Cohen in Court

JOYCE VANCE MAY 14

This case will come down, as we always knew it would, to whether the jury believes convicted liar Michael Cohen. But that’s not as far-fetched of a proposition as it might sound. As far as prosecutors are concerned, we do that all the time. Criminals don’t surround themselves with altar boys. Donald Trump is no exception.

Before Michael Cohen took the stand on Monday, prosecutors had already set a firm foundation for the jury to believe that Donald Trump wasn’t a bystander when the scheme to pay Stormy Daniels was concocted; that Trump was fully aware of its illegality and intended to aid or conceal other crimes.

Cohen’s testimony is that Trump’s strategy in this, as in other distasteful situations, was just as Hope Hicks messaged to everyone in the inner circle of the campaign when news of the Access Hollywood tape broke: “Deny, deny, deny.” It was always about plausible deniability for Donald Trump. That’s how this entire deal was structured. Trump suggested an off-the-books cash payment, but Cohen’s testimony is that ultimately, Trump saw the value in letting Cohen create a shell company to handle the payment. This wasn’t a busy president signing checks without paying attention to the contents. The prosecution has meticulously presented evidence that Trump was always on top of even small expenses, hiring Cohen in part because of his ability to negotiate his bills down. The prosecution will tell the jury it defies belief that Trump would repeatedly sign checks totaling over $400,000 to Cohen, who was given a counselor title but no position of significance in the Trump White House, without questioning them. If Cohen was just being reimbursed for an expense, it would have been a one-time payment. The scheme, grossing the payment up to account for taxes since it was being hidden as income, and spreading it across multiple months while designating it as a retainer for legal services shows guilty knowledge on Trump’s part. In other words, Trump knew. He always knew.

But as obvious as that seems, now that we’ve heard most of the evidence, the question is, will a jury believe the government has proved it beyond a reasonable doubt? That is the only question that will matter when they begin their deliberations. To put it another way, is there any reasonable doubt remaining that Donald Trump knew and approved? And is there any doubt it was about the election? Can they prove Trump intended to aid or conceal another crime as part of the creation of false business records? Today, Michael Cohen testified Donald Trump warned him that as soon as he announced his candidacy, women would begin to come forward. That doesn’t sound like a man who was worried about protecting his wife and family. Had he been, he would not have run for office. Plenty of potential candidates engage in that calculus. Trump didn’t. Instead, he warned his fixer to be ready. Preventing Stormy Daniels from telling her story publicly was all about the election.

This is, in many ways, a documents case, as we discussed last night. The false records are all in evidence. Weisselberg’s handwritten notes documenting the details are too. And then there is Trump’s tweet. After the Stormy Daniels story broke in 2018, he tweeted this:

The Judge ruled that tweet could be shown to the jury.

There really is a tweet for everything, apparently. The monthly invoices Cohen submitted and the checks he received as payment, which went across Trump’s desk in the White House and were signed by him, were fraudulently designated as “retainer” payments for legal works, and the entries were coded as legal expenses. Of course, that is patently untrue. The government has established through multiple witnesses before they got to Cohen that these were reimbursements for the payment to Stormy Daniels, grossed up to compensate Cohen for taxes he would have to pay and other expenses.

Trump claimed the payments were used to prevent “false and extortionist accusations” made by Stormy Daniels from becoming public and that it was a “private” agreement in the sense that no money from the campaign was involved. Of course, had the campaign paid for it and booked it properly, it would be an entirely different situation. By claiming it was a payment for a retainer, when all of the evidence is that it was not, Trump has armed the prosecution with a powerful argument that he cannot be believed, whether he takes the witness stand or not.

Donald Trump supported Michael Cohen as long as Cohen remained loyal to him.

The threat was implicit, and after Cohen began to cooperate—he has said it was because if he didn’t, the investigation could have affected his family—Trump’s tune changed.

For Trump, it’s always about loyalty, not truth. The truth for him is transient, and he is used to convincing people around him to accept his changing truths, his alternative facts if you will, at his whim. But juries don’t like stories that don’t add up, and Trump’s doesn’t.

Michael Cohen’s testimony lined up with other witnesses. His references to his longtime boss as “Mr. Trump” set the tone for their entire relationship, with Cohen always careful to clear everything through Trump in order to show his value and stay in Trump’s good favor. Cohen was in a constant race to collect pats on the head from his boss for a job well done. There were multiple efforts to protect Trump—the Karen McDougal affair and the doorman who pushed a fake story about a love child—where Cohen acted as the fixer for Trump. There are phone records documenting calls Cohen says took place. Cohen’s story, on direct examination, has been consistent, and his demeanor has been serious and believable. “I was following directions,” is Cohen’s mantra.

Tomorrow, after his direct testimony finishes, we will see how Cohen holds up on cross-examination and whether the polite witness who has repeatedly responded “yes ma'am” in response to questions from prosecutor Susan Hoffinger shows up on the cross as well. The defense strategy will be to prod him into outbursts and catch him in contradictions designed to show he cannot be believed. The prosecution will try to get as much of that out of the way during direct examination as it can, in order to minimize any sting and to show the jury the People have nothing to hide. But ultimately, much of this case rests on Michael Cohen’s shoulders and on how well he behaves on cross-examination, leaving any points scored by the defense for prosecutors to take care of in redirect. He must be humble and honest, a painful self-reflection for a man who has been to prison, when the man he says he did it all for denies it and has never been held accountable.

When prosecutors argue they’ve proven their case beyond reasonable doubt when circumstantial evidence is involved, they explain to the jury that if they look at one piece of evidence alone, say the Weisselberg notes, without more, it might not be enough to meet that burden. But when you layer all of the evidence together, you get a bundle that is so solid, there can be no other reasonable explanation for what happened than the People’s explanation case that it was a crime. The prosecution doesn’t have to prove its case beyond any speculative doubts; Trump’s lawyers can’t just say, “well maybe, it could be the case that…” To acquit, it must be a doubt that is reasonable. The Judge will instruct the jury on the law on that point, and the prosecutors will hammer it home in closing argument, even as the defense argues the facts and maintains that the intent that makes these crimes a felony isn’t there. They will reach for that one juror who might hold out, preventing a conviction on even misdemeanor charges. In that sense, Donald Trump is now like any other defendant in a criminal case. His fate is in the jury’s hands. We will know more after we see the rest of his direct testimony and at least the start of his cross-examination tomorrow.

If you appreciate Civil Discourse, I hope you’ll consider sharing it with others and upgrading to a paid subscription if you don’t already have one. Paid subscribers help me devote the necessary time and resources to this work. Paid subscribers also get access to the “Five Questions With” feature on Friday nights. You won’t want to miss it this week, when I discuss what comes after a verdict with a former Manhattan prosecutor.

We’re in this together,

Joyce