DANIELLE KURTZLEBEN, HOST:
This week, prosecutors in former President Donald Trump's New York hush money trial called on their star witness, Michael Cohen, to try and prove their case beyond a reasonable doubt. Cohen, Trump's former lawyer and fixer, testified to Trump's involvement in the alleged business fraud to cover up payments made to adult film actress Stormy Daniels. He then faced an intense and sometimes hostile cross-examination from Trump's defense team, who reminded jurors of Cohen's history of perjury and lying to Congress.
Cohen could be the prosecution's final witness, which raises the question - have prosecutors proven their case against Trump? To answer that, we called Boston University law professor Jed Shugerman. ALL THINGS CONSIDERED host Scott Detrow started by asking Shugerman if he felt Cohen had successfully tied the prosecution's case together.
JED SHUGERMAN: Well, with the caveat that I was not in the courtroom and just following the many journalists' accounts of how the testimony went, I'm concerned that they did not establish clearly what they needed to establish. It may not matter if the jury just wants to buy the proof of intent that they could infer from the long line of witnesses. But it doesn't sound like there was clarity for two key components that I thought that prosecutors might draw out of Cohen.
SCOTT DETROW, BYLINE: Walk me through what those are because I'm thinking of what has kind of clearly been laid out here. The catch-and-kill stories seem to have clearly been done to help his political campaign. I think that's been pretty well established by the prosecution. There was a real panic in October 2016 after the "Access Hollywood" tape. The payments are made to Stormy Daniels. Michael Cohen is repaid in these retainer fees over the following year. What's missing here?
SHUGERMAN: So I agree with all of that. And based on that, I think there were some steps the prosecutors could have taken to clarify the case under New York state law. But here is the concern I'm raising, and I'm going to just go into a little bit of detail because this is what's going to play out next week is going word by word through the statutes that are the basis for this prosecution.
DETROW: OK.
SHUGERMAN: You have to first have a misdemeanor violation of the falsifying business records. And to prove that, you have to show intent to defraud. The lawyers will be arguing over what is the fraud. And so the first problem here is that the prosecutors keep talking about election interference or election fraud. There is no basis for election fraud as the legal word in any of these steps here. So there is just a timeline problem if what the prosecutors are saying is that Donald Trump was trying to defraud the public with these documents, defraud the voters with these documents - because none of these documents were entered until 2017. You can't defraud voters with documents when those voters are voting in November 2016 if those documents don't exist yet. So the argument I was suggesting in my New York Times essay...
DETROW: Yeah. This was the op-ed that was skeptical of the legal framework that the DA's office was bringing to the case.
SHUGERMAN: What the crime of intent to defraud was was not the voters but was of state and federal enforcement authorities. That is not an argument that I heard them develop in the courtroom. It's hinted at barely in some of their filings. But I have not seen any sign that they've addressed this - of, who was the target to defraud? And just to be clear, New York state courts require, under the statute, intent to defraud needs a target. They've never applied it to the general public or anything as broad as the electorate.
DETROW: OK. So this is a good point, the fraud. And again, the key of the case is how the payments were presented in business documents. You're making the argument - this happened after the election.
SHUGERMAN: That's exactly right. The documents that weren't made until 2017 could not possibly have been executed in a way that would have affected voters in 2016.
DETROW: Are there diminishing returns in exceptionally long cases like this?
SHUGERMAN: This wasn't that long, but there's, I think, a second problem that I just want to identify...
DETROW: Sure.
SHUGERMAN: ...Which is the clarity of intent. And I think this is something that I was imagining that the prosecutors could elicit from Cohen and it doesn't really sound like they did. One of the key lines that Cohen testified about was that Trump wanted to make this go away. And it seemed like a lot of people have interpreted the make this go away as Trump's intent related to the campaign. The prosecutors need to show more than that, I think. They need to show more than just that this was campaign related. They have to prove a crime that was being covered up by these documents. This is different from knowing that it was campaign related. They also have to prove that he knew it was a violation of the Federal Election Campaign Act beyond a reasonable doubt.
DETROW: If you could get inside the brains of these jurors, what's the first thing you would want to know?
SHUGERMAN: This is less about my law background and just maybe more about my interest in psychology. I'm interested in what these jurors think about sex and privacy. I think the strategy here was to use Stormy Daniels and those details as a way of scandalizing and showing how damaging this testimony could have been. There's a possibility that some jurors thought it was just way too much, and the Stormy Daniels testimony may have backfired with them. And if they think that politicians have a right to, like other Americans, to engage in nondisclosure agreements to protect their privacy, some of them may still be wondering, what was the crime here in these business documents? Do voters have a right to hear this, or do politicians have the rights to privacy like all other Americans do? I don't know what the right answer is, but I think that might determine more about this result than any legal argument in this case.
DETROW: Well, those jurors will be deliberating pretty soon, and we will talk about it when they reach a decision. For now, though, Boston University law professor Jed Shugerman, thanks again for joining us.
SHUGERMAN: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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