Former President Donald Trump’s historic conviction Thursday may be partly due to mistakes made by his defense team, including failing to have him testify, legal experts told Business Insider.
A New York jury convicted Trump of 34 counts of falsifying business records related to a hush-money payment made to porn star Stormy Daniels. This verdict made history: Trump is the only American president to also be a convicted felon.
Although the conclusion of the case was significant, three legal experts told BI the verdict was not a major shock. Two said Trump’s team made a number of errors during the trial that could have influenced the jury’s decision.
“I can’t say I’m surprised,” said Alex Reinert, a criminal and constitutional law expert at Cardozo Law School. “In the end, it was a pretty simple case for the prosecution.”
Mistakes were made
Eric Anderson, a former prosecutor and current attorney at Early Sullivan Wright Gizer & McRae LLP, said the case could have gone either way, but he thought the odds favored the prosecution to begin deliberations.
“Whoever has the best story wins,” he told BI. “The prosecution’s story was very simple: Donald Trump did something that, on its face, might have been completely legal, but he did it in order to circumvent a federal election law.”
On the other hand, he thought the defense’s narrative simply didn’t work. For example, they denied that Trump ever had an affair with Daniels and provided no explanation, even though many Americans already believe the alleged affair took place.
Neama Rahmani, a former federal prosecutor and president of West Coast Trial Lawyers, said the defense “overpromised and underdelivered.”
He pointed to opening statements made by Trump lawyer Todd Blanche, which Rahmani said suggested an accountant would testify and be used as a scapegoat. No such testimony was offered.
He also said the defense focused too much on Michael Cohen, Trump’s former lawyer, but that he wasn’t even the key witness. Instead, Rahmani said it was David Pecker, the former publisher of the National Enquirer, who was the prosecution’s key witness.
“He’s the one who directly linked Trump to the catch-and-kill program,” he said.
Anderson said Cohen’s testimony counted against Trump, despite the lawyer’s potential credibility issues. He said that often the most credible witnesses are those who admit to being liars and that the defense simply didn’t know how to shake Cohen.
Even if the defense hadn’t made those mistakes, it might not have made a difference, Rahmani said. Still, he believed they would make it much easier for the jury to find Trump guilty.
Not testifying could have harmed Trump
Whether Trump would speak has been a question of will for weeks, with the former president even saying he would testify.
But when the defense arguments were abandoned last week, Trump was not called to the stand.
“Donald Trump never went up there and said, ‘This is why I did this.’ If you don’t, the jury only has the prosecution’s version of events,” Anderson said.
Shortly before resting its case, the defense told the judge it still planned to have Trump testify. Some legal experts had previously said testifying would not be a good idea for Trump, fearing he could end up committing perjury.
But Rahmani acknowledged that not letting him speak could have harmed his case.
“The defense needed something, some sort of explanation,” Rahmani said of the falsified records.
“I think they would have been better off if Trump or an accountant had said, ‘It was wrong, but it was an innocent mistake,'” he said.
Instead of claiming a mistake was made with the records, Rahmani said the defense chose to “lie” in its closing statements and claim there was no problem with the payments.
“I think they have lost all credibility,” he said.
Don’t expect to see Trump behind bars
Trump’s sentencing is scheduled for July 11. It is very unlikely that he will be sentenced to prison, according to experts. Instead, probation is most likely, or potentially home confinement.
“There is no question of Judge Merchan sending him to prison. This was clear when he violated the silence order 10 times and the judge simply threatened him,” Rahmani said.
Trump’s team will almost certainly appeal, but their potential arguments are not particularly strong, the lawyers said.
Whatever the sentence, Trump could still run for president. Being convicted of a crime – or even being behind bars – does not disqualify presidential candidates.
Both Trump and Biden said this after the verdict, when they each stressed the importance of showing up to the polls in November.
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