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Opinion: Here's how I, as an attorney, would try to persuade the Trump jury in closing arguments | CNN

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Closing arguments begin Tuesday in Trump's hush money case

03:06 - Source: CNN

Editor's Note: Joey Jackson is a criminal defense attorney and a legal analyst for CNN. The views expressed in this commentary are his own. Read more opinion on CNN.

CNN  — 

Closing arguments will get under way Tuesday at Manhattan Supreme Court in former President Donald Trump's hush money trial. After hearing from 22 witnesses — 20 from the prosecution and two from the defense — a 12-member jury is on the verge of deliberations. But not before both sides present their dueling narratives for the jury's consideration.

After hearing the closing arguments from both sides, the jury will decide whether Trump is guilty of any of the 34 charges contained in the indictment brought by District Attorney Alvin L. Bragg. Prosecutors allege that Trump falsified invoices and business ledgers and issued checks under false pretenses to reimburse his former attorney Michael Cohen. They must also show that Trump did so to conceal some other crime. Prosecutors have not been clear as to what that "other crime" might be, but have alluded to a campaign finance violation.

In doing so, prosecutors say that Trump engaged in a conspiracy and cover-up to pay off Stormy Daniels in order to conceal his alleged liaison with the adult film actress, who received $130,000 to keep quiet. His motive, prosecutors claim, was to hide this information from voters to increase the likelihood that he'd be elected in 2016. If the jury agrees, Trump would become a convicted felon, and could face up to four years in prison. Although there are multiple counts, any potential jail time would run concurrent for each count, meaning the four years represents his total exposure.

But Trump's defense attorneys will have much to say Tuesday about the evidence presented by prosecutors in an attempt to avoid that outcome. There are two ways for Trump to prevail: First, the jury could acquit him based upon the presence of reasonable doubt that he committed the alleged crimes. Second, there could be a mistrial if one or more jurors refuse to convict. This would result in a new trial for Trump before a new jury.

Should that happen, Trump would essentially be exonerated. Here's why: There would be insufficient time to try him again before the November election. And if he wins the election, prosecutors would almost certainly put the trial on hold until after his presidency in keeping with guidance from the Department of Justice, which forbids trying a sitting president. If he loses the election, it would be hard to imagine that there would be much interest in trying him again. What would be the point?

The defense will present its closing argument first. Since prosecutors have the burden of proof, they will have the last word. Neither side will be entitled to rebut the other once they sit down.

Drawing from my experience in the courtroom, here's what I predict you will hear from both sides.

The defense will likely maximize the importance of Trump's former fixer, Cohen, in this scheme. In doing so, they will argue that the entirety of the case is built upon Cohen's word. And since he has zero credibility because of his documented lies, they will say, all charges must fail. Prosecutors, however, will minimize the significance of Cohen, noting that virtually all other witness testimony — along with emails, text messages, audio recordings and other documents — supports Cohen's claims.

The defense will assert that Trump did nothing illegal. They will no doubt highlight the fact that catching unfavorable media stories and killing them (buying rights to the stories and then stopping their publication) is an accepted and legal practice, as is the signing of non-disclosure agreements. It's also not illegal to desire to win an election or to protect your family or yourself from the revelations of embarrassing information.

As for Daniels, the defense will contest the affair (which Trump has consistently denied), while pressing the claim that Cohen went rogue and acted on his own accord in making the payoff deal. They will argue that he did so without Trump's knowledge or consent. And while the details she gave about their alleged encounter may have been salacious and entertaining, even if the jury believes it happened, a dalliance is not illegal.

Regarding the payment of invoices or reimbursing Cohen for the expenses he incurred, again, this is not in itself illegal. Yes, Trump wrote out checks, which is perfectly appropriate, whether with a Sharpie pen or otherwise.

As to ledgers and invoices keeping track of these checks, Trump is the owner of the organization, not the bookkeeper or finance person. He has nothing to do with ledgers or invoices. And, by the way, he was pretty busy running the free world back in 2017, having little time to micromanage or even care about business records. None of Trump's financial people testified to Trump directing them to falsify anything.

The defense will remind the jury that the only witness who directly implicates Trump is Cohen. And they will have a field day pointing out that he is a Trump-hating disbarred lawyer and convicted felon, who lied to Congress, lied to banks, lied to business associates and even hid information from his own wife. The thousands of dollars he stole from the Trump Organization will certainly be mentioned, along with the millions he made for bashing Trump.

In short, the defense will argue that the credibility-challenged Cohen desperately wants to see Trump convicted, and has a vendetta against him for not offering him a job in the White House.

