Cohen on Cross

On Thursday, Texas Governor Greg Abbot signed off on a pardon for convicted killer and former Army sergeant Daniel Perry. Perry shot and killed Garrett Foster, a protestor at an Austin, Texas, Black Lives Matter protest in July of 2020. Foster, who was Black, was legally carrying an AK-47. Perry, driving an Uber, turned onto the street Foster was on and shot him. Witnesses testified Foster never raised his gun. Perry could have simply turned around and driven off, like he did after he killed Foster. He was sentenced to 25 years in prison. Prosecutors were able to establish racist motivation and show Perry was prone to commit future violence based on social media and texts.

It’s not a question of guilt or innocence for MAGA Republicans anymore. It’s just a question of whose team you are on. Gone are the days of Watergate, when leading Republicans were able to look at the evidence Richard Nixon had violated the law and demand his resignation. Instead, we have pardons for killers and a nomination to lead the country for a man who tried to overturn the 2020 vote.

It is 171 days until the election.

With Michael Cohen still on the witness stand for cross-examination, the defense made the kind of points you’d expect:

• Cohen has lied a lot, including under oath.

• Cohen wanted a big White House job, and Trump rejected him.

Trump’s lawyer, Todd Blanche, created a little confusion by skipping around the timeline in what was criticized as a chaotic cross-examination rather than one that was skillful and strategic. But chaos can produce reasonable doubt. If a jury is confused, it’s more difficult to reach agreement on a verdict. So, while some have criticized Blanche, there may be a method to the madness, whether it ultimately succeeds or not.

It’s all up to the jury. Do they believe Cohen at the end, or not?

Just before the lunch break, there was a moment in the cross-examination that some folks called a Perry Mason moment. Blanche caught Cohen in what he characterized as a lie about an October 24, 2016, phone call.

Cohen testified on direct examination that he’d placed the call to Trump bodyguard Keith Schiller, who’d passed the phone to Trump so Cohen could update him on the payment to Stormy Daniels. But Blanche cross-examined Cohen over texts he’d sent Schiller about harrassing phone calls he was receiving. The phone number wasn’t blocked for one call and Cohen was able to identify the caller, who turned out to be a 14-year-old. Blanche used call records and texts to show that:

• Cohen asked Schiller for help stopping the calls.

• Schiller told Cohen to call him, which Cohen did almost immediately—that’s the one minute and 36 second phone call.

• Almost immediately after that call ended, Cohen texted the 14-year-old’s phone number to Schiller.

Blanche accused Cohen of lying about the call at this point, trying to get him to concede it was with Schiller about the harassing calls, not with Trump about Stormy Daniels.

The prosecution didn’t front any of this out on direct examination, leaving Cohen to deal with it on cross and leaving the jury wondering what was up. Had Cohen lied? Cohen’s response was that he “always ran everything by the boss immediately, and in this case it could have been just saying, ‘Everything’s been taken care of, it’s going to be resolved.’” In other words, it was a quick call and both topics would have fit in.

Cohen told Blanche that, “Based upon the records that I was able to review, in light of everything that was going on, I believe I also spoke to Mr. President Trump and told him everything regarding the Stormy Daniels matter was being worked on and it's going to be resolved.” Blanche told Cohen he was “not asking for your belief” and that “This jury doesn’t want to hear what you think happened.”

While the transcript is dry, observers in court told us that Blanche was angry, his voice raised as he demanded that Cohen admit the lie. Cohen refused, saying he’d had both conversations.

That happened just before the lunch break. Blanche continued to meander during the afternoon session, and wasn’t finished with Cohen at the end of the day. Tomorrow, Court is off so Trump can attend his son Barron’s high school graduation (and nip out for a fundraiser that night). Trial picks back up on Monday.

Before Trump’s defenders get too excited, they need to remember this is just one moment in a long, drawn out cross-examination. Will the jury remember it by Monday when Cohen is back on the witness stand for a fourth day, let alone during closing argument, when the defense is certain to try and hammer home the point that Cohen is lying? Pundits are vociferously debating whether this was a home run or a yawn, but it will be the jury that decides whether it keeps them from trusting Cohen’s testimony.

The Prosecution still gets the opportunity to clean this up, to the extent it needs it, on redirect examination. They may point to conversations between Cohen and Trump two days later, on October 26, 2016. That morning, following two brief calls placed from Cohen to Trump, Cohen opened the Essential Consultants bank account that was used to make the payment to Stormy Daniels. He transferred funds from the personal home equity line of credit he’d taken out against his own home. Prosecutors will argue to the jury in closing that it would make no sense that Cohen, whose testimony has shown he was well aware of Trump’s incessant efforts to avoid paying people and who always wanted credit from Trump for everything he did on his behalf, would have used $130,000 of his own funds for the payment absent certainty that Trump approved and would repay him.

The People can document that calls took place, but there is no transcript of what was discussed. It comes down to whether the jury believes what Michael Cohen testifies to, corroborated by other activity and communications going on at the same time. While that corroboration supports Cohen’s testimony strongly in places, the question remains, is there a juror who is predisposed to vote for Trump who will seize on this to refuse to convict? Or might there be one or more jurors who will have concerns that Cohen’s testimony isn’t sufficient to support proof beyond a reasonable doubt? It’s important to remember that in criminal cases a tie goes to the runner—if the prosecution and defense’s versions of events are equally plausible, the jury has to acquit. Criminal cases are never a sure thing, even though the evidence here is strong.

As former federal prosecutor Shan Wu pointed out on CNN last night, “I think it was a good cross-exam moment, but the mere fact that you scream at the witness doesn't mean that you've won the point on cross-examination.” He added that while “A lot of people mistake that as the dramatic moment, meaning that has some substance to it … From a jury standpoint, one thing to remember too, is the extent you see Cohen leaning back in the chair or thinking to himself, you know, not really sure. That's actually not the hallmark of a pathological liar. The pathological liar doesn't reconsider the accuracy. They just like totally lean into it. That may actually have the opposite effect on the jury. They may think he's actually thinking carefully. He is trying to be accurate.”

In the end, what matters is what the jury believes.

Trump was joined yesterday by Representatives Lauren Boebert and Matt Gaetz. Gaetz, with apparently no sense of irony tweeted: “Standing back and standing by, Mr. President,” in an echo of Trump’s presidential debate shout out to the Proud Boys ahead of the 2020 election. Proud Boys leader Enrique Tarrio was convicted of seditious conspiracy in connection with January 6 and sentenced to 22 years in prison.

Meanwhile, across town in a federal courtroom, New Jersey Democratic Senator Robert Menendez’s trial has begun. He was indicted in September 2023, less than a year ago, on complicated conspiracy charges that involve foreign players and five defendants. But his case made it to trial in under a year, while the federal prosecution of Donald Trump in Miami remains bogged down. When it comes to Donald Trump, justice is never linear. But there is progress.

We’re in this together,

Joyce