Sex, Lies, and Videotape—A Guide to the First-Ever Criminal Trial of an Ex-President
Trump’s Stormy Daniels hush-money case starts today. Here’s what you need to know.
[Originally published April 8, 2024.]
DONALD TRUMP APPEARS to be in full panic mode over the rapidly approaching trial of Manhattan District Attorney Alvin Bragg’s criminal case against him. Bragg has charged Trump with 34 counts of “falsifying business records.” The trial is scheduled to begin on Monday, April 15.
Trump’s manic outburst over Easter weekend, seemingly triggered by the approach of the trial, dialed up the crazy to a level unusual even for him. His “lengthy holiday temper tantrum” featured a stream of social-media posts raging against the usual cast of perceived enemies, but he “saved the brunt of his ire” for Bragg. Morning Joe counted seventy-seven posts, a “shock opera” of grievance that included Trump likening himself to Jesus. And it didn’t stop there. Even an expanded gag order entered by the trial judge after Trump’s holiday meltdown didn’t stop him from promoting a video attacking the judge’s daughter.
Why the freakout over a trial about something as mundane and boring as “falsifying business records”?
Don’t let the yawn-inducing concept of a trial about business records fool you—this case will be packed with drama, some of it quite salacious. And the stakes couldn’t be higher. The trial could expose Trump to a much wider audience as a liar and a cheater utterly lacking in decency and moral character. It could cripple his presidential candidacy, and even land him in jail.
Compared to other high-profile white-collar crimes you may have heard of, the charges in this case are relatively uncomplicated. Trump is the only defendant. The entire case revolves around a single set of payments made by him or his company to reimburse his former attorney Michael Cohen for hush-money payments he made on Trump’s behalf to keep porn star Stormy Daniels from going public with her story about Trump’s infidelity. All of the counts allege that he violated the same New York criminal statute (New York Penal Law 175.10):
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Falsifying business records in the first degree is a Class E felony, meaning it can result in a sentence of up to four years in a state prison. Under the terms of the statute, in order to convict Trump of falsifying records in the first degree, Bragg must first prove that he committed the crime of falsifying records in the second degree, a misdemeanor under New York law. Under that statute, Bragg must show that Trump made or caused one or more of the false entries to be made with “intent to defraud.”
Everything will come down to proving four essential facts:
The Trump Organization falsely recorded payments made to reimburse Michael Cohen for hush-money payments he made on Trump’s behalf as fees paid for legal services;
Trump personally either made or caused those false entries to be made;
Trump acted with intent to defraud; and
Trump’s intent to defraud included an intent to commit, aid, or conceal the commission of another crime.
If Bragg can prove these four facts, Trump will be convicted. Let’s take a look at each of them.
1. False Entries
This should be the easiest element of the case for Bragg to prove, but getting there will be filled with low drama. Salacious tales of sex, lies, and videotape will grab the jury by the . . . uh, well, let’s not go there quite yet.
Let’s start with the boring stuff. Bragg will prove that the Trump Organization made a series of payments to Cohen in the months leading up to the 2016 presidential election. The payments were recorded in the company’s business records as payments for legal services supposedly performed pursuant to a retainer agreement that, in fact, never existed.
None of that will be disputed. The proof will come from the business records themselves.
The initial dispute may be over whether those entries were false, although it seems quite obvious that they were. Cohen will testify that the payments were made to reimburse him for hush-money payments he made to Daniels on Trump’s behalf, and his testimony will be well corroborated. That’s where the sex, lies, and videotape will make their initial appearance:
Stormy Daniels says she is “absolutely ready” to testify about her sexual encounter with Trump shortly after his wife Melania gave birth to his youngest child. Not just ready, but “hoping with all my heart” to testify. Trump’s attorneys tried and failed to convince the judge presiding over the case, Justice Juan Merchan, to prohibit Daniels from testifying, so it appears virtually certain that she will tell her story on the witness stand.
Daniels and others will testify that about a month before the 2016 presidential election and just days after the public airing of the infamous Access Hollywood “grab ’em by the pussy” videotape, Cohen paid Daniels $130,000 for the rights to her story—in other words, for the right to “catch and kill” the story to keep it from being made public. In addition to Daniels, witnesses are likely to include David Pecker, then-chairman and CEO of American Media Inc.; Daniels’s lawyer; AMI’s editor-in-chief; and possibly even Hope Hicks, Trump’s former protégée and adviser.
The prosecutors will be allowed to elicit testimony about the Access Hollywood tape and how Trump feared that it would negatively impact his presidential aspirations, although Justice Merchan has ruled that he will not allow Bragg to introduce the tape itself into evidence.
