Blaze News original: Bragg’s team failed to prove Trump’s guilt in New York case, legal experts say

News & Politics

Manhattan District Attorney Alvin Bragg filed 34 felony counts of falsifying business records against former President Donald Trump, but the prosecution’s case fails to hold water, several legal experts told Blaze News.

What’s the background?

Bragg’s case hinged on testimony from Trump’s former lawyer, Michael Cohen, a convicted felon, admitted thief, and repeat liar. According to Cohen, he paid porn actress Stormy Daniels $130,000 in so-called hush money to keep quiet about an alleged affair with the former president. Cohen claimed that Trump instructed him to execute the settlement agreement with Daniels.

‘They haven’t even alleged a crime here.’

Trump paid Cohen $35,000 monthly in 2017, a total of $420,000. The checks made out to Cohen, Trump’s personal attorney at the time, were marked as legal expenses. However, Cohen claimed that the funds were reimbursements for a number of costs, including the $130,000 settlement payment to Daniels, $50,000 for technology services to RedFinch, and $180,000 for estimated taxes, and a $60,000 bonus.

Will Chamberlain, with the Article III Project, told Blaze News that the New York criminal case against Trump “never should have been brought,” explaining that the prosecution’s arguments rely “on the testimony of a convicted felon, admitted perjurer, and disbarred attorney.”

“[Cohen’s] testimony is the only evidence at all on necessary intent elements of the alleged crime,” Chamberlain stated. “No reasonable juror can rely solely on Cohen to prove anything beyond a reasonable doubt, and [Judge Juan] Merchan should have dismissed the case outright.”

Criminal defense attorney David W. Fischer told Blaze News, “The prosecution has not established that a criminal offense took place.”

Witnesses take the stand

During Cohen’s testimony, he admitted that, despite getting reimbursed by the Trump Organization for a payment to RedFinch, he only paid the technology firm $20,000 and pocketed the remaining $30,000. Cohen’s reimbursement for the expense also included another $30,000 in estimated taxes. He claimed Trump shortchanged him on his yearly bonus.

“I was angered because of the reduction in the bonus, and so I just felt it was almost like self-help,” Cohen admitted to jurors. “And again $130,000 to have my bonus cut by two-thirds was very upsetting to say the least.”

Chamberlain told Blaze News that Cohen’s admission to stealing $60,000 from the Trump Organization undermined his previous testimony that Trump was a micromanager.

“Even assuming one would be inclined to embezzle, how stupid would you have to be to embezzle from someone you know is a micromanager?” Chamberlain questioned.

The defense team maintained that the payments to Cohen were for his legal services as Trump’s personal attorney. Cohen claimed he never had a retainer agreement with Trump and did not expect to be paid as the president’s lawyer.

While on the stand, Cohen admitted to previously lying under oath many times, but he claimed he did so to protect Trump.

Former federal prosecutor and former Trump attorney Jim Trusty told Blaze News, “The reality is, there’s no corroboration in Cohen’s testimony about what Trump knew and what his intentions were.”

“In a normal world with a normal jury, this case is a joke. But it’s hard to gauge in Manhattan,” he noted.

Robert Costello, Cohen’s former attorney and one of only two witnesses called by the defense, painted Cohen as a self-serving “inveterate liar,” according to testimony he provided during a House committee hearing on the Weaponization of the Federal Government.

During his time on the stand in the New York criminal trial, Costello claimed that Cohen repeatedly told him in mid-2018 that he did not have any incriminating evidence against Trump and that he made the payment to Daniels without Trump’s knowledge. Costello argued that Cohen was desperate to win favor with Trump and secure a spot on his presidential Cabinet.

“Michael Cohen said numerous times that President Trump knew nothing about those payments, that he did this on his own. He repeated that numerous times,” Costello testified.

During his first day on the stand, Costello clashed with the judge overseeing the case, acting Justice Juan Merchan, Blaze News previously reported. The attorney rolled his eyes, audibly sighed, and remarked, “Ridiculous,” when the judge ruled to sustain multiple objections from the prosecution during his testimony. Costello’s frustration prompted the Merchan to briefly clear the courtroom.

Former Deputy Assistant Attorney General John Yoo told Blaze News that Trump’s legal team has “done a good job,” noting that they “successfully destroyed” Cohen’s credibility with Costello.

“They have made clear to all that the prosecution has failed to show that the bookkeeping misdemeanor actually advanced some greater felony. That greater felony has barely been mentioned, not to mention proved, at trial,” Yoo explained.

Trusty told Blaze News, “We’re at the end of the trial, and we’re waiting with bated breath to hear what the theory of felonization is. That is unlike any trial I could ever think of that you go through the entire trial and it’s still an open question of how this is a felony case.”

The gag order

So far, throughout the trial, Merchan has appeared to disproportionately side with Bragg’s team, which has some legal experts questioning how the judge will choose to instruct the jury regarding the charges.

‘That’s an area where the judge’s instructions could make a huge difference.’

Merchan previously placed a gag order against Trump, prohibiting him from speaking about anyone involved in the case or their relatives. His supporters have sounded the alarm, claiming that the order was, in part, intended to stop Trump from publicly discussing Merchan’s daughter, who works for a progressive political consulting firm. The defense made multiple unsuccessful attempts to get Merchan booted from the case over the alleged “actual conflict” and “unacceptable appearance of impropriety.”

