JUANA SUMMERS, HOST:
Former President Donald Trump spent the morning sitting at a table in a Manhattan courtroom. He was there to watch the opening arguments in his criminal trial surrounding hush money payments to adult film star Stormy Daniels. And those payments, argued the prosecution, amounted to election fraud, pure and simple. Meanwhile, Trump's lawyers argued he's innocent and that the Manhattan district attorney should never have brought the charges.
How strong a case do prosecutors have, and what do they need to be worried about? Those are a couple of the questions we're going to put to Dan Horwitz. He is a defense lawyer who formerly prosecuted white-collar cases for the Manhattan District Attorney's Office. Dan, welcome.
DAN HORWITZ: Thanks. Thanks for having me.
SUMMERS: So Dan, if you could, just briefly remind us what crime former President Trump is being charged with.
HORWITZ: So he's charged with a crime called falsifying business records in the first degree. It's a crime that sounds exactly as it's described. You make phony or false entries in the books and records of a company, and you do that with the intention of covering up the commission of another crime. And here, the DA's theory is that, among other things, there were records that were falsified related to payments that were made to Michael Cohen, ultimately for the reimbursement of money that was paid to Stormy Daniels, all as a way of essentially committing the crimes related to New York State and federal election fraud.
SUMMERS: Right. And what is it that makes this a felony?
HORWITZ: Well, what makes it a felony is the fact that the business records were falsified with the intention of committing another crime. That's what distinguishes the felony flavor of falsifying business records from the lesser crime of a misdemeanor flavor of falsifying business records.
SUMMERS: For folks who are not watching this case as closely as you and I are, can you just explain why the prosecution is making the argument that this is election fraud?
HORWITZ: Well, they have to, let's just be simple about it. 'Cause that's - the law that they have charged that Donald Trump violated requires them to show two things. One, that there were false or phony records made in the books and records of a company, like a general ledger, like a checkbook, like the regular records that every company all across the world keeps. The second thing they have to prove is that the reason that these records were falsified was with the intention of committing another crime. And in this particular case, the prosecution's saying that crime was election fraud.
SUMMERS: A lot of Republicans and, I should note, legal commentators from across the political spectrum have made the case that the former president is getting some special scrutiny here, that attaching the fraudulent financial documents charge to campaign finance is a bit of a stretch. How do you take that argument?
HORWITZ: You know, I take that argument that - those are folks that don't probably fully understand the kind of work that the Manhattan DA's office does. You know, falsifying business records is a bread-and-butter, white-collar charge that prosecutors here in Manhattan bring routinely. And the fact that there was election fraud as the sort of - the motivation for falsifying the records, it is not a case, if you would, of first impression. There are other politicians, most of whom the commentators probably don't know or remember because they're local politicians here in New York City. For example, the head of the Brooklyn Democratic Party, Clarence Norman, was prosecuted on similar charges, exactly the same charge. So it's not unusual. It's not unique.
SUMMERS: I want to ask you, if I could, to put yourself in the shoes of the prosecutor in this case. And if you were prosecuting it, what would you be most worried about?
HORWITZ: Well, I think the thing that's obvious is that, you know, the president is going to make a very hard run at Michael Cohen's credibility. And that's because, at the very heart of the case, there's a conversation that took place allegedly between Cohen and Trump, and there was nobody else present for it, about how to treat these payments to Stormy Daniels - that is, to the extent that there is a sort of an Achilles' heel, if you would, or at least one that the defense perceives. And Cohen himself has a lot of baggage. He's a convicted perjurer. He went to jail for his own crimes. He has been outspoken about his animus against the president.
SUMMERS: Right.
HORWITZ: On the other hand, the prosecution has layers upon layers of witnesses, evidence, testimony, tapes that they will argue back up Cohen or corroborate him.
SUMMERS: Dan, last thing - the first day of the trial is over. What will you be watching for next?
HORWITZ: I think what you're going to see in the coming days is a lead up to Michael Cohen. And what the prosecution is going to do is they're going to lay down a foundation with testimony from witnesses that are credible. It's going to be like a crescendo of witness upon witness upon witness who are going to come in before Michael Cohen. And then Cohen will testify more toward the middle of the case, and then they'll conclude the case with more corroborating evidence. So they're going to sandwich, if you would, Michael Cohen with the evidence that helps to tell the narrative, but which they'll ultimately argue, this is why, in this particular instance, when Michael Cohen says that he had a conversation with Donald Trump about how to handle these payments, you know that he was telling the truth in this instance.
SUMMERS: Dan Horwitz previously worked in the Manhattan District Attorney's Office prosecuting white-collar cases. He's now a defense lawyer for McLaughlin & Stern. Dan, thank you.
HORWITZ: You're welcome. Thanks a lot. Transcript provided by NPR, Copyright NPR.
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