Detroit recently did a fabulous job hosting the NFL Draft. As I watched the saga unfold, with videos of coaches, players, prospects, and organizers, I realized how much work goes into an event like this.
The weekly football games we see on Thursday, Sunday, and Monday involve intense preparation, skill, and perseverance, sometimes in times of great adversity. Football and trial practice are similar in that regard.
Preparing for and conducting a trial, especially a significant event like the Trump Hush money trial, is much like preparing for an event like the NFL draft or a weekly football game. Trials result after weeks, months, or even years of due diligence, intense preparation, and performance under pressure.
Success, on the field and in the courtroom, depends on the talents of the performers and those behind the scenes, their ability to react to unexpected developments, and, ultimately, their ability to close the deal. Detroit expects a lot from this year’s Lions team.
Many have asked what I look for when Trump’s Hush Money Trial resumes. The most frequent question is whether I expect Trump to testify. I suspect ongoing, rather heated discussions are being conducted between the client and his talented team of lawyers.
To no one’s surprise, I wouldn’t want Trump as a client. He is arrogant, a narcissist, and probably believes he is the smartest person in the room. Remember that in the attorney-client relationship, the client is the boss—he or she pays the bill.
If Trump decides he wants to testify, he will testify. In my judgment, that would be a horrendous mistake. Even though he’s Trump, I expect his attorneys will talk him out of this. He has far too much baggage as a serial liar, fraud, cheat, and all-around terrible guy to succeed as a witness.
Worse, he is what I call a pontificator. He cannot provide a simple answer to a simple question. Every answer will be a campaign speech or an exercise in airing a grievance. He has also made hundreds of out-of-court statements that may be used against him. Assuming he knows his tendencies, with his freedom at stake and a campaign to run, I doubt even a narcissist like Trump will risk it all and put himself in the crosshairs of cross-examination. My prediction? Do not expect him to testify.
Trump has been hammered with litigation losses in civil court. The standard for liability in civil cases is responsible by a “preponderance of the evidence.” The standard requires a tad more than 50% responsibility.
This is his first criminal case; the standard is “beyond a reasonable doubt.” The requirement to hold him accountable is much higher. As we saw in the O.J. Simpson trial, a mountain of evidence is sometimes not enough to convince a local jury of a defendant’s guilt.
The temperament of the citizens, what’s going on in the venue at the time, the defendant’s fame (positive or negative), the political and social climate, the reputation of law enforcement, and the prosecutor’s office all play into the result and juries react differently in different cases, especially high-profile cases.
What’s the burden of proof for a former president who is again a candidate? What is the political makeup of the jury? If we look at the jury through the lens of recent polls and assume that Trump’s approval rating is 40-45%, a jury of twelve-eighteen people (including alternates) would statistically include four-six Trump supporters. A hung jury only requires one hold-out. A hung jury is a predictable outcome in this case.
Despite that prediction, I am cautiously optimistic. A friend (who knows I despise Donald Trump) recently asked me: “Don’t you wish you were on the jury so you could crucify that asshole?” He was surprised at my response. “My oath is more important than my personal feelings. If the prosecution could not prove him guilty, I would acquit.” I expect the same commitment from my fellow citizens on the jury.
The result in the case depends on the quantity and quality of the evidence presented. Will there be direct proof of Trump’s guilt? What does that proof look like? If the evidence is circumstantial but strong, how much will be enough to convict a former president?
Suppose the prosecution presents evidence of guilt that meets or beats the reasonable doubt standard. In that case, I expect my fellow citizens on the jury to do their duty, even if they once supported him, even though he was once president and is now a candidate.
A person’s oath, word, or promise is his or her most important possession, and I expect the jury to deliver a verdict based on the evidence. We will not have a political verdict.
Most observers expect explosive and damning testimony from Trump’s former attorney, Michael Cohen. However, the defense has done a masterful job (with Cohen’s help) of painting Cohen as an unreliable witness. He has been caught lying in the past. He has spent time in prison for enabling Trump. Does he have a personal vendetta?
The prosecution has spent the last four days with witnesses whose names are not Cohen to build independent corroboration of Cohen’s expected testimony. Having spent almost three years in prison, partly for lying, what would Cohen’s motive be to lie and risk future imprisonment?
I expect prosecutors to build nearly insurmountable corroboration, and Cohen’s testimony will be more effective than most observers expect. The witnesses presented to date, the National Enquirer editor, Trump’s assistant, and Cohen’s banker buddy, are three building blocks of corroboration.
While this case is all about sex, cover-up, and deceit, is it “sexy” enough for a conviction? Whether you love him or hate him, Trump is an important guy. Like Bill Clinton, he had an affair and lied about it. Unlike Clinton, he allegedly paid off his lovers and, worse, used campaign funds to fund the transactions. There is no murder, assault, or grand theft. Who was hurt in the process (voters)? Are these crimes, if proven, enough to convict a major presidential candidate? They didn’t matter in the recent primary elections. I expect that, if proven, they are sufficient to convict, even considering the defendant’s celebrity status.
What do we expect from Stormy Daniels and Karen McDougal? What type of witnesses will they make?
Daniels has been quite defiant and vocal in her criticisms of the defendant. Both women may have solicited and accepted bribes. What will the jury think of these two? Will they testify to affairs, cover-ups, and pay-offs?
The case may turn on whether they put the defendant in the middle of the conspiracy. Was Trump directly involved, or were things handled by Cohen, Pecker, and other intermediaries? I suspect that they will be credible witnesses, especially McDougal. If they present direct evidence of Trump’s involvement in the conspiracy, it is terrible news for the former president.
My prediction? These two women are potential nails in the coffin of the defendant.
Lawyering is essential in any trial, particularly a public spectacle of a trial like this one. Both attorneys demonstrated talent during opening statements and direct and cross-examination of witnesses to date. The prosecution has been organized and methodical in presenting its building blocks; the defense has scored a few points on cross-examination.
I predict that the most colorful moments of the trial are yet to come, with Trump’s defense team cross-examining a fixer, a porn star, and a Playmate of the Year.
And if Alvin Bragg gets to cross-examine loose-lips Trump? The fun is just beginning. Who wishes this trial was televised? Every television network in the civilized world—ratings for a televised trial would surpass the Superbowl.
Please check out Mark Bello’s ripped-from-the-headlines legal thrillers, all available online at Amazon and other major online booksellers. He has quite the hero in Attorney Zachary Blake, who fights for justice on all fronts. His books are Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, Betrayal High, Supreme Betrayal, Betrayal at the Border, You Have the Right to Remain Silent, The Final Steps – A Harbor Springs Cozy Legal Mystery, and his latest, The Anti-Semite Next Door. Also, he’s written a wonderful children’s book about bullying, “Happy Jack, Sad Jack,” and he's just announced the pre-order release of "Love Hate Law," a new legal romance novel. For more info, just check markmbello.com.