(THREAD) Welcome to DAY 2 of the live thread of the testimony of Michael Cohen in Donald Trump’s criminal trial. I’m a NYT-bestselling Trump biographer and former criminal defense attorney. This thread covers the CROSS of Cohen live and adds essential background.
Please RETWEET.
Please RETWEET.
1/ If you missed the 400-tweet DAY 1 live thread, it is here:
https://twitter.com/SethAbramson/status/1790010249086206263
2/ The direct examination of Michael Cohen has concluded. The cross-examination of Cohen by Trump defense attorney Todd Blanche will begin soon.
3/ The direct examination of Cohen by prosecutor Susan Hoffinger lasted a day and a half and established—in painstaking detail, through text messages and ledgers and frankly every kind of evidence a juror could want—that Trump was aware of/involved in the Stormy Daniels payoff...
4/ ...as it was happening; knew Cohen had put up the money for it; and deliberately caused the creation of fraudulent business records reimbursing Cohen as part of a supposed retainer agreement, when in *fact* Trump knew he was repaying Cohen for an illegal campaign contribution.
5/ The direct further established that Donald Trump paid off Daniels not because of any concern for his family—who he quite melodramatically had no concern for whatsoever, Cohen testified—but because he believed it was necessary for the survival of his 2016 presidential campaign.
6/ Michael Cohen is—per prosecutors—their last witness.
Todd Blanche, the Trump attorney who will cross-examine Cohen, has said that the cross will last at least a day and a half. The goal of the cross-examination is simply to destroy Cohen’s credibility. Here’s what that means.
Todd Blanche, the Trump attorney who will cross-examine Cohen, has said that the cross will last at least a day and a half. The goal of the cross-examination is simply to destroy Cohen’s credibility. Here’s what that means.
7/ It means Trump and his team have no coherent theory of the case with respect to the Stormy Daniels payoff or Trump’s reimbursement of him. Trump and his team have as their goal simply to make Cohen seem like such a liar that jurors presume *somehow* his low character means...
8/ ...that jurors should conclude Trump is not guilty; but there is no *narrative reason* Team Trump can provide for that pitch to jurors, other than that Cohen (a) aided Trump over Daniels out of the goodness of his heart, and then (b) turned on Trump as part of a conspiracy...
9/ ...intended to enrich Cohen and send Trump to prison. That makes no sense for too many reasons to count, and flies in the face of Trump claims (now apparently tossed) that this is a documents case—because the documents just proved his guilty—in favor of a three-ring circus.
10/ And that is what America should understand about this cross-examination before it starts: it has *nothing to do with the facts of the case*, as Trump has already admitted to the necessary facts establishing his guilt in a prior suit involving Daniels.
This is something else.
This is something else.
11/ This is Trump getting even with a former loyalist who *he betrayed first* but who Trump has never forgiven for not taking that betrayal in stride (as who would?) This is Trump directing his lawyers to so destroy Cohen as a human being before the jury that the idea of them...
12/ ...siding with the prosecution becomes an impossibility for them *simply because Cohen was their witness*. As you all know, I used to be a criminal defense attorney and tried cases up to First-Degree Murder. What Trump’s team is about to do is the Hail Mary of all Hail Marys.
13/ Let me explain why.
14/
(a) The jury already *knows* Cohen is a man of low character. They know he has been convicted of felonies, they know he has lied in the past—he admitted to it on the stand—and they know that he has described himself as a thug. The jurors cannot be surprised by that premise.
(a) The jury already *knows* Cohen is a man of low character. They know he has been convicted of felonies, they know he has lied in the past—he admitted to it on the stand—and they know that he has described himself as a thug. The jurors cannot be surprised by that premise.
15/
(b) It’s the *defense* that has told the jury that this is a documents case—and they’ll now more or less be *dropping them claim wholesale*, because the direct examination of Cohen confirmed that the State of New York has all the documents it needed to establish 34 felonies.
(b) It’s the *defense* that has told the jury that this is a documents case—and they’ll now more or less be *dropping them claim wholesale*, because the direct examination of Cohen confirmed that the State of New York has all the documents it needed to establish 34 felonies.
16/
(c) The specific defense Trump selected for this case—do not testify; do not claim advice-of-counsel; simply claim all the state witnesses are crazy—turned this trial into a battle of credibility that allowed the State to spend a *lot* of time muddying *Trump’s* credibility.
(c) The specific defense Trump selected for this case—do not testify; do not claim advice-of-counsel; simply claim all the state witnesses are crazy—turned this trial into a battle of credibility that allowed the State to spend a *lot* of time muddying *Trump’s* credibility.
17/
(c) [cont.] For this reason, what Trump will now have his attorneys do—attack Cohen’s credibility—will be very satisfying for Trump personally, which is all he really cares about, but will be far less effective than he’d like because the jurors likely think *Trump* is a PoS.
(c) [cont.] For this reason, what Trump will now have his attorneys do—attack Cohen’s credibility—will be very satisfying for Trump personally, which is all he really cares about, but will be far less effective than he’d like because the jurors likely think *Trump* is a PoS.
18/
(d) Trump cannot get away from the fact that he chose Cohen to be his fixer, friend, attorney, and employee for years and years and years. He knew who Cohen was and he *benefitted* from who Cohen was. His claim that Cohen surprised him with his low character is preposterous.
(d) Trump cannot get away from the fact that he chose Cohen to be his fixer, friend, attorney, and employee for years and years and years. He knew who Cohen was and he *benefitted* from who Cohen was. His claim that Cohen surprised him with his low character is preposterous.
19/
(e) There’s no evidence of Cohen ever being disloyal to Trump, or failing to communicate his actions to Trump, *while* he was working for him. So Trump will have to focus on how Cohen *came* to hate him after Trump betrayed him...which *really* doesn’t fit Trump’s narrative.
(e) There’s no evidence of Cohen ever being disloyal to Trump, or failing to communicate his actions to Trump, *while* he was working for him. So Trump will have to focus on how Cohen *came* to hate him after Trump betrayed him...which *really* doesn’t fit Trump’s narrative.
20/
(f) The traits Trump wants to attack Cohen for—being greedy; being a liar; being a self-dealer; being secretive; being selfish; not taking accountability for his actions—are the *exact* list of qualities that Trump’s chosen defense allowed the State to establish about *him*.
