Trump’s Only Options for His Defense Are Really Quite Bad

With the near completion of what may have been the most challenging and significant jury selection in American legal history, my former trial lawyer colleagues and I have been discussing the ways the upcoming Trump hush money trial will likely unfold. Notwithstanding the group’s collective high-level prosecutorial and white-collar defense trial experience—together spanning well over 100 years—our discussions have failed to answer a very basic question: What is the defense?

Defense lawyers always need a theory of their case to present to the jury in their opening statements, a construct that they try to build upon as they cross-examine key prosecution witnesses, call their own witnesses, introduce evidence, and sum it all up in their closing argument to the jury.

Were the witnesses against my client mistaken in identifying him as the perpetrator? In that regard, were the lighting conditions too poor, or was he too far away to allow accurate identification? Or, in white-collar cases, was my client relying on the advice of counsel or other trusted professionals when he did what he is accused of and thus acted without the requisite criminal intent? Or are the government witnesses all simply lying?

In theory, Donald Trump potentially had an advice-of-counsel defense—all three parties to the Stormy Daniels transaction at the core of the charges were represented by attorneys—but asserting that defense would require him to testify, something, as I have previously written in Slate, that he is manifestly incapable of doing. This is surely the case in the Alvin Bragg prosecution. Because taking the witness stand places a defendant’s credibility directly at issue, Trump’s doing so would open the door to cross-examining him about otherwise inadmissible, damning past conduct. The E. Jean Carroll debacle is just one of many skeletons he must keep in the closet.

Trump’s inability to testify precludes other potential “innocent state of mind” defenses, such as the oft-repeated claim that in his dealings with Daniels, he was looking only to protect Melania. Even though this would be tantamount to saying “I broke the law for family reasons,” it would require his testimony.

As a consequence, Trump’s lawyers will be left to argue that the prosecution’s case is based solely on the words of Trump-hating liars—no one more demonstrably so than Michael Cohen. The problem with this approach is that there will be many more damaging witnesses to confront, quite a few of whom who will be difficult to impeach. Any attempt to make the case all about Cohen will likely fail.

The prosecution, although acknowledging Cohen to be a morally damaged witness, will surely argue that it was his willingness to lie, cheat, and steal for the boss that qualified him to be Trump’s attorney in the first place. Prosecutors will point out that Cohen’s testimony is directly supported by relevant documents and other witnesses, but they will do all they can to make their case much more reliant on other witnesses—perhaps going so far as to argue that even if the jury completely disregards Cohen’s testimony, the evidence against the former president is overwhelming.

Especially strong support for this position will come from David Pecker and Hope Hicks.

When it comes to the catch-and-kill scam at the heart of the case, and the threat to Trump’s 2016 election campaign posed by Daniels’ desire to tell the world her story, no other witness has more direct, explosive information than Pecker. As the editor of the scandal-driven National Enquirer magazine, he was a longtime close associate of Trump. Even before Daniels, Pecker and Trump had used the same catch-and-kill methodology—Pecker bought a scandalous story about a Trump affair seemingly for publication, then deep-sixed it—to conceal Trump’s extramarital tryst with former Playboy model Karen McDougal, now a witness for the prosecution.

In sum, except for Pecker’s understandable inability to identify the Trump Organization financial records falsely describing the payments at issue—entries that speak for themselves—Pecker can and will testify to everything he and Trump knowingly and intentionally did to illegally protect the candidate’s reputation as Election Day approached.

As for Hicks, she is a powerfully credible witness who has honed her testimonial skills in congressional hearings and numerous other venues. As the White House communications director and a Trump confidante, Hicks participated in multiple telephone calls involving Trump and Cohen in which they discussed the threat posed by Daniels and the steps to be taken to silence her.

Though there is at least one, however underwhelming, area of cross-examination of Pecker—his reported immunity deal protected him from prosecution and could be argued as incentive for him to lie—there is simply no meaningful cross-examination of Hicks.

With Pecker’s testimony likely preceding Cohen’s, to be followed later in the prosecution’s case by Hicks’ testimony, prosecutors can get what they need from Cohen while sandwiching him between two more believable and compelling voices, sharing parallel—and much more difficult to challenge—perspectives of the same damning story.

Interwoven will be the predictably sympathetic testimony of the victims of the defendant’s catch-and-kill method to escape accountability: Daniels and McDougal. There will also be a host of others with documentary and testimonial support for the prosecution’s case.

Are they all lying? When and where did this plot to falsely accuse an innocent man take place?

But didn’t I previously argue that the Bragg prosecution was the weakest of the four pending Trump indictments and, in an ideal world, would not go first? That is still the case, because the three other prosecutions involve far more serious charges and are relative slam-dunks (especially the two federal cases). The prime defect in the Bragg prosecution is a legal issue: whether, under the facts of this case, a state misdemeanor can become a felony. The trial judge, Juan Merchan, has already ruled in the district attorney’s favor on that matter, but this legal question will remain very much alive on appeal should Trump be convicted.

Trump’s public defense to galvanize his supporters—that the Bragg prosecution is all a scheme hatched by President Joe Biden and left-wing maniacs—won’t be tolerated in the courtroom. As a consequence, his trial team will be left without much. His best hope remains the presence of a recalcitrant juror or two willing and able to hang the panel.