Defense tactics raise eyebrows in Cohen cross-examination

CNN

Analysis by Stephen Collinson, CNN

(CNN) — It would be no surprise if the jury in Donald Trump’s first criminal trial now sees his former fixer, Michael Cohen, as a profane social media troll and vengeful liar who dreams of seeing the boss he once worshipped behind bars.

But jurors don’t have to like Cohen. They just have to believe him.

Trump’s self-described former “thug” came under a sustained attack from defense attorney Todd Blanche Tuesday in a cross-examination meant to shatter his credibility as the star witness to the ex-president’s allegedly criminal behavior. But critically, he didn’t lose his composure on the stand. So far, he’s avoided traps that would fatally undermine the case.

Cohen will get time to take stock on Wednesday, on the trial’s regular day off, which will also give Trump’s team a chance to sharpen its approach. The presumptive GOP nominee, meanwhile, is due to take the opportunity to launch a fundraising swing through Ohio and Kentucky before court resumes Thursday.

Cohen has already directly implicated Trump in making payments to adult film star Stormy Daniels to cover-up their alleged affair and apparently corroborated prosecution evidence that the scheme was meant to influence the 2016 election. (Trump has denied an affair and pleaded not guilty).

The task of the defense in cross-examination was, therefore, to so undermine Cohen’s credibility that they sowed reasonable doubt in the minds of at least one juror about the wider case.

Blanche took Cohen through a long list of the insults he’s unleashed at Trump since becoming estranged from his former mentor, highlighting his penchant for serial lying. He drew jurors’ attention to a social media post in which Cohen wore a T-shirt that depicted Trump in jail, as he spun a narrative of bias and obsession. Blanche also got the witness to say that he’d built up a lucrative business, especially in books focused on his criticism of the former president. He asked if Cohen had called Trump a “boorish cartoon misogynist.” Cohen replied, “Sounds like something I would say.” Then Trump’s attorney inquired if he’d mocked the ex-president as a “Cheeto-dusted cartoon villain.”

Blanche also sought to draw out Cohen’s grudge against Trump, which he can later highlight to the jury in closing arguments, by asking him about a TikTok post in April in which he said Trump belonged in a “f**king cage like an animal” and asked him to confirm that he’d also called the presumptive GOP nominee a “dictator douchebag.”

Michael Moore, a former US attorney for the Middle District of Georgia, said that the defense had made some progress in impeaching Cohen’s credibility. “I really took away that the jury is probably seeing and thinking right now that Cohen is a grifter and a waffler,” said Moore, a CNN legal analyst. “He clearly is making money off this, he clearly is somebody who has got his hand in the till to sell his books.”

Big questions in the trial coming into focus

But notably, Blanche mostly concentrated on his effort to tarnish Cohen’s character, motives and credibility rather than the core question of the case — whether Trump falsified the business records as part of a cover up expressly designed to mislead voters in 2016 in an early instance of election interference.

As always, when a Trump subordinate performs in front of the boss, there was a sense Blanche’s histrionics were as much for the benefit of his client as the case. And in a curious debut of the cross-examination, Blanche earned an admonition from Judge Juan Merchan for making it all about him, when he noted Cohen had called him a “crying little sh*t” on TikTok.

Questions hanging over the case with the court dark on Wednesday start with how badly Blanche managed to damage Cohen’s testimony and the prosecution case with his full-frontal assault.

Given that the prosecution has already signaled it plans no further witnesses after Cohen’s testimony, attention is turning to the approach the defense will take. Will Trump’s lawyers bring in a number of witnesses? Or could they adopt a bold gambit by simply arguing that the prosecution has fallen woefully short of proving their case beyond a reasonable doubt and dramatically rest?

Then there is Trump’s initial indication that he’d like to testify in his own defense. The former president loves a stage and considers himself his best advocate — even if history often suggests the opposite. But many lawyers believe that given his volatile temperament and trouble telling the truth, putting him on the stand would represent a potential disaster for the defense.

A key legal conundrum is whether prosecutors have so far succeeded in validating the legal theory behind the case. “I think the misdemeanor of falsification of business records has been proven beyond any reasonable doubt,” Shira Scheindlin, a retired US district court judge, told CNN’s Jake Tapper on Tuesday. “The felony is a little tougher because you have to say that Trump knowingly and willfully intended to violate the election law in the state of New York by unlawful means and the unlawful means is to violate the federal campaign finance law.” Scheindlin added: “Cohen went a long way toward making that case.”

As the prosecution case nears its end, there is also a growing sense that the fateful moment when Trump must wait for a jury to decide whether he will become the first president convicted of a crime is approaching. That foreboding realization was exacerbated by a new posse of Trump supporters at the courthouse on Tuesday, including House Speaker Mike Johnson. The Louisiana Republican brought the full symbolic heft of his office to bear in an apparent attempt to delegitimize the trial, to bolster Trump’s claim that he’s a victim of weaponized justice and to potentially hedge against a potential conviction with an early round of political spin. “These are politically motivated trials, and they are a disgrace,” Johnson said Tuesday outside the courthouse. “It is election interference,” he said.

Defense tactics raise eyebrows

It’s impossible to know how a jury interprets testimony until a verdict is delivered — and even then, jurors often opt not to explain their verdicts in detail in media interviews in high-profile cases like this one.

Some legal experts on Tuesday questioned the tone and tactics adopted by Blanche in the court. While Cohen’s reluctance to offer yes-and-no answers came across at times as flippant and confrontational, he did not appear to say or do anything to torpedo the prosecution case. He did not blow up at Blanche, despite the attorney’s incessant goading and an attempt to put him off his game by erratically jumping from topic to topic. “No massive disasters yet,” former FBI deputy director Andrew McCabe told CNN.

But Moore, the CNN legal analyst, defended Blanche’s approach of mixing up the evidential timeline to try to shake Cohen’s pre-trial prep. “You want to make them tell the story on your terms and not to follow the script,” Moore said.

The prosecution knew that Blanche’s attack was coming and worked all morning on Tuesday to nail down a narrative about the payment to Daniels and its purpose. Manhattan prosecutor Susan Hoffinger tried to undermine a defense claim that Trump’s reimbursements to Cohen were part of a retainer for legal services and not to pay him back for the Daniels hush money payment.

In a key moment in the trial, which resonated outside the courtroom given the obligations that Trump places on many of his aides and subordinates, Cohen described the moment when he broke from his former boss.

“My family, my wife, my daughter, my son all said to me, ‘Why are you holding onto this loyalty, what are you doing?’” Cohen said, adding that he came to a point when it was time to listen. “I would not lie for President Trump any longer.”

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