Will the prosecution finally deliver some evidence of a crime?

Donald Trump’s trial for allegedly falsifying business records began nearly a month ago. Now, prosecutors suggest they’re in the home stretch and may rest their case by the end of the week. But first, they reportedly have two more witnesses to call – and Michael Cohen, the former president’s former lawyer and “fixer” – is widely expected to make an appearance today, May 13. What can the prosecution hope to gain by calling this witness, and will his testimony be relevant to the crimes for which Trump has actually been charged? To find out, we asked Scott D Cosenza, Esq, Liberty Nation’s legal affairs editor.

Calling Cohen

James Fite: The prosecution is expected to call two more witnesses, ending their presentation as soon as later this week. Michael Cohen – Trump’s former lawyer and the guy who made the so-called hush money payment to Stormy Daniels – is widely expected to be their star witness and appear in court later today. If Manhattan District Attorney Alvin Bragg and his team call Cohen to the stand, what might they hope to hear?

Scott D Cocenza, Esq.: It depends on their goals. For instance, while Stormy Daniels’ testimony did not seem to advance any theory of Donald Trump committing actual crimes, it did produce damaging, unflattering press coverage of the former president. The most widely reported story from this trial concerns an alleged tryst between Trump and Daniels from 2006. Reports from Sunday’s Meet the Press, for instance, say Bragg’s Stormy Daniels presentation was a political hit for Trump.

Mr. Trump has alleged the entire prosecution is political, based on the novel application of the laws against him by a district attorney who campaigned on getting Trump eight years after the alleged acts transpired. If so, prosecutors may advance those ends again through Cohen – by fueling new negative stories about Trump that can lead their news reports for the week ahead.

James: This has often been referred to as Trump’s hush money case, but paying a porn star for her silence isn’t a crime the former president has been charged with. What’s actually criminal about what Trump supposedly did, and how relevant is Cohen’s testimony to the case compared to that of Daniels herself?

Scott: Jim, it’s surprising that prosecutors have yet to introduce evidence of a crime. Trump is on trial for 34 counts of falsifying business records, a felony punishable by up to four years in prison. They must prove two things beyond a reasonable doubt: First, that Trump intended to defraud someone, and second, that then-candidate Trump intended to violate federal election law. So far, the prosecution has presented no evidence to jurors on either count – perhaps Cohen will be the one to deliver relevant, incriminating testimony on these issues – because the case should never be sent to the jury for a verdict if no one does.

A Double Standard

James: Judge Juan Merchan has the former president under a gag order, preventing him from talking publicly about the trial or the witnesses. But the witnesses themselves are under no such gag order, and Cohen, for instance, regularly exhibits contempt for Trump via social media posts, fundraises off the case, and wears a T-shirt depicting Trump behind bars. Judge Merchan has directed the prosecution to ask Cohen to stop talking about it, but that’s all. Why the lack of action? And if he can’t gag Cohen, why not release Trump from his gag order to even the playing field?

Scott: Well, either the judge has made prejudicial decisions against the defendant, or perhaps the system isn’t designed to accommodate a defendant like this. It’s hard to understand why the fair administration of justice requires such an imposition to be allowed.

If Trump were willing to openly defy the gag order, it would make a good test case. For instance, Merchan ruled Trump could not disparage his – the judge’s –  family members. If Loren Merchan (the judge’s daughter) were a beer vendor at Wrigley Field and had nothing to do with the case, that might make sense. Instead, she is president of Authentic Campaigns, a Chicago-based progressive political consulting firm with Rep. Adam Schiff (D-CA), amongst others, as clients. The NY Post reported, “Two major Democratic clients of the daughter of the judge overseeing Donald Trump’s hush-money trial have raised at least $93 million in campaign donations – and used the case in their solicitation emails….”

Her proximity to the case and potential motivation for the judge to disfavor the defendant is undoubtedly worthy of curiosity and comment. I would expect an appeals court to pare back the gag order considerably, and it still may – after the trial. Prosecutors said Friday that they hope to wrap up their case by the end of this week, and the appeals court won’t examine the gag order until after that.