(f) The traits Trump wants to attack Cohen for—being greedy; being a liar; being a self-dealer; being secretive; being selfish; not taking accountability for his actions—are the *exact* list of qualities that Trump’s chosen defense allowed the State to establish about *him*.
21/
(f) [cont.] So you could not possibly imagine a *worse defendant* to be trying to make major hay out of these particular character traits on Cohen’s part, especially because, on top of everything I have already noted, Cohen has *admitted* to most of these traits on direct.
(f) [cont.] So you could not possibly imagine a *worse defendant* to be trying to make major hay out of these particular character traits on Cohen’s part, especially because, on top of everything I have already noted, Cohen has *admitted* to most of these traits on direct.
22/
(g) As prosecutors have and will explain to the jury, most witnesses in criminal cases are imperfect. The fact that Cohen was punished for his offenses and agreed to work with the State gives him the opportunity for a rehabilitation narrative not available to Trump himself.
(g) As prosecutors have and will explain to the jury, most witnesses in criminal cases are imperfect. The fact that Cohen was punished for his offenses and agreed to work with the State gives him the opportunity for a rehabilitation narrative not available to Trump himself.
23/
(h) Trump’s defense attorneys are *wildly* hampered by something only other criminal defense attorneys would fully understand: a truly impossible client, one who wants them to please him *even if he doesn’t know what he’s doing and his demands will lose the case for him*.
(h) Trump’s defense attorneys are *wildly* hampered by something only other criminal defense attorneys would fully understand: a truly impossible client, one who wants them to please him *even if he doesn’t know what he’s doing and his demands will lose the case for him*.
24/
(h) [cont.] In short, these lawyers have their hands tied behind their backs because they can’t make the independent strategic decisions they’re supposed to be making under bar guidelines. They are so afraid of their client they are more focused on pleasing him than winning.
(h) [cont.] In short, these lawyers have their hands tied behind their backs because they can’t make the independent strategic decisions they’re supposed to be making under bar guidelines. They are so afraid of their client they are more focused on pleasing him than winning.
25/
(h) [cont.] And Donald Trump hates Cohen so much that he will have them attack Cohen in ways that are certain to *disgust* the jury and insult their intelligence—exactly the opposite of what you want to do when you are trying to muddy the credibility of a state witness.
(h) [cont.] And Donald Trump hates Cohen so much that he will have them attack Cohen in ways that are certain to *disgust* the jury and insult their intelligence—exactly the opposite of what you want to do when you are trying to muddy the credibility of a state witness.
26/ So I would expect this cross to be a car crash—lots of objections, Cohen likely losing his temper despite the preparation prosecutors presumably gave him, perhaps Trump even acting out slightly. I expect much of the questioning to upset rather than illuminate the jurors here.
27/ Meanwhile, what the State needs is for Cohen to stay calm no matter what’s said to or about him and no matter how much Blanche (or, silently, Trump) baits him. He must be humble, honest, and temperate—and not evade responsibility for who he is or what he has done in the past.
28/ Here we go.
29/ Proof that, well, my prediction came true with *the first question*:
30/ Keep in mind that Blanche *does* have a *lot* to discredit Cohen with, though prosecutors already went over most of it with him: his convictions; his past bad behavior; the vile things he has said about Trump and his friends and lawyers; the vile things he did for Trump...
31/ ...how much money Cohen has made from treating Trump as an enemy (going on MSNBC, writing books, having a podcast); the intemperate conduct Cohen has engaged in with respect to *this trial*; ongoing suits against Cohen that could motivate him to want to hurt Trump, and so on.
32/ The *problem*, and I’d say this is item (i) in the list I started above and ended with (h), is that everything Cohen has ever said about Trump was... well, *warranted*.
Either warranted with Trump’s conduct generally or warranted by Trump’s conduct toward Cohen specifically.
Either warranted with Trump’s conduct generally or warranted by Trump’s conduct toward Cohen specifically.
33/ On the other hand, Trump only needs one juror to insist on acquittal to get a hung jury, and it really *does* destroy a witness’s credibility when he acts one way with prosecutors—he was a total peach under direct examination—and then becomes a totally different man on cross.
34/ But so far, Cohen *is* referring to Attorney Blanche as “sir” and has not yet totally lost his temper. And again, problem (j) that Trump has here is that *yes*, the jury will believe Cohen hates Trump, but it is not clear that they will deem that hatred unwarranted *or*...
35/ ...that they’ll presume that hatred is prompting him to commit Perjury. Remember, everything Cohen testified to was corroborated *before he came on the stand* and corroborated *during* his direct via *documentary evidence*.
In that context, does his anti-Trump animus matter?
In that context, does his anti-Trump animus matter?
36/ A lot of the questions so far are just Attorney Blanche challenging Cohen with intemperate statements he previously made or broken promises he made to prosecutors and asking, Did you say this? That is really easy for Cohen; he just has to say Yes. And that is what he’s doing.
37/ The key here is that Cohen needs to keep his cool. There is no point in him denying he did what he did or said what he said—and as an ex-defense attorney I can tell you all that a witness simply *calmly admitting to bad conduct* goes a long way toward maintaining credibility.
38/ I assume you can all see how questions like the one below do not actually make *either* Cohen *or* Trump look good? Jurors will be thinking, JFC, if a guy who knows Trump better than anyone on Earth thinks *this* of him... maybe the defendant really *is* a monster in private?
39/ And Blanche has, as I expected, now made some real errors that almost certainly Trump pushed him into. Blanche is asking questions about privileged communications between Cohen and his lawyer and these questions are being objected to and those objections are being sustained.
40/ Yes, sometimes defense attorneys ask a question knowing it will be objected to just to get certain facts before the jury *unofficially*—though that is really not very ethical conduct—but doing that too much, which Blanche has done, can undermine the *attorney’s* credibility.
41/ But the defense is winning in one way: as I said yesterday, Cohen needs to not hedge in his answers just because he wants to be combative. Yesterday I said that—based on what I know about Cohen—he will do some of that useless, combative hedging. And he has, several times now.
42/ I do think Cohen will quickly see how fruitless it is to say Probably, Yes when the answer is simply Yes. He does no favors for himself by in any way hiding from his own financial interest in this case, his desire for Trump to be imprisoned, and animus toward Trump and so on.
