As the third week of testimony in Donald Trump’s criminal trial in Manhattan begins, prosecutors are launching into the financial nitty gritty of the catch-and-kill scheme that quashed salacious stories about the then-presidential candidate as the 2016 election approached.
One key issue is whether the $420,000 that Trump paid to his former fixer and attorney Michael Cohen was to pay Cohen back for paying off adult film star Stormy Daniels to the tune of $130,000.
On Monday, former Trump Organization controller Jeff McConney testified that he was told Trump was reimbursing Cohen for an unknown reason. McConney said former Trump chief financial officer Allan Weisselberg told him the payments should be “grossed up” to help cover Cohen’s state, federal and city taxes, NBC News reported.
In Trump counsel Todd Blanche’s opening statements, he acknowledged Daniels signed an NDA in October 2016 in exchange for $130,000.
But, he told jurors: “you’re going to learn this was not a payback. The $35,000 a month was not a payback to Mr. Cohen for the money that he gave to Ms. Daniels.”
That statement conflicts with Trump's filings in a 2020 California case, where filings submitted by his lawyers said defendant Trump “admitted that Defendant reimbursed EC for EC’s $130,000 payment to Plaintiff, which was in consideration for Plaintiff’s promises not to disclose confidential information pertaining to” Trump’s then-alias David Dennison.
Still, former federal prosecutor Neama Rahmani said those statements alone cannot be used against Trump in the trial.
“Unless they were verified pleadings, or like a declaration, they are not something that can be used against Trump,” Rahmani said. “Just because his lawyers are making inconsistent arguments is not something that can be used against Trump.”
In August 2018, Trump himself said Cohen’s payments to women did not come from the campaign.
"They weren’t taken out of campaign finance, that’s the big thing," Trump said in an interview in a "Fox & Friends" interview. "That’s a much bigger thing. Did they come out of the campaign? They didn’t come out of the campaign; they came from me."
And in notable testimony on Monday, McConney also testified that the bulk of the payback came from Trump’s own bank account, according to The New York Times.
Rahmani said that leaves Trump's lawyers with their main argument: "I think what they’re going to say is: Trump had nothing to do with them. Someone else created the records.”
"One important takeaway from the defendant's opening is, they're going to blame the accountant," Rahman said. "The accountant is going to be the fall guy. I think they're going to say that Trump had no involvement in booking these payments to Cohen as legal expenses, that that was something the accountant did."
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Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying he was part of a scheme to kill damaging stories about extramarital affairs ahead of his 2016 campaign.
Prosecutors are elevating the falsification of business records charges to felonies because they allege Trump caused the falsification to conceal an underlying crime – Manhattan District Attorney Alvin Bragg alleged that Trump tried to “conceal criminal activity, including attempts to violate state and federal election laws." New York’s election conspiracy statute says it’s a misdemeanor to “conspire to promote or prevent the election of any person to a public office by unlawful means.”
Trump denies those charges, as well as the affairs. Each count is punishable by up to four years behind bars.
In a key piece of evidence played for jurors last week, a Sept. 6, 2016 audio recording includes Trump and Cohen apparently talking about making a $150,000 payment to model Karen McDougal, who claims she and Trump had a ten-month affair after he married Melania Trump.
"‘I need to open up a company for the transfer of all of that info regarding our friend, David,’” Cohen said, apparently referring to National Enquirer publisher David Pecker.
In the recording, Trump says: "So, what do we got to pay for this? One-fifty?"
Trump later suggests paying in cash.
Cohen responded: "No, no, no, no, no, I got it.”
“For me, that’s the most compelling evidence of all – it’s on tape, and it’s clear that he’s involved in this scheme,” said Rahmani, president of West Coast Trial Lawyers.
Chris Truax, an appellate lawyer in San Diego who has served as a legal advisor for the Republican Accountability Project, said Trump’s team have done a “pretty good job” to build reasonable doubt among jurors with the case in front of them.
But Truax said he himself is surprised by the “strength” of the prosecution’s case.
And he said though he believes the recording is a key piece of direct evidence, he thinks jurors will ultimately be swayed more by the bulk of the circumstantial evidence.
“Does it makes sense that the people working for Donald Trump decided to go out and organize this catch and kill deal for these two women, and especially of course for Stormy Daniels, which is the charges at issue, organize this catch and kill system, paid a lot of money, and then just keep it quiet because we don’t want to bother Donald Trump with this? 'We paid $130,000. But let's not distress him,'" Truax said. "It doesn't make any sense that they wouldn't have at least gone to see him and say: ‘There's this allegation against you. Is it true and what should we do about it?’ But they decided not to involve Donald Trump, who was a famous micromanager in any of this discussion, and simply do it on their own out of the goodness of their heart?”
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Other prosecution key witnesses so far include former Trump aide Hope Hicks, who Rahmani said didn’t have a “smoking gun” but testified to corroborate Trump’s involvement in day-to-day campaign matters.
“She was able to connect the dots between Cohen and Trump,” Rahman said.
Hicks also said that Trump was worried about his wife’s reaction to reports of affairs following release of the Access Hollywood recording – a key argument posed by the defense.
Truax said that statement alone doesn’t sink the prosecution’s case. “Something that the prosecution will probably raise is that people very rarely do things with only one idea in their mind," he said.
“To me, it's quite clear that he was deeply concerned about his political campaign, and that was the reason why he was pushing this so hard,” Truax added.
Keith Davidson, a former lawyer for both Daniels and McDougal, testified about the agreement to pay off Daniels, as well as his knowledge of Cohen’s role and Cohen’s frustration while awaiting reimbursement from Trump.
Pecker, meanwhile, in his testimony set the scene for the catch-and-kill scheme and the National Enquirer’s role in killing negative stories about Trump and instead running positive ones.
Trump was also hit with another $1,000 fine for violating his gag order, which in part prohibits him from talking about jurors.
The judge has warned him that another violation could land him behind bars.
Trump has continued to portray himself as a victim of a vast witch hunt and complained that the courts and prosecutors are persecuting him.
“I don’t know if Trump will ever conform his behavior,” Rahmani said. “Nothing leads me to believe his is willing to comply with his gag orders.”
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