On Tuesday morning, we will hear closing argument in People (of New York) vs. Trump.  There is a good chance that closing argument will spill over into Tuesday afternoon.  Personally, I think this is a mistake, As anybody who has sat through a long sermon, or a college lecture, or a State of the Union speech knows, it is hard to keep the audience’s attention even, when like a jury, they are supposed to be paying close attention.  But us lawyers like to hear ourselves talk and sometimes we dwell on what we find fascinating rather than what is really important in a case.

The basic structure of closing argument (whether in civil cases or in criminal cases) is that the party with the burden of proof (usually the plaintiff in a civil case and always the prosecution in a criminal case) goes first.  The other side (here Trump) goes next, and the party with the burden of proof then gets a rebuttal argument.  The total time allotted to both sides is the same, and the party with the split argument has to choose to split its time between the two (although in some places there is a requirement that the first part of the argument has to be longer than the final argument.  In some places, like where I practice, the court reads the instructions before closing argument.  In my opinion, this practice makes closing argument easier as the jury has already heard what they are supposed to be determining.  But, in New York, the court reads the instructions to the jury after the closing argument.  However, the attorneys know before they begin closing argument what those instructions will be.

The general rule for closing argument is to start and end with a strong statement about what the case is about (and why that dictates a verdict in favor of your side).  On paper, the defense has the easier job — they only need to win on one element of an offense while the prosecution has to win on every element of the offense.  In practice, unless the prosecutors are idiots, there is strong evidence supporting the charges, and only one or two elements are really in dispute (allowing the prosecution to quickly note that the other elements are not in dispute).

With all of that out of the way as a preface (and unlike the attorneys, not having the actual instructions from the court), here is an abbreviated version of how the first part of the prosecution’s closing argument might go:

Ladies and Gentlemen of the jury, lies and coverups.  After what you have heard the past several weeks, there can be no doubt that, in October of 2016, there were women who had been associated with Donald Trump who could have potentially told the American Public that Donald Trump had engaged in multiple acts of infidelity.  And it is equally clear that those associated with Donald Trump were worried about the impact that such disclosures would have on his campaign.

Now, I expect that, when the defense gets up, they will tell you that there is nothing illegal about having an affair or about signing a nondisclosure agreement.  They will also tell you that everybody does it. And if that was all that this case was about we would not be here.  There would be no charges.

But there is an old saying about political scandals:  It’s not the crime; it’s the coverup that gets you in trouble.  And when you own a business or are running for office, there are rules about reporting expenditures.  And what the evidence has shown is that the means that Donald Trump used to keep the public from learning about his association with Stephanie Clifford, better known as Stormy Daniels, from the public were illegal.  Now let’s turn to what the evidence shows that Donald Trump did.

Now those of who live in New York are very familiar with the real Donald Trump.  His multiple affairs, sexual indiscretions, and mixed success in the business world have been fodder for the celebrity news sections of our local papers since his dad helped him start his business back in the 1970s.  But by 2015, he had created an alternative image, a character that he played on the TV show “The Apprentice.”  And when he decided to run for office in 2015, he was running based on that character — a family man who had been wildly successful in business.  And it was important to his campaign that the public not hear about the real Donald Trump.

As you heard from David Pecker, who at that time was in charge of American Media, Inc, the owner of the National Enquire, he, Michael Cohen, and the defendant put together a plan to use the National Enquire as an arm of the campaign.  As he recognized, this plan was legally questionable.  Companies are not supposed to make contributions to candidates.  Part of the plan was that AMI would pursue a “catch and kill” strategy of purchasing the exclusive rights to stories (that it would have published if it related to anybody else) and then not publish those stories.  Donald Trump would then reimburse AMI for that expenditure (which would be another violation of campaign finance laws).  You heard how this plan was used to purchase the story of Karen McDougal who was claiming to have had a sexual encounter with Donald Trump.

You also heard from Mr. Pecker that he had learned that Stormy Daniels had a similar story.  But because of delays in getting reimbursement from Donald Trump for the Karen McDougal contract, AMI opted out of the Stormy Daniels situation.

Mr. Pecker’s testimony was corroborated by Keith Davidson.  Admittedly, Keith Davidson is a sleazeball who negotiates deals for people with stories to tell.   And, on behalf of his clients, he either negotiates a deal to be paid to tell the story or be paid to not tell the story.  And in the fall of 2016, he separately represented both Karen McDougal and Stormy Daniels in negotiations with Mr. Pecker and Mr. Cohen over deals in which both McDougal and Daniels would be compensated for not coming forward with stories about Donald Trump.