43/ At this point the cross is simply Mr. Blanche, over and over and over, pointing at Cohen merch and Cohen tee shirts and Cohen statements underscoring how much he hates Trump and wants him convicted. I *do* think this would be effective for any MAGA on the jury who is angry...
44/ ...at what they perceive to be a political prosecution, but the point of pre-trial voir dire was to ensure that there would be no one on the jury who thinks that way; all the jurors should be going into this case focused only on the case evidence, not any *political* context.
45/ Blanche is starting with all this extraneous stuff so that—he hopes—Cohen has no credibility left by the time Blanche starts questioning him about events that are actually relevant to the 34 state felony charges Donald Trump is facing. It is a reasonable (common) strategy.
46/ Some of these questions will surely land with the jury, some not. Like Blanche trying to get Cohen on the fact that Cohen still lives in a Trump property is...well, not likely to move the needle for any juror. Who cares? But again, this is a throw-spaghetti-at-the-wall cross.
47/ Behind all this invisibly sits what jurors learned at the *end* of Cohen’s direct—about Trump’s seedy efforts to make false promises to Cohen in 2018 to keep him quiet, attempts to use men like Sean Hannity to control him...all things that could *justify* Cohen hating Trump.
48/ Now Attorney Blanche is moving to a new argument: that Michael Cohen did some legal work for Trump family members other than Trump himself—so the supposed retainer fee Trump paid Cohen *could* have been Trump paying for legal work for family members. That’ll likely not work.
49/ Why? Because Cohen did *very* little such work and *did* have a practice of not billing Trump for minor work because he knew it would make him angry and he wouldn’t ultimately get paid anyway. So Cohen surely *didn’t* do $420000 of legal work for Trumps in 2017 and afterward.
50/ Those in the courtroom say Trump is at least *seeming* detached from the testimony, closing his eyes and not leaning forward toward either Cohen or a monitor showing Cohen.
This could be real or an act; surely, Trump knows that Cohen is one of the two “star” witnesses, here.
This could be real or an act; surely, Trump knows that Cohen is one of the two “star” witnesses, here.
51/ Some of the questions will surely fall flat. For instance, Blanche is running through the *nice* things Cohen said about Trump—but such gotchas are simply *too* easy for Cohen to respond to: in some cases he can repeat that he was lying, in others that he was in Trump’s cult.
52/ Both those answers are bad for Trump: either Cohen said nice things about Donald Trump only because Trump was paying him to lie for him *or* Cohen is getting a chance to note he was in thrall to Trump—implicitly underscoring to jurors that they *must not fall into that trap*.
53/ Other Blanche arguments are, like these, clearly intended to please Trump rather than convince the jury. Just as Trump wants Cohen confronted with all the nice things he said about Trump, Trump is having Blanche imply that $420,000 wasn’t a lot of money to Trump, so he...
54/ ...easily could’ve signed a check in that amount without noticing it. But this only gives Cohen (or Hoffinger on redirect) a chance to *reestablish* how cheap Trump is, what a micromanager, how little he likes paying people for services they render... all bad facts for Trump.
55/ By the same token, Blanche hitting Cohen over and over on how much he used to love Trump and his family—how proud he was to be loyal to them—really does nothing but *please Trump* as he sits there. As to the jury, it only underscores how sad it was that Trump betrayed Cohen.
56/ In other words, Trump may have his eyes closed for most of this, but that is a front—his ears are wide open and he is almost certainly expecting to hear certain attacks coming from Blanche’s mouth whether they are strategically shrewd or not.
Trump *is* sinking his own case.
Trump *is* sinking his own case.
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58/ So much of this cross is about Cohen hating Trump, when jurors likely know the feeling is mutual—so kind of a wash? Much of this is about Cohen making money off drama—which even non-politicos know Trump is infamous for. That too seems a wash? How much of *all* this is a wash?
59/ Blanche is now moving to Cohen’s cooperation with law enforcement—well, after first lying to them to protect Trump—and Trump *does* seem interested in this (for reasons we can imagine). But ultimately Cohen *cooperating with law enforcement* will not *damage* his credibility.
60/ Even Cohen *lying* to law enforcement at first... that underscores how *loyal* he was to Trump? How unlikely he would engage in a payoff scheme with Daniels without telling Trump?
As I mentioned before, none of this really *narratively* makes any sense. But it muddies Cohen.
As I mentioned before, none of this really *narratively* makes any sense. But it muddies Cohen.
61/ So surreal that Blanche is now *willingly* talking about Trump-Russia. It is surreal for so many reasons.
62/ *Trump* would want this raised because he thinks (or says) the Trump-Russia scandal was a hoax. But *much* of what Cohen was up to in 2015 and 2016 was *colluding with Russia over a real estate deal with the Kremlin and Kremlin agents Trump desperately wanted*, so...?
63/ What Donald Trump *does* know, however, is that *Cohen* was angry about the things the Steele dossier got wrong about *him*—and it did get some things wrong—so oddly, raising Trump-Russia aids Trump in getting Cohen’s hackles up and causing him to be a less temperate witness.
64/ But broadly speaking, what Cohen did with respect to Russia makes *Trump* look like an unpatriotic scumbag, and the State *does* get to do a re-direct, so how much does Trump really want Blanche to walk blithely across that particular minefield?
This is dangerous territory.
This is dangerous territory.
65/ So far the general-sense impression of those in the room, across multiple media organizations, is that Michael Cohen is generally keeping his cool despite a few coy answers.
66/ Keep in mind that witnesses—*all* witnesses who are appearing in any way voluntarily—can expect to be prepped by the party calling them in *some* way, so Cohen would understand (from his counsel *and* prosecutors) exactly what Blanche is trying to do to/with him: get him mad.
67/ A key metric for who’s winning this tilt—Cohen or Blanche—is that there’ve been few objections so far. If the testimony were getting wild and woolly in a way that created chaos and a circus-like atmosphere (good for Trump because he’s got nothing else), there’d be objections.
68/ Indeed, the Washington Post is noting that *Blanche* has so far been more confrontational than Cohen. That is amazingly good news for the State.
69/ I also think, candidly, it is a good sign for the State that CNN keeps going to commercial because there are too few fireworks for them to talk about. Elie Honig is pointing out that the cross of Cohen is more *confusing* for the jury than coherent, because of theme-jumping.
