The first mission of a prosecutor’s closing argument is cementing the elements of the crime to the evidence. On Tuesday in Manhattan, it will be time for closing arguments in Donald Trump’s criminal trial for falsifying business records. Here’s one workmanlike way that prosecutor Joshua Steinglass might approach the task of tying together the evidence presented throughout a trial that began in April: Emphasize the “Trump Tower conspiracy” that prosecutors have proven.
Ladies and Gentlemen,
My colleague Matt Colangelo’s opening statement began by telling you:
This case is about a criminal conspiracy and a cover-up to corrupt the 2016 presidential election; then he covered up that criminal conspiracy by lying in his New York business records.
That’s the heart of this case.
You know the three categories of falsified records: checks, invoices, and vouchers maintained in the Trump Organization’s books. The conspiracy is a key way that the law makes a defendant criminally liable for all the acts done by his co-conspirators in furtherance of their agreement. Once the conspiracy is proven, it does not matter that it isn’t charged or that the defendant didn’t personally create some of the documents.
A second way that the defendant is liable is that even without a conspiracy, accomplices to a crime are responsible for the criminal actions of their partners.
The most direct way the defendant connects to the crimes, of course, is his own actions. The defendant or his sons signed 11 checks to Michael Cohen with a false stub notation, “Retainer.”
Falsifying business records is a felony whenever someone:
- Knowingly
- Makes or causes to be made
- A false entry in business records
- With an intent to defraud
- Which includes an intent to commit another crime or to aid or conceal the commission of that other crime.
You must answer five questions relating to those five elements of the crime. Proof beyond a reasonable doubt leads to “YES” on each one and to a guilty verdict.
1.) Were the business records false?
Yes.
The checks’ stubs falsely say they were for a “retainer”; the false invoices say, “per retainer”; and the vouchers say the same.
We know they weren’t for legal expenses as posted in the books, or a retainer – and not just because no retainer existed. We know because three times since 2017 the defendant has admitted that the payments were reimbursements: on Twitter, in his government financial disclosure form, and in his lawsuit against Daniels. There he represented in court that he had reimbursed Cohen for paying her $130,000 on the defendants behalf to enter a nondisclosure agreement (NDA). Those admissions are undisputed.
Then there are the “smoking gun” notes from both Trump Organization Chief Financial Officer (CFO) Allen Weisselberg and Trump Organization Controller Jeffrey McConney about how the $420,000 total of the 11 checks Trump signed was reached. They also confirm that the checks were not for legal services but for reimbursement of the payment to Daniels. There is no evidence contesting the explanation you heard from Mr. McConney, corroborating Michael Cohen.
2.) Did Mr. Trump know they were false?
His admissions confirm his knowledge of the falsifications, which is reinforced by other evidence. As one example, David Pecker testified that the defendant was a penny pincher, careful to question any bill. The defendant told Trump Organization Mr.McConney that he’d be fired if he didn’t negotiate down every bill. The defendant often didn’t pay vendors at all, and praised Cohen when he compelled them to take $.20 on the dollar.
Your common sense tells you that neither the defendant nor his sons would have signed the 11 checks for $35,000 without inquiring and learning the reasons for those sums from his CFO or Cohen. Cohen testified that he, Trump and Weisselberg discussed those reasons at a January 2017 Trump Tower meeting.
3.) Is the defendant criminally responsible for making the false records?
Let’s start with what’s easy. The defendant and his sons made 11 false records of checks by signing them. Plain and simple. 11 counts. All by themselves.
Then there are the false invoices and ledger entries. The law holds the defendant criminally responsible for them in two ways we’ve discussed – accomplice liability and co-conspirator liability.
The scheme started, as Mr. Pecker told you, with the 2015 Trump Tower meeting agreement to take off the market scandalous stories about Trump by buying them and creating NDAs. The purpose was to take ownership of the stories away from the tellers.
There is no dispute in the evidence that Mr. Trump was at the meeting. Nor is there dispute that the agreement was for his benefit, or that he agreed to the scheme, with Michael Cohen his go-between.
