The Most Revealing New Piece of Evidence Offered Up at Today’s Trump Trial

Now that the parties have each given their opening statements in the Stormy Daniels hush money trial, we finally have the answer to the head-scratching question I raised in Slate last week: What is the overall theory of the defense? Answer: There does not seem to be one.

In today’s opening remarks, Trump attorney Todd Blanche naturally reminded the jurors of the heavy burden prosecutors have in proving their case and assured the panel his client had not committed any crimes. He responded to the powerful evidence outlined by the prosecutor, Matthew Colangelo, by telling jurors his client was “innocent,” and asserted that “none of this was a crime.”

There are two problems lurking in these statements. First, defense lawyers—always reliant on the prosecutor’s heavy evidentiary burden requiring proof beyond a reasonable doubt—typically stay away from the word “innocent,” because a finding of innocence requires some factual basis. A “not guilty” verdict, on the other hand, would be based only on the government’s failure to meet its burden of proof—the very significant barrier Blanche emphasized earlier in his remarks.

An even greater potential problem is that at the end of the case, the judge will explain to the jury that if the government met its burden of proof, the conduct at issue was criminal as defined by the law, and the defendant should be found guilty.

It all comes down to criminal intent, and without Mr. Trump being able to testify as to his state of mind—given his lack of personal control and the doors that his taking the witness stand would open to other, otherwise inadmissible Trumpian misconduct—there is a much steeper hill for the defense to climb.

As expected, Blanche spent a great deal of time attacking Michael Cohen, and that was the part of  his opening remarks I found most effective. The defense must make Cohen and his notorious unreliability the key to a not guilty verdict, and Blanche surely opened that door. In this regard, it was notable that he made no mention of another key prosecution witness, Hope Hicks, reinforcing the expectation that the defense will have little ability to deflect her potentially crucial testimony.

The newest and most important piece of evidence to emerge from today’s openings came from prosecutor Colangelo in his description of election night 2016. As news outlets came closer to announcing Donald Trump as the winner, Keith Davidson, the lawyer who cut the Stormy Daniels and Karen McDougal “catch and kill” deals, texted to the National Enquirer’s editor in chief:  “What have we done?”

This statement, by an insider with no ax to grind, unmistakably connects the charged payoffs with the election, a crucial nexus to making the conduct a felony. We can expect that testimony will be a powerful cudgel in the prosecutor’s summation.

The way the prosecution should use this new piece of evidence? To make a simple argument. We can all look back in time and regret many things we have done. When it came to the Stormy Daniels payoff, Davidson surely had that kind of moment of self-reflection. Soon, the jury will face a similar fork—to uphold the rule of law, and show that no one, no matter how famous or powerful, is above it.

Stay tuned.