say—an objection is sustained. Cohen is lying simply to benefit and protect Cohen—nobody else. Period.

Blanche says he’s almost done but he mentions that he wants to run through ten reasons for Reasonable Doubt.

  1. Invoices. Cohen created the invoices. They're accurate, and there's no evidence that Trump had an intent to defraud. There is no evidence that Trump knew they were sent. And none of them were addressed to him.
  2. The Valentine's Day 2017 vouchers and checks. There is no proof that Trump knew of anything Tarasoff did with respect to the vouchers. Two of the checks he never even saw or signed. The others he signed while running the country.
  3. No Intent to Defraud. There was a 1099 form. Trump tweeted what happened. And he submitted a form to the Office of Government Ethics. None of this is consistent with fraud
  4. No Intent to Commit or Conceal. There’s no evidence of intent to unlawfully influence the 2016 election, to willfully violate the FECA. There are no tax law violations because Cohen didn't understand the “gross up,” and there’s no falsification of business records anyway.
  5. No Illegal Agreement to Influence the Election. Remember, for the jury to believe this happened, Blanche says, there has to be an illegal conspiracy to criminally influence the election—an objection is sustained—and Weisselberg wasn't at the initial Pecker meeting.
  6. AMI Would Have Run Sajudin's Story. That's not catch-and-kill.
  7. McDougal Did Not Want Her Story Published. She wanted to be on magazine covers, and that's not catch-and-kill either.
  8. Daniels's Story Was Already Public. That's not catch-and-kill either.
  9. Manipulation of Evidence. There are a lot of documents, a lot of evidence in this case, but the prosecution has made mistakes. And we have caught them—the Schiller texts about the 14-yr-old, and the testimony about Cohen's phones, which he wiped and resynced.
  10. Cohen is The Embodiment of Reasonable Doubt. He is biased and motivated to tell you a story that isn't true. Have you guys heard of GOAT? Blanche asks the jury. Greatest of All Time? Beyond all peers? Michael Cohen is the GLOAT: the Greatest Liar of All Time.

The press chuckles heartily at this last one.

He raised his right hand And. He. Lied. To. Each. Of. You., Blanche continues. You cannot convict someone, send someone to prison—an objection is sustained—based on the words of Michael Cohen.

Blanche thanks the jury for listening for so long, and he flatters jurors about paying such close attention: This is not a referendum on how you feel about Trump, who you voted for in 2016 or whom you plan to vote for in 2024. The verdict has to do with the evidence you heard here.

If you do that, if you focus on the evidence you heard in this courtroom, this is a very quick, and easy, not guilty verdict, Blanche says.

And that's it for the defense.

He takes his seat next to Trump, and Justice Merchan delivers his typical pre-lunch instructions to the jurors.

With the jury gone, Steinglass rises to ask for a curative instruction related to Blanche's prison comment. He also says defense used the ruling to not give limiting instruction with respect to the retainer agreements issue as a sword, rather than shield, and Blanche proceeded to misstate NY law on the necessity of a retainer agreement.

Justice Merchan chastises Blanche for the prison comment. Someone who's been a prosecutor and defense attorney as long as he has should know that it's highly inappropriate, simply not allowed. Period. It’s hard for the judge to believe that it was accidental.

Justice Merchan says he will give a curative instruction.

We break for lunch. As we leave, several men saddled with bags from McDonalds head into the courthouse.

*           *           *

At 1:57 p.m., Trump is back at the defense table, chatting with Blanche to his right, as Bove listens on, leaning in slightly from the left side. Susan Necheles arrives a few minutes later, bag in hand, and takes her seat to Bove's left. Across the aisle, Steinglass reviews a stack of papers in front of him, locked in focus. This is his big moment.

Justice Merchan is back as well, and he breaks the silence by asking whether the People have a draft of the proposed curative instruction.

Hoffinger stands to answer: Not only was Blanche's comment highly improper, but the judge specifically precluded any argument by the defense about potential punishment in a March ruling, so he was already on notice. Hoffinger reads her the proposed instruction. And she goes on to push on the retainer agreement issue as well, saying that Blanche misstated the law, and relied on citations that have more to do with California law than New York law.

Blanche stands to respond first to the prison statement jury instruction—about which he has no objection. Instead, he joins the fight over the retainer agreement issue.

Justice Merchan says he'll give the prison statement instruction as written, since there is no objection, but that he will not issue an instruction on the retainer agreement. For it to come from the bench would draw more attention to it than it's worth, he says. He summons the jury back.

With the jury back now back in their seats, Merchan delivers his instruction: during the defense summation, you heard Blanche ask in substance that you not send the defendant to prison—that comment was improper and you must disregard it. If there is a guilty verdict, it will be my job to sentence the defendant. The judge turns the floor over to Steinglass to begin his summation.

This case is about a conspiracy—to influence the 2016 election—and a cover up to disguise the payments to Stormy Daniels, he begins.

Steinglass runs through the elements the prosecution needs to prove: (1) that business records were falsified, (2) that this was done with intent to influence an election using unlawful means, and (3) that the falsification of business records was committed—or caused—with intent to defraud.

But before turning to what this case is about, Steinglass argued, he wants to talk a bit about what it isn’t about. These are the sideshows. There’s a sideshow about the prosecution’s call summaries, which the defense called into question, he notes. There was nothing sinister here, he says, and it's a strange accusation coming from a defense who made a call log in which they double counted some calls.

The prosecution summaries don’t include every call—not by a longshot, Steinglass says. We don't have certain phone numbers, and outgoing calls from Cohen's landlines don’t leave a record. A phone record proves that a particular call did happen, Steinglass notes, but the absence of a call doesn't prove that a particular call did not happen. And there's no record of encrypted calls between users either; that's the whole point of encrypted messaging apps. And of course, Steinglass says, some of these conversations took place in person, specifically so as not to leave a record. The bottom line is that the absence of a record doesn't mean that a claimed conversation didn't happen.

Steinglass starts with Stormy Daniels: her first goal, he says, was to get her story on record, to protect herself and her family. Remember that conversation she had with the lawyer, who told her to get out in front of this? Sure, she chose to tell her story and get paid for it, Steinglass concedes, but that's a far cry from the extortion narrative we just heard from Blanche.

Think what you want about Davidson, and the practice of trading on stories of sexual relationships. Maybe you think that’s sordid. But in the end, that doesn't really matter because you don't get to falsify business records to cover it up. Extortion is not a defense, he says. You don’t get to say, it’s okay for me to falsify business records because I was being extorted.

Consider the utterly damning testimony of David Pecker, the defendant's friend of four decades, Steinglass continues. If you accept it, that's one of the elements right there—conspiracy to unlawfully influence the 2016 election—you don't need Cohen to prove that one bit.

And when you consider Pecker’s testimony, consider it as a whole—not the two questions the defense showed during their summation, Steinglass says. Consider also that Pecker has no incentive to lie here. Yet his testimony is utterly devastating, much like Hope Hicks, Jeff McConney, and other witnesses in this case. Many of the witnesses, in fact, still love Trump, says Steinglass, and they may even have an incentive to skew their testimony in Trump's favor. Yet, they provided damning evidence.

On the flip side of that, Steinglass says, you may think some witnesses have an incentive to damage Trump. The defense has made every effort to destroy Daniels's credibility. They've shamed her, suggested her story has changed over the years—though it hasn’t—demonized her. And sure, parts of her testimony were "cringe-worthy," he says, because that whole episode in the suite was "uncomfortable." Some of the details—for example, the contents of Trump’s toiletry bag—are the kind of details that kind of ring true, the ones you'd expect someone in her position to remember, he says.

In his opening statement, Steinglass says, Blanche said that Daniels's testimony doesn't matter, and that's a bridge too far. But it’s partly right. The prosecution doesn't have to prove that sex happened between Trump and Daniels. But Daniels’s testimony proves that Trump knew what happened in that hotel suite. And if it was irrelevant, why'd they work so hard to discredit her?

Steinglass says Daniels's story is messy and difficult to hear, but that's the point—that's what they didn't want the American voter to hear. In the simplest terms, Daniels is the motive, he says.

