Former President Donald Trump transitioned from a clean record to becoming a felon after a Manhattan jury found him guilty in the criminal hush money case last week — a result partly attributed to his flawed legal strategy and the damning instructions given by the judge.
Legal experts point to the defense’s approach from the onset of the lengthy trial as a key factor in Trump’s conviction. Trump decried the verdict as “rigged” and politically motivated after being found guilty on Thursday of all 34 counts of falsifying business records to hide hush money reimbursements made to his ex-attorney Michael Cohen.
Trump’s failure to secure an acquittal or a mixed jury verdict is attributed by some legal experts to both the judge’s handling and the defense’s tactics.
Former Assistant U.S. Attorney Andy McCarthy for the Southern District of New York noted that Trump’s defense in the hush money trial was marred by “ill-conceived, self-destructive defenses” that helped Manhattan District Attorney Alvin Bragg, a Democrat, achieve “his coveted convictions.”
Trump’s defense team argued to voters and jurors that porn star Stormy Daniels and Playboy model Karen McDougal, who claimed to have had affairs with Trump which he allegedly tried to conceal using hush money payments, were lying.
“The reason for this is clear: Trump insisted that his lawyers subordinate his defense at trial to the political narrative he wants to spin in the 2024 campaign,” McCarthy wrote for the National Review.
The conviction has rallied elected Republicans around Trump, condemning what they see as an unfair legal process. Despite the 34 counts against him, Trump has maintained his innocence and denied the affairs.
His repeated denials of the sexual encounters were significant, partly due to concerns about his wife, Melania Trump, and youngest son, Barron Trump, who was a child during the alleged 2006 affair with Daniels. Even if the affair between Trump and Daniels happened, he might have denied it to avoid embarrassing his family.
“Politically speaking, this is dumb because voters long ago made up their minds about Trump’s extramarital affairs, and if he admitted them at this point, he’d merely be admitting what is notorious and not credibly deniable,” McCarthy wrote.
Other questionable decisions by Trump’s legal team included keeping two lawyers on the 12-member jury and failing to call a Trump Organization accountant as a witness to explain why payments to Cohen were categorized as legal expenses.
Trump also chose not to testify, although he wanted to share his side of the story, according to attorney Todd Blanche. While the exact reason for this decision is unclear, testifying would have allowed the prosecution to cross-examine Trump on many past legal issues in New York civil cases.
Blanche told CNN’s Kaitlan Collins that Trump always listened to his defense team’s advice but ultimately made his own decision, which Blanche agreed with.
The defense also may have erred by focusing solely on Cohen’s credibility issues and only calling Robert Costello, an adviser to Cohen during a federal investigation, to impeach his testimony. Blanche’s closing argument, heavily centered on labeling Cohen a liar, might have left gaps in the defense’s case if jurors didn’t believe Cohen invented his claims about Trump.
David Pecker, the National Enquirer’s former publisher, provided key testimony, stating he agreed to be Trump’s “eyes and ears” for negative stories before the 2016 campaign. Jurors sought to rehear Pecker’s testimony about a 2015 meeting with Trump and Cohen where they allegedly planned to bury damaging stories.
Despite the defense’s flaws, Bragg’s indictment had its own issues, as the falsification of business records charges are typically misdemeanors with a two-year statute of limitations. Prosecutors, however, elevated them to felonies by alleging Trump intended to commit “another crime.” They revealed at trial’s end that this other crime involved violating New York’s election law with an unspecified additional crime, which jurors didn’t need to agree on unanimously.
“You may consider the following: (1) violations of the Federal Election Campaign Act, also known as FECA; (2) the falsification of other business records; or (3) violation of tax laws,” the judge’s jury instructions read.
The jury guidelines allowed jurors to convict if they believed Trump falsified records without needing to be unanimous on which of the three predicate offenses applied. Given this disadvantage, Trump’s supporters believe he can prove his innocence only in New York’s appellate courts or even its highest court, the Court of Appeals.
Veteran appellate lawyer Alan Dershowitz, who has long deemed the hush money indictment a “zombie” case since former District Attorney Cy Vance declined to bring charges, suggested the jury trial was flawed partly due to jurors being drawn from a jurisdiction where only 5% voted for Trump in the last election.
Dershowitz implied that the prosecution’s failure to call former Trump Organization CFO Allen Weisselberg and exclude him as a “missing witness” instruction to the jury is likely one of several grounds for an appeal. Additionally, the substantial information about Trump and Daniels’s alleged sexual encounter that was shared with the jury likely deterred Trump from testifying.
“This is a winnable appeal. This is an appeal that a first-year law student could win if the defendant’s name wasn’t Donald Trump and it wasn’t New York,” Dershowitz said.
A 30-day window for Trump’s legal team to appeal will begin following a July 11 sentencing hearing, where the judge will decide Trump’s punishment, potentially including house arrest, jail time, or fines. Legal experts suggest there might be no detention for a first-time offender, though the judge could consider the 10 times Trump was found in contempt for violating his gag order in this case.
Sentencing for Trump is also scheduled just days before he is expected to become the Republican nominee for the 2024 election at the Republican National Convention, raising the stakes in a vital election year determining whether a candidate could end up in prison.
