Former President Donald Trump, with his lawyer Todd Blanche beside him, spoke to reporters after Blanche cross-examined Michael Cohen last week. Photo / Todd Heisler, The New York Times
The former president’s defence appeared to chip away at Michael Cohen’s credibility, but legal experts said the case is still the prosecution’s to lose.
Over the course of a monthlong criminal trial, the evidence against Donald Trump has piled up.
A recording of his voice directing a fixer to pay in cash. Phone calls, text messages, emails and a photograph that illustrate the case against him. And a parade of 18 witnesses who together told the prosecution’s story: that Trump orchestrated a conspiracy to suppress sex scandals during the 2016 election, and after winning, sought to bury a porn star’s story for good.
But the 19th and final witness of their case — the only one to directly link Trump to the 34 business records he is charged with falsifying — is Michael Cohen. And for prosecutors, he was always high reward, high risk. Though Cohen got off to a strong start, Trump’s lawyer eventually hammered his credibility, highlighting his criminal record and painting him as a serial liar bent on taking down the former president.
It was the most significant momentum swing of the first criminal trial of an American president — and with Cohen’s star turn on the stand poised to conclude Monday (local time), the prosecution’s case would seem to hang in the balance. Trump’s legal team argues that it is preposterous to have built a case that could hinge on Cohen’s credibility.
But as the trial enters its final stage and the focus shifts from the lawyers at the lectern to the 12 silent New Yorkers who will determine Trump’s fate, several legal experts say the case remains the prosecution’s to lose. Between the reams of circumstantial evidence and some very favourable laws underpinning the charges, the Manhattan district attorney, Alvin L. Bragg, has retained inherent advantages.
And so, whatever the jurors think of Cohen — truth-teller, fabulist or something in between — the prosecution did not need them to believe his every word.
Marc F. Scholl, who served in the district attorney’s office for nearly four decades and worked on dozens of cases that included the false records charge, said prosecutors have checked all the legal boxes.
“If the jury chooses to believe the government’s evidence, then a conviction is warranted,” he said, though he noted Cohen, with all his baggage, “remains the linchpin” of the case. “The jury does not have to believe all of what Cohen has to say, but they have to believe enough of it.”
A felon who self-identified as Trump’s former “thug,” Cohen led jurors on a guided tour of the shady dealings that are the crux of the case. He told jurors that, at his boss’s behest, he paid off the porn actor, Stormy Daniels, on the eve of the election, silencing her story of a sexual liaison with Trump. Once Trump was elected, he agreed to repay Cohen for the US$130,000 hush-money deal and more.
To keep the cover-up alive, Cohen said, Trump’s company disguised the reimbursement as ordinary legal expenses that arose from a retainer agreement. And at a meeting in Trump Tower just weeks before he was sworn in, Trump signed off on the fakery, Cohen recounted from the stand.
“What, if anything, did Mr. Trump say at that time?” a prosecutor asked Cohen.
“He approved it,” Cohen replied, noting that Trump then added: “This is going to be one heck of a ride in DC.”
Trump, who faces probation or up to four years in prison, is charged with 34 felony counts of falsifying business records, one for each purportedly bogus document: 11 checks to Cohen, 11 invoices submitted by Cohen and 12 entries in Trump’s ledger.
Cohen’s testimony that Trump “approved” the plan could give prosecutors what they need. It might not matter that he did not accuse Trump of personally falsifying the records or explicitly instructing anyone to do so. Under the New York law that Trump is charged with violating, prosecutors need only show that he “caused” his company to file false records.
The prosecution has another legal card to play: The law holds a defendant accountable even when he does not carry out the crime himself, so long as he “intentionally aids” it. The issue was highlighted during jury selection, when a prosecutor, Joshua Steinglass, asked prospective jurors whether they could accept the idea that a husband who hired a hit man to kill his wife was guilty of her murder. Many agreed they could.
And as a final way to buttress their case, prosecutors might invoke a 2016 appeals court decision upholding a conviction of a defendant who did not handle or approve the false records in question, ruling that it was “reasonably foreseeable” that his actions would have resulted in the filing of false records.
The case could hang on Justice Juan M. Merchan’s interpretation of these issues, the legal experts said. In the coming days, Merchan — the judge overseeing the case — will distil the legalities into instructions for jurors that he will deliver after closing arguments as soon as this week. The instructions, the experts said, could support the prosecution’s view of the case.
