Trump Trial Defense Rests – Did It Make the Case?

As the defense and prosecution teams in Donald Trump's New York City criminal trial wrapped up their closing arguments on May 28, there was little for the accused to do but sit back and await a verdict. Or that would be the case were the defendant anyone but the former president. Seemingly unshackled now that the trial – bar the verdict – is essentially over, Trump has begun relitigating the case on the campaign trail. But is such effort necessary? And did his lawyers make a persuasive enough argument that 45 can put the Big Apple in the rearview mirror?

Liberty Nation Legal Affairs Editor Scott D. Cosenza has been following all the latest from the courtroom and beyond.

Mark Angelides: Give me your overall view of the defense team's closing arguments, Scott. Did they come across as persuasive?

Scott D. Cosenza: Trump's lead defense attorney, Todd Blanche, went past not guilty, proclaiming to the jury, "President Trump is innocent," and "he did not commit any crimes, and the district attorney has not met their burden of proof." It's a terrible burden that the defense must persuade jurors at all. That is not the legal standard but a practical one. The presumption of innocence is a right that few can rely on. Perhaps if we changed the standard from guilty or not guilty to proven or not proven, defendants would see that presumption honored.

Mark: It seems that presiding Judge Juan Merchan was not finished with his admonishments, even going so far as to call defense attorney Blanche's statements "outrageous." What happened there?

Scott: According to courtroom reports, Blanche told the jury that Trump could be imprisoned if they convicted him. Merchan interrupted the lawyer and said, "That was outrageous, Mr. Blanche. Someone who's been a prosecutor as long as you have, someone who's been an attorney as long as you have, knows that it's highly inappropriate." And it is. Sentencing is not part of the guilt phase of the trial.

Nevertheless, any time a sentence may be considered wildly out of bounds with the crime alleged or evidence of wrongdoing shown in court, defense attorneys are likely to try to get it in front of the jury. This is especially true in drug cases. Juries often have no idea they may be sending someone away for drug possession.

Mark: I understand that, in the normal course of things, it would be unwise to refer to potential punishments – after all, you don't want people escaping justice because of sympathy. But the consequences in this case are for the entire nation, not just one individual. Is there a case to be made that it was entirely appropriate?

Scott: I think it makes sense to tell the jury the sentencing range when they are charged or given the case to decide.

Trial of Reasonable Doubt

Mark: Blanche used a fascinating term and one that is sure to resonate with the jury as it begins deliberations. He described Michael Cohen – Trump’s former fixer – as “the human embodiment of reasonable doubt” and labeled him "the GLOAT" as in "the Greatest Liar of All Time." Is that kind of language as important as I think it is in persuading a jury?

Scott: Yes. It's hard to imagine a jury convicting someone of a crime based chiefly on the testimony of one person and having that same jury believe the person is a serial liar who can't be trusted to tell the truth. Blanche was pushing against the prosecution's case at its weakest point. We won't know what the jurors think of Cohen until the end of the trial, if ever, but he's a thief and a liar poised to cash in on any Trump conviction. It can't be stated often enough if you are the defense counsel.

Mark: This is a case that has captivated the world, presumably because, for once, every single person has skin in the game. In your opinion, as a lawyer, has it been treated with the circumspection necessary for such a historic undertaking?

Scott: I think the question is laughable. District Attorney Alvin Bragg looped in a federal charge that was never made (campaign finance law violations) to bump up misdemeanors into felonies and extend the statute of limitations on charges that even his enemies say would never have been levied against anyone not named Donald Trump.

Mark: What can we expect to happen today?

Scott: The 12-member jury will receive instructions from Judge Merchan and then begin its task of determining Trump's guilt - or lack thereof. Their deliberations could take just hours or even weeks. There's no way of knowing.

Mark: Many people and pundits are expecting a hung jury - as in, some jurors say guilty, others say not guilty-- what does this realistically mean for Donald Trump if this is the outcome?

Scott: Legally, it means the judge will declare a mistrial. District Attorney Alvin Bragg would be able to re-file the charges and start the whole process of trying Trump all over again. However, any re-trial would be scheduled after November’s presidential election, so it wouldn’t be likely to hurt Mr. Trump at the polls. Politically, I expect a hung jury to accrue to Trump’s benefit. They charged him with a novel application of the criminal law on a tenuous prosecution theory while muzzling his criticism. Trump will make hay out of the notion that they couldn’t even win despite holding all those cards and dealing from the bottom of the deck.