As we wait through the Memorial Day Weekend for closing arguments in the Stormy Daniels hush money case, there’s a sports game-like quality to predictions about the outcome. CBS News has surveyed the nation to measure expectations. Will the prosecutors win? Will Trump pull off an upset? What are the ratings for the trial?
They find three-quarters of Americans are paying some attention, and 56 percent think Trump committed crimes. Fifty-two percent of respondents predict Trump will be found guilty. Forty-eight percent predict he’ll be found not guilty. The survey did not offer the option to predict a hung jury, which seems odd to me. I’ve followed the trial as closely as I can considering it is not televised. Trump’s defense lawyers have had a moment or two, but overall they’ve done too little damage to the state’s case to cause an outright acquittal. A hung jury, however, has always been a strong possibility simply because the case involves the Republican Party’s nominee for president of the United States in the upcoming November election.
In the CBS News poll, only 8 percent of Republicans say Trump is definitely guilty, and only 3 percent of Republicans say he will definitely be convicted. If there are Republicans on the jury, it’s easy to see how difficult it may be for them to buck their party, their family and their friends and render a guilty verdict. And this was always true, irrespective of anything that might happen in the trial. In fairness, the opposite is nearly as true. Ninety-three percent of Democrats say Trump is probably or definitely guilty, and 66 percent of Democrats predict that the jury will find him guilty.
I can’t say that these survey results are obvious. Trump has relentlessly attacked the judge and jury, prepping Republicans not to accept the validity of a conviction. Yet, Republicans seem confident that Trump will be found not guilty. Now, part of this is merely a reflection of the lack of a hung jury option. If you think the case will end in a mistrial, your only option is to answer that he’ll be found not guilty, and those are very different results with very different odds. But, still, 59 percent of Republicans predict Trump will avoid a conviction, which compares to 48 percent of independents and 34 percent of Democrats.
My take is that the trial has gone very well for the prosecution and that the chances of an outright acquittal are close to zero. There are two lawyers on the jury, and if one or both of them are Trump sympathizers, they might be persuasive enough to turn the whole jury toward an acquittal, but I just see this as extremely unlikely. Far more probable is that there is at least one jury who will refuse to convict no matter how long the judge forces deliberations. In that case, there will eventually be a mistrial that Trump will treat as if it were a not guilty verdict. The odds on this happening are impossible to predict, but if such a juror exists they are unlikely to be persuaded by anything that happens in closing arguments. In other words, a mistrial may have been baked in the cake as soon a jury selection was completed.
There’s another possibility, though. There could be a juror who is initially hellbent on acquitting Trump who can be brought around to convict by the unanimous opposition of their colleagues. In that case, it actually can matter how well the two sides do in closing arguments.
It’s my understanding that the defense is precluded from arguing that Trump is a victim of selective prosecution or otherwise asking the jury to nullify the case. They can’t even argue that Trump’s indictments are “novel, unusual, or unprecedented.” They pretty much have to stick to saying Trump did not authorize Michael Cohen to pay Stormy Daniels and that he made the repayments to Cohen but did not cause the coverup of those payments through the production of false business records. Additionally, they can argue that the motivation for the hush money payments was to avoid marital and family problems and personal embarrassment rather than an effort to influence the election.
One problem is that they did next to nothing to advance these arguments when they produced the defense’s case. They called only one substantial witness, Robert Costello, who testified that Cohen told him when he was considering hiring Costello as his attorney that Trump knew nothing about the hush money payment. But it was also revealed that Costello was secretly acting as an agent of then President Trump who was desperate that Cohen not flip on him. Cohen’s testimony that he lied to Costello because he didn’t trust him not to report back to Trump was vindicated, and Costello’s testimony probably did more harm than good to the defense. I just don’t think they produced a reasonable doubt through Costello’s testimony.
As for the argument that Trump was only worried about his wife finding out, his lawyers denied in their opening statement that the tryst ever took place, so what was there to hide? Other than eliciting a statement from Hope Hicks on cross-examination that Trump was worried about what Melania would think, the defense produced nothing to offset voluminous evidence that he and his campaign were worried about how the Daniels allegations would affect the election.
And on the falsification of business records, the defense has to deal with the fact that Trump’s signature is on the checks to Cohen. Those checks totaled up to $420,000 in 12 installments of $35,000. The prosecution meticulously documented that Trump watches spending like a hawk and is extremely stingy. Asking the jury to believe that Trump did not know the purpose of giving his fixer nearly half a million dollars is going to be a hard sell. He would have known that the money was doubled to compensate Cohen for taxation on what was falsely being reported as income instead of repayments.
So, the reason Trump is at high risk of conviction is that his defense was not convincing. They were successful in demonstrating that both Michael Cohen and Stormy Daniels have a strong antipathy for Trump and want to see him convicted, and of course Cohen is a convicted perjurer and overall scumbag whose testimony can be doubted. But this is not enough to raise a reasonable doubt in an objective juror given the overall corroborating strength of the state’s case.
My prediction is that there will be no acquittal. A mistrial is possible only because the outcome of the trial has implications for the presidential election which may affect one or more Republican-leaning jurors’ willingness to convict. As a result, I doubt closing arguments can or will make any material difference in the outcome.
