Jury instructions

Generally, there are some generic staple standards that are used in every single case. Many guess that Merchan will forego these and make it up as he goes.

The standard jury instructions would provide that the jury must find that the prosecution proved each element of the crime beyond a reasonable doubt. Not that they proved some of it, a majority of it, or even most of it. But all of it. This (under normal jury instructions) would mean that the prosecution would have to prove beyond a reasonable doubt all of the following:

• That the invoice and bookkeeping was not just incorrect but falsified under New York Law. That would require the prosecution to prove that there was a proper way to record it and that they did not follow it. They would then have to prove that the records were designed to defraud someone out of money or property just to establish the misdemeanor portion.

• That Donald Trump orchestrated all of this. Not that he knew in general about it. They would have to prove beyond a reasonable doubt that it was his decision, that he made the call, and that Weisselberg and Cohen were following his orders, not the other way around.

• That Donald Trump not just orchestrated it but did so with the intent to commit a crime. They would have to establish beyond a reasonable doubt the criminal intent of Donald Trump, providing testimony or documents that proved he was aware of the illegality of what was happening and that he was intending to commit a crime.

This would need to be proven before we even got to the "other crime" that was being covered up. Obviously if Merchan followed standard protocol, then the case is effectively dead in the water.

The state did not offer any testimony as to how they expected the payment to Cohen to be recorded or why it was a "crime" to call payments to an attorney a legal expense. They did not establish that anyone was defrauded. They did not offer that there were any tax laws broken by the bookkeeping. They simply demanded the bookkeeping was wrong without explaining why. They even objected to Cohen's tax statements surrounding the payments being entered into evidence. They quite literally want all of this murky and confusing which is the opposite of proof beyond reasonable doubt.

The state spent very little time tying Trump to these payments. Their "theory" of proof was to suggest that because he signed the checks and had a "great attention to detail" according to a witness, that he must have known that the invoice attached to the check was falsified. Even then, the only evidence they provided would arguably make Trump complicit with the decisions made by Weisselberg and Cohen. Cohen never testified that Trump directed any of these decisions, only that he was made aware. Moreover, there does not appear to be any evidence beyond Cohen's testimony that Trump was involved at all in the decisions as to how to pay Cohen.

Lastly, the state has provided no evidence that Trump did anything with the intention of breaking the law. Even if they could prove that Weisselberg and Cohen decided to hide the payment to Daniels, they have not established that it was for any purposes of covering up any crimes. The alternative has always been that NDAs are disguised by nature because of the privacy aspects of them. As long as everyone is on board, nobody is being defrauded, and no tax laws are being broken, then how an attorney and client bill something is sort of up to that attorney and client.

What the state has is theory that they are unable to tangibly prove but hope that the jury buys into it anyways.

• They expect that the jury will simply accept that the manner in which these payments were booked is a crime because they are being told so.

• They expect that the jury will simply hold Trump accountable for what everyone else did, even if they can offer no proof that he orchestrated it.

• They expect the jury to agree that burying stories and signing NDA are a violation of an obscure NY law.

• They will toss in some expert federal campaign finance law testimony by the former editor of the National Enquirer and a disbarred attorney as more evidence of another crime.

• Lastly, they will tell the jury that they must assume because the payments were made in such an unusual way and that other crimes were probably committed, that the former must have been to cover up the latter, even if they have no actual smoking gun evidence that ties the two together. It is the ultimate seven degrees of assumptive circumstantial separation from the real evidence that they would normally need in any valid court.

After the Cohen testimony meltdown, I was with most analysts that the case was 90% in the implosion range. After all, he is their only real witness to much of this, he is a proven liar, he most assuredly committed perjury in this case, and he admitted on the stand to grand larceny by stealing from Trump. His credibility is next to nothing. But there is a part of me that wonders out loud if a New York jury will be willing to look past his lies and convict anyways. I certainly believe that the best-case scenario for Trump is a hung jury, even as he would be 99.9% assured an acquittal if his name was not Trump. But who knows what evil lurks in the minds of liberals?