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As for Cohen’s and others’ actions to implement the scheme, Trump Organization paymaster Deborah Tarasoff testified that the defendant or his sons had to approve any check for more than $10,000. Phone records corroborate Cohen’s testimony that he called the defendant twice on October 26 before making the payment to Daniels.
Mr. Pecker testified that Trump didn’t like to pay hush money because “it always gets out.” Again, undisputed.
Hence why the payments were made by others before the election was inherent to the conspiracy. The falsified checks, invoices and ledger entries simply became the means after the election of continuing to hide the defendant’s involvement.
The evidence clearly points to Weisselberg joining the conspiracy when he became the mastermind of how to cover up the reimbursement in the books as legal expenses. The defendant is liable as an accomplice and a co-conspirator to the false entries that Weisselberg directed.
4.) Did Trump intend to defraud?
Under the law, to defraud is to deceive. Corrupt businesspeople falsify business records to deceive someone. People wanting to keep a scandal covered up commit acts of falsification later to continue the deception.
The testimony of Mr. Pecker, White House staffer Hope Hicks, Stormy Daniels’ attorney Keith Davidson, and Mr. Cohen establishes that the payment to Daniels was intended to deceive voters by suppressing a scandal. As described by Hicks, a Trump loyalist, the campaign was in crisis after the “Access Hollywood” tape surfaced on October 7, 2016. The defendant’s political prospects couldn’t afford the story of his sexual encounter with Daniels to get out.
The post-election coverup by false business records was intended to maintain that deception by also deceiving New York officials charged with preventing candidates from promoting their elections unlawfully and federal election officials charged with monitoring the limits on campaign contributions in quarterly reports.
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A check from Trump to Cohen reimbursing him for the $130,000 – like invoices or ledger entries reflecting it – would create evidence that could lead to discovery of the original scheme. Hence, the Weisselberg “gross-up” to invent a phony trail of legal expenses and income to Cohen. That collaterally created reports of false reportable income that would deceive any state tax auditors by fabricating a false narrative leading away from any reimbursement
Doing so was a need both built into and a continuation of the Trump Tower conspiracy. Falsifying records – the crime – was necessary to prevent discovery of the deception.
5. Did Trump intend to commit another crime or conceal it?
You may hear the defense claim that the conspiracy was not related to deceiving election or tax officials – and therefore unrelated to an intent to commit federal or state crimes. Rather, Mr. Blanche may claim that it was all about hiding an embarrassing sexual encounter from the defendant’s wife.
Ask yourself: “Does that make sense?” Would someone go to all the trouble cooking books? There’s no evidence before you that the defendant’s wife ever looked at the books.
Does the explanation that the defendant was exclusively concerned about family embarrassment conform with the evidence? Recall Keith Davidson’s testimony that the defendant and Cohen’s interest in the Stormy Daniels deal only peaked after the “Access Hollywood” tape. Once it emerged, the deal was negotiated within days.
Cohen, by having paid $130,000 payment to Daniels and not reporting it as a campaign contribution violated federal election law that limits individual contributions to smaller amounts and requires reporting. The payment also violated state election law, which criminalizes a conspiracy to promote a candidate by unlawful means. The unlawful means were the failure to federally report a campaign contribution.
One last point: You will soon hear defense counsel attack Michael Cohen as dishonest. We do not ask you to believe anything Michael Cohen said that is not corroborated or logical when you apply your common sense to the entire mosaic of testimony, phone records, writings, texts and emails.
This is not a case about Michael Cohen, it’s a case about facts. Documents and testimony from credible witnesses corroborate Cohen. The testimony of Hope Hicks corroborated Cohen when she told the court that the defendant failed to try to convince her in 2018 that Michael Cohen paid Stormy Daniels on his own and “out of the kindness of her heart.”
If a loyalist like Hope Hicks did not believe Trump’s explanation of Cohen “going rogue,” should you? Of course not.
The totality of proof establishes beyond a reasonable doubt that Donald Trump was at the hub of a conspiratorial scheme to falsify business records with an intent to defraud New York officials, federal officials and the public in order to promote his own candidacy in the 2016 election. Your oath requires a verdict of guilt.
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