Steinglass moves on to the other problematic witness: Cohen. We all agree, and still all agree, that you should take this all into account when assessing his credibility, he says. The defense says that Cohen is biased, he says, and guess what? We agree with that.

Cohen did the defendant's bidding for years; he was his right hand man, his consigliere. And then Trump turned on him, Steinglass says. Anyone in Cohen's shoes would want to hold Trump accountable.

And what about the motive for Cohen to reduce his prison sentence? Well, he never got that sentence reduction, and yet he's still here providing information, Steinglass says.

The next reason the defense tells you to reject Cohen's testimony, is that he stole from the Trump Organization, says Steinglass, who then runs through the RedFinch episode. That's stealing, we agree, he says, and Cohen was mad about Trump cutting his bonus.

It's true he was never charged for that, says Steinglass, but he's also the one who brought it to everyone's attention—he volunteered that information. But none of this matters.

It's not a defense that one of the conspirators is guilty of stealing from another, he says.

Steinglass points out here the defense wants to have it both ways: Blanche said Cohen actually stole $60,000 because it was grossed up, but also said all that money was for services rendered: if that's true, he's getting paid, not paying back RedFinch.

Steinglass says that Cohen has paid a dear price for his errors in life: He's been convicted of multiple felonies; he can't own taxi medallions any more; he’s been fined; he’s been disbarred and he has suffered the steady stream of online attacks from the defendant and his supporters.

I'm not asking you to feel bad for Michael Cohen, he made his bed, Steinglass says. But you can't blame him for making money on the one thing he has left: his knowledge of the inner workings of the Trump phenomenon.

Steinglass continues to rehabilitate Cohen, who he says was happy after his appointment as personal attorney to the president in 2017—happy enough to work another 15 months keeping the parties to their respective NDAs. You should consider all of these things when assessing Cohen's credibility, but ask yourself whether to shut yourselves off completely to his testimony.

And when you consider Cohen’s lies under oath and the defense’s insistence that you focus on them, Steinglass argues, consider this: when Cohen lied to Congress, he was lying to protect Trump. Now Trump wants you to use those lies on his own behalf as a reason you shouldn’t trust this witness against him. Some would call that chutzpah, Steinglass says.

Steinglass now turns to the supposed “gotcha” moment of that call to Schiller. The defense wants you to think that's per-jur-y, he says, imitating Schiller. To them, this is "The Big Lie," he continues. But Steinglass now puts on a little demonstration meant to show that everything Cohen testified to could have happened on that call between Schiller and Cohen. He acts it out—even waiting a few seconds for Schiller to hand the phone to Trump—and plays Cohen talking to both men, showing that Cohen could easily have chatted with Schiller about the 14-year-old and kept Trump up-to-date about the Daniels deal. .

It's a convincing simulation demonstration. He gets it all done with time to spare. Steinglass shows the Cohen-Trump recording transcript, and points out that his simulated call with Schiller and Trump took about the same amount of time as Cohen took in that in-person conversation to brief Trump on the Karen McDougal deal. These guys know each other well, he says. They speak in coded language.

Even if you're not convinced the two talked about the Daniels matter in that call, says Steinglass, a far less sinister explanation is that Cohen simply mixed up the dates. It wasn't a critical moment in time. It was one update of many. There’s no reason to assume he was lying.

The defense wants it both ways here too: They're telling you Cohen would say anything to get Trump convicted, while also telling you that his testimony isn't enough. But that makes no sense, Steinglass says. If Cohen came in here to lie, he could've easily gone much further than he did. When discussing whether or not Trump slept with McDougal while negotiating the NDA, for example, Cohen testified that in response to his query on the subject, Trump merely responded, "She's a beautiful woman." He could've lied here and said that Trump admitted it. But he didn’t. Another example is the Weisselberg meeting. Steinglass says that Cohen could have testified that Trump said, "Let's cook the books," or that he took a more active role in the plot. But Cohen didn't do any of this. Why? Because he's limited "by what actually happened," Steinglass says.

Cohen was more of the defendant's fixer than his lawyer, Steinglass argues. He had a legal title, but he wasn't in the legal department. He didn't answer to the general counsel, but to Trump directly. He got the jobs no one else wanted—the jobs Trump wanted kept quiet.

The defense goes on and on about Cohen, Steinglass says, but we didn't pick Michael Cohen. We didn't pick him up at the witness store. Trump picked Cohen as the guy he wanted to solve these problems for him. "It's difficult to conceive of a case with more corroboration than this one," Steinglass says.

Eventually, Steinglass says, Cohen came to realize that loyalty was not a two-way street, Costello was a double agent sent to discourage Cohen from cooperating, and it became clear to Cohen that he was set up to be the fall guy. Cohen decided to prioritize himself and his family and come clean. And he’s been doing so for the last six years. He apologized to the American people for lying and suppressing information. The defense wants to make this about Cohen, but that's a deflection, Steinglass says.

This case is not about Michael Cohen; this case is about Donald Trump, and whether he falsified documents to cover up the election law violation. Cohen is like a tour guide through the physical evidence, but those documents don't lie, and they don't forget.

You don't need Cohen to connect these dots—but as the ultimate insider, he can help to do just that, Steinglass says. In order to understand what's going on here, you need to roll up your sleeves and get into these documents.

He shows us a slide with a detailed timeline. The August 2015 meeting in Trump Tower is the "prism through which you should analyze the evidence in this case." Three rich and powerful men met to become more powerful by controlling the flow of information that will reach the voters. During this Trump Tower meeting, Steinglass says, they settled on three aspects of the conspiracy: (1) Accentuate the positive, promote the campaign by colluding on positive stories about Trump; (2) an agreement to publish stories attacking Trump's opponents, timed for maximum impact—which wasn't a normal press function; but the real game-changer of this meeting, Steinglass says, was (3) the “catch-and-kill” scheme—and remember, once money starts changing hands, that's a federal election campaign violation.

What they did is the definition of catch and kill, whether you use the phrase or not, Steinglass says. This is not, as Blanche suggested, buying a story you may decide whether or not to print it. This is buying a story you don't intend to print so that no one else can print it either. The defense says this is just called democracy, but in reality, Steinglass argues, it is the complete opposite: it was the subversion of democracy. Democracy rests on the fundamental premise that voters have access to information about the candidates. The purpose of the Trump Organization meeting was to manipulate and defraud the voters, to pull the wool over their eyes.

Steinglass also says not all contracts are legal—a contract to kill your wife, for example, would not be. So it will not do to insist NDA are perfectly legal; an NDA can be part of an unlawful election campaign finance scheme. No matter how many times the defense says otherwise, says Steinglass, this was simply not business as usual. Sure, Pecker may have crossed the line with Arnold Schwarzenegger in the past, but that doesn't mean he didn't cross the line here too.

Plenty of people, Steinglass acknowledges, ask who cares if Trump slept with a porn star before the election. But the issue is that the voters should have the information to decide whether they care or not. And once AMI purchased these stories in coordination with or on behalf of a campaign, that becomes a campaign contribution. This corrupt bargain cannot be overstated; it turned out to be one of the most valuable contributions that anyone ever made to the Trump campaign. This very well could have been what got Trump elected, Steinglass says, somewhat improbably.

As Blanche did before him, Steinglass now runs through the three catch-and-kill case studies—Sajudin, McDougal, and Daniels—taking each in turn.

He starts back in 2015, when AMI paid Sajudin for exclusive rights to his story. Steinglass pulls up Pecker's testimony, in which he said he would have published the story, which he describes as the biggest story since the death of Elvis, but would have waited until after the election. He would have waited because that's what they agreed to do, even though they risked getting scooped.

When the prosecution asked Pecker why AMI was paying $30,000 for an untrue story, Pecker said that if the story got out to another publication, it would have been very embarrassing to the campaign. That is not a normal press function, Steinglass says. That's catch and kill.

Steinglass runs through the features of the Sajudin NDA that suggest the action was designed to help the campaign, and not typical media practice. Instead of a three-month exclusivity period, it made AMI’s exclusivity perpetual, and it had that one million dollar indemnity clause designed to "put the fear of God" in Sajudin. In other words, the goal was to lock the story up. This was overt election fraud. It was an act in furtherance of the conspiracy to promote Mr. Trump's election by unlawful means. It was an illegal corporate campaign contribution made by AMI, in collusion with the campaign.

