The prosecution in the Trump hush money trial apparently plans to rest its case on Friday after the testimony of Michael Cohen.

The news is surprising. It’s highly unusual for prosecutors to rest without introducing at least some evidence showing that the charges against the defendant are valid. Former President Donald Trump apparently is an unusual defendant.

Everyone knows the theme of the prosecution: Trump conspired to corrupt the 2016 election, and then the conspiracy covered it up with fake business records. 

But he’s not charged with corrupting the election. Or conspiracy. What he’s charged with are 34 violations of a New York business record-keeping statute. Those counts relate to three categories of records: invoices from Trump lawyer Cohen (11 counts), checks written by Trump to pay those invoices (11 counts), and ledger entries recording the transactions (12 counts).

To convict on any of these counts, prosecutors must demonstrate five things: (1) the item was a “business record” (2) of an “enterprise” (3) that is “false” and (4) made with “intent to defraud” and (5) intent to “conceal” another crime. So, what evidence is there?

First, none of the alleged false items is a “business record” under New York law because all of them were invoiced, paid, and recorded in Trump’s personal accounts, not those of any of his enterprises. No New York court has ever extended the statute to apply to a person making entries in his own personal checking account.

Next, there is no evidence that these entries themselves were made with “intent to defraud” anyone. All relate to Trump’s personal accounts, either his checkbook or his revocable trust. Nobody but Trump and his employees would ever see them. It would be absurd and unprecedented to charge someone with attempting to defraud himself.

Twenty-three of the counts also fail because the checks and ledger entries are not “false.” The checks reflect exactly what happened: Trump paid Cohen the amount specified. The checks have not been tampered with. In New York, a document that contains only true information cannot be “false,” no matter what the defendant has done. The same applies to the 12 ledger entry counts, which accurately record the transactions. Even if the transaction were fraudulent, the entries about it would be true.

As for the crime the alleged plot was trying to conceal — well, the prosecution still hasn’t said what it is. The district attorney has suggested three possible crimes involving federal election law, state election law, and federal tax law. But no evidence at the trial shows any of those.

In short, the prosecution proved what everyone already knew: Porn star Stormy Daniels, with whom Trump allegedly had an affair, asked for money, Trump told Cohen to handle the matter, Cohen paid Daniels, and Trump reimbursed him.

What is disturbing here to an old lawyer who’s proud of his profession is that the Manhattan district attorney dedicated seven years, countless thousands of lawyer hours, and many millions of dollars to bring a case that, as a class E felony, is equivalent in seriousness to the unlicensed sale of an ounce of marijuana or hitting your ex’s car door with a hammer.

So relatively minor, yet they still can’t seem to prove it.

It’s not that the prosecutors are incompetent. They’re experienced and skillful. They just don’t seem to have any relevant evidence. They don’t seem even to be trying to fit evidence into the specific charges. Why?

The obvious but disturbing answer is that there is no relevant evidence, but for political reasons, they want a guilty verdict, notwithstanding the law. Juries sometimes find it difficult to follow unfamiliar statutes with multiple elements. When they can’t, prosecutors hope they may rely on the prosecution’s big picture — Trump stole the 2016 election and covered it up — rather than niggling details such as the actual elements of the crime. 

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If Trump is convicted, appellate courts will focus on the law and the evidence. They will raise these, and unless they decide to stretch the law beyond all current authority, they will likely reverse the conviction. 

But that’s irrelevant because prosecutors will still have their verdict before the 2024 election.

Frank Snyder is an executive professor of law at Texas A&M University School of Law.