Getting to Michael Cohen

Stormy Daniels owned cross-examination today. Trump’s lawyer, Susan Necheles, came at her with guns blazing. But Daniels, who testified that she is a stronger person today than she was when she had sex with Trump, answered questions directly and forthrightly. Whether the jury likes her or not is beside the point (although they may well at this point). Daniels’ testimony has shown them exactly what the public would have heard and who they would have heard it from—had Trump not paid her off. Is it believable that, especially in the wake of the Access Hollywood tape, Trump would have been willing to keep it from coming out even at this price? Absolutely.

The jury doesn’t have to believe Stormy Daniels to convict Donald Trump. Even if her story was just that—a made up story, as the defense claims—the crime happened when Trump paid her off and concealed the payments with false business records. But Daniels came off as believable. At one point, under pressure from Necheles to concede she’d never had sex with Trump, Daniels fired back that if she was going to tell a story that wasn’t true, she “would’ve written it to be a lot better.”

Trump’s lawyers staked their case on Stormy Daniels’ story being a lie. They promised the jury in their opening statement that none of it was true. But they didn’t deliver. Stormy Daniels did. That means the defense’s credibility with the jury is low as they head into the critical stage of the trial where the government must prove that Trump knew about the whole deal. Because with the motive for the crime established, it’s about time for the People to call Michael Cohen to the witness stand.

Presumably, Cohen’s testimony will connect Trump directly to the crime. We know that there is a partial audio recording of at least one of their conversations. Today, during her redirect examination of Daniels, prosecutor Susan Hoffinger elicited some important testimony about a civil case in which Trump conceded that he had reimbursed Michael Cohen for the money he paid out to Daniels. That’s going to make it difficult for Trump to deny it now because evidence of his concession in that lawsuit can be introduced here.

In 2018, Daniels sued Trump for defamation in California. Her lawyer was Michael Avenatti, who was subsequently prosecuted for fraud and theft connected to his representation of her, as well as other crimes. She lost the defamation case, and a federal judge ordered her to pay Trump’s legal fees in the amount of $121,972. On appeal, she argued she had not authorized Avenatti to file the lawsuit. But the Ninth Circuit Court of Appeals affirmed the judgment against Daniels, and the amount she owed Trump kept increasing.

In opening statements, Trump’s lawyer promised the jury that the money paid to Michael Cohen wasn’t reimbursement for his payment to Stormy Daniels.

But here is Trump’s concession that it was in the California case. The notation “EC” here stands for Michael Cohen. The name David Dennsion was used for Trump, as acknowledged in a side letter to the agreement.

That’s the setup for Michael Cohen to testify and for the People to convince jurors to believe him, despite the considerable baggage that he carries.

At the close of the day, the defense asked the Judge for a mistrial, again, and to remove some of the restrictions in the gag order so Trump could respond to questions about Stormy Daniels’ testimony publicly. The defense also wanted the Judge to exclude the testimony of Karen McDougal, another woman who Trump paid off to avoid public disclosure of the story of their affair in advance of the 2016 election. But the Judge didn’t have to rule after the defense disclosed that prosecutors told them they no longer intended to call McDougal to the witness stand.

Some folks thought the prosecution’s change of heart might have been motivated by a recent New York Court of Appeals decision that reversed Harvey Weinstein’s conviction over the use of this type of evidence of other uncharged crimes. I don’t think that’s correct. McDougal’s story is similar to Daniels’. The three women whose testimony led to the decision to overturn Weinstein’s conviction were in situations that were very different from the charged conduct, so that case isn’t persuasive here. The better conclusion is that the People are confident enough in their presentation of the evidence that they don’t believe they need McDougal’s testimony, that it’s not worth the risk, no matter how small, or being reversed on appeal, since they don’t need her testimony to prove her case.

Expect Cohen tomorrow or early next week. His testimony will make or break the case.

We’re in this together,

Joyce