(NEW YORK) — With prosecutors and defense gearing up for the end of trial in former President Donald Trump’s Manhattan hush money case, legal observers said, in their opinion, prosecutors appear to have made a strong case, but a lot is riding on closing arguments and jury instructions.
Both sides have rested their cases with the defense only calling two witnesses to the stand including Robert Costello — an attorney and longtime Trump ally — who sought to discredit one of the prosecution’s key witnesses — former Trump fixer Michael Cohen.
Both sides are delivering their closing arguments to the jury on Tuesday, and Judge Juan Merchan will instruct the jury on the law ahead of deliberations expected to begin on Wednesday.
Legal observers told ABC News they felt the prosecution did a good job of laying out a motive for why the charge of falsifying business records was allegedly committed as well as the underlying campaign finance or election interference crimes, which potentially bumps up the charges to felonies.
The prosecution laid out the investigation and connected Trump to Cohen’s actions, but it is possible a jury may not be convinced, according to Brian Buckmire, trial counsel at Hamilton Clarke and ABC News legal contributor.
Two “reasonable people” could look at the facts and evidence presented and have two opposite opinions. One person could see that Trump falsified business records and allegedly committed some of the crimes he has been charged with and that “it is reasonable that he intended to defraud the American people and the government by falsifying these documents,” Buckmire said.
While another could see that “this case is built upon an individual that I don’t believe that being Michael Cohen. And so I can’t believe each and every element of this crime, because of the person that’s giving me the information,” he said.
“So, did they prove their case?” Buckmire said. “But it just specifically depends on the 12 that they selected.”
“It really comes down to the closing arguments, whoever gives them, on either side, really has to button up this case in a way that says, ‘my side is correct.’ And the prosecutor having the last word of closing arguments — that to me is a big advantage,” Buckmire said.
A third expert said that he thought an acquittal is “out of reach” for Trump.
“This was a winnable case. It still is not a slam dunk, in my view, having been there every day for the prosecution,” CNN legal analyst Norm Eisen said in an interview with Jim Acosta on Monday. “I think the odds of conviction are somewhere upwards of 80%.”
“In part because of this scattershot approach, the defense is not really gunning for an acquittal. That’s out of reach here,” he opined. “What they are hoping for is one angry juror.”
Another legal observer who said the prosecution has made a strong case, said it is possible the judge may declare a mistrial if it takes the jury too long to deliberate.
“I’m curious to see how long the jury’s out. That’s always an interesting thing to see. Particularly, if they’re having trouble reaching a decision, when does the judge then decide that there’s been enough time for the jury to have been out that they declare a mistrial and a hung jury?” said Chris Timmons, a former prosecutor and ABC News legal contributor.
“I’d be concerned about the hung jury in this case,” Timmons previously told ABC News.
“One of the jurors who made it onto the jury said that he got his news from two different sources, one of which being Trump’s Truth Social. So I think he’s going to be more likely to want to believe anything that the president says,” Timmons said, referring to what the juror had consumed prior to the trial beginning.
Jurors have been instructed to not read about or listen to discussions of the case in the media.
Did the prosecution prove their case?
Another expert told ABC News the prosecution has done a good job of arguing the facts in this case.
“Even though Trump keeps arguing that the facts, that people are lying and so forth, I don’t buy any of that and I don’t think the jury is going to buy any of that,” Gregory Germain, an attorney and Syracuse professor of law, told ABC News.
“The judge needs to do a good job on those jury instructions, or there’s a likelihood, I think, that the case will get reversed on appeal if they get a conviction,” Germain said.
Buckmire said Merchan said he will stick closely to the model instructions set out by state criminal jury instructions, unless there is something the protection or defense want him to deviate from.
Other legal observers are unsure whether the prosecution has made its case to the jury.
“The pieces are all there. But is it there beyond a reasonable doubt?” former Brooklyn prosecutor Julie Rendelman told the BBC. “I don’t know.”
“It only takes one juror,” she added.
Cohen’s testimony could also pose issues for the jury.
“You are relying on a witness who in many respects … comes with a larger load of baggage than others,” Rendelman said. “It makes it a bit more difficult to prove the case beyond a reasonable doubt.”
For a conviction, the prosecution needs to prove to the jury that Trump knew he allegedly falsified the records and that it was being done for political reasons — to keep the public from knowing that he made a hush money payment to adult film actress Stormy Daniels – Timmons said.
“It’s a little bit of a technical charge and so the jury may struggle with that,” Timmons said.
Did the defense hurt their case by putting Costello on the stand?
The defense has made two contradicting theories of defense in their case — which could be a problem for them, Buckmire said.
“In the defense’s own case, they argued that this is just democracy, this is just the way that things are done, that Donald Trump may have known about the ins and outs of this deal, but it’s not a crime,” Buckmire said.
Buckmire added that Bob Costello’s testimony could have harmed the defense case.
“But, Bob Costello came on and said that Michael Cohen told him that Donald Trump knew nothing about this, didn’t know the ins and outs of this. And so for the defense, what are they going to argue in summation? Because both things can’t be true,” Buckmire said. “That can backfire on them.”
Cohen testified that he lied to Costello.
Costello’s testimony was a “disaster” for the defense, a legal observer told Courthouse News.
“If anything, I think it made the people’s case on this whole pressure campaign issue even stronger than it was,” retired New York judge George Grasso told Courthouse News.
Grasso said it is likely that Costello’s behavior on the stand, which Merchan to excuse the jury and press from the court room, was like that of a “mob lawyer” and likely didn’t help the defense.
“I think the jury saw enough of this. I think the jury probably, legitimately, has a lot of respect for the judge,” Grasso said, adding that Costello’s behavior “probably turns off the jury.”
Buckmire said he thinks the trial is likely to result in a hung jury or the jury could find Trump guilty.
“I don’t think the defense gave anyone who believes their side enough ammunition to convince the other side,” Buckmire said.
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