Opinion: Trump Defense’s ‘Gotcha’ Moments Failed Against Prosecution’s Strength

The prosecution rested its case in the New York Trump trial, which means that they are finished presenting their evidence.

Now the defense has a chance to put on their case if they choose to do so, as they are not obligated to put forth any evidence. The burden of putting forth evidence and proving the case in a criminal trial always remains entirely with the prosecution. They are the side that must prove the guilt of a defendant beyond a reasonable doubt.

At the close of the government’s case, the defense gets the chance to ask the judge to dismiss the case based on the premise that the prosecution has not proven the elements of the case sufficiently to allow the case even to go to a jury.

It is a common motion to make, and Donald Trump’s defense team made one Monday, which the presiding judge, Juan Merchan, said he would take under advisement. When he does rule on it, he will likely deny it.

Motions like the one Trump’s defense counsel made—sometimes called “MJOAs,” or motions for judgment of acquittal or motions for a directed verdict—are seldom granted. When they are granted, it’s usually because the prosecution missed a crucial piece of evidence; for example, if in a murder trial no evidence was put forth of a death.

In the hush-money case against Trump, there was no such missing piece of critical evidence. Rather, the prosecution used a plethora of evidence, including paper documents, video, electronic messages such as tweets, and witness testimony.

The evidence can be divided into two buckets, with the first one going to show that business records were falsified and the second going to show that the purpose of the falsification was election interference.

There is little doubt that the records were falsified. The records and testimony all indicate that the money paid to Michael Cohen, Trump’s then attorney and “fixer,” was not recorded as a reimbursement for the money Cohen paid to actress/director Stormy Daniels to buy her silence about a sexual encounter with Trump. Instead, the monies were recorded as legal fees for nonexistent legal work supposedly performed by Cohen. The total amount of money corresponds exactly to the regular amounts dispensed to Cohen.

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Evidence that the purpose of the falsified records was to engage in election interference is also strong. The election interference in this case is an intent to influence the 2016 election by burying the likely negative effect of the Daniels story coming out upon the heels of the infamous Access Hollywood tape, in which Trump bragged about his non-consensual kissing of women and being able to grab them by the genitals.

On this point, Trump’s defense team likely aided the prosecution by emphasizing how Trump might have wanted to conceal the sexual encounter from his wife and by a hyper-aggressive performative cross of Daniels that seemed to be about shaming her. Both of these efforts played into the prosecution’s hands because the more embarrassing Trump’s team tried to make the encounter and the more they tried to shame Daniels, the more they emphasized why Trump would want to conceal the alleged encounter from voters.

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Cohen’s testimony was an important part of the government’s case, albeit not the end all and be all that so much media coverage has made it out to be. As Jeffrey Toobin points out, a strong argument exists that even if the jury were to disregard Cohen’s testimony, they could still find evidence beyond a reasonable doubt to convict Trump.

But Cohen testified well on direct examination, giving testimony in a calm manner that he maintained under cross-examination.

As with Daniels, Trump’s lawyers were their own worst enemies in their cross of Cohen, particularly the two Perry Mason wannabe efforts by Trump lawyer Todd Blanche. The first one came when Blanche appeared to surprise Cohen by questioning whether an Oct. 24, 2016, phone call in which Cohen said he spoke to Trump had actually occurred.

Cohen testified that he called Keith Schiller to speak to Trump about the Daniels matter because he knew Schiller was with Trump. Schiller, Trump’s bodyguard, is also the person who Stormy Daniels remembers as being stationed outside the hotel room during her sexual encounter with Trump.

Blanche asked Cohen about text messages that Blanche asserted indicated that Cohen was actually calling Schiller about harassing phone calls made to Cohen by a 14-year old. Cohen appeared surprised at the question, though he nonetheless calmly maintained that even if the conversation with Schiller had involved the harassing phone calls, he had also spoken to Trump.

Blanche, however, did not remain calm but reportedly yelled at Cohen, accusing him of being a liar. This kind of demeanor almost always hurts the lawyer because on cross the lawyer should have the witness lose their cool rather than the other way around. Even worse, though, was the fact that on redirect the prosecution produced stills of Schiller with Trump only minutes before Cohen’s phone call. Those stills were admitted. While the photos don’t prove Cohen spoke to Trump, they are powerful visual corroboration of Cohen’s testimony.

Blanche’s second failed Perry Mason moment came when he tried to characterize Cohen as having stolen money from the Trump Organization. Blanche’s hopes for a “gotcha” here was greatly undercut by the fact that the prosecution has previously brought out on direct examination that Cohen had asked for $30,000 more than he was entitled to as reimbursement for technical services he paid to a company called Red Finch.

Even more important, Blanche’s efforts highlight the problem with all of the defense attacks on Cohen, which is that rather than attacking his accuracy and/or veracity on specific instances, the defense focuses on simply hammering at the fact that Cohen has lied in the past. Like the effort to shame Daniels in the hope that the jury would discredit a shamed woman, the defense hopes that jurors will wholesale dismiss witness testimony based on the idea that the witnesses are “bad people.” Jurors are unlikely to buy such an approach, both because the approach may offend but also because juries like specifics, not generalities.

As we all know, the ultimate decision on whether Trump is found guilty is entirely up to the jury. In my experience as a prosecutor, there were a few cases in which I believed that the prosecution’s case was weak yet there was still a conviction and vice versa. But those instances were outliers. No good lawyer will brag to themselves or others that a verdict is certain before the jury returns the verdict. But what you do ask yourself as a prosecutor at the conclusion of putting on your case is whether the evidence went in well. For the Manhattan district attorney’s office led by Alvin Bragg, the answer to that question is “Yes.” The evidence has gone in well.

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