Editor’s note: Joey Jackson is a criminal defense attorney and CNN legal analyst. The opinions expressed in this comment are his own.
Just over a year ago, on April 3, 2023, Manhattan District Attorney Alvin L. Bragg announced a 34-count criminal indictment against former US President Donald J. Trump. Trump’s trial is now scheduled to begin, with opening statements beginning Monday at 9:30 a.m.
Trump is accused of falsifying invoices and business ledgers and sending reimbursement checks to his then-attorney Michael Cohen under the pretense that they were payments for legal services rendered.
Prosecutors say they were no such thing, but rather a reimbursement to Cohen for a $130,000 payment he made on Trump’s behalf to former adult actress Stormy Daniels. Daniels got paid, they sayto prevent her from outing Trump before the election to hide their relationship and thus improve her electoral prospects.
In New York State, falsifying business records is a misdemeanor that carries a penalty of up to one year in prison. However, if it can be shown that the motive for the forgery was to commit some other crime, as prosecutors say is the case in this case, becomes a serious crime punishable by up to four years in prison.
That means prosecutors have two agendas in their attempt to secure a conviction against the former president. First, they must establish the fraudulent nature of the business records underlying the alleged scheme. Second, they must prove that Trump’s intent in falsifying the records was related to the 2016 presidential election.
That, in the simplest terms, is the prosecution’s case against the former president.
One can’t help but wonder what’s going through the minds of the jurors, despite the statements they made during the jury selection process. Are you dazzled? Intimidated? Biased for or against Trump? We really won’t know until the trial is over and the jury issues its verdict. At that point, jurors may or may not choose to give a public explanation of their decision.
Trump has said that prosecutors “have no case” against him. We will soon find out if that is true. Prosecutors will no doubt take a very different position when opening statements begin. But each side will be careful to tailor their opening arguments to the target audience: the jury. They are the ones whose opinions matter most in this trial.
The court has set a 18 member panel composed of 12 jurors and six alternates who are vitally important, as one or more of them could be called to intervene in the event that one of the jurors needed to be excused, for example, if they have a personal emergency or simply abandon the case . The longer the trial goes on, the more likely that will happen.
With respect to primary jury panel of 12I am struck by the number of professionals who have sat down. It includes two lawyers, a technology worker, a software engineer, finance professionals, a professor and a salesperson, among others. In my opinion, this is a group that will focus on facts, logic, documents and evidence. That could be very good for Trump because he probably wouldn’t be willing to base his verdict on politics, his or theirs.
However, it could also work against them, as jurors may prove dispassionate, impassive, and unpersuaded by defense accusations of procedural injustice, government overreach, or witch hunts.
Opening statements are not evidence, but are designed to provide a preview of what the evidence will show, and I hope they turn out to be positive. We can anticipate a logical interpretation of the evidence they intend to present, which consists of ledgers, invoices, checks, text messages, emails, audio recordings and other documents.
We can also expect them to differentiate the message from the messenger. Cohen, for example, is a convicted felon and perjurer, as many people know. Daniels has led a life that some would find unpleasant. Expect prosecutors to talk about it freely, as they did during jury selection. But they will also condition the jury by pointing out that they do not need to trust the word of any witness.
Instead, prosecutors will ask the jury to focus on documentary evidence that corroborates and supports the witnesses’ claims. That means you can expect them to focus first and foremost on the documents they say outline the hush money scheme. Witnesses are only “messengers” who highlight facts that have already been established by strong evidence. Prosecutors will try to ease the pain of the defense’s attacks on the credibility of their witnesses by arguing that the message itself — the evidence related to Trump’s guilt — is unequivocal. The texts, emails and documents reliably prove their guilt, they will insist.
On the question of Trump’s intent, prosecutors will note that it defies common sense and logic that he would have paid the hush money for any reason other than to hide it from voters. They will not only point out the time of payment a few days before the 2016 elections, but they will almost certainly point to communications and statements at meetings in which they say the plan and its purpose were discussed. I don’t expect prosecutors to go into detail on Monday regarding what the evidence will show, but I do expect their overview to be organized, focused and tied to a meticulous chronology of events, facts and participants.
The defense team’s opening arguments are more of a wild card filled with challenges, but they have some options. The first would be to commit to a real defense. But what would that be like? It will work?
Team Trump could say that he is completely innocent and that the state’s case is based on a bunch of lies with no basis in fact. However, this would be risky. After all, if the state can prove that none of Trump’s payments to his then-lawyer Cohen were for any legal work performed and that there was no retainer agreement, why would Trump make any payments? The jury might find it difficult to believe such a statement.
Another defense move could be to adopt a strategy employed by former Democratic presidential candidate John Edwards, who was indicted more than a decade ago for alleged federal campaign finance violations. Edwards successfully claimed during his trial that he concealed the birth of his beloved child not to deceive voters, but to protect his wife and his family.
In Trump’s case, however, a similar defense would pose great risks. He would have to acknowledge his guilt for falsifying business records. That defense would have to admit that he is a criminal, even a low-level one, and would contradict public statements he has made about the case.
If I went that route, I would be saying, in effect, yes, I did it, but my intention was to protect my marriage. It had nothing to do with the elections. Trump would have already admitted to the entire underlying plan under his defense. That would allow prosecutors to shift the focus of the case from the alleged ruse he was claiming was part of to his motive: Was it for his family or to increase his chances of becoming president? But I just don’t see Trump admitting guilt to him, even for comparatively minor misdemeanors.
The other option the defense has in its opening argument is one that is used quite frequently and is the safest bet in many cases: Team Trump could simply ask jurors to keep an open mind throughout the case. By adopting this strategy, the defense would remind the jury that the standard for proving guilt – “beyond a reasonable doubt” – is a very high bar.
His next step would be to criticize the unpleasant nature of the State’s witnesses and claim that they cannot be trusted. They could then move on to discuss how Trump should and should not be found guilty simply because of his politics and anyone’s disdain for him. The last thing I expect as the trial progresses is for the defense to compromise on whether Trump will testify. While he has said publicly that he will do it, it will likely be a game-time decision.
History is unfolding before us. Since the signing of the Declaration of Independence nearly 250 years ago, no president has been criminally prosecuted. That said, everyone is, or should be, viewed equally under the law and everyone has the presumption of innocence, even a former president.
Here we are. Did Trump break the law? After opening statements on Monday and having had the opportunity to hear the evidence revealed during the trial, the jury will decide.