Prosecutors in Trump trial have strayed from their mandate to ensure justice is done

The New York state district attorney’s Ethical Guidelines for Prosecutors states that the prosecutor “Is the representative not of an ordinary party to a controversy but of a sovereignty…whose interest, therefore, in a criminal prosecution is not that it shall win the case, but that justice shall be done.”

This quote, which comes from the Supreme Court’s opinion in Berger v. U.S., is even more applicable now that the Manhattan District Attorney’s Office’s case against former President Donald Trump has concluded. 

In this case, prosecutors have strayed from their own ethical mandate to ensure justice is done, instead assuming the role of an ordinary party fixated on winning a case despite clearly having inadequate evidence.

There is an embedded principle in American jurisprudence that the uncorroborated testimony of one individual should be insufficient to convict another and take away his or her liberty. Article III, Section 3 of the Constitution states that, “No Person shall be convicted of Treason unless the Testimony of two Witnesses to the same overt Act.” Similarly, federal perjury statute 1621, derived from common law, requires two witnesses to sustain a perjury conviction.

These principles exist precisely because it is often impossible to discern the credibility of a single witness and therefore manifestly unfair to convict any defendant based on that testimony alone. 

Although the two witness rule is not a requirement of the New York statutes, it is telling that no witness corroborated the statements that Michael Cohen attributed to Trump in his testimony. In fact, Cohen’s surreptitious audio recording of Trump, wherein he merely stated “Just take care of it,” buttresses the defense’s claim that Trump was not involved in the formulation, mechanics or accounting classification of the transaction that precipitated this entire case.

This is hardly evidence that Trump “repeatedly and fraudulently falsified business records,” as the prosecution alleges. Fraud requires a culpable state of mind and, no matter how creative the prosecutors may be, the phrase “Just take care of it” does not meet the necessary threshold.

In fact, Trump even paid for the taxes on the transaction, which is hardly the hallmark of an illegal scheme. 

Upon cross examination, Cohen was evasive and played semantic games with ambiguous answers such as, “It sounds like something I would say.” In the most devastating portion of the cross examination, Trump’s counsel Todd Blanche masterfully exposed Cohen’ to be an inveterate liar’s mendacity. Cohen testified with certainty on direct examination that on Oct. 24, 2016 he had called Trump’s bodyguard Keith Schiller, who handed the phone to Trump, whereupon Trump and Cohen finalized the Stormy Daniels deal. But upon cross examination, text messages before and after the call revealed that the call was actually between Cohen and Schiller about harassing telephone calls from a teenager.

Cohen was also forced to admit that he had stolen money from Trump. Thus, the only direct witness to Trump’s supposedly incriminating statements was exposed as both fabricating his testimony and stealing from the defendant.

Critically, prosecutors also failed to establish a nexus between Trump’s purported actions and the concealment of information from voters. The prosecutors alleged that Trump falsified business records in order “to conceal crimes that hid damaging information from the voting public during the 2016 election.” But even if each check and accounting entry bore the marking “Payment to Stormy Daniels,” voters would never have had access to those records. The Trump Organization is not a public company and does not store its accounting records in Trump Tower’s public atrium.

Prosecutors also attempted to downplay the significance of the 2011 blog article that detailed Daniels’s allegations. The prosecutor asked Cohen, “Did the article get any traction in 2011; meaning was it out there much?” Cohen responded “No.” But Cohen’s assessment of whether the article received “traction” is irrelevant to the question of whether it had been previously placed into the public domain and therefore not hidden from the public as prosecutors allege.  

Finally, prosecutors brazenly referred to Cohen’s guilty plea to federal election law violations on numerous occasions. This was a calculated and unethical attempt by the prosecution to impute Cohen’s guilty plea onto Trump, and to suggest that somehow he too had committed violations. Judge Juan Merchan sustained some of the defense objections to this, and issued limiting instructions to the jury, but this was insufficient to cure the prejudicial nature of those statements.

In reality, Cohen was pressured to plead guilty to those crimes because federal prosecutors threatened to indict his wife. 

At the outset of this case, many speculated that surely the Manhattan district attorney had credible evidence to substantiate these unprecedented allegations. However, it is now clear that prosecutors did not heed the admonition of the Supreme Court in Berger that the prosecutor, “While he may strike hard blows is not at liberty to strike foul ones.”

District Attorney Alvin Bragg clearly struck a foul blow in this case by gambling that a Manhattan jury would ignore his lack of evidence. There is a certain poignancy to the fact that Trump rallies play Lee Greenwood’s “God Bless the USA” that includes, “Proud to be an American where at least I know I’m free.” Whether Trump will remain free depends on whether, unlike the prosecutors, the 12 jurors understand that their mandate is to ensure justice is done.

George G. Demos is a former United States Securities and Exchange Commission enforcement attorney and an Adjunct Professor at U.C. Davis School of Law where he teaches Corporate and White Collar Crime.