That brings Steinglass to the McDougal case study in June 2016. Trump had just clinched the nomination, and Davidson texted Howard about a "blockbuster" Trump story, he notes. While reviewing texts between Pecker and Howard, Steinglass says, "they sometimes try to speak in code, but you don't really need to be a code-breaker to decipher some of these." 

He marshals call summaries, text transcripts, and other evidence to retrace the McDougal saga. All the while, Cohen kept calling Pecker. He seemed agitated and anxious, Steinglass says. Cohen wanted to speak to Howard on the phone. Why? Because he needs to update the Boss.

Steinglass is on a roll now, his animation and pace picking up speed—so much so that the court reporter asks him to slow down just a bit. He apologizes, backtracks just a bit, then keeps on rolling.

Another text now from Howard about the McDougal story: "I won't let it out of my grasp." There's not a lot of room for debate here, says Steinglass, Howard is acting in cahoots with the candidate to kill the story.

Steinglass continues to weave the McDougal catch and kill yarn together, sprinkling in interactions between Howard, Davidson, Pecker, and Cohen, and always finding ways to point out Trump's awareness of the situation. At one point, Steinglass uses Davidson testimony to show that Cohen was not authorized to buy lunch without Trump's approval.

One possible weakness of Steinglass's summation so far: the sheer scope of the story he's trying to tell, and the breakneck speed at which he's telling it makes it hard to process sometimes. It’s a shock and awe approach to the jury and the evidence, but it’s not clear how much of this is going to stick.

We see text after text, email after email, transcript after transcript of witness testimony, and interlocking timelines.

Steinglass continues through 2016, when Pecker balked at Cohen's suggestion that he pay for the McDougal story. But Cohen reassured him, Steinglass says, saying don't worry, the Boss will take care of it. In August 2016, Steinglass argues, when he’s finalizing the McDougal deal, Howard doesn't even call his own boss, Pecker, to keep him informed. He calls, rather, Trump's fixer, Cohen, because it's the candidate from whom he needs sign-off, not Pecker. Trump, everyone knew, was the real party at interest; AMI was just a front. This is further evidence of campaign collusion and unlawful campaign contribution, Steinglass emphasizes.

Steinglass now attacks Blanche's argument that McDougal was just trying to jump start her career with magazine covers: these provisions were the "window dressing," he says; they were there to disguise the true nature of the contract. They were designed to be plausible deniability for the campaign finance violations.

To support this claim, Steinglass runs through AMI's non-prosecution agreement with federal prosecutors. Pecker was willing to sacrifice AMI's bottom line in service of Trump's campaign. This was the very antithesis of a normal, legitimate press function. And it is the very definition of an unlawful corporate campaign violation, Steinglass argues. Pecker testified that he valued the content portion of the deal at only $25,000, and the life rights at $125,000. And AMI purchased these life rights at the request of and for the benefit of the defendant.

In Pecker's testimony—and not just Cohen's—Pecker was getting agitated because he wasn't getting his $150,000 reimbursement, so Cohen recorded Trump. The defense has gone to laughable lengths to cast doubt on this recording. Some of these "laughable lengths" included the defense's claim that Cohen's phone wasn't put into a Faraday bag—remember that ridiculous cross-examination? Steinglass says mockingly. But there is no reason to doubt the phone. Why would Cohen destroy the evidence for a crime that he already admitted to and served time for? Don't accept this invitation to muddy the waters, Steinglass urges the jury.

He also notes that the defense wants the jury to rely on certain parts of the phone, but not the parts that don't look good for the defendant.

We get to the point in the timeline of the Cohen Oval Office recording, which Steinglass calls jaw-dropping. He plays the clip, nearly in full.

This recording shows the defendant's cavalier willingness to hide this payoff, Steinglass says.

Steinglass encourages jurors to play it as many times as loudly as they want, to hear Trump say 150 on the tape. It shows that the defendant suggested paying in cash—it doesn't matter whether “cash” means no financing or a bag of cash. The point is that Cohen and Trump were trying not to leave a paper trail.

Here is another false business record, Steinglass says, showing a Resolution Consultants invoice, "in service of this conspiracy to promote or prevent an election."

After an objection—which Justice Merchan sustains—Steinglass briefly, until the judge cuts in and tells him it’s time for a break.

Merchan asks: How's it going, Mr, Steinglass? How much time do we have left?

We're about a third of the way through, Steinglass says. 

In the overflow courtroom, the press lets out an audible howl of disbelief. Up until this moment, Steinglass has had the press—which is a highly imperfect proxy for the jury but the only one we have—in the palm of his hand. He has been speaking for roughly 90 minutes. He has been an almost perfect mix of substantive and disdainful of the defense arguments. He has responded to defense bluster with a barrage of citations to the records, reminders for the jury about what people really said and what the context was. He has seemed both sure-footed and reliable.

And in just a single sentence, he has made a room full of reporters hate him. The mental math is daunting. If he’s a third of the way through and we’re at nearly 4:00 pm already, then he means to keep talking to the jury until 7:00 pm or later. The performance that only a moment ago seemed like a bravura display of summing up suddenly seems like the beginning of what promises to be a windy and weedy four more hours.

*           *           *

Justice Merchan is now back at the bench; he announces his intention to break next at 5:30 p.m. Another audible groan from the press, as the immense realization of the long evening ahead of us fully sets in. Trump and Necheles remain seated at the defense table during a brief sidebar. Tiffany and Eric Trump take their seats as the sidebar finally breaks up. 

They've been discussing scheduling for the rest of the day and what's best for the jurors, Justice Merchan says. The plan has been revised slightly. We'll take a break at 5:00 pm, he says, then pick it back up at 5:30 or so, then we'll "see how everyone's doing."

The jury retakes the box, and the marathon summation enters what in hockey would be its second period. 

Four weeks before the election, Steinglass resumes, the campaign was rocked to its core by the Access Hollywood tape, which depicted a presidential nominee glibly discussing grabbing women by the genitals. The defense downplayed it, Steinglass notes, but remember the actual testimony. Hope Hicks testified that it eclipsed a story of a category four hurricane—which would make the Access Hollywood at least a category five hurricane. 

The video was vulgar, to say the least, Steinglass says. The Washington Post released it on Oct. 7, 2016, and Steinglass plays Trump's video apology posted on Twitter just after midnight on Oct 8. He runs through a bevy of communications between the “campaign staff and the conspirators"—not because the details are important, but because he wants to give the jury the impression of the flurry of activity that took place. This includes the request to remove the "Donald Trump, Playboy Man" story from one of AMI’s magazines. This is not catch and kill exactly, Steinglass says, but they are purging the internet of negative information about Trump at the direction of and for the benefit of the campaign. That’s not a normal press function either. 

More call logs: one call from Trump to Cohen, asking Cohen to spin the story as "locker room talk"—a spin, Steinglass reminds us, that Melania Trump recommended.

At the time, the race could not have been closer, says Steinglass. The tape was capable of costing Trump the election—and he knew it. Steinglass plays a clip from a Trump campaign rally, and he displays Trump’s tweets, giving the impression of a candidacy in crisis, one going full spin cycle to get the situation under control. One Trump tweet reads, "Nobody respects women more than me,” prompting a guffaw from the press corps. 

You can't examine the Access Hollywood debacle with the benefit of hindsight, as Blanche would like the jury to do when he said that, well, he won; it was just another day. That's not exactly true, Steinglass says. The Access Hollywood tape caused pandemonium in the Trump campaign.

Against this backdrop, the Daniels story presented an acute concern. Stormy Daniels was a walking, talking reminder that the defendant was not only words, Steinglass says. She was a refutation of his "locker room talk" defense. She would have totally undermined Trump's spin.

After marching linearly through the 2016 timeline, Steinglass backs up to June and July, to the texts between Rodriguez and Howard, to show why Rodriguez went back to Howard after the Access Hollywood tape was released. He then shows the flurry of calls between Cohen, Howard, and Pecker after the tape came out—showing how it revived the idea of a sale. 