Bragg will introduce documentary evidence, including handwritten notes by the Trump Organization’s CFO, Allen Weisselberg, corroborating Cohen’s testimony that the payments he received from Trump were falsely recorded in the Trump Organization’s books as legal fees when in fact they were reimbursement of the money Cohen paid Daniels on Trump’s behalf.
It’s unclear whether Weisselberg will testify—he has not entered into a cooperation agreement with Bragg, and he appears to remain loyal to his benefactor. It is likely, however, that Jeffrey McConney, the Trump Organization’s former controller, will testify. He was up to his neck in facilitating the payments to Cohen and likely knew exactly what they were for. McConney testified for four days in Trump’s civil trial last year in New York. Although he resigned from the Trump Organization last year, he has not openly broken with Trump, so it isn’t clear how damning his testimony will be.
If Weisselberg has a change of heart and decides to testify, he could corroborate almost all of Cohen’s testimony and add more damning evidence of his own. For instance, Bragg says that Weisselberg, Cohen, and Trump met to confirm the hush-money payment arrangement; Trump allegedly even discussed the payments with Cohen in the Oval Office.
Despite all of this corroboration, Trump’s lawyers may try to convince the jury that the payments were indeed for legal services, not hush money—or at least that they might have been, or that there’s some doubt as to exactly what they were for. Or something like that.
This could be a perilous road for Trump’s attorneys. They would be staking their credibility on an argument that looks preposterous on its face—that the jury should disregard the overwhelming evidence that these were hush-money payments and believe instead that it was all just a coincidence, that Cohen really was due payments for wholly undocumented legal services that just happened to be exactly in the same amount as the payments he advanced to Daniels to kill her story.
But this is a criminal trial, and it’s Bragg’s burden to prove that the business entries were false, not Trump’s to prove that they were not. Trump’s lawyers may well believe that they can more than match any challenge to their own credibility by destroying Cohen’s.
Cohen’s central role in the case will provide Trump’s lawyers with a rich target. Significant portions of the trial will look like Cohen, not Trump, is on trial.
Trump’s motion to preclude Cohen’s testimony, although denied by Justice Merchan last month, provides a roadmap to his plan of attack at trial. In 2019, Cohen pleaded guilty and was sentenced to three years in prison for crimes including lying to banks and Congress. Last fall, Cohen admitted that he lied under oath during his sworn plea allocution in that case. And as recently as last week, a federal judge in New York reportedly accused Cohen of committing perjury.
Trump’s lawyers will try to turn Cohen into Trump’s Mark Fuhrman. The idea will be to convince the jury—or at least a single juror—that Bragg’s case is so tainted by the presence of Cohen at its center that nothing else really matters. Call it jury nullification, call it reasonable doubt, or call it the O.J. defense. Call it whatever you want, it will be an appeal to the jury’s subjective sense of fairness, not its objective view of the evidence.
2. Trump’s Direct Personal Involvement
Once Bragg proves that the Trump Organization’s business records were falsified, he will need to prove that Trump, not Weisselberg or other officers of the company, is personally responsible. A person is guilty of the crime of falsifying business records only if he or she “makes or causes” a false entry.
The statement of facts filed along with the indictment alleges that Trump “orchestrated” the false records scheme and “caused his entities’ business records to be falsified,” but those are conclusions, not facts. Bragg will have to back up those conclusions with concrete facts showing Trump’s personal involvement in the falsification of his company’s business records.
Bragg probably has more evidence than he showed a year ago when he filed the statement of facts, but based on that statement alone, proof of Trump’s direct involvement in the falsification of records looks thin—not nonexistent, but thin.
Weisselberg, of course, could blow Trump out of the water on this, but there’s no reason to believe he’s willing to do so. Unlike Weisselberg, Cohen is raring to go, but it’s unclear how much he knows about Trump’s involvement in the falsification of the Trump Organization’s records—he can definitely implicate Trump in making the hush-money payments, but that’s not the same as implicating him in his company’s bookkeeping. And putting all of his eggs in the Cohen basket would be dangerous for Bragg anyway, given Cohen’s credibility problems.
If neither Weisselberg nor Cohen—nor some other witness we don’t yet know about—provides credible evidence linking Trump to the false bookkeeping entries, Bragg will be left with some relevant, but not necessarily conclusive documentary evidence.
Trump personally signed nine of the checks paid to reimburse Cohen for the hush-money payments. That’s strong evidence that Trump participated in making the hush-money payments in the first place, but it doesn’t prove that he later had anything to do with falsely recording those payments in his company’s records.
