Judge Juan Merchan could rule Tuesday morning on Trump defense attorneys’ motion to dismiss the case against the former president altogether after the prosecution rested its case following days of testimony from its star witness, Michael Cohen.
Manhattan District Attorney Alvin Bragg charged Trump with 34 counts of falsifying business records in the first degree. Prosecutors must prove beyond a reasonable doubt that Trump falsified business records 34 times to conceal a $130,000 payment to Stormy Daniels, a pornographic performer, in the lead-up to the 2016 election to silence her about an alleged affair with Trump in 2006.
Trump has pleaded not guilty to all charges and maintains his innocence.
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After Michael Cohen’s fourth day of testimony was complete, the prosecution rested its case, and Trump defense attorneys called two of their own witnesses.
At the end of court for the day, Trump defense attorney Todd Blanche asked for an immediate order of dismissal, saying there is "no evidence" that the filings or business records at the center of the case were false, that there are "absolutely no false business filings."
Blanche said there is no dispute that Cohen acted as a personal attorney for Trump in 2017 and that there is no evidence or intent by Trump to mislead, hide or falsify business records.
Blanche said there would be records of intent to defraud, if they existed, and that there were no other crimes being covered up. He said there was no evidence of anyone thinking of a campaign finance charge when the payment was made to Stormy Daniels or when Cohen and then-Trump Organization CFO Allen Weisselberg developed the repayment plan.
Blanche said Trump paid Cohen a $35,000 "monthly retainer," which is what the records state, and said there is no evidence from any witness to prove any criminal intent.
Reflecting on the prosecution’s case, Blanche pointed to the alleged "catch and kill" strategy used to prevent a "demonstrably false" story a Trump Tower doorman had about Trump from being published.
"How on Earth is keeping a false story from voters criminal?" Blanche asked, adding it was "not a catch and kill and certainly not a criminal catch and kill."
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"There is no way the court should let this case go to the jury with Mr. Cohen’s testimony," Blanche said, adding that Cohen has lied under oath in the past and during the current criminal trial in Merchan’s courtroom.
Merchan asked Blanche if he should "find Mr. Cohen not credible by a matter of law," to which Blanche said "yes."
"So, you want me to take it out of the jury’s hands?" Merchan asked, with Blanche responding that Cohen’s entire testimony should not be considered by the jury.
Merchan told Blanche that if Cohen’s "lies" were "irrefutable," then he would be able to convince the jury of that.
The prosecution then argued that under the New York state falsifying business records statute, anyone "causing" the falsified records can be punished.
"As a matter of law, it is sufficient, more than sufficient, that the defendant set in motion the sequence of events leading to the falsification of business records," prosecutor Matthew Colangelo argued.
Merchan said he would reserve a ruling on whether to dismiss the case before the jury can deliberate.
Before the afternoon development, Trump defense attorneys on Monday continued to cross-examine Cohen, Trump’s former lawyer and self-described "fixer," who testified that he stole $30,000 from the Trump Organization.
Cohen said the move was "almost like self-help" because he was "angry" about his bonus being reduced.
Cohen testified that he was supposed to pay the $30,000 he withdrew from the bank to a tech company, Red Finch, in addition to $20,000 he had already paid them. Instead, he failed to make the payment, collected the $30,000 for himself, and led the Trump Organization to believe he had paid the total.
Prosecutors then briefly questioned Cohen on redirect, where he said that he had "more than 20" conversations with Trump about Stormy Daniels in 2016 and that Trump "no doubt" had signed off on the hush money payment for Daniels.
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Cohen has testified that he personally made the $130,000 payment to Daniels using a home equity line of credit in an effort to conceal the payment from his wife. Cohen said he did this because Trump told him to "handle it" and prevent a negative story from coming out ahead of the 2016 election.
Cohen testified that he was "reimbursed $420,000" for the $130,000 he paid to Daniels. Cohen said Weisselberg suggested he "gross up" the payments and that Trump knew the details of that reimbursement.
Last week, the prosecution presented Cohen with 11 checks totaling $420,000. Cohen confirmed that they were all received and deposited. The checks had a description of "retainer," which Cohen said was false.
But Monday, the prosecution rested its case against the former president.
Trump defense attorneys called two witnesses: paralegal Daniel Sitko and a former legal adviser to Michael Cohen, Robert Costello.
Sitko testified that Cohen and Costello had 75 phone calls in which Cohen told Costello that Trump knew nothing about the payment to Stormy Daniels.
Costello took the stand and testified that Cohen told him "numerous times" that Trump knew nothing of the payments, recalling Cohen telling him: "I swear to God, Bob, I don’t have anything on Donald Trump."
Cohen, earlier in the day, recalled that he told numerous people that Trump knew nothing about the payment.
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But during his testimony, Costello clashed with Merchan. Costello audibly and visibly responded with disapproval to Merchan sustaining multiple objections from the prosecution concerning his testimony about Cohen.
"I’m sorry?" Merchan said to Costello after one reaction before clearing the courtroom.
"I want to discuss proper decorum in my courtroom," Merchan said after the jury left. "You don’t say strike it, because I’m the only one who can strike it."
Merchan directed Costello, a former federal prosecutor, not to respond, roll his eyes or react in any way to his rulings.
Before the jury returned to the courtroom, Costello looked at Merchan, prompting the judge to ask, "Are you staring me down?"
Prosecutor Susan Hoffinger was leading the cross-examination of Costello. She said she had approximately 45 minutes left for questioning.
The defense said they won't call any other witnesses, signaling that Trump won't take the stand in his own defense.
Closing arguments are currently set for next Tuesday.
