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In a column for National Review On Wednesday, I observe that the ongoing testimony of Michael Cohen, Donald Trump's former lawyer and self-described “fixer,” is a double-edged sword in the former president's defense against charges brought by Manhattan's elected Democratic prosecutor , Alvin Bragg.
Trump lawyer Todd Blanche, who is leading the cross-examination, must do enough damage to Cohen's credibility — between Cohen's perjury and frauds, some ridiculous elements of his story (like why he recorded Trump in secret) and his obsessive bias against Trump – that the defense can argue to the jury that it would be irresponsible to convict someone based on Cohen's testimony.
On the other hand, Blanche must keep in mind that Cohen plays this central role because he was Trump's man. The things that made Cohen an unsavory character were the things that Trump found useful about him. And even when Trump was president and Cohen was under investigation for tax and bank fraud by the Trump Justice Department, Trump was saying nice things about Cohen until he cooperated with the federal prosecutors in the Southern District of New York. So the more Blanche hammers Cohen, the more the jury might wonder why Trump kept him around for a dozen years.
MICHAEL COHEN once swore Trump wasn't involved in Daniels' stormy payment, ex-lawyer testifies
It is undoubtedly true that, to convict Trump, the jury must believe Cohen's uncorroborated testimony that Trump knew — from Allen Weisselberg, then the Trump Organization's chief financial officer — the details of how Cohen was going to be paid.
Prosecutors projected the illusion that they presented reams of evidence to corroborate Cohen. But they only corroborated elements of the story that are neither incriminating nor (highly) disputed. On the controversial issue of Trump's state of mind, Weisselberg's key story has no support. That's just Cohen's word.
As I have argued, Trump's lawyers must resist an overly aggressive attack on this issue. Non-disclosure agreements (NDAs – pejoratively referred to as “hush money” by much of the media) are legal. Ergo, Trump shouldn't worry too much about being tied to how they were recorded in the Trump Organization's books. So sure, point out that Trump didn't get into such granular accounting details (especially once he was president and had much heavier responsibilities); but don't give the impression that the defense is afraid of NDAs as if they are illegal.
I expect three more things on Thursday (and as the trial continues next week):
1. The “mandate” contract
Bragg's allegation that Cohen's invoices are false (as Cohen stated) is based on Cohen's testimony that (a) there was in fact no professional service contract, and (b) The $35,000 monthly payments were actually intended to reimburse Stormy Daniels' 2016 NDA, and not — as the invoices suggest — for ongoing legal work in 2017.
This story is falling apart.
Warrants do not have to be in writing, so the fact that there is no written warrant does not settle the question of whether Trump retained Cohen as his attorney after 2016. Cohen has now admitted that he had It was agreed that he might represent himself in 2017 as the president's private lawyer, and he admits to doing some legal work for Trump in 2017-2018 — not much, but some. Customers often have a service contract, not to pay for the work being done, but to pay the availability of the lawyer in the event of a problem. And it's clear that the 2017 installment payments, which totaled $420,000, were about more than $130,000 for the Stormy NDA – they included a bonus that, whatever Cohen says, might be for a job past or future availability.
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So to summarize: Cohen presented himself as Trump's lawyer throughout 2017, he was available to work for Trump whenever he was asked, and he actually worked as his lawyer in 2017 -2018. And the Trump Organization knew it was paying more than Stormy Daniels' NDA. So how could it be fraudulently false for the Trump org CFO to refer to payments to Cohen as consistent with a detention? Cohen did the same things as a hired lawyer.
2. Robert Costello
Costello is a savvy New York defense attorney who represented Cohen early in the federal investigation. He was released from his duty of attorney-client confidentiality (because Cohen waived confidentiality when he informed the federal government about his discussions with Costello). On Tuesday, Costello testified before a House committee, saying Cohen's testimony was filled with lies — a claim Costellos says he can back up with emails, text messages and more. Costello also testified to this effect before the grand jury.
I expect Blanche to use the Costello House and grand jury testimony to attack Cohen on cross-examination.
Could Costello become a witness if there is a defense case? So far, I have assumed that there would be no defense arguments and that Team Trump would rely on the prosecution's weak arguments. But Costello is an option for the defense (unless Team Trump decides it has sufficiently demolished Cohen's credibility on cross-examination).
3. Federal campaign financing
Team Trump is expected to renew its demand to call former FEC official Bradley Smith as an expert witness in the defense case to explain why NDAs are not actionable. campaign expenses under federal law. Judge Merchan previously indicated he would not allow such expert testimony, explaining that only the court should instruct the jury on the law. But Merchan let Cohen and David Pecker explain to the jury that they believed the NDAs violated federal law.
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Especially since Bragg has no authority to enforce federal law and Merchan has no expertise on the subject, shouldn't the jury hear from at least one person who actually knows something about the subject?
The end of the trial is approaching, but there are still twists and turns to play out.
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