Steinglass works his way through the Oct. 8 text message negotiations between Rodriguez and Howard. Neither Daniels nor Rodriguez reached out to Trump or Cohen; they were brokering a story deal with AMI, where they thought it would be published, Steinglass says.

Howard texts Pecker about the deal, but Pecker balks: "We can't pay 120,000," he writes. Literally one minute after that back-and-forth, Howard calls Cohen. After a few more calls, then Howard's text to Pecker: "Spoke to MC. All sorted. Now removed. No fingerprints."

We wade through call logs, Signal DMs, text messages, emails—a blizzard of activity between Cohen, Pecker, Hicks, and others.

It's a slog, though that may be exactly what Steinglass intends—to overwhelm the jury here with volume. He comes to the creation of the Essential Consulting account, which he characterizes as another false business record. Whatever else you say about this defendant, he's a savvy businessman—one who knows you have to give a reason to open a business account. And he knew that his fixer would have to give a false one to open it, Steinglass says.

Davidson was clear about how he interpreted Cohen's statement of “I'll just do it myself,” Steinglass says; he understood the money was coming from Donald Trump, or some corporate affiliation thereof.

Steinglass has slowed down to a day by day, hour by hour, exchange of calls, texts and emails. It's 4:32 p.m., and Steinglass is only at Oct. 17, 2016. Recall the actual alleged falsification of business records doesn’t occur until months later, in January 2017.

We slog along until Oct. 25, 2016, for another flurry of calls and texts between Howard, Davidson, and Rodriguez. Now Steinglass pulls up Pecker's testimony, in which he says he told Cohen that he wouldn't pay for the story and suggests, instead, that Cohen buy the story and take it off the market. One call in the communications back-and-forth sticks out. On Oct. 25, a rare call occurs between Cohen and Weisselberg, two men who exchanged only six calls in three years—two of which, Steinglass reminds the jury, took place in the lead-up to the Daniels pay off.

After the Weisselberg-Cohen call, Steinglass shows a call log with evidence of a call between Cohen and Trump. Steinglass pauses for effect: This is damning, right? This is half an hour before Cohen goes across the street to do the final paperwork for the payoff, he points out. 

We crawl ahead, to when the deal is signed on Oct. 28, 11 days before the election. Steinglass addresses the absence of Trump's even pseudonymed signature: It wasn't necessary to have a binding NDA against Daniels, he argues. And Davidson had no reason to insist on a signature from Trump once the money was wired. His side of the bargain was already paid for. The objective of the agreement was to keep Daniels quiet.

It's no coincidence that the sex happened in 2006, but the payoff didn't happen until Oct. 2016, Steinglass argues. That's because the defendant's primary concern was not his family, but the election.

There was another hiccup in the scheme before the election. On Nov, 4, 2016, the Wall Street Journal ran its story about McDougal. Cohen rallied his troops to issue denials in response to the story, producing another flurry of texts and emails between the conspirators and the campaign. Cohen says he'll rush through it all just to give the impression of circling wagons.

Call summaries flash on screen and then off, as Steinglass rapidly says that Cohen called Pecker, Davidson called Howard, Schiller reached out to Howard, etc. "Hope you're getting all this," Steinglass jokes to the jury. 

It’s not entirely clear what he does hope the jury is getting, perhaps just a gestalt impression of a feverish barrage of communications. 

Before we break, Justice Merchan thanks the jury for the efforts members made today to work as late as necessary, the childcare arrangements they took on, and the like. He then excuses them.

I was watching the jurors, he says after they’re gone, and they seem pretty alert to me. I don't think we're losing anyone, so we'll try to finish this out tonight. 

We take a "slightly longer" break—around 20 minutes this time.

*           *           *

At 5:12 pm, Trump returns, his entourage in tow. Justice Merchan has been back at the bench for some time, but we're still waiting on the jury to return. It’s still a few minutes more before the jury is back, and Steinglass retakes the podium. Good afternoon everyone, he says, though it's starting to feel like early evening at best.

The slide now reads: “Payments and Cover Up.”

We come now to the false business records, Steinglass says. Make no mistake, Cohen wanted the credit for making the Daniels payments, but he also wanted his money back.

He shows Pecker’s testimony, in which he says Cohen even asked him to intervene with Trump on his behalf. Davidson testified that Cohen said "that fucking guy is not even paying me the 130,000 back," and Steinglass reminds jurors that Trump himself even knew that Cohen wanted his money back and that he called Cohen during the winter holiday to soothe his anxieties. 

That brings us to mid-January 2017, and the key document in the case: the First Republic bank statement with Weisselberg's handwritten notes. It also brings us to the meeting in Trump Tower between Trump, Cohen, and Weisselberg. 

Steinglass reads from Cohen's testimony about that meeting. Remember, Cohen had said that Trump said during the meeting that it's going to be a wild ride in D.C., but Steinglass gives more context, asking the jury to be wary of Blanche’s taking testimony out of context. Steinglass traces the creation of the false records: The defendant, remember, gave his orders to Weisselberg and Cohen, and they in turn gave orders to McConney and Tarasoff, and thus the false business records are created. Weisselberg was Trump's top lieutenant, Steinglass reminds jurors. Steinglass pulls up McConney's testimony, when he said that Weisselberg tossed a pad of note paper at him and said we need to get some money to Michael to reimburse him.

Steinglass pauses to ask the jury to think about who McConney is—the long-time, loyal controller with no ax to grind. How did that meeting come to be? Do you really think Weisselberg just wandered in on his own?

He pulls up the First Republic statement and McConney's notes, and says: These are the smoking guns. I'm almost speechless, he says, that they're still trying to make the argument that the payments were for legal services rendered. These documents blow that argument out of the water. 

We zoom in on the now quite familiar highlighted portion of the handwritten notes, including the $50,000 to RedFinch money. Steinglass notes that of course, we know that he did not give $50,000 to RedFinch, and that may matter for his character, but that does not matter for the charges against the defendant. McConney's notes are scribbled on Trump Organization stationery.

They were acting in concert, Steinglass says, and the judge will explain what that means to you. Steinglass points out, again, that he wrote "x2 for taxes," at Weisselberg's direction.

The defense argued that this wasn't fraud, because if it had been fraud, they would have destroyed the business records, Steinglass notes. They twist themselves into a pretzel gaming out the argument: so they would've committed another crime to hide this crime, and because they didn’t commit that one, this one didn’t happen. It doesn't add up, he says.

We move to Blanche's argument regarding the 1099s: Why would they report this to the IRS if it was all fraud? But Steinglass zooms in on the boxes that say nonemployee compensation. That's income, he points out. This is part of the fraud. They reported it as income to the IRS so they could maintain the disguise that it wasn’t a reimbursement for the payment to Daniels.

To be sure, this "tax fraud" meant that more taxes are getting paid than are owed. And that’s unusual, Steinglass notes. But it's a crime to prepare false tax documents nonetheless, Steinglass says. Preparing these tax documents was yet another unlawful means by which Trump and his associates sought to influence the election.

We finally reach the February 2017 calendar entry, "Meeting with POTUS" from Cohen's phone, and the emails between Cohen and McConney about invoicing. Steinglass says there was not an oral retainer, not a written retainer—that there simply was no retainer. He now turns to what he describes as one of his favorite emails in the whole case, the one in which Cohen asks McConney: "Please remind me of the monthly amount?" 

Maybe if they had created a phony retainer agreement, that would have helped their story, McConney says. But that would have been another false business record, and then you'd be deliberating about 35 counts instead of 34, Steinglass says. But they didn’t create a retainer agreement, so Cohen didn’t even know how much he was supposed to be paid. All there was were McConney’s and Weisselberg’s notes, and Cohen didn’t even get a copy of them. So he had to ask.

Cohen probably did more legal work in the first three months of 2018 than he did in all of 2017. Both McConney and Cohen told you that, but you can also check the general ledgers, Steinglass says. And that proves the retainer was a hoax. Because he wasn't a dime for legal work in 2018. In fact, he wasn’t paid for legal work in either year. In 2017, he was paid for reimbursements, not legal work. 

Indeed, Cohen spent more time being cross-examined at this trial than he did doing legal work for Trump in 2017, Steinglass quips. And think about it: Do you really think there's any chance that Trump would pay $42,000 per hour for Cohen's legal work anyway? 

