Based on my years of experience prosecuting complex fraud cases, the New York County District Attorney’s Office case against former President Donald Trump has all the hallmarks of a major fraud case, with tremendous jury appeal. For starters, the alleged cover-up of a presidential candidate’s hush money payments to a porn star to try to win an election is captivating and easily comprehensible — in stark contrast, for example, to the financial statements and property valuations from Trump’s civil fraud trial.
How will the district attorney’s office seek to prove Trump’s criminal intent to unlawfully influence the 2016 presidential election?
The deception practically leaps off the pages of the documents. First, there’s the fake “settlement agreement” to release “Peggy Peterson’s” claims against “David Dennison.” But there are no claims; this was just a cover-up for Trump’s agreement to pay hush money to Stormy Daniels. And there are no Peggy Peterson or David Dennison; those are aliases for Daniels and Trump. That is shady (and amusing). Then-Trump lawyer Michael Cohen created a shell company to make the hush money payments to Daniels and keep Trump’s fingerprints off the transaction. Finally, there were false monthly invoices to disguise Trump’s reimbursement to Cohen as “legal expenses” pursuant to a retainer agreement that didn’t exist. The documents will clearly outline the criminal scheme to falsify business records to cover up hush money payments.
But hush money payments alone aren’t illegal. And falsifying business records is only a misdemeanor. Here, the charges go further; Trump is charged with falsifying business records to conceal an agreement with others to unlawfully influence the 2016 presidential election. Trump’s alleged criminal intent to influence the outcome of the election would make the hush money payments illegal campaign contributions and elevate the misdemeanor to a felony — 34 felonies, to be exact.
So how will the district attorney’s office seek to prove Trump’s criminal intent to unlawfully influence the 2016 presidential election?
First, via witness testimony. The district attorney’s office will call witnesses to testify that Trump intended to influence the outcome of the election. Look for Cohen and David Pecker, then-chairman of American Media Inc., to testify about their agreement with Trump to catch and kill negative stories about Trump to assist with his campaign, including discussions with Trump about killing stories from Daniels and Karen McDougal. In addition, Hope Hicks, then the Trump campaign press secretary, may testify about her conversations with Trump and Cohen about the “Access Hollywood” tape, as well as Trump’s anger that it would hurt his campaign.
The district attorney’s office will also use Trump’s own words. Trump’s own words will help establish his intent to unlawfully influence the election. A 2016 audio recording shows that Cohen ran the hush money payment arrangements by Trump, including the amount and method of the payment and the need to open a company to make it. The recording demonstrates not only Trump’s knowledge of the payments, but also his concern that personal information (like divorce records) not be disclosed before the election: “All you’ve got to do is delay.”
Moreover, Trump initially denied knowing about the hush money payments when they were first reported — a provable lie. Only after law enforcement searched Cohen’s premises — and Trump realized he would be caught — did Trump acknowledge that he knew about the payments and had reimbursed Cohen for them. Trump’s lie exhibits his consciousness of guilt. Why would he lie if he thought he did nothing wrong? Trump initially denied knowing about the hush money payments when they were first reported — a provable lie. Much of this case against Trump will rely on common sense. I expect that jurors’ common sense will tell them that Trump made the hush money payments on the eve of the presidential election to help him win. This was a close election, and Trump’s candidacy may not have survived another setback after the “Access Hollywood” tape fiasco. While Trump attacked Hillary Clinton — recall the chants of “lock her up” — Trump paid Daniels to “shut her up.” The reimbursement payments were made by Trump and the hush money payment was made for Trump’s benefit; any defense attempts to distance Trump from those payments won’t pass the smell test for a New York jury. I anticipate prosecutors will argue that Trump wanted to prevent you — the voters — from hearing a porn star’s story of their sexual encounter on the eve of the 2016 presidential election because it could have cost him the election. And he succeeded by paying her a lot of money and covering it up. That conduct was serious enough to send Cohen to jail, with the judge in his case remarking that campaign finance violations “threaten the fairness of elections.” Similarly, prosecutors in Cohen’s case argued that Cohen’s criminal conduct “implicated core defining parts of our democracy: free and transparent elections” and “eroded faith in the electoral process.” Those arguments apply with greater force to the former president. Cohen’s prosecutors argued that powerful and privileged individuals cannot violate the law with impunity. Now it’s time for the district attorney’s office to send that message to Trump.
Kristy Greenberg
Kristy Greenberg is an MSNBC legal analyst. She is a former Deputy Chief of the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York. 
