Editor's note: Stacey Schneider is a Manhattan criminal defense attorney and former contestant on the reality show “The Apprentice.” Her views expressed in this comment are her own. Read more of her thoughts on CNN.
CNN —
The Manhattan District Attorney's Office made a grave tactical error in calling Michael Cohen as the final witness in the Donald Trump hush money trial and then announcing it was resting the case. But that's not because Cohen, a convicted felon and disbarred lawyer, was a bad witness. In fact, he handled the prosecutor's warm-up very well in the face of past misdeeds, convictions, and bias against the former president, maintaining his composure on stage.
But Mr. Cohen lost his footing during cross-examination on Thursday, appearing to omit key information when detailing an October 2016 phone call he claimed he had with Mr. Trump to discuss hush-money payments. . The heated exchange between Mr. Trump's lawyer, Todd Blanche, and Mr. Cohen was the biggest blow to the prosecution's case so far.
Prosecutors have so far introduced other witnesses to corroborate key facts, allegedly buying the silence of adult film star Stormy Daniels and exposing stories of sexual encounters with her. It has done a good job of corroborating Mr. Cohen's expected testimony by providing evidence of Mr. Trump's motives and collusion. Trump is unlikely to have a negative impact on the 2016 election prospects. (Trump denies having an affair with her). The jury heard the following evidence: David Pecker, former CEO of American Media, publisher of the National Enquirer. Daniels' attorney, Keith Davidson, brokered the deal. Hope Hicks, former aide to President Trump and campaign communications director. And even Daniels himself.
But prosecutors excluded from the case a second key witness who would prove that Trump intended to falsify business records to cover up another crime. Mr. Cohen's previous testimony did not prove the elements of the alleged “other crimes” that the hush money payments stemmed from a conspiracy to disrupt campaigns or make illegal campaign contributions. It was useful. But prosecutors also need to prove an actual business record crime, for which Trump is charged with 34 counts of first-degree business record falsification. (He pleaded not guilty). In my view, Cohen's testimony satisfies only half of the equation beyond a reasonable doubt.
According to Cohen's testimony, after the 2016 election, a meeting at Trump Tower to discuss the repayment of the money owed to Daniels included Cohen, Trump, and the then-top financial advisor of the Trump Organization. There were three people, including Mr. Allen Weisselberg, who was in charge. Given Cohen's credibility issues, it would be a stronger case for prosecutors to call a second witness to corroborate his claims.
Mr. Weisselberg, who was Mr. Trump's right-hand man when he was chief financial officer, is currently serving a sentence at Rikers Island after being convicted of perjury stemming from his testimony to authorities in Mr. Trump's civil fraud case. are doing.
Mr. Weisselberg could be the linchpin in testing Mr. Cohen's claim that Mr. Trump agreed to reimburse him for business expenses through the Trump Organization. The former CFO likely knows about the Trump Organization's books and whether Trump had a hand in them. If the jury chooses to discredit Cohen's testimony that Trump knew about and approved the plan, the obvious choice would be to call on Weisselberg to fill in the gaps in Cohen's story.
However, the prosecution has a problem. Weisselberg also has reliability issues. That is, he was found guilty of lying under his oath. Outside the jury's presence, the DA's office told Judge Juan Melchán that it believed the judge's “current interests are very much aligned with the defendant's interests,” and that the judge told the truth on the stand. He indicated that he did not expect to speak. Because the DA's office is not allowed to impeach its own witnesses, the safest course for prosecutors is not to call Weisselberg at all. This leaves a hole in the prosecution's case and could potentially leave room for a reasonable doubt.
We will probably never see Mr. Trump in a position to explain his views. He seems to have calmed down and gotten used to the rhythm of the trial. I hope he listens to his lawyer and exercises his right to remain silent. He has too much to lose to risk his survival with further questions about his alleged affair with Daniels and his friendship with Pecker, who, based on trial testimony, appears to know many of President Trump's secrets. You probably don't want to. The former president knows that if he takes his stand, he cannot close his eyes and lose his focus. He will have to relive the unpleasant details of the prosecution's case all over again.
Cohen did an efficient job of testifying about the first half of the scheme to influence the election by buying Daniels' story and keeping her silent, but his business records are the subject of 34 indictments. We don't know what happened when it was leaked. Created. He was no longer working for the Trump Organization when the redemption began in 2017. He was a lawyer, not a bookkeeper. If one juror has uncertainty about how Cohen's repayments were recorded and whether Trump was implicated, the jury will be hung and Trump will be released. will be done.
Madeline Westerhout, Trump's Oval Office personal assistant, made the biggest gift to the defense team. She testified that Trump sometimes multitasks and that she witnessed him signing large numbers of checks while on the phone or during other activities.
The defense could easily argue that Trump runs the presidency from Washington, D.C., and no longer micromanages what happens at the Trump Organization in New York. If he had signed the check that was placed in front of him, the check would have become part of a hectic pile of work being sent back to the company by FedEx with little attention from President Trump. It might have been. If so, there would have been no intention to falsify business records. Without Mr. Weisselberg's testimony about what Mr. Trump knew and intended, prosecutors will have no choice but to rely solely on Mr. Cohen. That alone may not be enough for a conviction.