70/ I agree 100%. I am amazed at how much Blanche is jumping around and how he never seems to *land* any of his points. He has already said this examination will go on for 1.5 days, so why rush through his chapters? (Many attorneys divide their cross-examinations into chapters.)
71/ Blanche has two goals here: get Cohen angry as hell, which he has failed to do, and clearly establish a set list of Cohen character traits that can be *tied* to whether the State has proven its case (which Blanche appears to have failed to do, in part due to disorganization).
72/ Do I think Cohen is doing as well as he should? No. As CNN points out, Cohen has an *easier* job than he seems to think. He can say that his past lies and misconduct were done to serve Trump—an answer that hurts Trump—and *admit* to conduct he *knows* is already established.
73/ Instead, Cohen at times is coy or hedges or is vague or will not take full accountability for his actions, and that is simply needless. He does not need to do that—at all—in these circumstances. But there *is* one way in which I think Blanche has been very effective so far.
74/ Blanche has established—and Cohen is sometimes unwittingly helping this with his slightly evasive answers—that his memory is fuzzy on facts that could be helpful to Trump, and *clear* on inculpatory facts. Coupled with his demonstrated hatred of Trump, that creates a sense...
75/ ...that maybe some of what Cohen said about his conversations with Trump was untrue (even if it richly matches Trump’s character, is wholly internally consistent with the known facts, and Trump is going to *decline* to get on the stand to contradict his testimony in any way).
76/ But it does make for good fodder for Team Trump’s closing argument.
Again, however, this is mainly a documents case, not a case about conversations. Team Trump has insisted on that... and so will prosecutors, by the end. Quite a lot of the rest of this is just noise, really.
Again, however, this is mainly a documents case, not a case about conversations. Team Trump has insisted on that... and so will prosecutors, by the end. Quite a lot of the rest of this is just noise, really.
77/ Another *good* Blanche question was about when Cohen changed his views on Trump; Cohen more or less said it was when he pleaded guilty to felonies involving Trump in ’18—as if to say, I wanted him to save me and he didn’t. That is a great fact for Trump as to Cohen’s motives.
78/ The court is in a brief recess.
79/ FWIW, this recess is a great time to go to the second tweet in this thread and read through the live thread here from *yesterday* (regarding the direct examination of Michael Cohen). That laid the groundwork for some of what we are now seeing in the courtroom today.
80/ Questioning is about to resume.
Two quick points on the pre-break questioning: a debate between Cohen and Blanche on what a lie is was not great for Cohen/the State; Cohen admitted that post-incarceration he gave inculpatory evidence on Trump to prosecutors to help himself.
Two quick points on the pre-break questioning: a debate between Cohen and Blanche on what a lie is was not great for Cohen/the State; Cohen admitted that post-incarceration he gave inculpatory evidence on Trump to prosecutors to help himself.
81/ I *often* strongly disagree with Haberman, but she seems to have this much right:
82/ The phrase "Cheeto-dusted cartoon villain" has just come into the first trial of a former POTUS.
83/ Cohen more or less confirms he said that about Trump.
84/ The attorneys are now in a sidebar at the bench.
85/ Those in the room confirm that Michael Cohen’s tone is still calm and even—great for the State.
86/ At this point the only chance legal analysts seem to think Trump has is to argue that the State has not proven that Trump was motivated, in paying off Stormy Daniels, by a desire to defraud voters of information they were entitled to.
I disagree with that analysis—strongly.
I disagree with that analysis—strongly.
87/ Keep in mind that there are *many* different kinds of evidence. There is direct evidence and there is circumstantial evidence; there is testimonial evidence and there is documentary evidence. (Just by way of example.) Every type of evidence known to courts establishes that...
88/ ...Trump did not care about the effect of his infidelities on his family (testimonial evidence, both things Trump said and things he never said). Everything establishes that Trump wanted to push the deal until after the election, because that was all he cared about (again...
89/ ...we get this from testimonial evidence). Trump telling Cohen to pay in cash, which would hide the paper trail because Trump knew he was dealing with campaign finance violations. Pecker—who Trump was working closely with—saying he had *no doubt* they were engaged in crimes.
90/ Specifically, campaign finances crimes.
91/ The fact that Trump talked about the election—in the context of the Daniels payoff—with Hope Hicks, and again with Michael Cohen. The fact that there is *zero* evidence of any other motive *or* potential motive than to defraud voters in 2016. The fact that all this came...
92/ ...on the heels of the Access Hollywood tape crisis inside the campaign, where the *entire campaign* was *specifically focused* on no more stories about Trump mistresses coming out. The fact that *Daniels made clear in the negotiation* that this had to be done pre-election.
93/ Jurors are allowed to work from evidence *and* common sense. I don’t think *any* juror doubts that Trump paid off Daniels to hide information from voters that he *knew from the Access Hollywood tape* was *specifically* the sort of information they wanted and felt entitled to.
94/ And all this is the tip of the iceberg. The fact that Trump launched the catch-and-kill operation right after he launched his campaign, and that he had a *clear* meeting of the minds with Pecker and Cohen and Hicks (and Kasowitz and others) that his adulteries could sink him.
95/ Honestly I’ve no idea what any legal analyst is talking about who doesn’t think the jury sees an election-related conspiracy here. The *better* question is a technical legal one about the specific federal election-related conspiracy that is in play as the theory of the case.
96/ But that is an issue for Judge Merchan in a Motion to Dismiss at the end of the State’s case; if the case *gets to the jury*, that means that argument is over and now it is a question of the facts of the case, not the sufficiency of the indictment as a technical legal matter.
97/ Trump has *certainly* not established a wild Cohen-Daniels conspiracy to blackmail and/or extort him over things he never did. Daniels was completely credible as to what happened—and I think the sting was taken out of Cohen’s low character over 1.5 days of direct examination.
98/ There’s no fuzz on who Cohen is or why he did what he did. He had tons of dirt on Trump and offered it to the FBI after he was arrested. So? Many people would do that, and does it make Trump look *good* that Cohen had tons of dirt on all the crimes his boss committed? Really?
99/ CNN in particular is bringing on a *lot* of Trumpers to repeat lines about Cohen and this trial that were literally devised weeks ago and have nothing at all to do with what is happening in court this week. These are folks who think Cohen making money from his celebrity...
