5 issues that could determine Trump’s guilt in the hush money trial

For six weeks, jurors at former President Donald Trump’s trial sat through 22 witnesses, examined stacks of exhibits and heard hours of salacious testimony about hotel sex and hush money.

But the jury’s decision on whether Trump is guilty may turn on just a handful of questions that are largely detached from the tawdry details that have defined the case.

Jurors will begin their deliberations this week, after lawyers for both sides deliver closing arguments on Tuesday. Here’s POLITICO’s look at the key issues that could dictate whether Trump becomes the first former president convicted of a crime — or whether prosecutors come up short.

Business records, or just personal ones?

Trump is charged with 34 felony counts for allegedly falsifying business records related to reimbursement payments he made to his former lawyer Michael Cohen for the hush money Cohen paid to porn star Stormy Daniels to buy her silence ahead of the 2016 election. Prosecutors introduced as evidence 11 checks, 12 ledger entries and 11 invoices used to pay Cohen a total of $420,000 in 2017.

According to testimony at the trial, some of that money came from a Trump family trust, while most of it came from one of Trump’s personal checking accounts. The invoices and payments were routed through the accounting staff of the Trump Organization.

But is that enough to make them business records? Prosecutors say yes, but some critics of the Trump case say it may not be. It’s unclear whether every record that is kept at a business qualifies. Arguably, someone who has a secretary pay his or her personal bills and sends someone flowers but obscures the nature of the expense could be charged — under the prosecution’s theory — with falsifying business records. It seems unlikely prosecutors would ever bring such a case, and some analysts don’t see the basics of the case against Trump as much different.

Were the records actually false?

Prosecutors have pointed to two specific statements repeated in the paperwork that they say are false: the Trump Organization accounting entries that say “legal expense” and similar entries there, in Cohen’s invoices and on the check stubs that describe the payments as relating to a “retainer.”

Prosecutors argue those descriptions are falsehoods designed to obscure the fact that the bulk of the money Trump paid was related to a reimbursement to Cohen for the hush money he paid to Daniels.

Defense attorney Todd Blanche said the money was actually a retainer for Cohen to serve as Trump’s personal attorney after he won the presidency. Blanche has also claimed that it wasn’t fraudulent for Trump accountants to carry the payments as legal expenses because the Trump accounting system had a fixed number of categories and almost any payment to a lawyer is in its broadest sense a legal expense. Cohen testified that he did minimal legal work for Trump in 2017 and said he didn’t bill or receive payment for it.

The question of when payments to a lawyer for money the lawyer paid to others can be officially recorded as a legal expense has been disputed in the past. In 2022, Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee paid a total of $113,000 in civil fines to resolve a Federal Election Commission investigation into those committees’ description of payments to the private investigation firm Fusion GPS as “legal and compliance consulting.” The FEC said the firm was doing what amounted to traditional opposition research — work that produced the so-called dossier on Donald Trump and his ties to Russia. Even as the Clinton campaign and the DNC paid the fines, they admitted no wrongdoing, with a DNC spokesperson calling the complaints “silly.”

Did Trump and Daniels have sex — and does it matter?

There’s a stark disagreement at the center of the trial: Daniels says she and Trump had sex in his hotel suite at a charity golf tournament near Lake Tahoe in 2006. Trump has steadfastly maintained — and his lawyers argued to the jury — that Daniels made that story up. Trump never took the stand to directly offer his account.

Legally, who’s right probably shouldn’t matter much. Trump isn’t charged with any crime directly involving the alleged sexual encounter.

However, Daniels’ description of the $130,000 payment to her as hush money related to the alleged encounter makes her credibility of some relevance to the case. Her testimony opened the door to questioning about her past denials of any sexual encounter with Trump and even to questions about whether as a porn film director she is skilled at spinning fanciful stories about sex. “You have a lot of experience making phony stories about sex appear real,” Trump attorney Susan Necheles said to Daniels on the stand.

Still, since the core of the prosecution’s case against Trump is that he covered up money paid to suppress a story that could damage his 2016 presidential campaign, it may matter little whether that story is true — namely, whether the sex happened or not. The jury could convict Trump even if jurors doubt Daniels’ story — or acquit him even if they think Trump is lying when he denies the alleged sexual encounter.

