Why has he been an irritating fixture on the American public stage for a decade? Because Trump made him one.
Why has he been an irritating fixture on the American public stage for a decade? Because Trump made him one.
I n the midst of his testimony on Tuesday, Manhattan prosecutors made the surprising announcement that Michael Cohen will be the final witness in their direct case against former president Donald Trump.
Just going by the playbook, it’s a strange call. Prosecutors always want to start strong and end strong. Democratic district attorney Alvin Bragg’s team started with the unlikeable tabloid maven David Pecker and is ending with the repulsive Cohen. Yet Bragg’s case probably calls for throwing the playbook out. For one thing, each of the notable state witnesses — Pecker, Cohen, and Stormy Daniels — has more baggage than Samsonite. There really are no strong witnesses and, well, someone has to be first and someone has to be last, so pick your poison.
That’s the downside for Bragg. There is plenty of upside, though. Each rogue in the cast is front-and-center because of Donald Trump.
Trump had the fling with Stormy (when he wasn’t having a more involved fling with Playboy model Karen McDougal) while his wife was home with their newborn son. He continues to claim it never happened — the hardcore Roy Cohn deny, deny, deny approach — but if you believe The Donald of Studio 54 lore forked up $130,000 to pay for the silence of a then-27-year-old porn star with whom he didn’t have a tryst because he thought the story might upset his third wife, you may have missed the last decade or four of the American cult of celebrity.
Pecker was only too happy to help Trump bury sex-capade stories. It probably seemed like less revolting work than helping suggest that Ted Cruz’s dad conspired to murder JFK — more help Trump gladly accepted in the symbiotic pact that helped Trump generate publicity and slime his adversaries while Pecker watched his rags fly off the supermarket racks.
And then there’s Cohen. Sleazeball? Fraudster? Clenched-fist bumbler? Serial perjurer? Sure, he’s all those things and more. But that being the case, why has he been an irritating fixture on the American public stage for a decade? Because Trump made him one. Trump hired him and promoted him. Cohen’s public profile owes exclusively to Trump. And if we stipulate that Cohen has loathsome characteristics, mustn’t we also grant that those characteristics are exactly why Trump kept him around for a dozen years? If the testimony of Hope Hicks and others in the Trump circle is to be believed, Cohen was an erratic sycophant. It was the boss — that notorious sucker for sycophancy — who found him a useful courtier.
This, above all, is the challenge for Trump’s defense. Todd Blanche, who is handling the cross-examination, has to do enough to convince the jury that it would be a travesty to convict someone — anyone — on the basis of Cohen’s testimony. But if Blanche does too much Cohen character assassination, jurors will ask themselves, “Why would Trump have employed a scoundrel like this for so many years?” If they conclude it’s because Trump felt well-served by Cohen’s aggressive mendacity, they will next ask, “Well, why should we believe Trump’s defense?”
To be clear, if Trump is to be convicted, the jury would have to rely on Cohen’s unsupported word.
Prosecutors have tried to project an illusion of corroboration. One hears the echoes of Pecker’s version of events in Cohen’s version of events. The state has twice played the recording that Cohen, as a lawyer, covertly made of Trump, his client, confirming the details about the McDougal non-disclosure agreement (NDA) that Pecker and Cohen described; prosecutors have paraded documents showing invoices, payments, ledger-entries, emails, and annotations. It’s why the media-Democratic complex touts a metaphorical mountain of supporting proof.
But it’s a mountain atop nothing. What it corroborates is legal conduct that, while hardly admirable, is not in dispute. Corroborating the non-incriminating aspects of a prosecutor’s narrative is rarely difficult.
On the other hand, Trump does dispute the state’s allegations about his knowledge and intent — his alleged awareness of and complicity in what Bragg alleges is a conspiracy involving fraudulent falsification of business records. As I’ve explained, I think it’s foolish for the Trump defense to make a big deal about Trump’s state of mind if the main defense is that (a) the NDAs were lawful and, therefore, (b) it matters little how they were booked as long as the state can’t prove fraud (which it can’t). But my peanut-gallery view is beside the point. In front of the jury, the defense is denying that Trump knew the accounting details. To try to refute that denial, Cohen is the state’s only witness. There is no corroboration. If you think that’s what Bragg’s case comes down to, then it comes down to Cohen.
