Why getting a conviction against Donald Trump may not be so easy
Credibility of lawyer Michael Cohen, and Trump's intent, may hamper Manhattan district attorney
Donald Trump's intent, and a star witness who is also aconvicted felon arejustsome of the challenges thatthe Manhattan district attorney will face in trying to secure aconviction against the former U.S. presidenton charges relating to hush money payments made in 2016 to a porn actress.
"This case is going to have serious, serious problems," saidMark Bederow,a criminal defence attorney andformer New York Cityprosecutor.
Bederow, who was interviewed by CBC News before a grand jury voted to indict Trump on Thursday, said that the decision by Manhattan District Attorney Alvin Bragg to pursue formal charges was "stunning."
But others say Trump shouldn't be tooconfident; the case against him could be stronger than some have suggested. U.S. attorney Norm Eisen, whowas co-counsel for the House Judiciary Committee for Trump's first impeachment trial, praised Bragg's efforts to take this case to a grand jury.
"The allegations here are of avery serious criminal wrongdoing.AndI think the proof is strong," Eisensaid.
The casecentres around a $130,000 US paymentmade by Trump's former personalattorney, Michael Cohen, to Daniels through a shell company set up by Cohen. Cohenwas then reimbursed by Trump, whose company logged the reimbursements as legal expenses.
Trump has denied an affairwith the actress,Stormy Daniels, but the paymentmade toher, to keep her quiet, isnot in dispute.
That payment was recorded bythe Trump Organization as a legal expense. And it's that recording that has theformer presidentfacing a possible criminal trial. He could be charged with falsifying business records, a misdemeanor,and also face a more serious charge of falsifying business records in the first degree a felony.
The potential legal problems for Trump are two-fold. Did hefalsify thisbusiness transaction in the Trump Organizationby recording the payment to Danielsas a legal expense? And, more seriously, if he falsified the record, was the intent to commit another crime, specifically, evading campaign finance laws?
Cohen has pleaded guilty to violating U.S.campaign finance law in connection with the payments. Federal prosecutors say the payments amounted to illegal, unreported assistance to Trump's campaign. However, they declined to file charges against Trump himself.
Now, nearly five years after Cohen's guilty plea, Trumpfaces his own charges related to the payment. Hereare the challenges the district attorney may have in making the case, and the difficultiesTrump's legal team could facedefending him.
The potential misdemeanor
Under New York state law, it's a crime to falsifybusiness records.
"It's as simple as it sounds, if you falsify business recordsfor any purpose,and you do so intentionally, then you can be convicted of a misdemeanor," Bederow said.
ButDavid Shapiro, afinancial crimes specialist and former FBI special agent, said indicting Trump for a misdemeanor would be "unusual." Normally, he said, prosecutors seek indictments for serious crimes.
"A misdemeanor, normally you wouldn't even hear about it. It wouldn't rise to the level of a district attorney's awareness. It would stay in a local court," he said. "What gives this case potentialheft is the scheme to defraud."
The potentialfelony
The payment to Daniels occurred during Trump's campaign for president. The legal issue here is whether the recording of the payment in Trump's books was falsified in order to evade federal campaign finance laws.
The allegation is thatpaying for Daniels' silence, and avoiding the embarrassment of an alleged affair,would help Trump's presidential campaign, and therefore should be considered a campaign expense. Such an expense would be required to be disclosedto the Federal Election Commission. But the amount paid to Danielswould have exceeded the legal limit of $2,700 US.
"[If] it's a cover up toessentiallyevade federal campaign finance law, [Trump] can now be prosecuted for a felony," said Leo Glickman, a New York-based lawyer who specializes in campaign finance, election and voting rights law.
"The idea here is thatthe only reason why he paid off Stormy Daniels was to advance his candidacy for president."
But Bederow believes it could be difficult to prove Trump's intent was to defraud. A jury, he said, could conclude it was reasonable that Trump's only purpose of concealing the payment was to avoidembarrassment with his wife or children forany connection he had toDaniels, and to prevent harm tohis business reputation.
"That has nothing to do with necessarily either intending to defraud, or more importantly, trying to conceal a crime," Bederow said.
Demonstrating that the whole arrangement was to cover up Cohen's paymentto ensure such knowledge wouldn't hurt his presidential campaign, will be a"hell of a task, I think, for the prosecution here," Bederow said.
But Eisenscoffed at that potential defence. He saidTrump would have to show there was no element of campaign intentionality, "no element whatsoever," regarding the payment to Daniels.
"Who does he think is fooling? Even for a serial fabricator like Donald Trump, this is beyond the pale," said Eisen, the attorney who worked on Trump's impeachment."I do not accept that bad defence will succeed. No jury will buy that."
The credibility of Cohen
One of Bragg's biggest liabilities, saidBederow, could be his key witness: Michael Cohen.
"Michael Cohen is the worst witness imaginable that a prosecutor could have for several different reasons," Bederow said.
Most significantly, Bederow said, Cohen is a convicted felon, having pleaded guilty to campaign finance charges and oflying to the U.S. Congress.
"It's not often that the star witness literally has a conviction for making false statements under oath," Bederow said."It's not a good starting point for any prosecutor."
Bederow said it's obvious that Cohen has a personal disdain for Trump, which could raise questions about his motivationto testify.
Butprosecutors often have to rely on people who themselves were culpable in acrime, Eisen said.
"[Cohen]accepted responsibility for what he did wrong. And his story on the hush money payment has absolutely not variedright since he began cooperating. I know because he was one of the first witnesses that I talked to when we were doing the impeachment."
Eisenagreed thatthe cross-examination of Cohen would be "colourful and tough."
"I believe he's telling the truth. He's rough around the edges and colourful himself but I think he's going to withstand cross-examination."
Statute of limitations
Trump could benefitfrom the time it's taken Bragg to bring a case against himto court.
The statute of limitations for this kind of litigationis usually five years.And since the payment was made in 2016, more than six years have passed.
However, if a defendant has been out of state, then the statute of limitation can be "toiled" or suspended during that period. And Trump, having been in D.C. for four yearsas president, was out of state.
"But it's hard to believethe legislature would have intended ... thatserving as president of the United States counts asbeing out of state," Shapiro said.
With files from The Associated Press
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