Cohen did pretty well here, Steinglass says. He got a cool title—personal attorney to the president. He used that title to get some lucrative clients. It wasn't a secret. He was making way more money than any government job would ever pay. And don't I know that, Steinglass adds jokingly.

Clients weren’t paying for Cohen's services, he notes. They were paying for access to Trump. At the time Trump was a Washington outsider, and Cohen was in a perfect position to monetize his insider position.

There’s one other reason, Steinglass says, to be confident these were reimbursement payments, not payment for legal fees under a retainer: the defendant himself has admitted it. He did so in legal filings, when Daniels sued Trump to get out of the NDA. He did so in government ethics filing (which Blanche had used as evidence that everything was above board). And the defendant has admitted this was a reimbursement in his own tweets.

Think about what you have to accept in order to buy the defense's argument, Steinglass says, his voice rising now. That both Pecker and Davidson were lying under oath; that McConney was lying; you'd have to disregard the handwritten notes; you’d have to disregard the defendant's own admissions. You'd have to believe instead, Steinglass says, that Cohen was paid pursuant to a nonexistent retainer agreement, in the amount that just happened to magically match, down to the penny, the amount described in notes about reimbursements. Does anyone believe that?  

Steinglass now works his way through the business records themselves. He displays some of the records at issue. The defendant didn't actually pay a lawyer; he paid a pornstar, by funneling money through a lawyer, he says.

I know what you're thinking, Steinglass says to the jury. Is this guy gonna go through every check in 2017? He’s right. That’s what everyone in the room was thinking when they saw a slide that had lather, rinse, repeat vibes written all over it.

No, he says. I’m not. A wave of gratitude breaks over the room.  

Steinglass asks: What is the defense actually saying here? Let's think about it logically. Are they saying that Trump didn't know about the payments? That's crazy. Cohen didn't have the authority to make payments on his own.

Consider this: the December invoice is for services rendered in the month of December, but it was sent on Dec. 1 at around 9:11 a.m.—how do you rack up $35,000 worth of services in 11 minutes?

Steinglass now takes aim at the "Trump was busy" defense. This is a guy whose entire business philosophy was based on negotiating everything, down to the price of the lightbulbs, the prosecutor says.

But surely that was when he was a businessman with more time on his hands, not president, right? Wrong—another false narrative, put forth by the defense. We know he reviewed individual bills as president, he argues. Remember the golf membership invoice that Trump approved for about $6,000. He could have used autopay, or switched some expenses to the Trust, Steinglass says, but he didn't. He wanted control over them himself. He wanted to review them individually.

Why have the invoices go from Cohen to Weisselberg to McConney to Tarasoff and then from Tarasoff to Manochio via Schiller and Westerhout and Trump and backwards through that same chain? Trump wanted to retain control. That's who he is. That's his philosophy.

Steinglass backtracks through several Trump book passages, reading a few choice excerpts to drive home Trump's extremely detail-oriented business philosophy, which treats penny pinching as a virtue and show of mastery of details..

We see displayed People's Exhibit 350—a chart of the business records and the corresponding 34 counts—and Steinglass lets jurors know: You can have it, if you ask for it.

He turns to Hicks’s testimony: “I think Mr. Trump's opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election.” That is devastating, Steinglass says, that was the last thing Hicks said on direct. And a few seconds after she said it, she burst into tears.

Why? Because it shows that this was about the election. It was not about Melania or about his family. Trump didn't express any concern at all about his family finding out. He didn't express any wish to silence Daniels until the election. 

Steinglass shows the key Signal message to Cohen from Jay Sekulow thanking Cohen. The purpose of these was to ask Cohen to fall on the sword to protect the president, Steinglass says. This text shows what Cohen craved the most: recognition for his efforts on Trump's behalf.

Steinglass pauses to take a swig of water, as he moves on to discuss the DJT personal account, which he calls a "clearinghouse" for other entities. It was the hub of a wheel with 500 spokes, he says. In short, the DJT account was an enterprise. This is an important point under New York law, which criminalizes falsifying business—not personal—records. The DJT account may have paid Trump’s personal expenses. But it was not a personal account. It was an enterprise within the meaning of New York. 

New York is the business capital of the world, Steinglass says, and whether you're a private or public enterprise, you have an obligation to keep proper books and records. It's an obligation to the state. At its core, this case is really about cheating—an objection is overruled.

After a brief sidebar to discuss scheduling again, Steinglass returns to the podium. He asks the jury: You guys good to go a little bit longer? He seems to get some half-hearted nods and interprets them as license to continue what has become an epic one-man show. Alriiiiiiight, he says cheerily. And we roll on.

Like all fixers, Steinglass resumes as though he has known a lot of fixers in his day, Cohen knew where the bodies were buried. And it was thus essential to keep him loyal. Within days of the FBI raid, Trump reassured Cohen over the phone, then later using messages from surrogates. Steinglass pulls up a few of the now-famous Trump tweets to show him sending the message: stay in the fold. And it worked, at least for a time. He retrieves the April 28, 2018 "sleep well tonight" email from Costello to Cohen.

Costello told you under oath, Steinglass says, that his sole interests were to Cohen; that was just a bald-faced lie, says the prosecutor. Costello's demeanor on the stand is something you are allowed to take into account, Steinglass says, referencing the witness's pugnacity. That's a factor you can use to assess his credibility. Steinglass hauls out another Costello to Cohen email; the message is clear he says. Stay loyal.

But then, realizing Costello was losing control of the situation, says Steinglass, he became desperate to serve his true master: the defendant. It's a little disingenuous, he argues, for the defense to say you should not trust Cohen because he previously denied paying Daniels. Those lies were told at the defendant's direction, and at his behest, and for his benefit. It's blaming the messenger for the defendant's own message.

Steinglass continues on a FECA-related line of argument, but Blanche quickly objects, and the parties approach for a sidebar. 

Steinglass resumes with an excerpt of Cohen's testimony. Another objection—this one overruled.

Steinglass at last reaches the turning point in the Cohen-Trump relationship, when Cohen finally broke with Trump. The defendant was furious, Steinglass says, that his fixer had done the unthinkable, and Trump immediately went on the attack, an attack which continues to this day.

He displays one of these "attacks," a Trump tweet about Cohen, and Steinglass says the warning message to Cohen was clear: Cooperate and you will face the wrath of Donald Trump. An objection is overruled.

To drive home the loyalty point, Steinglass pulls up another Trump book excerpt: "I can’t stomach the disloyalty. This woman was very disloyal, and now I go out of my way to make her life miserable."

Now another Trump tweet "attack," this one aimed at Daniels. It’s the "horseface" tweet, in which Trump denies seeing or speaking to her since the golf course photo. We know this is a lie, Steinglass —why would he lie about this? Steinglass asks. We now hear more examples of Trump's wrath: his bringing suit against Daniels, for example. The defendant wanted everyone to see the cost of taking him on, says Steinglass. The defense objects, and it’s time for a break.

We take our last brief recess of the day.

*           *           *

Blanche stands to elaborate on the objection he made just before the break. Steinglass's claims linking Trump directly to Daniels’s security issues are highly "prejudicial," he says.

Steinglass pushes back. We discussed this at great length in the motions in limine, he says. The defense opened the door to this—wide enough to drive a truck through—by arguing not only that Daniels and Cohen are generally incredible, but that they're somehow profiting from this case, that they're rolling in dough. What they're really rolling in is fear, and we’re entitled to bring that out. What’s more, he says to Justice Merchan, you ruled on this matter and you ruled that this material was in bounds. And we agree with your prior ruling.

The judge says laconically that he also agrees with his previous ruling, but he also says that Steinglass has gone far enough with this—noting that he's been at it now for four hours and counting. He’s clearly growing impatient with Steinglass’s insistence of extreme comprehensiveness. 

Before he brings the jury back in, Justice Merchan says that the jury has said all along they can go until 8:00 p.m., so he suggests that one of Steinglass's colleagues pass him a note if he begins to approach the deadline. The clear message is that he needs to wrap things up before then.