Bragg could have called the only other person besides Trump and Cohen who was present at a key January 2017 meeting when the reimbursement of Cohen was discussed. Instead, Bragg has that witness, former Trump organization CFO Allen Weisselberg, sitting in a Rikers Island jail cell — having just prosecuted him a second time in two years in his quest both to pressure Weisselberg to incriminate Trump and to make Weisselberg an example of what can happen to people who testify in Trump’s favor. We have to assume that if Weisselberg were poised to give testimony that corroborated Cohen and helped the prosecution, Bragg would have immunized him and called him as a witness — or at least removed the threat of prosecution so the defense could call him. He didn’t do that. Bragg intentionally kept Weisselberg off the stand, then underhandedly tried to signal to the jury that Trump was responsible for his absence. (That tactic proved too much even for undercover prosecutor Juan Merchan.)
Consequently, the only evidence of Trump’s knowing complicity in the record-keeping is Cohen’s story that Trump heard and understood Weisselberg’s allegedly fraudulent plan to make the 2017 installment payments to Cohen look like ongoing legal fees rather than reimbursement for the 2016 Stormy NDA. If the jury doesn’t credit Cohen’s claim, then it’s not even arguable that there’s a case against Trump.
Again, as a matter of law (as opposed to a matter of perception by a jury guided by Judge Merchan), I don’t think there is a case against Trump in any event. Cohen says the “retainer agreement” referred to in his monthly invoices did not really exist, and that he was paid in 2017 only for the money he’d laid out and a bonus he thinks he earned in 2016. Turns out, though, that Cohen was publicly holding himself out as Trump’s lawyer in 2017 — available to work for Trump even as he tried to monetize his status as “the president’s private lawyer.” And Cohen conceded that he did do some lawyer work for Trump in 2017 and 2018. Retainers should be in writing, but they don’t have to be, and the Trump organization may well have believed it was paying Cohen in 2017, at least in part, to ensure that the then-president’s acknowledged private lawyer would be available as needed (which he obviously was). Under such an understanding, it was hardly the scam of the century for Weisselberg and Cohen to label as a “retainer” the arrangement under which Trump paid a lawyer who was telling everyone he was Trump’s lawyer and, in fact, did some lawyer work for Trump.
Bottom line: Cohen’s say-so does not make the records false.
Still, even if you want to give Bragg that one and say that some of the records are false, he still has to prove fraudulent intent beyond a reasonable doubt. What is the fraud? There is no evidence that any potential victim, including New York State’s revenue agency, was targeted by a deceptive scheme to bilk the victim out of money or property. The fibs in Trump’s records — if that’s what they were — harmed no one.
Bear in mind, moreover, that even if Bragg could prove fraudulent intent, that would be insufficient evidence in this case. Fraudulent falsification of records is just a misdemeanor (on which the statute of limitations ran four years ago). Bragg has charged the felony; to establish that, prosecutors have to prove beyond a reasonable doubt that Trump falsified his records to commit or conceal another crime. What’s the other crime? Cohen’s testimony does not even establish that Cohen violated federal campaign laws — NDAs are not cognizable campaign expenditures, irrespective of Cohen’s guilty plea to supposed campaign crimes (and again, Cohen’s guilty plea is not admissible evidence against Trump).
Of course, the fact that Trump should be acquitted doesn’t mean he will be. A key determinant of the outcome is what the judge will instruct the jury on the applicable law, and that hasn’t been settled yet.
Beyond that, Judge Merchan has allowed Cohen to testify as if his declaration that the records are false is dispositive (it’s not). He has allowed Cohen and Pecker to testify as if their scheme with Trump to suppress politically damaging information was a crime (it wasn’t) and as if the NDAs were campaign expenditures (they weren’t). He has allowed Stormy Daniels to give graphic testimony of a sexual encounter with Trump in 2006 (now intimating it was nonconsensual after years of acknowledging that it wasn’t). That testimony was patently designed to inflame the jury against Trump — it contributed nothing probative on the contested record-keeping issues in the case, about which Daniels had zero relevant testimony.
In trials, juries look to the judge, not just for instructions on the law, but for cues on how to think about the prosecution’s case. On that score, Merchan is Bragg’s dream come true.
Hence, the case could hinge on how much the jury dislikes Trump. That’s why I’m betting Bragg is not too upset by the beating his star witness is taking on cross-examination. In summation, the state will tell the jury: “Prosecutors have no choice, they have to take their witnesses as they find them, and nice people are not the kind who get caught up in criminal conspiracies. It was Trump who chose Michael Cohen to do his bidding, year after year, lie after lie.”