Bragg will try to fill that gap by introducing check stubs and invoices that appear to have been attached to or included with the checks Trump signed. Those stubs and invoices falsely stated that the payments were for “services rendered” under a nonexistent retainer agreement. Since Trump knew that the payments were to reimburse Cohen for the hush-money payments, not for legal services, Bragg will argue those documents prove that Trump knew about the false entries, and therefore made or caused them to be made.
Whether this will be enough to convince the jury of Trump’s direct participation in falsifying his company’s business records, or whether Bragg introduces additional evidence that hasn’t yet been made public, will be a central—perhaps the central—issue in this case.
Team Trump will undoubtedly argue that Trump never looked at the check stubs or the invoices, he just signed the checks that were placed in front of him by Weisselberg. They can probably do that without putting Trump on the stand—Trump Organization employees will likely be trotted out to say that Trump routinely signed stacks of checks pre-approved by Weisselberg. Or something like that.
Keep your eye on this issue. The entire case could rise or fall on it.
3. Intent to Defraud
In order to obtain a conviction, Bragg will have to prove not only that Trump personally participated in falsifying his company’s records but also that he did so with intent to defraud.
That may sound daunting, but if Bragg can clear the hurdle of proving Trump’s direct involvement in making the false entries, he should have little trouble proving intent to defraud.
The First Department of New York, where Bragg filed his case, interprets “intent to defraud” broadly. Bragg can prove intent to defraud by showing that Trump committed acts for the purpose of frustrating the state’s power to faithfully enforce its laws. Interfering with the requirement that New York businesses keep accurate books and records, not to mention the state’s ability to regulate elections, should meet that standard.
But Bragg will go beyond that at the trial. Bragg will introduce evidence that Trump had a motive to disguise the hush-money payments as legal fees, and that he stood to benefit from it. Bragg isn’t required to prove either motive or personal gain, but doing so would be compelling evidence of intent to defraud.
Bragg will introduce evidence showing that Trump’s motive to falsely record the hush-money payments as legal fees was “to suppress negative stories about him” that could damage his candidacy in the 2016 presidential election. Trump’s hush-money payment to Daniels was made just weeks after the Access Hollywood tape sent a shockwave through Trump’s campaign. Trump was “concerned that the tape would harm his viability as a candidate and reduce his standing with female voters in particular.”
In addition, Bragg will support his showing of intent to defraud by introducing evidence that the hush-money payment to Daniels was part of a larger pattern of similar conduct: the so-called “catch and kill scheme” designed to suppress negative information from the public “before the 2016 presidential election and thereby influence that election.”
That will take the trial back into the seamy, repellant environs of Trump’s character and personal behavior.
Bragg will show, for instance, that AMI had previously paid hush money on Trump’s behalf to a second woman, Playboy model Karen McDougal who, like Daniels, claimed to have had a sexual relationship with Trump while he was married. AMI falsely characterized the McDougal payment in its books and records, just as the Trump Organization later did with Daniels.
If Bragg successfully gets all of this evidence in front of the jury, it should be sufficient to establish Trump’s intent to defraud.
4. Concealment of a Second Crime
Here’s where the case will get interesting from a legal point of view.
If Bragg succeeds in convincing the jury of all of the above, he will win a conviction only for falsification of records in the second degree, a misdemeanor. (While the indictment doesn’t expressly include charges of second-degree falsification of records, the judge could submit such a charge to the jury as a “lesser included offense.”)
Sure, a conviction is a conviction, and Trump could theoretically go to jail for up to a year for committing a Class A misdemeanor, but convicting Trump of nothing more than a misdemeanor would feed into the pro-Trump narrative that Bragg’s case is petty and politically motivated.
In order to bump up the crime to a felony, Bragg will have to prove one additional element: that Trump falsified business records with the intent to commit, aid, or conceal a second crime.
The indictment doesn’t identify the second crime that Trump’s falsification of records was intended to conceal, but Bragg reportedly said in a recent radio interview that the case is “about conspiring to corrupt a presidential election and then lying in New York business records to cover it up—that’s the heart of the case.”
Trump was never charged with an election interference case arising out of the Daniels hush-money payment, but Cohen was. In 2018, Cohen pleaded guilty to federal campaign finance violations related to the coverup of the Daniels hush-money payments. While Trump wasn’t a defendant in that case, he was nevertheless a central character in it. Documents submitted to the court by the Department of Justice in connection with charges against Cohen repeatedly refer to Trump, his identity somewhat comically disguised as “Individual 1,” as the person on whose behalf Cohen was acting. And Cohen testified under oath that he was acting at Trump’s “direction.”
