You’d think a guy who lies as much as Michael Cohen would be better at it.
On Thursday, under relentless cross-examination from defense lawyer Todd Blanche, Cohen drove the effort to make Donald Trump a felon for the “crime” of misclassifying accounting records over a cliff.
To recap: in October 2016, Cohen paid the adult-film actress Stormy Daniels $130,000 to buy her silence over her alleged affair with Trump. In 2017, Trump and his company paid Cohen $420,000, partly to reimburse Cohen for that payment. Trump is now on trial in Manhattan for 34 felony charges of “falsifying business records” because - in his own ledgers - the payments to Cohen were classified as legal services.
I have written before about the case’s many problems. Local Democratic prosecutors are openly trying to punish Trump for winning the 2016 election. They have twisted the law they claim Trump broke past recognition. (I even suggested last week Trump should consider refusing to participate in the case, since it is so nakedly political.)
—
(Seriously, what just happened? Find out, for 20 cents a day.)
Subscribe now
—
But.
The (bizarre) theory underlying the indictment is that Trump committed felonies because he made the payments as part of a conspiracy to influence the 2016 election, even though he made them in 2017.
Put aside the fact that local prosecutors do not have clear authority to charge Trump for trying to win a federal election by making a (legal) hush money payment - and in fact have not charged him with doing so. Put aside that Trump might have had other motivations to pay to keep Daniels quiet, such as to avoid damage to his marriage.
For the underlying theory of the case to make even a bit of sense, Trump must have told Cohen to make the payments on his behalf - and to have done so before Election Day. After all, even if Trump agreed to reimburse Cohen secretly after the election was over, his decision to repay Cohen couldn’t have affected its results.
But the only people who know if - and even more crucially, when - Trump told Cohen to make the payments are… Trump and Cohen.
No one disputes this fact. No written written records prove Trump authorized the payments. And even though Cohen secretly recorded Trump (and many other people), he does not have a recording of Trump telling him to make them.
—
Again, even assuming everything else the prosecution says is true - and that the legal theory underlying the indictment holds up - the jury must find Trump innocent unless it agrees he told Cohen to pay Daniels before Election Day.
For three weeks, prosecutors have skillfully hidden this fact by presenting a case filled with irrelevancies, including Daniels’ testimony about her encounter with Trump in 2006. In fact, whether Daniels and Trump had sex makes no difference. (I don’t think Trump should have pushed his lawyers to argue the point. He clearly did, and in trying to deny it, he risked undercutting the significance of the far more crucial Cohen testimony. But he’s obviously pretty embarrassed about it.)
—
(Just wait until you hear about her personality!)
—
But this week, prosecutors ran out of diversions.
They had to take the gamble of putting Cohen on the stand. Yes, Cohen is a convicted felon and a serial liar, but unless he links Trump to the reimbursements before the election, they do not have a case.
So up Cohen went.
His direct testimony was fine. But on cross-examination, Todd Blanche - Trump’s lead defense lawyer - destroyed him.
Over and over, Blanche showed Cohen to be a liar. The New York Times - yes, the Times - wrote:
"Todd Blanche is demonstrating that Cohen told lies, big and small, over a long period... Jurors might also need to consider a more philosophical question: can a liar sometimes tell the truth?"
“Sometimes tell the truth?” Wow, the standard for a criminal conviction sure has changed! I thought it was “beyond a reasonable doubt,” silly me.
—
But the most devastating moment in the cross-examination came relatively early, just before the lunch recess.
Cohen had claimed that on Oct. 24, 2016, about two weeks before the election, he called Trump’s bodyguard, Keith Schiller, to talk to Trump and get Trump’s approval for the payments to Daniels.
Blanche forced Cohen to admit that he had actually called Schiller because Cohen was upset he had been receiving prank phone calls and wanted Schiller’s advice in dealing with them. Cohen then claimed he thought he had also discussed the payment with Trump on the call.
The problem for Cohen, and the prosecution, is that the entire call lasted only 96 seconds.
As Anderson Cooper - yes, Anderson Cooper - said on CNN, in recounting the moment:
It was incredible...lawyers want to build a box around the witness & slam it shut--that's what Todd Blanche did to Cohen...it was an extraordinary cross...Cohen was cornered in...a lie.
And not just on any testimony, but on the issue at the heart of the case.
—
The case is basically over now.
Blanche will have a couple hours more to cross-examine Cohen Monday morning. Then the prosecution will have to choose whether to try to repair Cohen’s blasted credibility with a short period of additional “redirect” testimony - at the risk of emphasizing how bad Blanche made Cohen look.
The defense indicated it will have few, if any, witnesses, so the jury could hear closing arguments as early as Tuesday.
—
(Don’t make me sic Michael Cohen on you!)
Subscribe now
—
Over 86 percent of Manhattan voters supported Joe Biden in 2020, so Trump will have few if any fans on this jury. An outright acquittal seems very unlikely.
But will all 12 jurors really convict Trump on the basis of Cohen’s words, after what Blanche just did? If even one refuses, the prosecution will have failed.
Make no mistake, a hung jury would be a huge win for Trump. The case could not possibly be retried until after Election Day, and anything short of a guilty verdict would give him enormous ammunition to attack the prosecution as a politically motivated effort to distract him from his campaign.
And that the blowback would be exactly what the prosecutors who brought this joke of an indictment deserve.
Log in
