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In a column for National Review Wednesday, I note that the ongoing testimony of Michael Cohen, Donald Trump's former lawyer and self-described “fixer,” is a double-edged sword for the former president's defense of charges brought by Manhattan's elected Democratic district attorney, 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 covertly recorded Trump), 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 unlikable character are the things Trump found useful about him. And even when Trump was president and Cohen was under investigation for tax and bank fraud by Trump's Justice Department, Trump had good things to say about Cohen until he cooperated with federal prosecutors in the Southern District of New York. So the more Blanche criticizes Cohen, the more the jury will wonder why Trump kept him around for a dozen years.
MICHAEL COHEN ONCE SWORE TRUMP WAS NOT INVOLVED IN STORMY DANIELS PAYMENT, HIS FORMER LAWYER WITNESSED
To convict Trump, the jury must undoubtedly believe Cohen's uncorroborated testimony that Trump knew—from the Trump Organization's then-chief financial officer, Allen Weisselberg—the details of how Cohen was going to be paid.
Prosecutors have projected the illusion that they have offered reams of evidence to corroborate Cohen. But they have only corroborated elements of the story that are not incriminating and are not (much) in dispute. On the controversial question of Trump's state of mind, there is no support for Weisselberg's key story. It's just Cohen's word.
As I have argued, Trump's lawyers should resist attacking this issue too aggressively. Non-disclosure agreements (NDAs, pejoratively called “hush money” by many media outlets) are legal. Ergo, Trump shouldn't worry too much about being tied to how they were recorded on the Trump Organization's books. Of course, it should be noted that Trump did not go into such granular accounting details (especially once he was president and had much more important responsibilities); but don't make it seem like the defense fears NDAs as if they were illegal.
I expect three more things on Thursday (and as the trial continues next week):
1. The “retainer” agreement
Bragg's claim that Cohen's invoices are false (as Cohen testified they were) is based on Cohen's testimony that (a) there was in fact no retainer agreement and (b) the $35,000 monthly payments were actually for repayment of Stormy Daniels' NDA in 2016, not – as the invoices suggest – for ongoing legal work in 2017.
This story is collapsing.
Retainers do not have to be in writing, so the fact that there was no written retainer does not resolve the question of whether Trump hired Cohen as a lawyer after 2016. Cohen has now admitted that it was agreed that he could represent himself in 2017 as the president's private attorney, and admits that he did legal work for Trump in 2017-18, not a lot, but some. Clients typically have a retainer contract, not to pay for work in progress, but to pay for the the availability of the lawyer if something arises. And it's obvious that the 2017 installment payments, which totaled $420,000, were roughly more than the $130,000 in Stormy's NDA: They included a bonus that, regardless of what Cohen says, could be for past work or future availability .
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So, to summarize: Cohen presented himself as Trump's lawyer throughout 2017, was available to work for Trump whenever asked, and in fact worked as a lawyer for him in 2017-18. And the Trump Organization knew it was paying for more than just Stormy Daniels' confidentiality agreement. So how could it be? fraudulently false that the Trump organization's chief financial officer refers to the payments to Cohen as pursuant to a advance? Cohen did the things a hired lawyer does.
2. Robert Costello
Costello is a skilled New York defense attorney who represented Cohen at the beginning of the federal investigation. He has been released from his obligation of attorney-client privilege (because Cohen waived confidentiality when he told the feds about his conversations with Costello). On Tuesday, Costello testified before a House committee, claiming that Cohen's testimony was riddled with lies, a claim Costellos says he can back up with emails, text messages, etc. Costello also testified to that effect before the grand jury.
I hope Blanche uses the Costello House and grand jury testimony to attack Cohen on cross-examination.
Could Costello end up being a witness if there is a defense case? Until now, I have assumed that there would be no defense case and that Team Trump would rely on the weakness of the prosecution's case. But Costello is an option for the defense (unless Team Trump decides it has sufficiently demolished Cohen's credibility during cross-examination).
3. Federal campaign financing
Team Trump should renew its request 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 has previously indicated that he would not allow that type of expert testimony, rationalizing 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 experience in it, shouldn't the jury hear from at least one person who actually knows something about the subject?
The end of the trial is near, but there are still twists and turns to unfold.
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