100/ ...is somehow discrediting when the defendant *is Donald Trump*. But Trump hired Cohen *because* of who he was: *because* he was greedy, *because* he was unscrupulous. And now Trump has the moral high ground? Cohen is a louse but the documents support *all* of his testimony.
101/ And not just the documents. *Every* state witness—besides those only present to authenticate documents—had the exact same experience of the catch-and-kill election conspiracy as Michael Cohen. Consider Donald Trump friend(ish) David Pecker, who said *exactly* what Cohen did.
102/ Or consider Hope Hicks, who the defense treated like she was an angel (which they didn’t do—nor should they have done—with Daniels, Pecker, or Cohen). Hicks is of course *not* an angel, but she sure did tell the same story as Daniels, Pecker, and Cohen. What to do with that?
103/ I think some analysts are confusing the fact that this case would be easier to prove as 34 misdemeanors with the fact that it is provable—and *has been proven*—as 34 felonies.
And (side note) it is felonies rather than misdemeanors because of *Trump’s* meddling DOJ and FBI.
And (side note) it is felonies rather than misdemeanors because of *Trump’s* meddling DOJ and FBI.
104/ This thread is a continuing one, so this is just a brief mid-thread break to note that while of course this thread and its expertise are free, if you’d like to tip the author for his work, you can do so in seconds, in any amount, at the link below: sethabramson.net/pp
105/ Michael Cohen testified that he made $3.4 million for his two books, so I suppose that gives you a sense of what I knew I was turning down when I did *not* pursue Cohen’s idea of me ghostwriting/cowriting his second book after his number-one NYT bestseller DISLOYAL.
106/ I feel a bit like Galadriel after her moment of temptation with The One Ring, except honestly I was never tempted to work with Michael Cohen in the way Donald Trump—a monster—was only too happy to and for years:
“I will diminish…and go into the West…and remain Galadriel.”
“I will diminish…and go into the West…and remain Galadriel.”
107/ Court has now recessed for the day and Trump is giving another crazy rant in from of the cameras, talking about the polls from *inside the courthouse where he’s on trial for 34 felonies*; reading from news reports he surely is editing for content; quoting his own pollster...
108/ ...for the truth of his political situation; calling anyone who opposes him a fascist; falsely saying (yet again, though he’s been admonished by the court over this) that his gag order prevents him from speaking at all about his case; in general giving a political speech...
109/ ...that media absolutely should not cover but is covering in full though it *knows* Trump will not make news but just repeat his lies; Trump falsely claiming that if he were not in court he would be campaigning, when in fact he has most of his days free and still golfs...
110/ ...instead of holding rallies; saying that any Jew who does not support him is a crazy person; attacking New York state and New York City in vicious dishonest terms; using the term election interference over and over because he knows that the media has thus far done him...
111/ ...a huge solid by calling this a hush-money case when it is *in fact* an election interference case (meaning that the only time Americans are hearing that phrase is when Trump falsely says Biden is controlling his prosecution, rather than as to the charges against Trump).
112/ This is a truly insane rant. He’s just quoting radical conservative after radical conservative—reading from papers before him except in the moments he’s about to violate his gag order if he continues reading from what he has before him. None of this should be on television.
113/ Donald Trump says *his* criminal trial—and only his—should be decided by polling, claiming that the American people have already acquitted him in the court of public opinion (absolutely no poll suggests anything like this whatsoever).
114/ Trump pulled back from attacking Judge Merchan, probably because he knows he’s getting close to his Motion to Dismiss—at the close of a State’s case, this is what always happens—and he doesn’t want to upset or anger or cross Merchan (he still doesn’t understand rule of law).
115/ He’s ranting about so-called migrant crime, showing a photo of a murder victim, giving his stump speech in the courthouse where he is on trial for 34 felonies and getting major media to cover it in full.
Did he take questions? No—that’s why he lied about his gag order.
Did he take questions? No—that’s why he lied about his gag order.
116/ There’s nothing preventing Donald Trump from taking questions in the courthouse. The gag order affects almost *none* of what he wants to or can say about the case. But he knows that anything he would say would be a *lie* that prosecutors could then use against him.
117/ By my estimation during a live hearing of the Trump rant, he didn’t utter a *single* accurate statement for the *entirety* of his rant about *any* subject. Not his case, not inflation, not immigration, not the polls, not US political history, not gag orders, not *anything*.
118/ Why does all this matter? Actually, it matters a lot for what is going to happen at this trial next.
119/ Michael Cohen is the last State witness. Yes, there will be re-direct and re-cross next week, but then the defense will move to dismiss the case (again, as it common practice in criminal cases at the end of the State case).
120/ In its motion to dismiss, the defense will argue that even if the jury were to take everything presented by the State as correct, no reasonable juror could conclude that the case has been proven beyond a reasonable doubt.
I believe that Trump will have his motion denied.
I believe that Trump will have his motion denied.
121/ At that point, Trump has to decide whether to put on a defense at all.
122/ Because the burden of proof in a criminal case is 100% on the State, the defendant technically doesn’t have to do anything at trial (he can even decline to question any witnesses or utter a single word beside answering basic queries from the judge, via counsel, on process).
123/ That Donald Trump not only can’t stop himself from lying in a post-court rant, but *literally is incapable of telling the truth even a single time when he knows all eyes are on him and he is in the courthouse for his trial*, only *underscores* why he cannot take the stand.
124/ Donald Trump is a pathological liar. Not a liar—a *pathological* liar.
And a sociopath.
He cannot take the stand because he would *immediately* perjure himself. Yes—commit a new felony offense.
Indeed, look at the last time he testified in a case of his (a civil case).
And a sociopath.
He cannot take the stand because he would *immediately* perjure himself. Yes—commit a new felony offense.
Indeed, look at the last time he testified in a case of his (a civil case).
125/ The last time he testified he was on the stand for 3 minutes and read from a script.
The judge let him do it because it was *so obvious to everyone in the courtroom that there’s something wrong with Donald Trump that prevents him from testifying like a normal human male*...
The judge let him do it because it was *so obvious to everyone in the courtroom that there’s something wrong with Donald Trump that prevents him from testifying like a normal human male*...
126/ ...that the judge (Judge Engoron) just threw up his hands and let Trump perform his little second-grade one-act play instead. Trump is that pathetic—and deranged—and incapable of acting appropriately when the rules are being set by someone else and he can be talked back to.