If Cohen was acting at Trump’s express direction when he violated federal election laws, then Trump should be at least as guilty as Cohen, probably more so. It seems obvious that the fact that he too wasn’t charged along with Cohen was due entirely to the DOJ’s policy against indicting a sitting president.
Trump’s attorneys will attack Bragg’s attempt to use uncharged federal campaign finance violations as the second crime on two fronts.
First, they will argue that Trump’s intent in concealing the hush-money payments wasn’t to conceal an illegal campaign contribution, it was, in the words of one pro-Trump commentator, merely “aimed at avoiding embarrassment and sparing Melania Trump’s feelings.”
Second, they will argue that Bragg can’t use an uncharged violation of a federal law—as opposed to a New York state law—as the second crime.
The argument that Trump just wanted “to spare Melania’s feelings” is ludicrous on its face. Trump is beyond embarrassment and indifferent to anybody’s feelings but his own. Cohen will decimate the “spare Melania” narrative by testifying that Trump directed him to delay the payment to Daniels as long as possible because “if they could delay the payment until after the election, they could avoid paying altogether, because at that point it wouldn’t matter if the story became public” (emphasis added).
In other words, Trump wasn’t willing to pay a cent to keep the story from coming out, only to keep it from coming out before the election. After that it wouldn’t matter. “Melania’s feelings” be damned.
Trump’s second argument—that Bragg can’t use an uncharged violation of federal law as the second crime in a New York case—is at least less cringe-inducing. While there is no requirement that the second crime be charged in the indictment, it’s somewhat unusual that it’s not. A New York Times analysis of some thirty false business records cases brought by Bragg and his predecessor shows that in all but two of the cases an additional crime was charged along with the false records charge.
And the question of whether the second crime can be a federal crime, as opposed to a violation of state laws, has never been addressed by the New York courts.
At the end of the day, whether the “second crime” can be an uncharged violation of federal law will be a question of law for the judge to decide, not a question of fact for the jury. To date, Justice Merchan hasn’t shown much sympathy for novel legal arguments advanced by Trump, and nothing in the statute or the case law indicates that the second crime can’t be a federal crime.
SO, WHERE DOES ALL OF THAT leave us?
Assuming the case goes to trial, there are four possible outcomes: (1) Trump is convicted of one or more felonies, (2) Trump is convicted, but only of misdemeanors; (3) Trump is acquitted; or (4) no verdict at all is reached due to a hung jury or a mistrial based on some irregularity that pops up during the trial.
At least two of the four possible outcomes could have a major impact on the 2024 presidential election, not to mention Trump’s personal freedom.
A felony conviction could harm Trump’s bid for the presidency. Recent polling suggests that if Trump were convicted of a felony, there could be as much as a 7-point shift from Trump to Biden. That would likely be more than enough keep Trump out of the White House in an election that otherwise appears to be exceedingly close.
It’s more difficult to anticipate the impact of a misdemeanor conviction, but it too would likely reduce Trump’s support among independent voters. A recent Politico/Ipsos poll on the likely impact of a conviction in the hush-money trial found that “a conviction in Manhattan may not doom Trump, but it would do real damage.” The poll didn’t distinguish between a felony conviction and a misdemeanor conviction, so it’s somewhat difficult to interpret. Nevertheless, it doesn’t take a great leap of imagination to believe that a misdemeanor conviction would do at least some harm to Trump’s election prospects.
Acquittal, on the other hand, could lend credence to Trump’s claim that he is the victim of a political witch hunt, and might swing enough voters in his direction to put him back in office.
A hung jury would probably be a wash, fodder for endless debate but not enough to swing enough voters in either direction to have a decisive impact on the election.
Predicting which of these outcomes will prevail on the basis of the factual evidence currently in the public record is a fool’s errand—far more evidence will be introduced at trial than is contained in the court documents filed to date, and facts don’t always win the day in a jury trial, anyway.
The jury’s overall subjective impression of the evidence is at least as likely to be the deciding factor as a rigorous parsing of the underlying facts, probably even more so. Both sides will try to paint their own picture for the jury.
Bragg’s team will try to show that Trump is such a lying, cheating, soulless asshole that he belongs in jail, not the White House. Team Trump will try to convince the jury that, facts be damned, the person at the core of Bragg’s case—Michael Cohen—is so tainted that nothing else matters.
It is a disservice to the American people that this trial won’t be televised. The public will have to glean what it can from the media, and it’s up to each of us to choose where to go for our news and decide who we trust to deliver it.
Making sense of this trial will take some work. But it will be worth it.
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