Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Read more opinion at CNN
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When a lawyer who is presenting a case at trial bumps into a colleague outside of court, a common question is, “How’s the case coming in?” This query reflects that planning a trial is one thing — but how well the evidence, especially testimony given by the witnesses, actually “comes in” before the judge and jury is another.
In Donald Trump’s Manhattan election interference trial, the case is coming in better than expected, and that is ominous for the former president.
A key moment in Thursday’s examination of Keith Davidson illustrated that. Davidson is an attorney who represented both Karen McDougal and Stormy Daniels as their hush money payments were negotiated with former Trump lawyer Michael Cohen — payoffs alleged to have been part of the election influence scheme.
Although Davidson is just a supporting actor in this drama, his role in negotiating the alleged payment to Daniels makes him an important witness to lay down the basic facts of the alleged “catch and kill” plot — and to corroborate the details that former American Media, Inc. CEO and National Enquirer publisher David Pecker established and Cohen will ultimately testify about.
Perhaps the most dramatic moment of Davidson’s morning testimony came when he was asked about an election night 2016 text message exchange with Dylan Howard — a former editor of the National Enquirer who helped broker the negotiations for the story. The prosecution asked Davidson to explain the meaning of a text he had sent to Howard that evening. As the election was about to be called for Trump, Davidson sent a text to Howard asking, “What have we done?”
Prosecutor Joshua Steinglass asked Davidson what the meaning of those words were. He answered that it meant “our efforts may have in some way — strike that — our activities may have in some way assisted the presidential campaign of Donald Trump.”
When Davidson said those words, the normal hush of the courtroom was suddenly punctuated by the audible clattering of the keyboards of more than 60 journalists seated in the pew-like benches. Why? After all, prosecutors need not prove the alleged secret payment to Daniels actually swung the election, and prosecutor Matthew Colangelo said as much in the DA’s opening statement: “We will never know.”
But the exchange nevertheless reflects the purpose of the payment. Without the intent to cover up another offense, falsifying documents is just a misdemeanor. The reason Trump has been charged with felony document falsification here is because it was allegedly done with intent to cover up a payment in excess of campaign contribution limits that was made in order to impact an election.
What was striking about Davidson’s testimony is that it might have achieved that purpose. So even if proving that the scheme to change the winner worked is not required, reminding the jury — and all of us in the courtroom — of the possibility dramatically underlined a key element of the alleged offense.
It also highlighted the stakes here: Unlike Trump’s 2020 election interference cases pending in Georgia and federal court, the unlawful effort to impact the election alleged in this case might have actually worked. I was watching the jury closely when Davidson spoke, and they were riveted. The prosecution is constantly finding ways to tell jurors that they are giving weeks of their life to weigh a matter that is not trivial, but critical for the honesty of our elections and our democracy. We will see if they agree when they ultimately deliver their verdict.
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