Now, what matters for this case is not whether McDougal or Daniels actually had sex with Donald Trump or even if the defendant attempted to have sex with them.  What matters is that they could have come forward with stories that might get national attention.  As you heard from Hope Hicks, and may recall from your own memory of the time, in October 2016, footage of an old interview of the defendant with Access Hollywood was released.  And that interview featured the Donald Trump that New Yorkers know so well, the playboy who like Hugh Hefner has had affairs with multiple women and thinks that he can have any woman that he wants.  This release scared the campaign staff, and when rumors started to emerge about women who might come forward, everybody was scared that the campaign was doomed.

And these stories would not be easy to deny if they became public, as you heard from the defendant’s own executive assistant, Rhona Graff, Donald Trump had a list of people who were authorized to contact him, and that list included both McDougal and Daniels.  And there was other evidence corroborating that Trump had been at events where he briefly associated with McDougal and Daniels.  It was in this circumstance, to keep Stormy Daniels silent, that Michael Cohen created a limited liability company that would pay Daniels as part of a NonDisclosure Agreement.  And that is where the crime started.  Because the purpose of the payment was campaign-related (as shown by the testimony from Ms. Hicks), that payment should have been reported as a campaign expenditure.  Now there are ways to do that which would obscure the real purpose of the expenditure, this defendant did not want to even take that risk.  So he had Mr. Cohen illegally advance the payment with promise of reimbursement after the election.

And it was after the election where the coverup really got going.  Because doing things through proper channels — having the campaign reimburse Mr. Cohen — would have shown the illegal expenditure by Mr. Cohen prior to the election.  So they ran the reimbursement through the Trump Organization (which is not legally allowed to spend money on a campaign.  So they had to hide what the reimbursement was for.

And you heard from Jeffrey McConney about how those payments were made.  And because you heard from Mr. McConney, you do not need to rely on Mr. Cohen to believe what those payments were for.  You saw the bank records for the limited liability company and now that the LLC paid Ms. Daniels $130,000 dollars.  And you heard from Mr. McConney, that the payments to Mr. Cohen were for that $130,000 plus enough money to cover any taxes.  And the reason for that extra money was that they were going to show, on the Trump Organization books, that the money was fees earned by Mr. Cohen for legal expenses rather than reimbursement for personal expenditures made by Mr. Cohen on behalf of defendant.  Each and every time that the Trump Organization generated a document related to those reimbursements which falsely claimed that those payments were for legal services rendered by Mr. Cohen, the Trump Organization was making a false and fraudulent business record to continue the coverup of the illegal campaign expenditure by Mr. Cohen and further was committing tax fraud by converting Mr. Trump’s personal, nondeductible, campaign expenditure into a deductible expense of the Trump Organization.

Between the testimony of Hope Hicks and Mr. McConney, you know that the Trump Organization committed each of the thirty-four counts in front of you.  That fact does not depend on the testimony of either Ms. Daniels or Mr. Cohen.

But how do we know that Donald Trump was in on this crime rather than being an incompetent corporate executive who was clueless about what his underlings were doing.  Well, we have the testimony from Mr. Cohen.  Now, the defense is going to get up  here and tell you that Mr. Cohen’s story has changed over time and that Mr. Cohen has been convicted of lying.  Now both of these things are true.  But did just a little bit deeper and ask yourself what were the lies that Mr. Cohen admitted to in pleading guilty to those offenses.  Those lies were his covering up Mr. Trump’s involvement in this case.  If, as the defense now wants to claim, Mr. Cohen’s original statements were true, then he committed no crimes and should not have pleaded guilty to anything.  Simply put, if you want to believe that Mr. Cohen is a liar, his lies have always been to protect the defendant.

But even if you discard the testimony from Mr. Cohen, you have the testimony from Mr. McConney, and Deborah Tarsey, and this defendant’s own books.  This defendant was a micromanager.  He did not trust his underlings and looked closely at anything before he signed it.  And as Ms. Tarsey told you, several of the checks related to the reimbursement of Mr. Cohen were drawn on Trump’s personal account with the Trump Organization.  And those checks required this defendant’s signature, and Ms. Tarsey who has seen Mr. Trump’s signature on numerous occasions over the years recognized Mr. Trump’s signature on those checks.   This testimony shows that Donald Trump was in on this illegal scheme.

Mr. Trump likes convoluted schemes to evade what he sees as unfair legal restrictions.  But in this case, the scheme that he came up with broke numerous laws.  It involved falsifying thirty-four separate business records.  Those records are in evidence and you can ask to look at them again in the jury room.  And those records were falsified in furtherance of a scheme to violate campaign finance laws and to influence an election.  And they were falsified in a manner that resulted in tax fraud.  In doing so, he committed thirty-four separate crimes.

Mr. Trump did not do his legal duty in connection with this case.  You should do yours and find him guilty on each of the thirty-four counts in front of you.