127/ Now, to be clear, this *same fact* tells me as a working journalist and a former journalism professor that under no circumstances should *any* media outlet have run the Trump press conference live. A man who cannot testify due to mental incompetence does not get a presser.
128/ To be clear, I do not mean that the mentally incompetent should be denied pressers as a *punishment*. Not at all! What I mean is that, as a matter of *journalism*, if you know that someone is *literally* unable to act as a witness in their own defense due to pathologies...
129/ ...they remain untreated for and will always be untreated for, and the specific pathology is (a) pathological deceit and (b) sociopathy (thus, no guilt over one’s own pathological deceit), you cannot represent to news consumers that you are giving them accurate information.
130/ The claim CNN and others make is, sure, it is 100% dangerous lies he knows are lies and we know are lies, but the fact that he is lying is news in itself! And we can correct his statements afterward!
That in itself is a lie.
By now, Trump lying is not news. And moreover...
That in itself is a lie.
By now, Trump lying is not news. And moreover...
131/ ...by now media outlets know that Trump lies with such fluidity and at such volume that *no amount of fact-checking is sufficient to undo the harm taking his statements live causes*. All a responsible journalist can do is report the lies *as lies* afterward. As in, not live.
132/ But CNN did worse today. It brought on Trump sycophants who it knew would lie to its viewers and say that Trump *wants* to testify, was *made* to testify, and only will *not* testify because the State failed to meet its burden. They will say that’s the guiding fact here.
133/ No—the guiding fact is that Trump is strategically *and* psychologically incompetent to testify and *cannot* testify in a way that would not lead to Direct Contempt charges and new Perjury charges. And another guiding fact is that he needs this case to go on for a long time.
134/ Trump does appear to believe this case helps him politically, though that’s true—if true—because major media uses the trial as an excuse to irresponsibly cover his lies live; uses the trial as an excuse to irresponsibly bring Trumpists it knows will lie to viewers on-air...
135/ ...uses the trial to vindicate itself as even-handed by being far harder on the State than it is on Trump (witness the cringeworthy misogyny of almost every word Jake Tapper said on-air about former adult-film actress Stormy Daniels); and because major media has allowed...
136/ ...its coverage of the 2024 election to dovetail perfectly, at every point, with whatever Trump wants to talk about and focus on—making the trial a timely horse-race melodrama focusing us all on the supposedly pressing issue of political prosecutions in America in the 2020s.
137/ Does major media know what Trump would do in Israel? Nope. Has it found out? Nope. Does it know why Trump didn’t fix the border, if it was so easily fixable and if—as is the case!—apprehensions began skyrocketing in mid-2020, when Trump was president? Nope. Nor will it ask.
138/ But this *trial* is a goldmine for all cable news, which is why it is so smart for Trump to bring his flunkies (Vivek, Tuberville, Vance, Mike Johnson) to the courthouse to say things he cannot. Trump knows that cable will gobble up whatever lies these proxies will offer up.
139/ Literally—live on CNN now!—Jake Tapper is introducing comments attacking Cohen by Mike Johnson (from the courthouse!) by acknowledging that Team Trump is using proxies like Johnson to get around the entirely legal and correct and appropriate gag order. Then he runs the tape!
140/ So Trump thinks delaying this trial is good for him poll-wise, media-wise, and in terms of further messing up the schedule for his remaining criminal cases, none of which (almost surely) will be heard pre-election.
(So this is cable news’ one lucrative pre-election trial!).
(So this is cable news’ one lucrative pre-election trial!).
141/ He’s also using his trial as a loyalty test for all MAGA leaders, all GOP leaders, and all VP candidates. How convenient! He gets to hear how far they will go to defend him—including how far they will go *literally*, as attending his trial is now mandatory for VP candidates.
142/ And because prosecutors do not give mid-trial pressers generally speaking—and certainly not in a case like this one—Donald Trump and his proxies get wall-to-wall positive coverage on cable news each and every day he is in court. Pre-court, mid-court, and after court is over.
143/ So all this is a catch-22 for Trump.
144/ Next week, his defense team will move to dismiss the case against him. And he’ll lose.
And he’ll have to decide whether to testify. And he can’t.
And he’ll want the trial to continue anyway. So he and his legal team will have to figure out how to make that happen.
And he’ll have to decide whether to testify. And he can’t.
And he’ll want the trial to continue anyway. So he and his legal team will have to figure out how to make that happen.
145/ This is likely why some analysts say Trump should refuse to put on a defense—because really, what defense could he put on, if he’s not going to testify? Refusing to put on a defense is an attempt to con the jury into thinking there was no viable case-in-chief from the State.
146/ But as I’ve discussed in this thread and in the prior threads I’ve done here on this case, the State *does* have a viable case—no matter how much empty political rhetoric or problematically motivated pundits might say otherwise.
This is an *unusual* case, yes. But winnable.
This is an *unusual* case, yes. But winnable.
147/ As a Trump biographer, I also know that Trump cannot bear the idea of the State having the last word or the possibility him not putting on a defense would be seen by the public as a sign of weakness or—worse—an admission of guilt.
148/ Were I his lawyer and felt there was no defense to put on that wouldn’t make matters worse, of course I would urge him to rest immediately and go right to closing arguments after the State had rested. And I would convince him by playing to his ego and his silliest fantasies.
149/ Trump wants to believe—though somewhere inside his addled soul he knows it to be untrue—that anyone who opposes him is in the wrong and he’s an innocent victim. He wants to believe that anyone who dislikes him or treats him ill is ugly, unpopular, and profoundly incompetent.
150/ So his attorneys *may* try to convince him the State’s case was so weak, nonsensical and incompetent that he doesn’t even have to put on evidence to rebut it. And of *course* they’d spin that as a sign of strength rather than an acknowledgment there’s no defense to put on.
151/ Mind you, Trump *can* find people to lie for him under oath.
But they would be decimated on cross, and his lawyers know that.
But they would be decimated on cross, and his lawyers know that.
152/ So even as an experienced criminal defense attorney, I can’t illuminate for you the best way forward for Trump. Of *course* he can’t testify. Of *course* no witness could aid him without lying, as all the *facts* are inculpatory. And a lying witness would be killed on cross.
