"Very underwhelming": Legal experts question Trump defense strategy, lack of big-name witnesses

Legal experts say they're closely watching how Trump's defense team will address the falsified business records at the heart of the case as the trial extends into a sixth and expected seventh week.

Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying that audio recordings, internal business records and witness testimony prove he was scheming to kill damaging stories about alleged extramarital sex ahead of his 2016 campaign and disguising reimbursements to Cohen as legal fees — all in violation of state and federal election law and state tax law. Each count carries up to four years in prison, which Trump would likely serve concurrently if convicted.

Trump denies the charges, as well as the claimed sexual encounters.

Last week and again on Monday, defense attorney Todd Blanche focused his cross-examination of former Trump fixer Michael Cohen on attacking Cohen's credibility, pointing to his history of lying to authorities in official proceedings, citing his time behind bars and portraying him as hellbent on revenge on an ex-president he says threw him away after years of loyalty.

Cohen, for his part, said it would be "better" for his podcasts, books and social media streams — which have netted him about $4 million — if Trump didn't get convicted, arguing it would provide him more content.

Prosecutors entered into evidence a photo of Trump with bodyguard Keith Schiller on the night of Oct. 24, 2016. That came after Blanche claimed Cohen had "lied" when he said that he called Schiller that day and spoke with Trump to discuss a hush payment to adult film star Stormy Daniels; Blanche argued that Cohen only spoke to Schiller to discuss a series of harassing phone calls he had received, the call lasting roughly 90 seconds.

Neama Rahmani, a former federal prosecutor, said he thought Blanche's questioning on that call did raise concerns. "I think it did impeach Cohen's memory of it," he said.

Blanche also argued Monday that Cohen touted his role as Trump's personal lawyer, and did do work for the Trump's — including reviewing Melania Trump's agreement with Madame Tussauds.

Cohen previously testified that reviewing that agreement was part of "very minimal" legal work for Trump in a year where he got paid $420,000, which prosecutors say was to reimburse him for paying $130,000 in hush money to Stormy Daniels plus taxes, a bonus and $50,000 to repay a tech company.

Blanche got Cohen to acknowledge that he kept over half the $50,000 meant to go to that tech company.

“You stole from the Trump Organization, right?” Blanche said.

Cohen replied: “Yes, sir."

Cohen said on the witness stand that he felt he got ripped off on his bonus.

It'll be up to the jury to decide whether that acknowledgment further impacts their view of Cohen's credibility.

Still, Rahmani said he expected Cohen's testimony to be much more devastating for the prosecution.

"My expectations were so low for Michael Cohen," he said. "I thought it was gonna be a total disaster, a train wreck. If you had listened to his past testimony, he's kind of been obnoxious, belligerent. He was a lot calmer and more collected than I thought he would be."

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According to The New York Times, defense lawyers told the judge Monday they might call three witnesses: lawyer Robert Costello, who once advised Cohen; election law expert Bradley Smith; and Daniel Sitko, a paralegal at Blanche's office.

Rahmani said he questioned the potential inclusion of Smith.

"Witnesses talk about facts, or expert witnesses come in to kind of explain a particular technical or scientific issue," Rahmani told Salon. "You can't bring in an expert to talk about the law. So I don't think the judge will allow it or if he does, it'll be very limited."

The defense ended up calling two of its witnesses on Monday: Costello, who described Cohen as "manic" at their first meeting in 2018, according to The New York Times, and Sitko, who took to the stand in order to introduce phone records showing calls between Costello and Cohen.

About the Daniels payments, Costello said Cohen repeatedly told him that Trump “knew nothing about those payments, that he did this on his own.” Cohen, however, has repeatedly said he would lie for Trump's sake at the time, saying he did so "out of loyalty" to his long-time boss.

Rahmani said he questioned why the defense isn't calling in potentially more crucial witnesses.

"I thought maybe they might bring in Keith Schiller, the bodyguard," he said. "A lot of this is kind of a cat and mouse game."

Rahmani said he expected more from the defense on Monday.

"I thought that the defense was going to come out out and just really score some some big wins," he said. "They had the whole weekend to prepare, more, we were off on Friday. But very underwhelming in my opinion, in terms of the cross. They had so much fodder. But I don't think there was anything particularly noteworthy."

Bennett Gershman, former New York prosecutor and law professor at Pace University, said the extent of prosecutors' evidence — of checks to Cohen with Trump's signature, Cohen's invoices to Trump, and Trump Organization ledger entries classifying the Cohen reimbursements as legal expenses — makes it hard for the defense to make a "head-in-the-sand" ostrich defense.

"An argument that Trump didn’t know about his own checks and his business’s false accounting is difficult to take seriously," Gershman said in a Sunday column in the New York Law Journal.

Still, Cohen's credibility could prove crucial as jurors weigh evidence that prosecutors say directly ties Trump to the reimbursement scheme at the heart of the falsification of business record charges. Cohen has said Trump approved the repayments to him in an early 2017 meeting at Trump Tower where he, Trump and former Trump Organization CFO Allen Weisselberg were all present.

As for Trump himself, on Monday afternoon one of his attorneys, Alina Habba, said on Fox News that he is "willing" and "able" to testify, but "has to listen to his attorneys."

"He has nothing to hide at all," Habba said.

Gershman questions how defense will address Trump not testifying.

"They will probably simply note the cardinal rule that a defendant is presumed innocent and is not required to testify," he said. "If the defense goes further, and tries to explain why Trump didn’t testify, the prosecution will be able to answer, and my sense is the answer will be devastating. This is not to say that the prosecution will be precluded from arguing that the defense did not call Weisselberg, the Trump Organization’s chief financial officer, to explain the falsified records, or Keith Schiller, Trump’s bodyguard, to refute the testimony of Stormy Daniels. With the exception of the defendant’s testimony, there is no rule barring the prosecution from noting the absence of defense evidence."