“The judge’s instructions provide a road map to the jurors,” said Scholl, the former prosecutor, noting that “Trump does not have to be the one who says, ‘Make that record false.’”
But some jurors could arrive at the same conclusion that Trump’s supporters have pushed: that the roundabout nature of the charges do not justify the first felony conviction of a former president.
Felony counts of falsifying business records require prosecutors to show that a defendant sought to conceal a second crime. And in this case, the prosecutors have laid out that second crime in graphic detail, arguing that in 2015, Trump entered into a conspiracy with Cohen and the publisher of The National Enquirer, David Pecker, to conceal the sex scandals.
Pecker, the trial’s first witness, testified that he had agreed to suppress several damaging stories on Trump’s behalf as he ran for president, including a former Playboy model’s story of an affair.
Pecker told the jury that for US$150,000, he bought and buried the model’s story. And on a surreptitious recording Cohen made on his phone, jurors heard Trump directing that they repay Pecker.
Other witnesses — including Hope Hicks, Trump’s former spokesperson — underscored the threat that the stories posed to the campaign. She also testified that the candidate was in touch with both Pecker and Cohen as the campaign sought to contain the scandals, a recollection corroborated by phone records.
In closing arguments, the defence will likely cast those machinations as typical presidential political tactics. They are also expected to argue that Trump had nothing to do with the records at the heart of the case, which they have already characterized as the sort of back-office paperwork that a president would never bother touching.
Yet jurors learned that Trump signed nine of the 11 checks himself. And prosecutors introduced a variety of other circumstantial evidence regarding the documentation: Trump’s former employees portrayed him as a micromanager who was detail-obsessed when it came to his own money and paid close attention to checks that came in and out of his office.
His own books emphasized that point. “Penny pinching?” he wrote in one of them. “You bet. I’m all for it.”
To directly link Trump to the false records, though, prosecutors called Cohen to the stand.
His story began a decade before the documents even existed. Composed and steady on the stand, he recounted his professional life as a New York tragedy in miniature: a man who met and then served his idol, only to be betrayed and imprisoned after the porn actor payoff in October 2016, which could have been his proudest moment.
Three months after striking the deal with Daniels, Cohen said, he had a crucial meeting at Trump Tower. There, he said, Trump’s chief financial officer, Allen Weisselberg, explained how Trump would reimburse Cohen for the payoff. Weisselberg took notes, which prosecutors showed to the jury, and Cohen testified that Trump signed off on the specifics.
In one word of all-important testimony — a simple “yes” — Cohen confirmed that his former boss had known the records would falsely describe the repayments as legal expenses arising from a fictional legal “retainer.”
Cohen, who pleaded guilty in 2018 to a variety of federal crimes, including some related to the hush money, asserted that there was no retainer agreement and that he had not accrued any legal expenses.
“Was this invoice a false record?” a prosecutor, Susan Hoffinger, asked Cohen on Tuesday.
“Yes, ma’am,” he confirmed, and added that the check stubs were false as well. Asked the purpose of the checks, he explained that in part they represented “the reimbursement to me for the hush-money fee.”
It was exactly what prosecutors hoped jurors would hear. But now, after two days of cross-examination, and more to come Monday, they must hold on and hope the jury will believe it.
Under cross-examination, a lawyer for Trump, Todd Blanche, did all he could to call Cohen’s credibility into doubt. He highlighted lies the former fixer had told while under oath in the past, insisting that he had lied again when answering questions from prosecutors in the current trial.
In a particularly tense line of questioning, Blanche sought to impeach Cohen’s earlier testimony that he had spoken to Trump in October 2016 about the payment to Daniels. To reach Trump, Cohen testified, he called the candidate’s bodyguard, Keith Schiller.
But Blanche, noting that Cohen had been the target of a harassment campaign from a teenager around the same time, proposed an alternate theory. He described text messages that suggested the fixer was calling Schiller to complain that he was being bullied by a 14-year-old prank caller — and not to speak to Trump about the payment.
“You did not talk to President Trump on that night; you talked to Keith Schiller,” Blanche said, raising his voice and his index finger. “You can admit it.”
But Cohen remained composed and held firm.
“No, sir, I can’t,” he responded.
This article originally appeared in The New York Times.
Written by: Ben Protess and Jonah E. Bromwich
Photographs by: Todd Heisler
©2024 THE NEW YORK TIMES
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