Additionally, the gag order prevents Trump from discussing Matthew Colangelo, a former top-ranking Department of Justice official who effectively took a demotion to join Bragg’s prosecution team in the case against the former president. In 2018, Colangelo received $12,000 from the Democratic National Committee for “political consulting,” Blaze News previously reported.

In a recent letter to Attorney General Merrick Garland, House Judiciary Chairman Jim Jordan (R-Ohio) stated that Colangelo working as a New York prosecutor for Bragg has “given the perception that the Justice Department is assisting in” the “politicized prosecution” of Trump.

The restrictive gag order has also inhibited Trump from defending himself from political attacks from witnesses amid his 2024 presidential run. Cohen has repeatedly used his podcast and TikTok account to attack Trump’s character and his campaign. At one point during the trial, after several failed attempts to get the gag order removed, the defense proposed placing a similar order against Cohen, but Merchan refused the request. Instead, the judge elected to tell the prosecution to remind Cohen that he should not speak about the trial publicly.

What now?

The prosecution and the defense are expected to give closing arguments this week. After the defense rested its case on Tuesday, the lawyers discussed the parameters of the jury instruction, arguably one of the most vital stages of the trial.

“The jury instructions may tilt the field against the defense, the last thing the judge could do to favor the prosecution,” Yoo told Blaze News.

Despite not being charged with any election interference-related crimes, the prosecution has argued that the alleged falsified business records amounted to Trump attempting to illegally sway the 2016 election.

Trusty described two focal points for the judge’s jury instruction.

“The first is, how does [the judge] instruct on the government’s proof of Trump’s knowledge of the false entries?” he said.

“There’s a big difference between a judge saying that the government must prove that the entries were false and that President Trump knew, or should have known, about them,” Trusty told Blaze News. “The other way you could say it is, the government has to prove that these entries that were made were false and that President Trump, beyond a reasonable doubt, was complicit in making these entries.”

He noted that the jury may decide not to proceed if it determines that the prosecution failed to prove that Trump knew what was being entered on the checks and ledgers.

Trusty continued, “That’s an area where the judge’s instructions could make a huge difference. The other area is the felony part,” which claims that the false entries were done in furtherance of another crime.

“If the judge instructs that political motivation need only be one part of the overall motivation for false entries, well, that’s a no-brainer,” Trusty explained. “Even if [Trump] was primarily focused on Melania, or keeping it quiet just for his general reputation, it’s not hard to convince a jury that at least some tiny part of it related to the presidential election. But if he says it has to be entirely motivated by politics, by political viability, then that’s a much higher burden for the government because being afraid of your wife finding out could be a full defense.”

Chamberlain told Blaze News that the most significant obstacles for the defense in this case “are the bias of the judge and the potential bias of the jury.”

“Manhattan is a very blue area, and they have to worry that the jury will look to convict Trump regardless of what the evidence supports,” he said.

Chamberlain argued that the prosecution has “failed” to prove its case beyond a reasonable doubt.

“The defense’s best strategy is to try and make this case about the law and the facts and to point out how not credible Michael Cohen is,” he added.

Yoo explained that the defense “still has to fight not just a politically biased prosecutor but a judge who clearly looks poorly upon the defense.”

Burden of proof

Criminal defense attorney Fischer told Blaze News that he believes there is a more straightforward argument for dismissing the case.

“The statute makes it a crime. It deals with the falsification of business records,” Fischer said. “To falsify a record means to take an existing record and change it in a way that changes the character of the record.”

“It is not the addition of a false record into a business. If you carefully go through the indictment … the most important words to read are the words ‘to wit,’ which means, essentially, the grand jury specifically charges as follows,” he remarked.

Bragg’s first count against Trump states, “The defendant … on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.”

Fischer explained that because the term “to wit” is used, the prosecution must prove the “elements of the crime” as well as the specific set of facts alleged by the grand jury.

“When the grand jury specifically specifies a particular way that the crime was committed, the prosecutors stuck with that allegation,” he told Blaze News. Fischer added that a case can be overturned if the judge provides jury instruction that does not align with the exact allegations made by the grand jury.

“So what is the false entry that Trump allegedly made in the business records? The false entry is, ‘to wit, an invoice from Michael Cohen.’ What they’ve alleged is that Michael Cohen sending an invoice from his law firm to the Trump Organization is a false entry in the business records. Well, that’s not a crime,” Fischer continued. “That is not an entry in the business records of the Trump Organization. It’s basically somebody sending their invoice.”

Regarding the false entry counts, Fischer believes the prosecution “clearly ha[s] not met their burden.”

“They haven’t even alleged a crime here,” he added.

Fischer noted the seventh count against Trump, which states that there was a “false entry in the business records of an enterprise, to wit, a Donald J. Trump Revocable Trust Account check and check stub.”

“In the light most favorable to Alvin Bragg, which is how the court would look at it, how is writing a check on a trust account — how is that making a false entry in the Trump Organization records? It’s not,” he told Blaze News, adding that Trump’s trust is not part of the company.

Fischer stated that “there are multiple other arguments” the defense could make, including contending that the prosecution has failed to prove that Trump had anything to do with marking the payments to Cohen as legal expenses.

“I don’t think they have proof that Trump ordered, ‘Hey, write this in the books a certain way.’ I mean, what if it had been written in as miscellaneous expenses?” Fischer continued. “I don’t believe it was an entry, first of all. But even if it was an entry, it has to be objectively false.”

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