In Cohen vs. Trump, which liar will the jury believe?
Cross examination has rightfully been called an art. It is the drama of the law.
Criminal intent has been likened to the state of one’s digestion. You can feel it, you can taste it, you can even smell it. It is gathered from acts, declarations and conduct. The jury must use their God-given common sense. What does the experience of their daily lives tell them about what happened?
Donald Trump is charged in New York with 34 counts of falsification of business records related to “hush money” payments to Stormy Daniels. The verdict in the criminal case will turn on the credibility of the star witness for the prosecution, Michael Cohen. If the jury believes him, game over. Trump will be convicted.
If the jury disbelieves Cohen, however, or believe that Cohen and Trump are both liars, the game is also over — Trump will most likely be acquitted and score a major political victory. Cohen took the stand on Monday. Court observers agree that so far he has done well on direct examination, but he has yet to be tested in what is expected to be a withering cross examination.
Cross examination has rightfully been called an art. It is the drama of the law. Cross may be used constructively, serving to flush out more facts to disclose shades and nuances in the narrative favorable to the defendant that did not come out on direct. Or it can be used destructively, to attack credibility, demolish the witness, show he is not telling the truth. In the case of Cohen, all expect a withering staccato-like series of questions that will unmask him as a liar, a disgruntled former employee biased against Trump, coming to court out of vindictiveness and hatred.
Cohen is an unusual prosecution witness. Prosecutors usually seek accomplice testimony from someone on the inside, someone who has turned state’s evidence, someone who is testifying for the government in the hope of leniency in his pending sentence. Prosecutors often sum up to the jury: “Who but a confessed wrongdoer can fill in the blanks and provide the damning evidence? Certainly, not the archbishop of Canterbury.”
Defense lawyers try to expose such a motive in the witness. Here they will be hard pressed. Cohen has served his time. He pleaded guilty to federal charges of criminal acts, almost of all of which were in the service of Donald Trump. He has nothing to gain or lose from telling his story.
Cohen is often described as “Trump’s lawyer.” In fact, he never performed legal work for Trump. The retainer agreement he supposedly had with him was nonexistent.
But he functioned as Trump’s fixer, his enforcer, a cat’s paw in the dark world of fleecing creditors, threatening enemies and buttressing Trump’s purported reputation as a billionaire. Once Trump emerged as a candidate, Cohen found himself arranging to buy off Trump’s mistresses so as to kill their stories. Cohen once said he would take a bullet for him.
Trump’s reputation in the business world was bad going into the 2016 campaign. His Atlantic City casino ventures wound up in bankruptcy. He was noted for stiffing his creditors and betraying his wives. His word was never a commitment, only the beginning of a negotiation. For 13 years, he relied on the rogue lawyer Roy Cohn to keep his creditors at bay, threaten his detractors and advance his personal and financial interests. Then, in 1986, Cohn died shortly after he was disbarred.
Attorney General Robert H. Jackson, later a giant of a Supreme Court justice, defined reputation as “the shadow cast by one’s daily life.” Trump had a bad character and a bad reputation and it was Cohn’s job, and later Cohen’s, to bury the worst of the facts. Cohen often bragged that he had made 500 threats on behalf of Donald Trump.
Cohen, like his boss, was an inveterate liar. The Washington Post toted it up, and counted 30,573 lies that Trump told over four years in office.
Michael Cohen lied under oath. He went to jail for his lies. He lied to Congress, lied to prosecutors in the Southern District of New York, lied to the IRS and was found by a federal judge to have lied to the court trying Trump’s civil fraud case. He even lied to the Wall Street Journal. (Horrors!) He was sentenced to three years in jail in 2018, and served his time.
Juries will believe the testimony of a confessed wrongdoer if it is sufficiently corroborated. Here, prosecutors artfully set the stage for Cohen’s testimony. They presented documentary evidence, the “mute witnesses” that often prove the case beyond all doubt. The nine checks to Cohen that Trump personally signed and the related stubs and phony invoices purporting to reflect legal fees were a complete fraud. One invoice stated the payment to Cohen was pursuant to a retainer agreement. There never was such an agreement. There never were legal services.
Most conclusive in tying Trump to the Cohen payment to Stormy Daniels, and the Trump tweet where he acknowledged reimbursing Cohen for the payoff. The documents fully support Cohen’s testimony, and fairly broadcast Trump’s personal involvement in the fraud.
The key prosecution witnesses, Cohen and Stormy Daniels, were of a mind in their hatred of Trump. Cohen has said so many times. Witness hatred of the defendant affects credibility, as it provides evidence of bias and motive to lie, but juries often give little credit to witness bias if the totality of the evidence falls into place. It’s really a mosaic.
A good cross examiner has to know when to stop. Many have criticized the cross examination of Stormy Daniels by Trump attorney Susan Necheles who in attacking her elicited a number of answers unfavorable to Trump. It might have been better to ask Stormy if she knew anything about the falsified business records, get the answer “no,” and sit down.
We will know more in the coming week. Cohen will have been cross examined. Trump is unlikely to take the stand. The judge will charge the jury as to the law, and the jury will be asked to reach a verdict — and justice will hopefully be done.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.