Trump’s defense team has only one strategy left

With the New York criminal trial of Donald Trump now in its fourth week, the defense is running out of options. Unless the jury decides that the crimes Trump is facing should not be crimes, or at least not actions that should render a former president a felon, he will likely be convicted.

Trump is charged with 34 counts of felony falsification of business records to conceal a payoff to Stormy Daniels to keep her from disclosing a 2006 sexual encounter with Trump to the voting public during the 2016 election. Trump’s former aide Michael Cohen is testifying this week. Through him, the prosecution has introduced documentation demonstrating that Cohen made the $130,000 payment though a shell corporation he set up by lying to a Manhattan bank about its purpose.

Cohen testified that he dug into his own pocket to fund the payment, taking out a home equity line of credit on his personal residence when his billionaire boss dragged his feet. Cohen later pleaded guilty to federal charges of making an illegal campaign contribution and went to prison. Written records further show that, in coordination with the Trump Organization’s Chief Financial Officer Allen Weisselberg (who is doing time for perjury), Cohen was reimbursed $420,000 to cover the taxes he’d have to pay by falsely recording the money as income for legal fees, as well as a bonus. Cohen was ultimately repaid through a series of $35,000 checks, some of which came from Trump’s personal account and were signed by Trump from the Oval Office. The jury has seen these records, too.

The evidence is vast, detailed and mostly of interest only to diligent court-watchers. For everyone else, it’s worth bearing in mind that every case — whether criminal or civil — is about a story.

The government, so far, has told a compelling one. The prosecution’s burden is to prove beyond a reasonable doubt that the Daniels payoff and reimbursement to Cohen were effectively part of a conspiracy to hide Trump’s transgressions and influence the presidential election. Squashing a salacious Daniels tell-all became especially critical in October 2016, just weeks before the election, after the revelation of the infamous “Access Hollywood” tape, in which Trump was caught bragging about assaulting women. The prosecution’s story is clear: Trump directed Cohen to pay off Daniels to hide his affair from the electorate.

The defense, in theory, doesn’t need to disprove anything. The burden of proof is on the government. But it does need to present an alternative story that makes sense to the jury as a matter of logic if it has any chance of refuting the underlying elements of the charges Trump faces. So far, there’s nothing on the other side of the ledger here.

The defense is toying with a number of angles. The first is that Daniels is lying and the affair never even happened, so Trump had no incentive to defraud voters. This approach backfired pretty spectacularly. As Judge Juan Merchan made clear to Trump’s lawyers when they repeatedly moved for a mistrial based on Daniels’s testimony, it was Trump who, by arguing that Daniels was lying, opened the door to the jury hearing in stunning detail about her sexual encounter with him — which, given their age difference (27 to 60) and other elements, smacked of coercion.

Daniels was sharp and pointed during cross-examination, making the defense counsel’s suggestion that she “made this all up” sound gratuitous and absurd, likely diminishing the lawyers’ credibility with the jury. Unless Trump testifies, which is unlikely, Daniels’s version of events probably stands.

The second defense appears to be that, regardless of whether the incident with Daniels is true, the payment was arranged by Cohen, Weisselberg and others within Trump’s orbit, while Trump sat aloft his busy and important perch — the theory being that he couldn’t have had the requisite criminal intent to defraud voters.

However, Cohen’s testimony laid out a range of interactions with Trump about the payment (including the directive to “just do it”) and follow-up attempts to keep Cohen silent once there was a possibility that he’d “flip” and testify against Trump.

The jury heard from Cohen and other witnesses that Trump was a diligent businessman and penny-pincher who wouldn’t let his organization spend $130,000 without his approval. But even setting Cohen’s testimony aside, the jury heard an audiotape recorded by Cohen on his phone with Trump about a similar payoff to another woman, Karen McDougal, so there is direct evidence of Trump’s knowledge of the bigger hush money scheme that Trump was involved in with the National Enquirer tabloid and Cohen.

For the jury to accept that Trump knew about the McDougal payoff, which happened in August 2016, but not about Daniels’s payment, which arose after the “Access Hollywood” tape but before the voters went to the polls, defies common sense.

The third defense is that, even if Trump knew about the payment, his efforts to silence Daniels were about his family or his reputation as a businessperson and a celebrity, not about the election. The jury heard both Daniels and Cohen testify about Trump’s cavalier attitude towards his marital vows and is of course generally aware of the former president’s lack of integrity. (Judges’ limiting instructions to consider only the evidence can only go so far — jurors are human.)

The government’s explanation for the payment — corroborated by former aide Hope Hicks, who testified that the campaign was deeply worried about the “Access Hollywood” tape at the time of the election and that she didn’t find it credible that Cohen would pay off Daniels on his own — is far more believable.

Which brings us to the last, and most promising defense: Even if this is a crime, it shouldn’t be. Trump is heralding this complaint every day in his mini-press conferences after court adjourns, claiming that legal experts agree that there’s nothing legally wrong with what he is alleged to have done. This is a plea for the jury to nullify the legal basis for indictment, not adopt an alternative factual scenario.

Trump’s lead attorney, Todd Blanche, said it this way at the outset of the case: “I have a spoiler alert. There’s nothing wrong with trying to influence an election. It’s called democracy.” In essence, then, by the admission of Trump’s own legal team, the jury has before it a case about American democracy. It’s hardly much ado about nothing.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September. Follow her @kimwehle.