The defense will certainly highlight what they will style as the biggest lie of all: Cohen's testimony in which he claims that he briefed Trump and obtained approval for the Daniels deal during a 96-second phone call he made to Trump's bodyguard. Cohen claims Trump was with the bodyguard at the time, and that he handed Trump the phone. When it was pointed out that in the lead-up to that call Cohen had sent numerous text messages to the bodyguard about being harassed by a 14-year-old, with no mention of Daniels at all, Cohen seemed to be caught off-guard.

Finally, the defense will reinforce that you cannot convict someone because you don't like their politics — that would be anathema to our entire system of justice. And, by the way, how about the mysterious other crime that Trump was concealing? Why didn't the prosecution spend more time on that? Not guilty.

But not so fast, prosecutors will say.

We told you that this case was about a conspiracy and a cover-up, and that's exactly what we've proven, the prosecution will argue.

The defense would have you believe that this case hinges entirely on Cohen's word. It does not. Virtually every witness came in here and corroborated just about everything he said.

His motivation for doing so was obvious. Given the release of the "Access Hollywood" tape, in which Trump bragged on a hot mic about committing sexual assault, he could ill afford to be embroiled in yet another scandal. You heard the communications director of his campaign, Hope Hicks, speak to the dire issues the campaign was confronting and how they were in full damage control after the tape was released. You also heard from her that Trump is a micromanager who knew exactly what was going on around him at all times. She also told you that Cohen is simply not the type of person to front money based upon the kindness of his heart.

And, by the way, we know that Trump was fully aware of another deal — the agreement with Playboy model Karen McDougal. We all heard the tape of Trump and Cohen plotting to pay her off so that she would not reveal their affair. How likely is it that Trump would be fully involved and engaged when it comes to that agreement, but be completely clueless about the payoff to Daniels? Not very. McDougal and Daniels even had the same lawyer negotiating the payments, Keith Davidson.

Yet, amazingly, the defense wants you to believe that the only direct evidence regarding Trump's involvement in this fraud is Cohen. Nonsense. And by the way, did we all not hear the audio of Cohen speaking to Davidson in which he talks about Trump lamenting the payment to Daniels even though Cohen says that everyone else told Trump it was the right thing to do?

And think about what else proves Trump's awareness of this deal — his annoyance with having to make it in the first place. According to Cohen, Trump made every effort to slow roll the payment to Daniels, asking him to delay it until after the election, saying: "If I win, it will have no relevance because I'll be president, and if I lose no one will care."

Then there's Cohen's meeting with Trump at the White House, directly before the reimbursement payments began. We know the meeting was not to discuss a Cohen appointment to be attorney general of the United States. And immediately following this meeting, Trump started sending Cohen "retainer" payments in his signature Sharpie pen. Interestingly, though, Cohen wasn't doing any legal work on Trump's behalf.

The evidence shows that in order for checks to be issued to Cohen, Trump would have had to give his approval. And the reason they were framed and structured as they were was to avoid detection for what their real purpose was — reimbursement to Cohen, along with a bonus for a job well done. And if everything was so innocent, why send the unsigned checks to Trump's head of security via FedEx so they could be carried into the White House, signed by him and FedEx'd back? Seems like a rather elaborate arrangement to merely pay a lawyer for "retainer" fees.

The defense would have you believe that the man who wrote "The Art of the Deal" had no clue what the $35,000 monthly checks to Cohen were actually for, or if he even knew he was signing them at all, because he was so busy multitasking. How plausible is that? Not only did he know exactly what he was doing, but he knew exactly how the books would have to be manipulated to avoid questions of illegality, the prosecution will no doubt say.

In directing that the books be structured in a certain way, Trump was involved in the conspiracy concerning fraudulent ledgers and invoices — whether he personally prepared them or not is immaterial. One thing he did personally sign was the checks themselves. What better speaks to personal involvement than his signature?

And why did he engage in this conspiracy and cover-up? To circumvent campaign finance laws during a presidential election. Do we need Cohen to tell us that — or is that what our common sense and good judgment tell us? You can also trust the cell phone records, text messages, emails, audio you heard and other documents. Trump's guilt on all counts is undeniable.

The defense spent a significant amount of their time and energy undermining Cohen, who claims he talked with Trump about the Daniels scheme "more than 20 times" in October 2016. If jurors discount Cohen's testimony, there could be a problem for prosecutors as he provides the direct link to Trump's guilt. Alternatively, if prosecutors are successful in downplaying Cohen's significance, and focusing on all the other evidence showing Trump would not only be aware of the Daniels deal but establishing motive and reason to ensure the agreement got done, prosecutors could prevail. Why? Because that would make Trump's involvement in falsifying records obvious — as would be his motivation to do so.

What will the ultimate verdict be? The jury will decide. In making that decision, they have an awful lot to consider.

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