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Legal expert weighs in on Trump's possible legal defense

ADRIAN FLORIDO, HOST:

Yesterday, Donald Trump became the first president, former or sitting, in American history to be charged with a crime - 34 felony charges, to be exact. And while a potential trial is still months away, if not more, Trump has already started defending himself in the court of public opinion.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: And this is where we are right now. I have a Trump-hating judge with a Trump-hating wife and family.

FLORIDO: That was Trump speaking to a crowd of supporters back at his Florida estate hours after entering his not guilty plea in New York. But what might an actual legal defense look like in his case?

We've called on Randall Eliason. He teaches law at George Washington University Law School and is a former assistant U.S. attorney for D.C. Welcome.

RANDALL ELIASON: Glad to be here.

FLORIDO: Donald Trump was charged with 34 counts of falsifying business records; for allegedly paying his former lawyer, Michael Cohen, back for a hush money payment to keep adult film actress Stormy Daniels quiet about an alleged affair but then noting in his company's records, allegedly, that the reimbursement was for legal services. What was your impression when you saw the charges against him?

ELIASON: Well, the charges were what we were expecting. The business records charge all related to the cover up. I think there are going to be some legal issues that the defense is going to be able to raise to, you know, question whether those charges are appropriate in this case, and there's going to be plenty of time for that. They're not due back in court until December. So I think we can expect a barrage of motions between now and then trying to get this dismissed on various grounds.

FLORIDO: Based on what we have seen, do we have any clues about how Donald Trump's legal team might try to mount an effective defense?

ELIASON: Sure. There'll be a couple of different things. I mean, putting aside the various legal questions, I think factually the case is going to come down to Michael Cohen's credibility. And, you know, he said - he's a convicted felon. He's an admitted perjurer. And so the attack on him will be look; he's admittedly lied repeatedly in the past. Why should you believe him now?

And I'd expect another defense is going to be the level of Trump's own intent and knowledge here because I expect one defense might be this was a scheme largely cooked up by Michael Cohen and others in the organization. And, yes, he signed the checks when they put them in front of him, but he wasn't really down into the details about how these bookkeeping entries were going to be made - things like that that would support, you know, his intent for these particular criminal charges.

FLORIDO: Does Trump's team have any potential legal ground for challenging the indictment itself?

ELIASON: Yeah, I think we'll see a number of challenges to the indictment. One would be if the underlying crime that the prosecutors are alleging was being concealed or covered up here is a federal campaign violation, there'll be an argument that that's not a proper basis for a state prosecutor to turn their own state crime into a felony and that only the federal government could bring that charge. There's going to be arguments about whether there's enough proof of intent to defraud here because these were purely internal documents. Most of these cases involve false writings that were submitted to some government agency or submitted to some other person, and that's how you prove intent to defraud. These were kept purely internal. So I think that's going to be a legal issue that gets fought over as well.

And they'll probably try to argue that, you know, the president is immune from this kind of suit, that a state prosecutor can't bring this kind of suit. And I expect they'll try to make some kind of motion that the district attorney should be disqualified, that he's biased or, you know, it's inappropriate for him to be bringing this case. And again, not that these will succeed, but they can definitely tie things up for months or longer.

FLORIDO: Well, as we know, President Trump likes to speak out. And he has a lot to say about this case - that he'd like to say about this case. He's also got a presidential campaign to run. How might his posturing on the public stage impact his lawyers' strategy to defend him, you think?

ELIASON: Well, I think being Donald Trump's lawyer has always been a difficult job. I mean, any competent defense attorney would tell him to stop talking about this case and about the allegations and, you know, attacking the judge and attacking the prosecutor. None of that's helpful. And anything he says now is fair game for the prosecutors to use at trial. So I'm sure his lawyers would prefer that he not say anything about this case.

But that's not going to happen, right? And we've seen that he is going to continue commenting on it. I mean, he's done that for six-plus years. But now the consequences are potentially much more severe because now he's not just under investigation. There are actual criminal charges pending. And if he continues, you know, talking about the charges in public, he's almost certain to say something that's going to end up hurting his case.

FLORIDO: Randall Eliason teaches law at George Washington University Law School and is a former U.S. attorney for D.C. Thanks for coming on.

ELIASON: My pleasure. Thank you. Transcript provided by NPR, Copyright NPR.

Michael Levitt
Michael Levitt is a news assistant for All Things Considered who is based in Atlanta, Georgia. He graduated from UCLA with a B.A. in Political Science. Before coming to NPR, Levitt worked in the solar energy industry and for the National Endowment for Democracy in Washington, D.C. He has also travelled extensively in the Middle East and speaks Arabic.
Ivy Winfrey
Adrian Florido
Adrian Florido is a national correspondent for NPR covering race and identity in America.
Justine Kenin
Justine Kenin is an editor on All Things Considered. She joined NPR in 1999 as an intern. Nothing makes her happier than getting a book in the right reader's hands – most especially her own.
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