On Monday—the first day of substance in the criminal trial of former President Donald Trump for alleged election interference—a few important aspects of the case started to come into focus.
Reading the tea leaves, the “You Can’t Trust Michael Cohen” approach probably isn’t going to cut it, and the defense will likely have to scramble to come up with at least a backup strategy to prevent a conviction. Trump’s defense team is currently on a losing streak in a run of attempted procedural maneuvers designed to stymie the prosecution.
How has Trump’s team fared, specifically, in its efforts to throw whatever roadblocks it could to try to impede this case?
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Well, there was their first effort to dismiss the charges altogether. That didn’t work.
Their motion to disqualify the judge? Failed again.
The attempt to move the case out of Manhattan? No such luck.
Trump’s lawyers did their best to delay the case generally for various other reasons, too (including the request that the former president wished to attend his son’s high school graduation). Justice Juan Merchan, the same judge they tried to disqualify, wasn’t having it.
Finally, their last-ditch efforts centered around trying to exclude the testimony of several of the prosecution’s planned witnesses and narrow the scope of the evidence coming in? Those tactics also failed.
For now, it seems as though the final, “break-glass” approach is simply to undermine the credibility of Trump’s former fixer, Michael Cohen, who they probably believed would be the government’s main witness.
And what was their main argument for attacking Cohen’s credibility? Cohen has already been convicted of lying to the feds about the hush-money payments.
We’ll put aside for now that it appears he may have only lied in an effort to protect the former president. Another element of the attack on Cohen’s credibility is that he is a jilted employee and confidant who is seemingly out for revenge against his former employer.
But a funny thing happened on the way to the courthouse. The prosecution has built a case that does not rest solely on the testimony of Michael Cohen. David Pecker, former CEO of American Media and publisher of the National Enquirer, has already begun his testimony and is scheduled to provide more testimony on Tuesday.
Some might think that the prosecution did not land many punches.
But a common tactic of the trial lawyer who knows the testimony of a witness is likely to span more than one day is to hold the most damaging stuff for the second day of the testimony. That way, the adversary will not have the overnight recess to prepare the cross-examination on the testimony that is most harmful to their client.
We also know that former Playboy model Karen McDougal is likely to testify. And like the adult film actress and possible prosecution witness Stephanie Clifford (aka Stormy Daniels)—McDougal’s story was also allegedly suppressed by the Enquirer.
Former Trump aide Hope Hicks might also take the stand, and members of District Attorney Alvin Bragg’s trial team have stated they are going to present documentary evidence and recordings of Donald Trump that, they assert, will corroborate the larger story.
And it is that larger story that is going to be bigger than Michael Cohen alone.
Even portraying Cohen himself as somehow “damaged goods” may not work. As every good trial lawyer knows, however, it is the former employees who can often make great witnesses, not bad ones. Their sense of freedom—as if their livelihood doesn’t depend on their testimony harming their employer—can liberate them to speak their mind. And they often know where, as they say, the “bodies are buried” (and I’m speaking metaphorically here, to be clear).
Perhaps Team Trump knew the case would be bigger than Cohen all along. Maybe that’s why they tried so many different angles to prevent the trial from ever happening, or that it happened outside of Manhattan, or that it was presided over by a different judge, or that the corroborating evidence didn’t come in.
Regardless of what they had hoped to accomplish through all of these efforts to prevent the larger story from seeing the light of day, that strategy has failed. Because of that failure, they’re probably going to have to try a different approach if they hope to secure an acquittal.
Given the rapid pace at which Justice Merchan is managing this case, we may know whether that approach worked in just a few short weeks.
