Michael Cohen, perhaps the most anticipated trial witness in modern memory, took the stand Monday morning in the Manhattan district attorney's hush money prosecution of Donald Trump. Even before his testimony began, Cohen was the most visible figure in the trial, except for Trump himself.
In the early hours of his testimony, Trump's former lawyer covered the National Enquirer's alleged agreement to “catch and kill” stories that could harm the then-candidate, which like much of Cohen's expected testimony had been detailed by other witnesses. He then addressed the disclosure of the “Access Hollywood” recording that sent the campaign into a tailspin, including Trump's instructions to turn his comments about sexual assault on women into “locker room talk.”
Cohen testified that it was during feverish efforts to manage that crisis that he learned that adult film actress Stormy Daniels was selling her story of a relationship with Trump, something he said would have been “catastrophic” for the campaign. He said Trump ordered her to do what she had to do to prevent the story from getting out before the election.
Cohen appeared on the stand receptive, practical and unprepared in response to the District Assistant. Lawyer. The discreet interrogation of Susan Hoffinger.
Since the opening arguments, both sides have acknowledged Cohen's central role in the charges against his former boss, for whom he was a fixer and a super-loyal attack dog. And both sides have taken pains to emphasize Cohen's credibility problems to the jury.
In fact, the defense has placed almost all of its bets on the jury's chances of rejecting Cohen's story, making his upcoming cross-examination the dramatic centerpiece of the trial. Most strikingly, the prosecution has also peppered its presentation with disparagement of Cohen, whom several witnesses portrayed as a selfish braggart.
The most significant case occurred during the testimony of hope hicks, who reported that Trump had told him that Cohen paid Daniels “out of the goodness of his heart” instead of receiving instructions from him. Then the prosecution asked a devastating question: Did that seem in keeping with Cohen's character? No, Hicks responded, she “didn't know that Michael was a particularly charitable or selfless person.”
Translation: Trump had reimbursed Cohen and lied to Hicks about it. It may have been this honest and damaging assessment that caused Hicks to burst into tears.
The prosecution's involvement in beating Cohen was a good strategy. He probably lowered the jury's expectations, lessening the enormous weight on the shoulders of the government's star witness.
The jury had to be prepared for a witness whose record includes multiple criminal convictions, including the illegal payments at issue in this very trial. The prosecution is betting that, having already absorbed the bad news, jurors will be able to listen to Cohen with relatively open minds.
And this is the thing about Cohen, in my subjective opinion: it appears that he is telling the truth.
Yes, he has a strong personality, a native New Yorker through and through, and yes, he has a huge interest in working with Trump, who has remained free (until now) while Cohen went to jail for him. But there is a difference between a witness with credibility problems, no matter how big, and one who lies, and guessing that distinction is what the jury system is for.
We have already seen that in this trial with the testimony of Daniels and David Pecker, the tabloid journalist who described the “catch and kill” plan. Both gave the defense plenty of ammunition for cross-examination, but both gave the impression that they were essentially telling the truth.
Cohen has been consistent in his story since he betrayed Trump, and his previous lies are easy to understand in the context of his previous adulation.
Most importantly, if the cornerstone of the defense is what will undoubtedly be a savage interrogation of Cohen, the foundation of the government's case is corroboration of his testimony. Beginning with prosecutors' smart decision to lead with Pecker, his presentation has been designed to prospectively corroborate Cohen. Jurors will be able to recognize almost all the details having heard them before.
However, Cohen will have to handle a few key details alone, the most important of which concerns two meetings. One was a January 2017 meeting between Trump, Cohen and Allen Weisselberg, the Trump Organization's former chief financial officer and top loyal scapegoat, in which Trump allegedly told the two men to come up with a plan to repay Cohen. The other is a February 2017 meeting between Cohen and Trump in which the then-president allegedly approved reimbursing his intermediary for monthly payments disguised as a legal retainer.
Strong evidence corroborating the agreement can be found in what is likely the most important document in the case: an invoice with handwritten annotations from Weisselberg explaining how Cohen's $130,000 payment turned into $420,000 in refunds, including taxes and Other considerations.
But as far as the jury is concerned, Weisselberg, who was able to confirm the deal and Trump's role in it, is nowhere to be found. That's because he's at Rikers Island serving a sentence for perjury for lying to protect Trump. In fact, it emerged last week that the district attorney's office had not even attempted to contact the former executive, presumably assuming he would continue to do everything he could to help Trump.
Weisselberg's absence is a reminder that prosecutors have to play with the cards they are dealt. Trump continues to exert a powerful influence on those in his orbit, and Weisselberg is just one example of a witness the district attorney cannot trust for that reason.
All of which only increases Cohen's importance to the prosecution. This week's testimony will determine whether his word is strong enough to support an accountability measure for his former boss.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