The judge summons the jury back in. The press pool has noticeably thinned out, but the jury box is full. And they are the audience. Justice Merchan thanks them for their flexibility, acknowledging that the court—which is to say Steinglass—is taking full advantage of it.

Thanks for sticking with me, Steinglass begins. A new slide appears: “Mr. Trump Involved Every Step of the Way.”

You know it all began in the Trump Tower meeting, Steinglass says—noting that he won't go into that whole thing again. Cohen was the one Pecker would notify if stories came up, but Trump was the one doing the asking here. Cohen was the middle man.

Trump specifically discussed the AMI reimbursement, Steinglass goes on. This is a point from which the defense simply can't get away.

He continues to march through the timeline, highlighting all the points during which Trump was individually involved or kept informed or updated. 

These are all events Steinglass has mentioned before, but he’s cataloging them here as a specific timeline of Trump’s behavior. He runs through some of these points in a rapid-fire sequence: The defendant convened the Trump Tower meeting that hatched the conspiracy; Trump called Pecker to discuss the McDougal story; Trump called Cohen to greenlight the catch and kill; Trump reached out to Cohen through Melania Trump to discuss Daniels; Trump spoke to Cohen about his frustration with the timing of the Wall Street Journal article; Trump met with Cohen in the White House to finalize the reimbursement scheme; Trump signed nine of the 11 reimbursement checks by hand; Trump sent a tweet admitting these were reimbursements and reported as much on the government ethics form. 

The defense wants you to believe that Cohen went rogue and did this on his own without telling his boss, but there are three reasons you shouldn't believe that, says Steinglass. First, because Trump is a micromanager and is detail-oriented; second, because Cohen was and is a self-promoter, and it thus defies all common sense to think that he would undertake these Herculean efforts on Trump's behalf then keep it to himself. He might seek to avoid a paper trail in his efforts to protect the boss, but he sure as heck wanted the boss to know what he’d done; third, because the defendant was the beneficiary of this entire scheme. He was the one trying to get elected. He stood to benefit the most from repaying Cohen in a way that was not obvious. Cohen didn’t care about any of this. He just wanted his money back. The false business records benefited one person, and one person only, Steinglass says. That person was Trump.

Steinglass now turns to the concept of reasonable doubt; he's careful not to explain the law, but he notes that nothing is 100 percent certain. In looking for a reasonable doubt, you should be guided by common sense, he tells the jurors. Don't accept the defense's invitation to look at each piece of evidence in a vacuum. You have to look at the whole picture.

He then turns to accessorial liability, again careful to mention that the judge will instruct the jury on this. But the point is that Trump doesn't have to do certain acts himself to be held liable for them. Steinglass slips a bit in his carefulness and begins to discuss the elements of the offense—on which an objection is sustained—and Justice Merchan says that he'll instruct on the law and the elements.

Steinglass continues: Trump acted in concert with others to create the false entries in the vouchers and invoices, and he acted in concert with others to create the Trust checks. He personally signed the rest of the checks from his personal account, Steinglass says, calling this aspect of the case a "no-brainer."

He clears his throat. As to the intent to defraud, the judge will instruct you on that, but juries determine intent all the time. And there's ample evidence of the defendant's general intent to defraud, Steinglass says. What crime are we alleging Trump intended to commit or conceal with these record falsifications? Steinglass asks. 

The answer is NY state election law, he answers simply. And again, the judge will instruct you on that. Not to beat a dead horse here, Steinglass says, and this gets a laugh from someone. “That wasn't supposed to be funny,” he says. It's 7:43 p.m., and we're barely holding it together here. 

The co-conspirators in this case committed several federal campaign violations along the way—an objection is overruled—including the payoffs to Sajudin, McDougal, and Daniels, Steinglass says. Purchasing life rights is an illegal campaign contribution when it’s done in conjunction with a campaign for the benefit of the campaign. Pecker's acquisition of the McDougal story was not a normal press function, so the press exemption doesn't apply here. It doesn’t apply either in the Daniels case. What does apply is the prohibition against excessive campaign contributions, Steinglass says.

But there are other options you can consider as unlawful means too, Steinglass argues, and he rattles off a list of them: the 1099s issued to Cohen, Cohen's opening of a business account using false statements. And Trump's post-election steps to conceal a pre-election conspiracy is still part of the same conspiracy, Steinglass says. That's why he directed Cohen to continue to issue false denials in 2018; he still cared. He had every reason to continue to conceal his election fraud. 

Now, Steinglass says, I too want to take a moment to thank you. You've really been remarkable. I know this has been a really long summation, and I apologize for trading brevity for thoroughness. In a moment of admirable candor, he adds: “but we only get one shot at this.”

In this particular case, the evidence is literally overwhelming, Steinglass says. Trump got his trial—he's had his day in court. But the law is the law, and it applies to everyone equally. There's no special standard for this defendant. Like any other case, he can be judged by a jury of his peers, based on the evidence, and nothing else, Steinglass says, his pace of his words slowing for emphasis and gravitas.

I ask you to find the defendant guilty, Steinglass says to the jury, at very long last.

He is done. 

Justice Merchan thanks Steinglass, then the jurors for their patience. He says: What normally happens next is the judge’s instructions on the law, but that will not happen tonight. We've gone pretty late this evening, so we'll begin tomorrow at 10:00 am.

And with that, he sends the jury home and court is adjourned.

May 29, 2024

After what feels like only a few short hours—because it has been, in fact, only a few short hours—the press line back up at 100 Centre Street to hear Justice Merchan’s jury instructions.

The reporters file into Courtroom 1530 and take their seats in the pews. A lone court reporter enters and wheels a chair up the aisle, a stack of bound papers several feet high piled atop it. This is the trial's complete transcript.

“Is that all of it?” asks one of the courtroom sketch artists seated with the press in the gallery.

The court reporter nods solemnly, and then smiles. 

“Wow, you’re like an athlete,” the sketch artist replies, clearly impressed. The press is impressed too, and we break out into spontaneous applause. 

During the May 21 pre-charge conference, the sides jockeyed over how the judge should instruct the jury on the law, how the jurors should apply the facts to the law, and what the jurors must find in order to convict. We will hear the judge’s final answers on those questions shortly.

Trump arrives, sporting a gold tie today. It’s a late start—10:00 a.m.—thanks to Justice Merchan's merciful order last night. But it was still an early morning for reporters who actually wanted to be sure they would get into the courthouse.

Before bringing in the jury, the judge begins discussing the proposed verdict sheet. Steinglass stands to raise an issue: a minor omission on the verdict sheet regarding the 34th count. He says for it to be consistent with the others, it should read “bearing check number 003006.” Justice Merchan thanks him, and brings in the jury. 

“Good morning,” Justice Merchan greets them, and continues: 

Members of the jury, I will now instruct you on the law. I will first review the general principles of law that apply to this case and all criminal cases.

You have heard me explain some of those principles at the beginning of the trial. I am sure you can appreciate the benefits of repeating those instructions at this stage of the proceedings.

Next, I will define the crimes charged in this case, explain the law that applies to those definitions, and spell out the elements of each charged crime.

Finally, I will outline the process of jury deliberations. These instructions will take at least an hour, and you will not receive copies of them. You may, however, request that I read them back to you in whole or in part as many times as you wish, and I will be happy to do so.

He then describes his role. During these instructions, he will not summarize the evidence though he may refer to portions of the evidence to explain the law. Any references to evidence, or non-references to evidence, expresses no opinion about the truthfulness, accuracy, or importance of that evidence, he intones. In fact, this holds true for the entire trial thus far.

“The level of my voice or intonation may vary during these instructions,” Justice Merchan continues, without a hint of sonic or tonal variation. “If I do that, it is done to help you understand. It is not done to communicate any opinion about the law or the facts of the case or of whether the defendant is guilty or not guilty.”

He has surely said the words in this general law section many times before. His tone and pace remain even and measured as he moves through the boilerplate instructions, reminding jurors of their promise to be fair and impartial, to be a juror one who will not permit the verdict to be influenced by a bias or prejudice. He lists just about any category you can think of of factors jurors are not to be influenced by: race, color, national origin, ancestry, gender, gender identity or expression, religion, age—the list goes on. The verdict must be based on the evidence, not stereotypes or attitudes.

