Opinion | Why Judge Merchan needs to rein in Trump's lawyer before Michael Cohen takes the stand

According to a recent New York Times report, Donald Trump vented that he does not have a “Roy Cohn,” a reference to his notoriously ruthless lawyer who was repeatedly indicted and disbarred. While Trump reportedly griped that his lawyer Todd Blanche has been insufficiently aggressive, Blanche has, in fact, employed the same kinds of aggressive tactics that made Cohn infamous. Cohn, who died in 1986, used delay to his advantage, was unapologetic in his belligerent attacks on others and had a reputation for breaking the rules. Taking a page out of Cohn’s playbook, Blanche has attacked prosecutors and the judge to delay the trial, has been unapologetic in defending Trump’s attacks on jurors and witnesses and has already broken the rules by making improper arguments to the jury in his opening statement.

With Blanche seemingly under pressure from Trump to display even more aggression, Judge Juan Merchan must be prepared to lay down the law and ensure that there will be serious consequences for any Cohn-style antics.

When Blanche accused the Manhattan district attorney’s office of violating its discovery obligations by not producing certain materials from the U.S. Attorney’s Office for the Southern District of New York (SDNY), Merchan scolded him. “You’re literally accusing the Manhattan DA’s office and the people assigned to this case of prosecutorial misconduct and trying to make me complicit in it,” he said, “And you don’t have a single cite to support that position?”

Merchan noted that Blanche, as a former SDNY prosecutor, knew that he could have requested materials himself, yet he waited until two months before trial to request them. Blanche also waited until roughly two weeks before the scheduled trial to inform the court that he had requested materials from SDNY that could delay the trial. His request to toss the case based on meritless prosecutorial misconduct accusations shortly before trial was an unusually brazen — and very Cohn-like — delay tactic.

Blanche also attacked the judge in the hopes of delaying the trial and advancing Trump’s false narrative that he’s the victim of political persecution. In August, Blanche’s motion for Merchan to recuse himself from the case based on his daughter’s employment failed. Without significant new evidence or changed circumstances, Blanche made the motion again — less than two weeks before the scheduled trial date and two days after the court amended its gag order to protect the court’s family members. After Merchan denied the second recusal motion, Blanche had the audacity to sue the judge, and he moved — again unsuccessfully — to delay the trial pending appellate review. Criminal defense attorneys often use delay to their advantage, but suing the judge in a last-ditch attempt to delay the trial is an extremely combative move reminiscent of Cohn’s approach.

Blanche also has been unrepentant in defending Trump’s repeated attacks on jurors and witnesses in violation of the court’s gag order. When he made the absurd argument that Trump is trying to comply with the gag order (given his behavior), a frustrated Merchan responded: “You’re losing all credibility with the court.” While criminal defense attorneys should zealously advocate for their clients, Blanche has gone a step further to follow Cohn’s modus operandi and apologize for nothing.

Blanche has also made improper arguments to the jury. In his opening statement, Blanche disregarded the court’s evidentiary rulings and misstated the facts and law several times, drawing four objections that were sustained and two sidebars. Such flagrant Cohn-like rule-breaking right out of the gate in an opening statement is highly unusual. For example, when discussing hush money payments, Blanche stated that “you’ll hear this agreement was negotiated by lawyers.” That statement could mislead the jury to believe that Trump relied on the involvement of lawyers who blessed the hush money payment agreements. But the court had already ruled that Trump’s team could not even suggest this “presence of counsel” defense, so the state’s objection was sustained.

When describing Stormy Daniels’ threat to publicize her alleged sexual encounter with Trump, Blanche said it was “almost an attempt by Ms. Clifford/Ms. Daniels to extort President Trump.” But Daniels was never charged with extortion or attempted extortion; therefore Blanche’s suggestion of criminal wrongdoing by Daniels here was improper. Again, the state’s objection was sustained.

Given Blanche’s willingness to make improper arguments in his opening statement and Trump’s reported desire for Blanche to be more aggressive in attacking the judge and witnesses, there’s reason to be concerned that Blanche might again refer to evidence the court has ruled off-limits — evidence that could confuse and mislead the jury and seriously prejudice the state’s case. Those off-limit topics include SDNY’s opinion of Michael Cohen, SDNY’s decision not to prosecute Trump for campaign finance violations and suggestions that District Attorney Alvin Bragg is biased against Trump and has improper political motivations.

Any move by Blanche to disregard the court’s rulings would represent an insidious attack on the court’s authority that could effectively disrupt the trial, draw the ire of Merchan, and likely result in sanctions. But if the thousand-dollar fines for Trump’s repeated gag order violations are any indication, that may be viewed as a small price to pay to improve the chances of a mistrial. After all, you can’t unring a bell; once the jury has heard evidence the judge says can’t be brought up, the damage is done. More importantly, the reward for a mistrial here cannot be overstated: Trump would score not only a massive legal victory, but a political one. And Blanche, having proven his “Roy Cohn” bona fides, would be able to write his own ticket to a plum position in any Trump administration. The risk-reward analysis is cause for alarm.

Merchan can fix that by making clear that the risk of ignoring his rulings far outweighs any potential reward. Before Cohen testifies, Merchan should issue a stern reminder that any additional violations of the court’s evidentiary rulings will result in serious sanctions, not a slap on the wrist. He also should describe what the sanctions could be to put the Trump team on notice of the grave repercussions to disregarding the court’s rulings. Merchan must take all necessary and appropriate measures to protect the integrity of this trial from a criminal defendant hellbent on undermining our judicial system and a defense attorney who has lost all credibility with the court.

This article was originally published on MSNBC.com