153/ I might disagree with Trump that prolonging the trial is worth his time, as a) if the prolonging is artificial the jury will see it and blame him; b) he’s already escaped preelection trial on his other cases—most likely—no matter what; c) rallies are better than court rants.
154/ One could even argue—though it is wildly premature to even go to (t)here, now—that if convicted he likely would not get prison, and would have *months* to do any rehabilitation he needs to do. And if he got a brief, several-month sentence he could be out by Inauguration Day.
155/ On the other hand, that is not how Trump thinks.
156/ Trump, in a desperate attempt to deem himself normal and claw down everyone to his level, thinks that his enemies think just like he does—and sees anyone who does not aid him as an enemy. So he *presumes* that if found guilty, he’ll get *years* in prison from Judge Merchan.
157/ By the same token, Trump believes SCOTUS is just as corrupt as he is—and admittedly, a few of the justices are—so he believes that if he can prolong this trial and then launch a months-long appeal where he is out on bail in the meantime, he’ll never see the inside of a cell.
158/ In that fevered thinking, Trump wants this case to run as long as possible, so his appeal can start as late as possible, so it’s impossible for his appeal to finish before Inauguration Day, so if somehow SCOTUS betrays him—as he would see it—it will be too late to jail him.
159/ When you combine this with the fact that Trump—who has no understanding of math, data, polls, or even (really) the American electorate writ large—believes this case is what’s helping him in his campaign, and therefore maybe helping him toward the safety of the presidency...
160/ ...and you could see how he would be tempted to drag this out. I just cannot see how he does that in a way that doesn’t hurt his chances of acquittal. And I imagine at least one of his lawyers has the courage to tell him so, but he will order them about regardless.
161/ What most Americans do not know is that under my profession’s Rules of Professional Conduct, almost *all* decisions at trial are for the *attorneys* to make, not the defendant. The exceptions are very few, with the most notable one being whether the defendant will testify.
162/ Arguably, the decision on whether to put forward a defense at *all* is included in this (as putting on a defense is, in a manner of speaking, the defendant making a presentation to the jury, and the law envisions this as being a decision the defendant has the right to make).
163/ But none of that applies here.
These attorneys were ethically compromised the moment they took this case, for reasons that are too complicated to get into (it is not about Trump being evil, but being a client who *cannot* be worked with ethically, under the existing Rules).
These attorneys were ethically compromised the moment they took this case, for reasons that are too complicated to get into (it is not about Trump being evil, but being a client who *cannot* be worked with ethically, under the existing Rules).
164/ So Trump’s lawyers have already decided to do whatever he orders them to do on *any* subject, not just the ones he’s entitled to have dominion over under the Rules of Professional Conduct.
And he would have to be *very* scared to listen to his attorneys rather than himself.
And he would have to be *very* scared to listen to his attorneys rather than himself.
165/ All of which adds up to Trump having to make an almost *unbelievably* important decision next week.
166/ This thread is a continuing one, so this is just a brief mid-thread break to note that while of course this thread and its expertise are free, if you’d like to tip the author for his work, you can do so in seconds, in any amount, at the link below: sethabramson.net/pp
167/ What I’d say from my near-decade as a Trump biographer and presidential historian is that Trump will make his decision based on either emotion or, *if* there is a consensus among his *closest* advisers—Ivanka (though not so much anymore) and Stone for example—on that advice.
168/ But even in saying this, we all see the problem: Trump can’t take advice that doesn’t comport with his thinking, and he no longer has many close advisers as he did in 2016 (as many of his friends and advisers were indicted or investigated, making them toxic and suspect).
169/ So it really does seem like emotion will rule the day, and that emotion will be whatever emotion is freshest in Trump’s mind *at the conclusion of Michael Cohen’s testimony*. Which admittedly makes trying to read his mid-testimony body language feel like an urgent task, now.
170/ Observers said that Trump *closed his eyes* whenever testimony really hurtful to him came up last week and this week, suggesting—these observers felt—that he was trying to regulate his own mood after getting admonished by Judge Merchan for cursing audibly in court last week.
171/ Observers also said that Mr. Trump wouldn’t look in the eye any witness he really believed could or would hurt him—again perhaps to regulate his mood (though this just as easily could’ve been a sign of weakness, and his consciousness of guilt in the face of honest accusers).
172/ This said, I don’t even play a body-language expert on TV, so I’m not going to pretend to be one here. But I do think we can at least discuss visual and verbal cues that our collective common sense and (I suppose) my own many courtroom experiences tell me are meaningful.
173/ Trump *did* noticeably pull up short today when he was about to attack Judge Merchan, in a way that was unlike him and—I think—telling. It suggests either Trump thinks he’s winning and is in a good mood; is focused on the Motion to Dismiss (which Merchan decides); thinks...
174/ ...the trial is close to over (suggesting he may not put on a defense) and is more aware this week than last that Merchan decides on his sentence *if* he’s found Not Guilty by the jury; or really believes Merchan will jail him for the next gag order violation (least likely).
175/ My read is that Trump thinks he is winning.
176/ On some level that’s an easy thing to say because in his deluded consciousness Trump on some level *always* thinks he’s winning.
But more specifically, here he believes this case is about what *he* sees it as being about: bad, deranged people out to get him. Cohen. Daniels.
But more specifically, here he believes this case is about what *he* sees it as being about: bad, deranged people out to get him. Cohen. Daniels.
177/ And of course Bragg and Biden and Merchan and the Dems. In Trump’s view, this is merely a character test for Cohen and Daniels—*not him*—and as he has already found their character wanting, he assumes that not only will the jury do the same but will acquit him because of it.
178/ For all that his attorneys insist on it, Trump does *not* think of this as a documents case, I don’t believe. First, because he can’t—the documents are damning, so to focus on them (instead of his hated adversaries, Cohen and Daniels) is to focus on his own guilt.
Second...
Second...
179/ ...Trump really doesn’t understand the documents aspect of the case well—remember that he’s a terrible, negligent businessman while also (impossibly!) a *micromanager*—and he doesn’t like to admit as important or interesting or useful or probative *anything* he doesn’t grok.
180/ I think if Cohen has a meltdown on the stand, Trump is likely to feel vindicated in his highly emotional, cowardly, personality-driven understanding of his case—deliberately self-blinkered as it is—and seriously consider resting post-Motion to Dismiss. But Cohen has shown...