Will jurors believe Michael Cohen — and does it matter?

Cohen, the self-described Trump fixer, has been widely seen as the prosecution’s star witness. The element of betrayal in Cohen’s willingness to testify against his former boss lent an operatic quality to the trial as Cohen sat just a few feet away from Trump in the courtroom as the disbarred attorney recounted his history as a kind of bagman for Trump.

If believed, Cohen’s account is damaging to Trump — but that’s a big “if.” Cohen said Trump was involved in discussions about the payoff to Daniels before the election and after stalling reluctantly went along with it as the election neared. Cohen also said he met with Trump in the Oval Office in February 2017 to discuss how Cohen would receive disguised reimbursements in the form of a $35,000-a-month legal retainer.

Like Daniels, Cohen previously and repeatedly denied just about everything he testified to on the witness stand. On top of that, he pleaded guilty to a whopping nine federal felony charges in 2018, including lying to Congress, tax fraud and a campaign finance charge relating to the payoffs to Daniels. He also admitted lying in federal court even as he was pleading guilty to those charges and to stealing from the Trump Organization.

In addition, some of Cohen’s current story remains dubious, including his account of a 96-second phone call he made to Trump aide Keith Schiller on Oct. 24, 2016, days before the election. Cohen claims Trump got on the phone and gave his final go-ahead to pay Daniels, but a text message to Schiller a few minutes earlier suggested the call was to seek help related to repeated prank calls Cohen was getting from someone who said they were 14 years old.

Under questioning from Blanche, Cohen said that was part of the reason for the call, but Trump’s defense hammered away with questions about how these two issues could possibly have been addressed with Schiller and Trump in one minute and 36 seconds as the pair were at a campaign rally in Tampa with about two weeks to go until the election.

“That was a lie,” Blanche said, almost shouting at Cohen during cross-examination.

“Part of it was the 14-year-old,” Cohen said, “but I know that Keith was with Mr. Trump at the time, and it was more than just this.”

In a technical sense, prosecutors could have not called Cohen and attempted to prove their case through circumstantial evidence. Much of the evidence was introduced at the trial to bolster Cohen’s account. Witnesses without Cohen’s credibility problems testified about Trump’s attention to detail on financial matters and about his overall stinginess. The prosecution also displayed excerpts of Trump’s books where he boasts about his frugality and his insistence on bargaining with vendors on outstanding bills.

All that, prosecutors suggested, makes it implausible that Trump signed hundreds of thousands of dollars in checks to Cohen without having some idea what the money was for. They’re likely to argue to the jury that, even if one discounts Cohen’s testimony, the only logical explanation for the payments to him is that he and Trump agreed to have Cohen send the hush money to Daniels before the election and for Trump to pay him back later.

Did prosecutors do enough to prove a campaign link and Trump’s intent?

Even if jurors conclude that Trump was fully aware of and endorsed the plan to quietly pay $130,000 to Daniels to bottle up her story, there are still legal ambiguities that could forestall guilty verdicts against the former president.

The timing of the payment to Daniels strongly suggests a link to Trump’s then-campaign as does testimony from Cohen and Daniels, but public disclosure of the sexual encounter could have been damaging to Trump’s reputation or caused strains in his marriage. The prosecution and defense presented competing proposals to Justice Juan Merchan about how the law treats expenditures made for multiple reasons — only one of which is campaign-related.

Another knotty question that could be crucial to the outcome of the case is whether prosecutors have to prove that Trump knew he was doing something illegal in the alleged cover-up. Many experts believe that requirement in federal law is part of why Trump was never prosecuted in federal court over the payment scheme. It’s unclear whether New York law requires, in these circumstances, that a defendant know what he’s doing is illegal.

There was little testimony on the point at the trial beyond Cohen saying he’d pleaded guilty to a campaign finance crime regarding the payments. He did not say he and Trump discussed the unusual financial arrangements being a way to evade having the money reported publicly as campaign expenses. Trump’s lawyers have already seized on this in court and, if the judge’s instructions allow for it, are likely to argue to the jury that the lack of evidence that those involved were trying to flout campaign finance law at the time is a fatal flaw in the government’s case.