Donald Trump’s fate will soon be in the hands of 12 citizens, a jury of his peers. The jurors will be tasked with deciding if the prosecutors proved Trump’s guilt beyond a reasonable doubt. Central to that decision will be their assessment of the credibility of star witness Michael Cohen, Trump’s former lawyer and self-described fixer.
By his own admission at trial, Cohen has lied, cheated and stolen — including from the Trump Organization. That may seem like a problem for the prosecution. Yet in my experience, it is anything but. The very fact that Cohen himself admitted to his prior lies and criminal activity may very well lead the jury to credit his testimony and use it to convict Trump.
In my 30 years as a prosecutor, I dealt with countless “cooperating witnesses” — CWs for short. That term most precisely describes defendants who plead guilty to their crimes and enter into a cooperation agreement with prosecutors to testify fully, truthfully and accurately about the crimes of others. In exchange, the cooperating witness receives a reduced plea or a more lenient sentence.
As former criminals, cooperating witnesses generally have plenty of baggage.
As part of the deal, the cooperating witness must also admit to and be prepared to testify about the crimes they themselves committed. This standard practice is vital to building the witness’s credibility. You can’t expect a jury to believe testimony about the crimes of others if the cooperating witness is unable or unwilling to fess up to his own crimes.
Cohen is what I’d call a de facto cooperating witness. He pleaded guilty to his crimes and agreed to testify against Trump, but without entering into a formal cooperation agreement with prosecutors.
Cohen may be a deeply flawed individual and someone who was all too willing to commit crimes for his boss and for his own financial gain. But he’s also an entirely typical cooperating witness: someone perfectly positioned to expose to the jury the crimes of the bigger fish in the corrupt scheme.
A conspiracy is a secret agreement between two or more people to commit crimes. By their very nature, these criminal agreements are designed to shield the conspiracy from public view. This is why prosecutors work mightily to corral an insider — a co-conspirator — and develop that person as a cooperating witness who can authoritatively inform jurors about what was going on inside the conspiracy.
But as former criminals, cooperating witnesses generally have plenty of baggage. Which brings us back to Cohen.
In many ways, Cohen was a nearly perfect cooperating witness. He was in direct communication with the bigger criminal fish. He even had a covert audio recording that helped prove Trump was involved in the corrupt scheme to hide damaging information for political advantage. Cohen testified that he committed crimes at the direction of Trump and, importantly, for the benefit of Trump.
The fact that the crimes inarguably inured to Trump’s benefit — he, not Cohen, was the one running for (and ultimately winning) elected office — will not be lost on the jury. Indeed, though Cohen may have hoped to benefit in the future from helping Trump, these crimes arguably worked to the immediate detriment of Cohen. He had to take out a home-equity line of credit just to muster the $130,000 payment.
Cohen spent more than 20 hours on the witness stand, reportedly without becoming angry, belligerent or losing his cool. The same cannot be said of the only defense witness of consequence, Robert Costello. Though Costello is himself a lawyer, he was beyond belligerent, and Judge Juan Merchan at one point cleared the courtroom to admonish Costello for his “contemptuous” behavior. The jury undoubtedly took note of the dramatic contrast between Cohen’s performance and Costello’s.
Two points in Cohen’s testimony were touted in the media as deeply damaging to his credibility: the fact that he may have mixed up the date of the precise phone call in which he told Trump he had made the hush money payment, and the fact that Cohen stole $30,000 from the Trump Organization.
The prosecution didn’t choose Cohen as a witness. Trump chose him as a witness when he allegedly enlisted him in his corrupt scheme.
This old prosecutor saw those two bits of Cohen’s testimony quite differently. Were I prosecuting this case, I would address the phone call in my rebuttal argument — not my initial closing argument — after the defense undoubtedly addresses it in their closing argument. Then I would ask the jurors if they had precise recall of the date and time of phone conversations from eight years ago. The question answers itself. So, whether Cohen told Trump in a call on a Wednesday or a Thursday is immaterial.
More importantly, does anyone believe Trump would have begun writing Cohen a series of $35,000 checks from his personal bank account if Cohen had not told Trump the payment was made? Please!
The second revelation — that Cohen stole $30,000 from Trump — is a perceived weakness that I would turn into a strength. In closing arguments, defense attorneys frequently fall into a trap of urging the jury to disbelieve a cooperating witness’ testimony that incriminates their client but believe the same testimony when it incriminates the witness.
The defense attorney likely will tell the jury, “You can’t credit Cohen’s testimony because he’s a thief, having stolen from the very person he, as an attorney, was supposed to zealously represent.”
That argument carries some superficial appeal. But I would rebut it this way:
“Ladies and gentlemen, who is it that proved to you that Michael Cohen stole $30,000 from the Trump organization? It was Michael Cohen himself, in his sworn testimony! And here’s the important part — Cohen’s testimony about his theft was uncorroborated. No other witness came in here and testified about it. There was no audio recording exposing it. There were no business records confirming it.
So the defense is telling you to credit Michael Cohen’s uncorroborated testimony when he tells you he stole $30,000 from Trump. Yet, when Cohen’s testimony is corroborated by other witnesses — by audio recordings, by phone records, by business ledger entries, and by Trump-signed checks falsely purporting to be reimbursement for legal services — when Cohen is corroborated eight ways to Sunday, the defense urges you to disbelieve his testimony?
Let’s be clear, the defense wants you to credit Cohen’s uncorroborated account of his own misconduct, but disbelieve Cohen’s fully corroborated testimony if it hurts Trump. Ladies and gentlemen, the defense has just invited you to fall for the bait and switch. But we know you won’t.”
I would finish by reminding the jury that the prosecution didn’t choose Cohen as a witness. Trump chose him as a witness when he allegedly enlisted him in his corrupt scheme to pay hush money and falsify business records to gain an unfair advantage in a presidential election. Cohen may very well have lied, cheated and stolen, but he also testified about what he did as Trump’s co-conspirator, his partner in crime. And soon, a jury will get to decide if that testimony, together with the significant corroborating evidence, is enough to prove Trump’s guilt beyond a reasonable doubt.