How does Trump’s trial end? It may hinge on how jurors feel about sex and privacy

By Tyler Bartlam and Scott Detrow
Former President Donald Trump speaks to the media after the day’s proceedings in his criminal trial at Manhattan Criminal Court on Thursday in New York City. Getty Images

The hush money trial against former President Donald Trump is nearing the end, but there are still a few twists and turns to come.

The prosecution’s star witness, former Trump fixer Michael Cohen, testified for three days last week and is back on the stand on Monday.

The team at NPR’s Trump’s Trials podcast breaks down why prosecutors have a timeline problem, what Cohen’s testimony so far has shown, and why it may all come down to a question of sex and privacy in the end.

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What prosecutors have (and haven’t) shown so far

Cohen testified about how the alleged scheme to pay off adult film actress Stormy Daniels and cover their tracks by falsifying business records came to be. Cohen also placed Trump directly at the center of this scheme, testifying that Trump was aware and involved in the plot to hide the payment and the cover-up.

But Boston University law professor Jed Shugerman says it might not be enough.

Prosecutors have to show intent to defraud when it comes to the business records. But if prosecutors are alleging that Trump was trying to defraud the voters, they could run into a timeline problem, Shugerman argues, because none of these allegedly false entries were made until 2017. That’s well after the 2016 election.

“You can’t defraud voters with documents when those voters are voting in November 2016 if those documents don’t exist yet,” Shugerman said, adding that he feels the target of the alleged fraud hasn’t been made clear by the prosecution.

“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.”

That’s essentially what Trump’s defense argued – that because the alleged record falsification happened in 2017, the evidence of alleged intent is not relevant.

But in February, Judge Juan Merchan disagreed in a response to a series of motions by the defense. He said the prosecution had sufficient evidence to bring the charges, arguing, “The term ‘intent to defraud’ carries a broad meaning and is not limited to the causing of financial harm or the deprivation of money or property.”

The question now will be how the argument lands with the jury.

Still missing from the prosecution’s case

Some of the key testimony from Cohen was about Trump wanting “to make this go away,” and it seems this is being interpreted as Trump’s intent related to the campaign. But Shugerman thinks the prosecutors need more than that.

“They have to prove a crime that was being covered up by these documents,” he said. “And under federal election law, to make this a crime, they have to prove that Trump knowingly and willfully violated the Federal Election Campaign Act. And I don’t think anything that Cohen said showed that level of knowledge or willfulness.”

Why it may all come down to sex and privacy

This entire case is based around an alleged sexual encounter between Trump and Daniels.

“I’m interested in what these jurors think about sex and privacy,” Shugerman said.

Referencing Daniels’ salacious testimony, Shugerman said that “there is a possibility that some jurors thought it was just way too much and [her] testimony may have backfired with them.”

And if that’s the case, he said, it will be good for Trump’s defense.

“If [jurors] think politicians have a right, like any other American, to engage in nondisclosure agreements to protect their privacy, some of them may be wondering what was the crime here,” he said.

What to watch out for

  • The prosecution’s redirect examination of Michael Cohen
  • Whether Trump takes the stand
  • Closing statements are now expected next week (earlier the judge had said they could begin this week)