“Justice requires no less,” Justice Merchan says, concluding the portion on fairness.

He continues with a brief limiting instruction regarding the defendant: 

Jurors, you will recall that during jury selection you agreed that you would set aside any personal opinions or bias you might have in favor of or against the Defendant, and that you would decide this case fairly on the evidence and the law. Again, I direct you to decide this case on the evidence and the law as it relates to the Defendant here on trial. You must set aside any personal opinions or bias you might have in favor of or against the Defendant, and you must not allow any such opinions to influence your verdict.

Justice Merchan then reminds the jurors that they may not consider or speculate about matters relating to sentence or punishment. If there is a guilty verdict, it will be the judge’s responsibility to impose an appropriate sentence. (The judge had added this curative instruction after the part of Blanche’s closing in which he began to say, “You cannot send somebody to prison” based upon the words of Michael Cohen.) 

Justice Merchan moves steadily through yet more boilerplate instructions on what counts as evidence, what inferences may be drawn from evidence, and why some exhibits have redactions, before shifting to limiting instructions on certain exhibits and pieces of evidence. 

He gives a limiting instruction first on AMI’s non-prosecution agreement with federal prosecutors and in the conciliation agreement with the FEC, both of which occurred while Pecker was an executive. He tells the jury that this evidence was permitted to assist them in assessing Pecker’s credibility and to help provide context for some of the surrounding events. They may consider this testimony for those purposes and those purposes only. Neither agreement is evidence of the defendant’s guilt or innocence. The jury should treat testimony related to the FEC investigation into the Daniels payment, Cohen’s responses to it, and Cohen’s guilty plea to FECA violations as the same: only for the purposes of assessing Cohen’s credibility and to provide context. The same goes for Wall Street Journal news articles accepted into evidence, as well as exhibits which contained hearsay, not accepted for the truth of the matter asserted but for another purpose. Examples include several National Enquirer headlines, an invoice from Investor Advisory Services, and many, many text messages  

Then, Justice Merchan gets back down to the fundamentals: the presumption of innocence until proven guilty and the prosecution’s burden, which it bears alone, to prove guilt beyond a reasonable doubt. If the People fail to meet this burden of proof, Justice Merchan says, the jury must find the defendant innocent; but if they meet it, they must convict.

“The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn,” Justice Merchan adds, his voice unchanged. 

But, what does our law mean when it requires proof of guilt “beyond a reasonable doubt”? the judge asks, then proceeds to answer his own question. “The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty,” Justice Merchan says, so the law doesn’t require proof beyond all possible doubt. “On the other hand, it is not sufficient to prove that the defendant is probably guilty…Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendant's guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant's identity as the person who committed the crime.”

He moves on to the next section: credibility of witnesses. “As judges of the facts, you alone determine the truthfulness and accuracy of the testimony of each witness,” the judge tells the jury. They alone decide whether a witness told the truth or, instead, lied or was mistaken. “ It is the quality of the testimony that is controlling, not the number of witnesses who testify,” he says. 

There’s no particular formula for evaluating truthfulness and accuracy of another person's statements or testimony, the judge tells the jurors. But in life, people make these evaluations all the time, and the same factors used in the jurors’ varied life experiences should be used for the same purpose here. He lists a few: Did the witness have the ability to recall those events accurately? Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true? Was the testimony of the witness consistent or inconsistent

with other testimony or evidence in the case? Did the manner in which the witness testified reflect upon the truthfulness of that witness's testimony? The list continues.

Other factors that may bear on the credibility of a witness include the presence or absence of a motive to lie, whether a witness hoped for or expected to receive a benefit for testifying, or any interest in the outcome of the case, for that matter. Justice Merchan says that previous criminal conduct or convictions may also come into play, though the jury is “not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct, or to accept the testimony of a witness who has not.” The jury may also consider whether a witness made inconsistent statements, and whether there is a reasonable or logical explanation for that inconsistency. And finally, the law permits prosecution and defense counsel to meet with a witness prior to the trial—it's a normal and proper part of preparing for a trial.

Justice Merchan then discusses what an accomplice is as a matter of law: 

Under our law, Michael Cohen is an accomplice because there is evidence that he participated in a crime based upon conduct involved in the allegations here against the defendant.

Our law is especially concerned about the testimony of an accomplice who implicates another in the commission of a crime, particularly when the accomplice has received, expects or hopes for a benefit in return for his testimony.

Therefore, our law provides that a defendant may not be convicted of any crime upon the testimony of an accomplice unless it is supported by corroborative evidence tending to connect the defendant with the commission of that crime.

In other words, even if you find the testimony of Michael Cohen to be believable, you may not convict the defendant solely upon that testimony unless you also find that it was corroborated by other evidence tending to connect the defendant with the commission of the crime.

The corroborative evidence need not, by itself, prove that a crime was committed or that the defendant is guilty. What the law requires is that there be evidence that tends to connect the defendant with the commission of the crime charged in such a way as may reasonably satisfy you that the accomplice is telling the truth about the defendant’s participation in that crime.

In determining whether there is the necessary corroboration, you may consider whether there is material, believable evidence, apart from the testimony of Michael Cohen, which itself tends to connect the defendant with the commission of the crime.

You may also consider whether there is material, believable evidence, apart from the testimony of Michael Cohen, which, while it does not itself tend to connect the defendant with the commission of the crime charged, it nonetheless so harmonizes with the narrative of the accomplice as to satisfy you that the accomplice is telling the truth about the defendant’s participation in the crime and thereby tends to connect the defendant to the commission of the crime.

He now moves on to instructions on the law applicable to the charged offenses. “That offense is falsifying business records in the first degree,” he says, adding, “34 counts.” 

Having defined accomplice as a matter of law for the jury, Justice Merchan delivers the accessorial liability instruction: 

Our law recognizes that two or more individuals can act jointly to commit a crime, and that in certain circumstances, each can be held criminally liable for the acts of the others. In that situation, those persons can be said to be "acting in concert" with each other.

Our law defines the circumstances under which one person may be criminally liable for the conduct of another. That definition is as follows: “When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.”

Under that definition, mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with a perpetrator of a crime, does not by itself make a defendant criminally liable for that crime. In order for the defendant to be held criminally liable for the conduct of another which constitutes an offense, you must find beyond a reasonable doubt:

(1) That he solicited, requested, commanded, importuned, or intentionally aided that person to engage in that conduct, and

(2) That he did so with the state of mind required for the commission of the offense.TKIf it is proven beyond a reasonable doubt that the defendant is criminally liable for the conduct of another, the extent or degree of the defendant's participation in the crime does not matter. A defendant proven beyond a reasonable doubt to be criminally liable for the conduct of another in the commission of a crime is as guilty of the crime as if the defendant, personally, had committed every act constituting the crime.

The People have the burden of proving beyond a reasonable doubt that the defendant acted with the state of mind required for the commission of the crime, and either personally, or by acting in concert with another person, committed each of the remaining elements of the crime. Your verdict, on each count you consider, whether guilty or not guilty, must be unanimous. In order to find the defendant guilty, however, you need not be unanimous on whether the defendant committed the crime personally, or by acting in concert with another, or both.

Under our law, Justice Merchan continues, falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise. He then defines some key terms: enterprise (any entity of one or more persons, corporate or otherwise, public or private, engaged in business, commercial, professional, industrial, social, political or governmental activity), business record (any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity), and intent (conscious objective or purpose).

For that last term, he elaborates with a few questions the jurors may ask themselves when determining intent: what, if anything, did the person do or say; what result, if any, followed the person’s conduct; and was that result the natural, necessary and probable consequence of that conduct.

He defines intent to defraud, which doesn't require intent to defraud any particular person or entity—a general intent to defraud any person or entity suffices. It's not constricted to an intent to deprive another of property or money and can extend beyond economic concerns. For the next element, the intent to commit or conceal another crime, the prosecution is not required to prove that the other crime was in fact committed, aided, or concealed.

That other crime, which is also known as the predicate or object offense, is section 17-152 of the New York Election Law., which “provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election.” Mere knowledge of a conspiracy by itself, does not make the defendant a co-conspirator, nor does evidence only of the defendant’s presence when others agreed to the conspiracy—intent is essential.

