The Fifth Element in Trump’s Hush-Money Trial
As closing arguments begin, watch for prosecutors to focus on the former president’s lawbreaking intent.
WITH CLOSING ARGUMENTS SET TO BEGIN TODAY in Donald Trump’s Manhattan trial for falsifying business records, let’s focus on the most challenging issue for prosecutors: They produced no direct testimony about whether defendant Trump intended to commit another crime as part of his conspiracy to falsify business records.
Intending to commit another crime—that’s the additional element of falsifying business records that elevates what’s usually a misdemeanor to a felony. And felonies are what the Manhattan grand jury indicted Trump for on March 30, 2023.
Prosecutors have a strong argument to make. But it’s not a slam dunk. Convictions seldom are in hotly contested cases; all twelve jurors need to agree on guilt beyond a reasonable doubt.
Judging from the trial reporting, and based on my experience as a prosecutor, I believe that the four other elements of felonious falsifying business records have been well proven. In a nutshell, there’s powerful evidence that:
the business records falsely represented that Trump’s $35,000 checks to Michael Cohen were for legal expenses when they were really reimbursements for Cohen’s $130,000 purchase, on Trump’s behalf, of Stormy Daniels’s silence before the 2016 election;
Trump knew the representations in the records were false;
he either made them, or caused them to be made; and
he had a fraudulent intent.
But for a felony conviction, the jury must also be convinced beyond a reasonable doubt of the fifth element—that Trump intended to commit violations of election law or tax law. If the jury is going to hang, it will almost certainly be over whether there’s reasonable doubt over the existence of that intent.
What does this mean for prosecutor Joshua Steinglass’s closing argument? His focus should be on the final element of the felony. Of course, he will also recount for the jury the evidence proving the other four—but when it comes to those elements, sensible jurors should be readily convinced.
Steinglass might do well to open with something like this:
Ladies and gentlemen:
Who goes to the extraordinary lengths to which defendant Donald Trump and his co-conspirators went to falsify business records and cook the books?
Who goes around the bend and back, doing what we know Trump approved—“grossing up” the $130,000 payment that Michael Cohen made to Daniels by doubling it, throwing in other expenses, and adding a bonus, with all of these changes intended to help hide the truth that the defendant was simply repaying his fixer?
Who records the money all as something it wasn’t—a “retainer” and “legal expenses”—in business records that tax officials or other public auditors might review?
The answer is obvious: Dishonest people do that—dishonest people trying to cover up their corrupt intent to commit violations of the law.
There’s a reason I am starting with the last element of the crime here—whether defendant Trump intended to commit other crimes when he made (or caused to be made) falsified business records. This issue is the nail on which you just heard Mr. Trump’s lawyers hammer hardest.
But it’s as strong as the other four, and here’s why: your common sense. Your common sense tells you that the sophisticated, convoluted, Rube Goldberg–like nature of the “grossing up” calculation is a sure sign that the falsified records were meant to hide another crime.
Steinglass will need to explain, of course, what the other crimes were that Trump intended to commit. First, under federal law, Cohen’s payment to Daniels on Trump’s behalf to keep his candidacy alive was a campaign contribution that required reporting. The $130,000 Cohen spent for Daniels’s silence far exceeds the $2,700 individual contribution limit. Treating the payment as a legal expense covered up those violations.
Second, under New York state law, it’s illegal to conspire to promote a candidate by unlawful means. The purchase of the exclusive rights to Daniels’s story of her sexual encounter with Trump while he was married was meant to salvage his election prospects after the calamitous leak of the Access Hollywood tape. Hiding the reimbursement for the Daniels payment by falsely listing it as a legal expense was unlawful, prosecutors will argue, under federal law.
Last, prosecutors will argue that there was an intent to defraud state tax officials by deceiving them—should they review the books—into thinking that the reimbursement to Cohen was actually income to him. Note that criminal intent in tax fraud means “knowing that a return, report, statement or other document . . . contains any materially false or fraudulent information.” Intent in this case does not require that the state is actually deprived of money or property.
And here, for purposes of felony falsification of records, Trump doesn’t need to have directly performed the acts involved in committing the other crimes. The felony charge of falsifying business records requires only the criminal intent to commit them (or to aid or conceal their being committed).
It appears that the judge will instruct jurors that they can “mix and match.” In other words, jurors don’t have to unanimously agree on which of the three possible “other crimes” Trump intended to commit or conceal—just that he did intend to commit or conceal one of them.
Because prosecutors produced no testimony of that intent, his lawyer will likely argue that even if Trump falsified his business records, he only intended to do so to keep the voting public in the dark about his sexual encounter with Daniels.
That’s why former Trump Organization CFO Allen Weisselberg’s notes—described as “smoking guns”—and the convoluted falsification scheme they describe are so important. As a matter of common sense, an obsessive, expense-monitoring businessman (as Trump was proven to be) does not double his reimbursements to a fixer and falsely record the payments as legal expenses in his company’s ledgers to hide a scandal from the public for the simple reason that the public doesn’t check corporate books or bank records for canceled checks.
Tax officials and other government auditors do.
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