The Donald Trump show (trial) is almost over

The prosecution and defense have rested. Now the New York jury gets six days to listen to NPR, read the Times, and remember why bad Orange Man has to go jail-jail.

Testimony in the Manhattan criminal trial of Donald Trump has ended, with two witnesses telling two stories.

Both cannot be true.

Since last week, Robert Costello and Michael Cohen have told contradictory tales about Trump’s involvement in paying “hush money” to the porn star Stormy Daniels before the 2016 presidential election.

Last week, Cohen, Trump’s former lawyer, said under oath Trump told him to pay Daniels $130,000 in October 2016 to buy her silence about her alleged affair with Trump. Cohen’s testimony is crucial to the legally dubious effort by Manhattan prosecutors to try Trump on felony charges for Trump’s supposed crime of misclassifying his own internal accounting entries - normally a misdemeanor offense.

But yesterday, Costello testified that Cohen was the one who was lying. Costello said that in 2018, Cohen had told him paying Daniels was Cohen’s own idea, done to win favor with Trump.

One man (at least) is not telling the truth.

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(They may not be telling the truth. But I am. And you can help me do it, for 20 cents a day!)

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Costello’s testimony came out of his efforts to cozy up to Cohen in April 2018 after federal investigators began chasing Cohen for evading $1.4 million in taxes - and breaking campaign finance laws by making hush-money payments to Daniels and another woman.

Costello wanted to represent Cohen in what would be a high-profile and lucrative case. He clearly also wanted Cohen not to “flip” - to work with prosecutors against Trump.

He failed.

In August 2018, Cohen pled guilty to federal tax and campaign finance charges. He later served a three-year sentence.

Now Cohen has become the key witness as Manhattan prosecutors try to convict Trump for the supposed crime of “falsifying business records” - that is, recording payments in 2017 to Cohen as legal services when the money was in part to reimburse Cohen for the $130,000 he paid Daniels.

Last week, Cohen testified Trump had told him before the election to make those payments, putting Trump at the head of the conspiracy to keep Daniels silent.

But yesterday, Costello said that Cohen had told Costello that he actually paid Daniels on his own, to curry favor with Trump.

As Politico reported in its trial coverage Monday:

According to Costello, Cohen repeatedly and unequivocally declared in a private meeting and phone calls that Trump knew nothing about the payment.

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(Low comedy)

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Let’s be clear. Neither Costello nor Cohen seem like particularly good witnesses.

Or lawyers.

Or human beings.

But it is not also clear why Cohen is inherently more credible than Costello.

That’s especially true because Cohen has no direct evidence to support his story about his 2016 instructions from Trump and openly admits wanting to see Trump in prison. Further, on cross-examination last week, defense lawyer Todd Blanche forced Cohen to admit he had not told the truth about a crucial phone call where Trump supposedly gave him the go-ahead to pay Daniels.

How, then, can a jury possibly find Trump is guilty “beyond a reasonable doubt”?

For civil trials, the standard is “preponderance of the evidence” - meaning more than 50 percent. But the “beyond a reasonable doubt” standard is rightly far higher. And Cohen’s testimony, as I explained on Friday, is the key to the prosecution’s case.

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Remember, the alleged crime here is murky at best.

As Ross Douthat, a right-leaning New York Times columnist who is no fan of Trump’s (or mine) explained on Saturday:

Trump is not being tried for trying to conceal the affair, because no matter how much emphasis the prosecution lays on his personal shadiness, hush money payments are not in fact illegal. Instead, he’s being tried for a cover-up of the cover-up, a deception allegedly carried out inside his own accounting system…

I would defy anyone to summarize the underlying situation, in which a presidential candidate could be sent to prison for a misdemeanor offense elevated by a second crime for which he isn’t even being charged, without the description coming across as somewhat Kafkaesque.

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(Kafka? I don’t even know her! Sorry, that was cheap. Speaking of cheap, Unreported Truths is only 20 cents a day.)

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Now acting New York Supreme Court Justice Juan Merchan, who appears - how do I put this politely? - unfavorably disposed to Trump and the defense, has given the jury the rest of the week off. Closing arguments for both sides are set to begin next Tuesday.

As I wrote following Blanche’s cross-examination of Cohen, an acquittal is very unlikely, given the jury’s likely political leanings. Over 86 percent of Manhattan voters voted for Joe Biden in the 2020 political election, and Trump is widely despised in New York.

But Costello’s testimony can only raise the odds that some jurors find Cohen and his testimony impossible to credit. If even one holds out, Trump will avoid conviction with a hung jury - and for him, a tie would be as good as a win.