While unanimity that Trump “conspired to promote or prevent the election of any person to a public office by unlawful means” is required, Justice Merchan says, the jury “need not be unanimous as to what those unlawful means were.” In making that determination, however, the jury may consider the following possible unlawful means: “(1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.”

He further breaks down those three options, beginning with FECA violations. Under FECA, Justice Merchan says, “it is unlawful for an individual to willfully make a contribution to any candidate with respect to any election for federal office, including the office of President of the United States, which exceeds a certain limit.” In 2015 and 2016, that limit was $2,700. FECA violations also include any corporation that “willfully make a contribution of any amount to a candidate or candidate’s campaign in connection with any federal election, or for any person to cause such a corporate contribution.” Contributions and expenditures include basically anything of value, and corporate violations would include expenditures “made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate or his agents shall be considered to be a contribution to such candidate.” 

He adds two important caveats. First, a payment should not be treated as a contribution if that payment would have been made regardless of a candidacy. The second is called the “press exemption,” which precludes any activity considered a normal, legitimate press function from counting as a FECA contribution or expenditure. He offers one example: solicitation letters seeking new subscribers to a publication.  

We move on to the second theory—the falsification of other business records—and Justice Merchan tells the jury they may consider the following: “(i) the bank records associated with Michael Cohen’s account formation paperwork for Resolution Consultants LLC and Essential Consultants LLC accounts; (ii) the bank records associated with Michael Cohen’s wire to Keith Davidson; (iii) the invoice from Investor Advisory Services Inc. to Resolution Consultants LLC; and (iv) the 1099-MISC forms that the Trump Organization issued to Michael Cohen.”

Finally, we move to the third unlawful means theory, the violation of tax laws. Under New York State and New York City law, he says, “it is unlawful to knowingly supply or submit materially false or fraudulent information in connection with any tax return.” Similarly, under federal law, it’s illegal to “willfully make any tax return, statement, or other document that is fraudulent or false as to any material matter, or that the person does not believe to be true and correct as to every material matter.” Such conduct is unlawful, he adds, “even if it does not result in underpayment of taxes.”

At last, we arrive at the count-specific instructions, beginning with the first:

In order for you to find the defendant guilty of the crime of Falsifying Business Records in the First Degree under Count 1 of the Indictment, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements:

1. That on or about February 14, 2017, in the county of New York and elsewhere, the defendant, personally, or by acting in concert with another person or persons, made or caused a false entry in the business records of an enterprise, specifically, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept or maintained by the Trump Organization; and

2. That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.

If you find the People have proven beyond a reasonable doubt each of those two elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt either one or both of those two elements, you must find the defendants not guilty of this crime. 

Having defined the law for count one, Justice Merchan says, there are 33 remaining counts in the indictment, each for falsifying business records in the first degree and each occurring in New York County. The only differences pertain to different business records and possibly different dates. “The underlying law applies in the same way to each of the remaining counts so I will only repeat it in full one more time before I read Count 34,” he says. “Of course, you can ask me to repeat the law in its entirety as many times as you wish and I will be happy to do so.

Lather, rinse, repeat. Slowly, methodically, Justice Merchan reads through each count, and the documents to which they refer. The press noticeably relaxes, easing into the repetition, and one reporter stands and stretches. 

At count 34, as the judge repeats the required elements of the charge and the predicate, we begin to approach the previously estimated one-hour mark.

Upon reaching the end of the repeated portion, Justice Merchan pauses and clears his throat before explaining the difference between motive and intent: intent means conscious objective or purpose, whereas motive is the reason why a person chooses to engage in criminal conduct. Intent is a required element here, but motive is not. However, evidence of a motive, or lack of a motive, may be considered by the jury, Justice Merchan clarifies. 

Your verdict, on each count you consider, must be unanimous, he says, and you must deliberate with all jurors. Discuss the evidence, consult with each other, and listen to each other, Justice Merchan counsels them. Some jurors took notes, he continues, and those notes are only an aid to your memory, and you must not be influenced by notes that other jurors have taken. 

Justice Merchan lets the jurors know that they may see any or all exhibits that were received in evidence, and they may request to have the testimony of any witness read back to you in whole or in part. Simply write him a note, he says, though questions to which an objection was sustained and material otherwise struck from the record will not be included in that read back.

Under our law, he continues, the first juror selected—Juror 1—is the foreperson, though that person's opinions and vote are on equal footing with all others. The foreperson’s duties include: sign any written note the jury sends to the court, chair discussions during deliberations, and read the verdict once reached.

He then says that he will give them a verdict sheet, which lists considerations to reach each possible verdict—in addition to listing counts, he has added additional language to distinguish the counts (for example, invoice, voucher, or check). 

Finally, Justice Merchan ends with five jury deliberation rules which they must observe: 1) during deliberations, the jury will be kept in the jury room, where cell phones or electronics are not permitted; 2) you must deliberate about the case only when you are all gathered together in the jury room; 3) during deliberations, you must discuss the case only among yourselves; 4) any questions or requests must be communicated in writing via a jury note; and 5) we will work every day until about 4:30 p.m., but we can go later if you wish. 

Under our law, Justice Merchan says, “I am not permitted to have a conversation about the facts of the case, or a possible verdict, or the vote of the jury on any count with any one juror, or group of jurors, or even all the jurors.”

The judge is done. He then asks counsel to approach the bench for a sidebar, after which he offers a clarification: when the foreperson signs jury notes, he says, he should sign with his jury number, not his name, as this is an anonymous jury. 

After another sidebar comes another clarification—apparently there's a laptop that contains all the evidence, and Justice Merchan asks for one or two volunteers to learn how to use that laptop. Jurors 4 and 6 volunteer, and the judge asks the remaining jurors to step out to begin deliberations. 

To the alternates who stayed behind, Justice Merchan thanks them for staying so engaged—giving a special shoutout to Alternate 3, who Merchan saw filling several notebooks over the course of the trial.

And with that, at 11:40 a.m., the jury begins its deliberations in the first criminal trial of a former president, and the fate of that former president—and current Republican front runner—is now in the hands of a diverse group of 12 Manhattanites. There’s nothing to do now, but wait.

*     *     *

And wait we do, until around 3:00 p.m., when a buzzer alerts the press to return to the courtroom. 

“We received a note,” Justice Merchan says after retaking the bench. It was signed by the foreperson at 2:56 p.m., and it contains four requests. Merchan reads them one-by-one:

One. We, the jury, request David Pecker's testimony regarding phone conversation with Donald Trump while Pecker was in the investor meeting.

Two. David Pecker's testimony regarding the decision not to finalize and fund the assignment of McDougal's life rights.

Three. Pecker's testimony regarding Trump Tower meeting.

And, four. Michael Cohen's testimony regarding the Trump Tower meeting.

After he reads the note, Justice Merchan retires once again to the robing room, leaving the press to read the tea leaves as we go back to playing the waiting game. 

Another buzzer, another note: this one signed at 3:51 p.m. It’s a request to re-hear the jury instructions, to which Justice Merchan suggests bringing the jury back to clarify whether they want the entire instructions or just a portion, and to let them know that the court is working on the prior request. 

Hearing no objections, a court officer fetches the jury from the deliberation room.

Justice Merchan bids them a good afternoon, and reads the two notes into the record in quick succession and confirms with the jury that he read them correctly. He says the court is close to finding the requested testimony, and the read-back itself will take 30 minutes once the written testimony is found.

For the second request, Justice Merchan asks if jurors want the instructions in part or in full, though they don't have to decide that just now—they can go back and deliberate. But that will have to wait until tomorrow. He delivers his usual end-of-day instructions, with a special, added emphasis, telling the jurors that they are at a crucial phase of the trial: deliberations. 

We'll get started tomorrow at 9:30 a.m., Justice Merchan says, at which point the court will continue working on the transcript request. He mentions they can work late tomorrow, until but not beyond 6:00 p.m.

He thanks them, and wishes them a good night.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.
Katherine Pompilio is an associate editor of Lawfare. She holds a B.A. with honors in political science from Skidmore College.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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