'Annoyed' jurors could let Trump walk after trial focused on affair not crime: expert

Former President Donald Trump has faced weeks of testimony in the Manhattan criminal trial for alleged falsification of business records to conceal hush payments to an adult film star — including from his former attorney and fixer Michael Cohen — and the prosecution is getting ready to rest.

But it's not entirely clear they've convincingly made their case.

One-time federal prosecutor Kevin O'Brien, who has been a longtime skeptic of the charges, told Salon's Chauncey DeVega that there are still ways this trial could end without a conviction.

"There are some legal experts who hold the unpopular view, one contrary to what so many Americans and members of the mainstream news media and political class (and especially the 'Resistance') desperately desire and want to believe, that a guilty verdict in Trump’s hush-money case is not a fait accompli or in any way a certainty," wrote DeVega.

"A former assistant U.S. attorney who specializes in white-collar criminal defense, commercial and securities litigation on behalf of plaintiffs and defendants, regulatory enforcement cases, and arbitrations, O'Brien ... explains that the charges against Trump are highly technical and suggests that the prosecution will likely have a difficult time proving Trump’s direct role in falsifying his business records, a requisite for the charges to rise to the level of a felony," wrote DeVega.

Additionally, O'Brien suspects some jurors are "annoyed" that the underlying conduct is an affair, and aren't convinced of Manhattan District Attorney Alvin Bragg's argument that the scheme amounts to a plot to defraud voters in the 2016 presidential election.

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"It is not an open-and-shut case at all," O'Brien told DeVega in an interview. "Given the nature of juries and criminal cases, all it takes is one or two jurors who aren't overwhelmed by the proof. A juror who says to himself that yes, what Trump did was bad, and he acted in a disgusting way as he often does, but where is the crime here? How does this violate the public's trust? I believe that we are being swayed by the tense and dramatic atmosphere of this first criminal trial. The witnesses are colorful and interesting — and they have baggage of their own."

Ultimately, O'Brien concluded, even if he does get convicted, and that conviction isn't overturned, don't expect a very stiff sentence: "I can see an argument that given Trump's public stature as a former president that some prison time may be warranted. No man is above the law. But even then, I believe the sentence would be for only a few months, and he may just get probation. Trump does not care about being fined."