181/ ...that he’s likely to *bend* based on his character flaws—competitiveness, self-consciousness, dishonesty, anxiety, vengefulness, churlishness, evasiveness, intermittent over-self-assurance—but *not* break. That makes it *so* much harder for Trump to decide what to do next.
182/ Will the news that his longtime adviser and ally Steve Bannon is almost certain to go to prison shortly—for four months—now that he has lost his first appellate decision affect Trump’s thinking at all?
Uh, no.
Prison is not really a reality for Trump. Nor are other people.
Uh, no.
Prison is not really a reality for Trump. Nor are other people.
183/ I continue to believe that if Trump actually thought he was about to be sentenced to a term of years in prison (and a *state* prison, at that!) he would be gone. As in, no longer in the country. He would try to get the Saudis or the Emiratis or the Egyptians to take him in.
184/ Obviously he’d prefer the Russians, Hungarians, Turks or Israelis—the Qataris at the outside—but none of those would be easy options based on extradition, optics, and even more esoteric considerations.
But no: you should not assume Trump will allow himself to be imprisoned.
But no: you should not assume Trump will allow himself to be imprisoned.
185/ (Funny but true: in a certain sense his best option would be North Korea, where he’d live as a pampered king until his natural death in the greatest PR coup in the history of the Hermit Kingdom—which can help a man like Trump live in a Heaven of his own devising for years.)
186/ But consider that, for all that I’m being fanciful here, *if* Trump’s decided to rest next week—after a failed Motion to Dismiss—his case could go to the jury late next week or early/mid-the week after, which means he could be closer to being remanded into custody than ever.
187/ Now, let’s be serious.
I do not think Judge Merchan would sentence Trump to jail.
I do not think Trump would be remanded to state custody during the pendency of his appeal.
I think jury deliberations will likely last into June.
I do not think Judge Merchan would sentence Trump to jail.
I do not think Trump would be remanded to state custody during the pendency of his appeal.
I think jury deliberations will likely last into June.
188/ And I acknowledge the possibility of an acquittal here, not because Donald Trump isn’t a criminal; not because he didn’t do *exactly* what he’s accused of doing in *exactly* the way he’s accused of doing it (and for *exactly* the *reasons* he’s accused of doing it), but...
189/ ...because the State’s fear of unfolding to the jury the election conspiracy this catch-and-kill op was part of—for instance the involvement of Saudi money, the dovetailing of Cohen’s work with his clandestine contact with the Kremlin (including over a compromising tape)—...
190/ ...could lead to just enough confusion on the nature of that conspiracy that the jury decides it doesn’t *know*, beyond a reasonable doubt, *why* Trump paid off McDougal and Daniels during the time-period and in the manner he did. Would that be ridiculous? Yes. But possible.
191/ So with all the foregoing in view, I *don’t* think we can conclude that Donald Trump believes he’s mere days away from being remanded into longterm custody, and so needs to start making plans for an escape to Riyadh, Dubai or Abu Dhabi. We can only say he *could* think that.
192/ All of which has to at least be in the *mix* when we ask these questions:
(a) Is Trump listening to legal counsel *at all*?
(b) Does he want this case to end sooner—or later?
(c) Is he desperately arranging, behind the scenes, to introduce testimony he knows is perjurious?
(a) Is Trump listening to legal counsel *at all*?
(b) Does he want this case to end sooner—or later?
(c) Is he desperately arranging, behind the scenes, to introduce testimony he knows is perjurious?
193/
(d) Is he reaching out to friends, family, or advisers he hasn’t been much in contact with for a while?
(e) Will he put on any defense?
(f) Will he continue attacking Judge Merchan publicly?
(g) Will he attempt to threaten the jury?
(h) Will he incite violence if convicted?
(d) Is he reaching out to friends, family, or advisers he hasn’t been much in contact with for a while?
(e) Will he put on any defense?
(f) Will he continue attacking Judge Merchan publicly?
(g) Will he attempt to threaten the jury?
(h) Will he incite violence if convicted?
194/
(i) Is he currently in touch with foreign allies about his case?
(j) Is he going to demand that one of his attorneys stage an “inadvertent” mistrial-inducing event?
(k) Will he totally lose his mind (spoiler: he won’t) and insist on testifying in his own defense next week?
(i) Is he currently in touch with foreign allies about his case?
(j) Is he going to demand that one of his attorneys stage an “inadvertent” mistrial-inducing event?
(k) Will he totally lose his mind (spoiler: he won’t) and insist on testifying in his own defense next week?
195/
(l) Will Trump pursue some desperate, mid-trial interlocutory appeal as a delaying tactic?
(m) Will he orchestrate some artificial delay or interruption in his case?
(n) Will he exhort VP candidates to make public statements more vile and inciting than they already have?
(l) Will Trump pursue some desperate, mid-trial interlocutory appeal as a delaying tactic?
(m) Will he orchestrate some artificial delay or interruption in his case?
(n) Will he exhort VP candidates to make public statements more vile and inciting than they already have?
196/ So we can at least assess what considerations are on the table as Trump comes to conclusions about these questions.
And we can also assess how the decisions major media is making about how to cover this case could inflect his thinking in one way or another on these matters.
And we can also assess how the decisions major media is making about how to cover this case could inflect his thinking in one way or another on these matters.
197/ What I would day is highly unlikely is that the Cohen cross tomorrow will be much different than today. Yes, Todd Blanche threw out the cross-examination rulebook today and jumped quickly from topic to topic and back again to try to confuse Cohen, but it didn’t really work.
198/ Cohen knows what he’s there to do, and why, and I can assure you that both his counsel *and* prosecutors will try to “re-coach” him tonight in preparation for tomorrow, reminding him to stay calm, not hedge, be respectful, not rise to any bait, and acknowledge his own flaws.
199/ (To be clear, re-coaching a witness is *not* about telling that witness what to say—far from it—but reminding a witness about what sort of conduct is appropriate for the courtroom, and most helpful to the finders of fact, who in this case are the jurors.)
200/ I hope you found this 5-hr thread—like the 9-hr (400-post!) thread from yesterday incorporated into this one as its second tweet—both illuminating and helpful.
As ever, there’s no obligation, but any tips for my work, in any amount, can be left here: sethabramson.net/pp
As ever, there’s no obligation, but any tips for my work, in any amount, can be left here: sethabramson.net/pp
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