Opinion: As Trump trial opens, attorneys have to make deft first moves

Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of Trump. The views expressed in this commentary are his own. Read more opinion at CNN.

I will be joining the line Monday morning to witness opening statements in the first-ever criminal trial of a former American president.

Journalists are to queue up in the long exterior entryway to the 17-story building at 100 Centre St. – its elegant pale yellow granite and limestone Art Deco facade is a sharp contrast to the faded and dark hallways. There’s an air of sadness inside this building, the shadows of the countless thousands of criminal defendants who have been here before former President Donald Trump – all the way back to when the notorious Tombs prison stood on this spot.

At a little after 9:30 a.m. in the spartan wood-paneled courtroom 1530, where Justice Juan Merchan presides, the prosecution will tell the jury how they intend to prove that Trump committed 34 felony counts of document falsification – allegedly to cover up an illegal scheme “to influence the 2016 presidential election” in the form of hush money payments to avoid a damaging scandal.

Opening for the People will be one of Manhattan District Attorney Alvin Bragg’s big three who are leading this case: Matthew Colangelo, Susan Hoffinger and Joshua Steinglass.

It will likely be Colangelo, 48 years old and slight of build with graying hair. I’ve crossed paths with him over the years and he’s a smart and effective advocate who has had a rich career in public service, including stints at the Justice Department and the Office of the New York State Attorney General. (For much more about Colangelo, and all the other players, see my new book.)

Colangelo, or whoever may be opening, needs to do three things: First, hammer home the seriousness of the case – that this was election interference, as I argued last week at CNN Opinion, not just hush money  – because if the jury believes it’s serious that makes them think twice about giving into any doubts they may have about Trump’s guilt.

Second, the prosecutor must build a bridge for the jury into Trump’s brain in order to find the criminal intent required to convict on felony document falsification.

The DA will need to prove that the false records here at issue (ones saying the hush money repayments were attorney fees) were intended to hide another crime. Since Trump either will deny criminal intent on the stand or won’t testify at all, the prosecution will need to explain to the jury that the way to get there is through other witnesses and through documents. It’s also notable that the jury has two lawyers on it – the DA will be particularly focused on talking to those two jurors so they can educate the non-lawyer jurors on how this works.

Third, the prosecution’s opening needs to “draw the sting” regarding the DA’s more controversial witnesses – like former Trump lawyer Michael Cohen, adult film actress Stormy Daniels, and former American Media CEO and National Enquirer publisher David Pecker – by acknowledging their foibles, while guiding the jury to accept their perspective.

As a trial lawyer, I always would rather the jury hear about any problems with witnesses from me first, together with the solution. Here that solution is corroboration, a vast amount of supporting and interlocking evidence.

Next up to open for the defense will very likely be Todd Blanche. If lacking the star power of a Colangelo, he’s also had a distinguished career as a federal prosecutor and top white-collar criminal defense lawyer.

His mission today is the flip side of the prosecution’s: First, he will explain why the case doesn’t matter – that it is about Trump wanting to conceal an embarrassing personal peccadillo and about some accountant that Trump didn’t even know writing down imprecise words in his business records.

If the DA wants to build a bridge for the jury into what Trump was thinking, Blanche wants to preemptively destroy it.

Part of the way he’ll do that is by attacking the critical witnesses who form the foundation for the prosecution’s case. Blanche will surely look to preemptively demolish Cohen, and the other key witnesses such as Daniels and Pecker. Blanche will maintain that if you can’t trust these witnesses then the bridge the prosecution sought to build falls into the gorge.

After the openings, it will be on to the first witness, reportedly Pecker. But before that I’ll be back to you with an evaluation of how both sides did for the next installment of my trial diary.

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