Opinions

It’s Time for Judge Merchan to Dismiss the Case as Trump Prosecutors Near Completion



Discussion has been ongoing about the thoughts of the jury in Donald Trump’s New York criminal trial after days of sensational but mostly irrelevant testimony from a porn star and a perjurer.

If the prosecution wraps up with Cohen’s testimony as anticipated, the case may not even proceed to a verdict.

Ultimately, the decision lies with Judge Juan Merchan.

Donald Trump is accused of falsifying business records to cover up another crime. MIKE SEGAR/POOL/EPA-EFE/Shutterstock

Despite low odds of him following the law, given his blatant disregard for it during the trial, a surprise may be in store now that even left-wing media outlets have reluctantly altered their views on the legitimacy of the case. This could potentially preserve the integrity of the justice system.

Most legal experts anticipate that the defense will file a motion for a directed verdict once the prosecution rests.

Simply put, this request asks the judge to determine that even if the jury were to believe all the evidence presented by the prosecutors, they have failed to provide evidence on certain elements of the alleged crimes.

If any element lacks proof, the case should be dismissed outright.

This is precisely what has happened in this instance.

For the state to prove its case, it must establish two things beyond a reasonable doubt: (1) That Donald Trump, with intent to deceive, made or caused a false entry in a business record; and (2) that he did so with intent to commit or conceal another crime.

Many are urging Judge Juan Merchan to dismiss the case. REUTERS

In simpler terms, the state must prove that there was indeed a “false entry” in Trump’s business records.

There is absolutely no evidence to support this claim.

The core of the case revolves around whether the designation of the payments to Cohen as “legal expenses” was false.

The prosecution tried to persuade Michael Cohen to assert that this was untrue, as the payments were supposedly a reimbursement for the legal non-disclosure agreement (NDA) payments made to Stormy Daniels.

However, like in most legal matters, Cohen — and apparently the prosecution too — seem to have a basic misunderstanding of the law.

Attorneys often cover legal costs for their clients and are reimbursed later.

Michael Cohen testified that he arranged a hush money payment to Stormy Daniels to protect Donald Trump. REUTERS

Lawyers also receive retainers in advance for their legal services.

Both types of payments are indeed considered “legal expenses.”

The absence of a written retainer agreement between Cohen and Trump is not the fault of the client; attorneys are required to execute such agreements to ensure payment for their services.

If anything, Trump could have refused to repay Cohen, and Cohen would have no basis for complaint.

The prosecution’s suggestion that the entry of legal expenses is fraudulent relies on another misunderstanding of the law: that a political candidate must disclose an extortion attempt against them or face charges of unlawfully “interfering with an election.”

While Manhattan District Attorney Alvin Bragg cleverly tried to spin this case as an attempt by Trump to “steal democracy,” the fact remains that the negotiation of an NDA with Stormy Daniels might have been one of the few lawful acts Cohen performed as a lawyer.

Once again, his misconceptions about the law seem boundless.

Perhaps the prosecutors should have presented the testimony of a forensic accountant or CPA to inform the jury that labeling such reimbursements as “legal expenses” was deceitful and fraudulent.

However, they did not do so, likely because they could not find a credible expert willing to make such a claim under oath.

Disregard what Stormy and Cohen said. Their words were inconsequential from the start.

Without evidence that the entries were false — the primary requirement the prosecution must prove on all 34 counts — there is no case.

The only remaining question is whether Judge Merchan will step in as the unexpected legal hero to dismiss the case as the law dictates, finally putting an end to the prosecution’s agony, and the nation’s as well.

Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are military veterans, former federal prosecutors and current criminal defense attorneys. They are authors of the new book, “Woke Warriors.”



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