This may be the week Alvin Bragg’s case against Trump falls apart

Even for those of us who have long been critics of the “hush money” case against Donald Trump and its dubious legal theory, it has been surprising to see that the prosecutors had no more evidence than we previously knew about.

The assumption was that no rational prosecutor would base a major criminal case almost entirely on the testimony of Michael Cohen, who was recently denounced by a judge as a serial perjurer peddling “perverse” theories in court.

The calculus of Alvin Bragg is now obvious. He is counting on the jury convicting Trump regardless of the evidence.

Which is also why Bragg likely fears that the judge, not the jury, will decide the case. After the government closes its evidence this week, the defense will move for a direct verdict by the judge on the basis that the evidence is insufficient to sustain a conviction.

Many of us agree with that assessment. After three weeks of testimony, there is still confusion on what crime Trump allegedly committed.

Bragg has vaguely referred to the labeling of payments to Stormy Daniels as “legal expenses” as a fraud committed to steal the election.

However, the election was over when those denotations were made. Moreover, many believe that such a characterization for payments related to a nondisclosure agreement is accurate. (Hillary Clinton’s campaign claimed in the same election that hiding the funding for the Steele dossier as legal expenses was perfectly accurate.) 

Judge Juan Merchan, in my view, has failed repeatedly to protect the rights of the accused in this case.

But if he wants to show he is truly neutral, Merchan should grant the motion for a directed verdict. 

To prevent that, Bragg has to show Merchan that someone claimed to have evidence directly tying Trump to an intentional fraudulent scheme to conceal a crime.

Thus far, Bragg hasn’t come close. Indeed, many of his witnesses helped Trump more than they hurt him.

Bragg started with the testimony of David Pecker, former publisher of the National Enquirer tabloid, on an uncharged transaction to kill a story of a Trump affair with a different woman, Karen McDougal, a former Playboy model.

The relevancy was marginal but the testimony backfired in that Pecker admitted that Trump told him that he knew nothing about any reimbursement to Cohen for any hush money.

He further said that he had killed or promoted stories for Trump in the years before he ever announced for president. He also said he had killed stories for other celebrities and politicians, including Arnold Schwarzenegger, Tiger Woods, Rahm Emanuel and Mark Wahlberg.

For good measure, Pecker noted that Cohen often exaggerates and would become loud and argumentative in their discussions.

Witnesses said Trump likely had a mix of motivations for wanting to kill a story, including sparing his family from embarrassment. Daniels’ own counsel contradicted the prosecution’s reference to the payment as “hush money.”

So prosecutors now turn to a witness, Michael Cohen, with a record of saying whatever serves his interests and those of his sponsors.

Everything is riding on his testimony. It is not enough to say that Trump wanted to hush up the alleged affair. That is no crime and NDAs are common and legal.

Cohen has to say Trump specifically knew and approved of the characterization of the payments as “legal expenses.”

He further has to establish that Trump intended the denotation to conceal the payments for the purposes of election violations or fraud.

That could make this a “he said, he said” case if Trump were to actually testify. However, Merchan’s earlier rulings make such testimony highly unlikely.

The court approved a sweeping scope for cross-examination if Trump dares to take the stand. No competent lawyer would advise him to do so after Merchan’s rulings.

That is exactly where Bragg wants to be: with a “he said,” not a “he said, he said” case. With Trump effectively silenced, Bragg will argue that Cohen’s testimony is enough to get to the jury.

Given the blind rage of many New Yorkers at Trump, the testimony of a convicted, disbarred, serial perjurer may be enough. The question, then, is whether the judge will let it get that far.

Jonathan Turley is an attorney and professor at George Washington University Law School.