Hitting the Weak Points: What To Expect from Trump’s Defense

NEW YORK — At close of court on Monday, Trump attorney Todd Blanche made one last attempt to have the case against Trump dismissed.

He offered to hold a hearing on that proposal at a later date, but Judge Juan Merchan was ready to hear it: “We can do it now,” the judge replied.

Blanche outlined a series of arguments that constitute the core of Trump’s defense to the case: that no records were falsified, that Trump had nothing to do with the creation of the allegedly false reimbursement records in question, and that Michael Cohen is a notorious liar whose testimony must be rejected.

Merchan seemed poised to do exactly that to Blanche’s request — reject it. But it offered a preview of how the Trump defense team may seek to parry five weeks of damaging testimony by poking holes in areas of the prosecution’s case that it regards as particularly weak.

Overshadowing all of this has been a line that Blanche used during opening statements — that the charges themselves are flimsy not because of the evidence presented, but because of the exhaustion that all of Trump’s scandals over the past several years — from the hush money payments to the impeachments to January 6 — have generated. It’s a call to jurors to take a jaundiced view and accept that everyone relaying incriminating things about Trump is as self-interested as he presents himself to be, and cannot be trusted because they refuse to acknowledge it.

Lofty appeals to holding Trump accountable were something that, at this point, the wise could see through, Blanche suggested.

“And, listen, use your common sense,” he said during opening statements. “We’re New Yorkers. That’s why we’re here.”

Michael Cohen, Michael Cohen, Michael Cohen

For the defense, the fact of Michael Cohen is an argument by itself.

Cohen testified that he was a professional liar and bully for Trump until August 2018. Before then, he said that he would cross nearly any moral boundary to “accomplish the task” set by Trump; he portrayed himself as, after that date, committed to telling the truth.

The defense attacked him as self-interested with a financial stake in the case. But they only managed to deal one real blow when it came to Cohen’s recollection of an event relevant to the charges. Cohen had testified that he spoke to Trump the day before he paid off Stormy Daniels; defense attorneys introduced evidence to suggest that the call was either entirely or, at least, partially about dealing with a 14-year-old that had been prank calling Cohen.

“He not only lied repeatedly in the past under oath, but he lied in this courtroom,” Blanche told Judge Merchan, referencing that moment.

Cohen is important because he can, through his testimony, tie Trump more closely to the scheme than any other witness. He recalls phone calls in October 2016 in which Trump purportedly approved the payment to Daniels, more conversations after the election in which Trump agreed that Cohen should be reimbursed, and a meeting in January 2017 at which Trump purportedly approved how the reimbursements would work.

Apart from the prank caller-issue, Cohen brings a history of baggage that Blanche indicated he’s ready to exploit: his admitted lies to Congress in 2017, his career as a liar for President Trump, his current bombastic media presence. It’s all fodder for the defense to ask the jury to disregard what Cohen had to offer.

Nothing Wrong With Winning an Election

Taking Cohen aside, the defense has posed the question: did the prosecution actually allege any crime?

As Blanche put it to Merchan, “what the evidence shows is that they all got together in 2015 and agreed that they would talk about positive and negative stories, and that there would be positive stories pushed and negative stories pushed, and that Mr. Pecker would keep an eye out, keep an eye out for anything that he heard that was bad about President Trump.”

That’s not illegal, he said.

It was a point that Trump’s defense made during cross-examination throughout the trial: there’s nothing illegal about paying someone to sign a non-disclosure agreement.

Prosecutors need a broader campaign finance plot because the business records falsification is charged as a felony — it was allegedly done with intent to enter into a campaign finance conspiracy, or with intent to commit either of two other crimes.

Instead, Trump’s attorneys argue that there could have been no criminal intent, because the aim was legitimate: to win the 2016 presidential election. Beyond that, they’ve argued, the timing is off: the reimbursement payments for Cohen’s Stormy Daniels payment, $130,000 of which is treated as an in-kind contribution from Trump to himself with Cohen as a straw donor, took place after the election was won.

“Spoiler alert,” Blanche said at opening arguments. “There’s nothing wrong with trying to influence an election. It’s called democracy.”

It Was Legal Expenses, Actually

Even if there was no election conspiracy, that still leaves the matter of the allegedly phony entries themselves. In the Trump Organization’s books, the twelve payments of $35,000 to Cohen were categorized as legal expenses, and not reimbursements. It’s the basis of the business records falsification charge.

Trump’s attorneys want to have it both ways here: to make their case, they cite testimony from Michael Cohen (who they call an incorrigible liar) to the effect that he was working for Trump during the time of the payments as his personal attorney.

“Mr. Cohen testified that he was rendering services for President Trump during that time, as his Personal Attorney,” Blanche told Judge Merchan last week.

The $420,000, then, was not a reimbursement for the Daniels payment with the tax hit included. Rather, it was payment for what Cohen was doing: providing legal services to Trump.

“When they were entered in the Trump system, they were entered as legal expenses for Retainer Agreement,” Blanche said. “There is no dispute that during 2017, that’s exactly what Mr. Cohen was doing for President Trump.”

There is, of course, a dispute here: Cohen has said that his title as “personal attorney” to Trump was less a substantive job description and more a lure to potential clients, to whom he could sell access to the White House.

And Besides, Trump Didn’t Order It to Happen

But then, there’s another argument: Trump himself had no intent to defraud because he did not order the records themselves to be falsified.

It’s an attempt to deal with a stronger point in the evidence: the multiple checks signed by Trump going to Cohen that Trump Org officials later booked as legal expenses.

“Even if,” Blanche said, “there was evidence that the records themselves were false — but they weren’t” — then Trump created them honestly. The records, Blanche said, were “generated in connection with Michael Cohen’s personal relationship and Personal Attorney-client relationship with President Trump in 2017.”

What you have, then, are checks that Trump signed in order to pay Cohen his fee as his personal attorney. There was no intent to defraud there, no misleading or hiding the ball on what was actually a reimbursement.

C’mon

Though the arguments don’t always fit together neatly, they, theoretically, don’t need to: It’s all to create as much doubt as possible in the minds of jurors. And that’s standard criminal defense fare. It’s like offering jurors a menu of different options from which to select, various paths they can take to find that key elements of the charges are doubtful enough to vote to acquit or to fail to reach a verdict.

But throughout is the same point I made above: The defense is animated by an appeal to the pernicious sense that this is what politics are about. That, as Blanche said, the case is merely about trying to “influence an election,” not a white collar crime in furtherance of concealing information.

In some ways, it replicates the fact pattern that gave rise to the hush money scheme. Trump did not live his life in a way that, before 2016, would have been seen as comporting with that of a presidential candidate. In order to win, prosecutors said, he believed that he would then have to buy the silence of various people — mostly women — who might be able to tell the truth about who he was. That’s where the hush money payments originated, and it’s where the coverup — the core business records violation — originated as well.

It’s the idea that this is just the way things are done. You can reimburse your fixer-attorney by making him your personal attorney — that makes it legal. That’s what the appeal to exhaustion suggests.