With a jury now selected the true trial of Donald Trump starts tomorrow with opening arguments. Here’s what I expect in opening arguments.
My High School speech teacher was fond of explaining the basic organization to any speech or presentation:
1. Tell em what you are going to tell em.
2. Tell em.
3. Tell em what you told em.
Opening arguments is the tell em what you are going to tell em stage. Both sides will lay out their theory of the case. But also expect them to talk to the jury about what the jury will hear from the witnesses they present.
The Prosecution
The prosecution will explain that, notwithstanding all the noise, this case is about falsifying business records to conceal hush money payments to a porn star. The jury will be told such hush money payments are not necessarily illegal, but falsifying business records to launder the money through your attorney to make it look like a business expense is.
The prosecution will emphasize that the jury will see the falsified business records, and that will lead to a fundamental point being made. The jury will be informed that, while they will hear from many witnesses, that this is, at its core, a documents case. Documents, from financial records to emails to the hush money contracts to checks signed by the defendant will be presented to corroborate what the witnesses tell you, and the witnesses will corroborate and explain what the documents show.
This is crucial because the defense will attack the quality of the prosecution’s witnesses, a porn star, and a discredited attorney jailed for lying. But the prosecution will argue that their testimony will be supported by documentation, and the testimony of other witnesses. Thus, you don’t have to trust them on blind faith, you can see that what they tell you is consistent with records and other testimony.
The prosecution will inform the jury that much of that kind of testimony will come from people close to Trump. The jury will be told that National Enquirer owner, and close Trump friend, David Pecker will testify as to how he, Trump and Cohen conspired in advance to create the catch and kill arrangements associated with Stormy Daniels and Karen McDougal and how Pecker referred Daniels to Cohen for that purpose. The jury will be told that Trump aid Hope Hicks will testify as to how the Trump Campaign in 2016 was obsessed with avoiding such sex scandals after the Access Hollywood tape. The prosecution will tell the jury that various officers from Trump’s own company will testify as to how the financial records were falsified and Trump’s knowledge of it. The prosecution will emphasize throughout how the written records support all that testimony from all those people. The jury will be told they will even hear a tape where Cohen and Trump discuss setting up a shell company to conceal such payments.
The Defense
The defense will present its theory of the case, arguing that as the head of a big company Trump let his underlings handle such small matters and will argue that his role was minimal. The defense will argue that Trump’s only mistake was in letting dishonorable men, like Michael Cohen, make all the arrangements. If such arrangements were illegal, Trump’s attorneys will argue he certainly didn’t know as his approach was to let the knowledgeable attorney handle the whole thing.
Trump’s attorneys will claim that Trump did’t allow this arrangement to help his campaign, but rather to protect his marriage. They will tell the jury that Trump understandably didn’t want Melania to know about all this.
Trump’s attorneys will attempt to amplify the importance of Michael Cohen’s testimony in the case. They will tell the jury that Cohen’s testimony is crucial, claiming that without it the prosecution has no case at all. The jury will be told that evidence will be presented proving Cohen is a liar, who went to jail for lying, and that the jury should not trust a single word he says.
Something to watch for is whether the defense tells the jury what they will hear from Donald Trump. Doing so would pretty much commit to putting Trump on the stand, which (as I have explained) would be insane. Not only does Trump have a history of being a horrible witness, his testifying would open the door for the admission of all sorts of very harmful evidence for impeachment that would otherwise not be admissible. For that reason, I don’t expect the defense to commit to his testifying in opening arguments. They don’t have to, and probably won’t, keeping their options open. However, be watching to see if they do.
Beyond that, as virtually every defense counsel does, the defense will emphasize the high standard of proof, beyond reasonable doubt, and how very high that standard is. They will claim the prosecution’s case will not present sufficiently compelling evidence to achieve that daunting standard.
When all that is done the judge will ask the prosecution to present their first witness. And away we go.
