How Cohen set stage for Trump's hush money trial
As Michael Cohen prepared to take the stand at the civil fraud trial of Donald Trump this past week, two women who shared an intense interest in his testimony slipped into the courtroom.
One was Susan Hoffinger, who is overseeing the Manhattan district attorney's separate criminal case against Trump, which accuses him of concealing hush-money payments to an adult film actress. The other was Susan Necheles, who will help defend him against those charges.
They were there not as spectators, but as scouts: to see how Cohen — a star witness in the most important case that either lawyer has ever handled — might perform under pressure.
The result was decidedly mixed.
On his first day of testimony in the civil case, Cohen landed some blows on Trump as he calmly recounted committing crimes on the former president's behalf. His testimony supported the central contention of the trial, which stems from a lawsuit brought by New York's attorney general: that Trump inflated the values of his assets to boost his net worth.
Cohen's second day was bumpier. Under questioning from one of Trump's lawyers, Cohen appeared flustered and admitted to several lies, including before a judge when he was sentenced to prison for federal crimes in 2018.
The two-day spectacle offered a preview of how Cohen, who once idolized Trump but now loathes him, might perform on the bigger stage of the criminal trial. It also captured the trade-offs for prosecutors of calling a witness like Cohen, a felon who can nonetheless offer an insider's account of Trump's conduct.
Hoffinger, Necheles and Todd Blanche, another lawyer for Trump who also attended the civil fraud trial, can use the testimony of the past week to inform how they navigate Cohen's role in the criminal case brought by Manhattan District Attorney Alvin Bragg. Unlike the civil fraud trial, which is being decided by a judge, the criminal case will play out before jurors who will evaluate Cohen's credibility for themselves, magnifying the scrutiny.
One option for Hoffinger would be to extensively prepare Cohen before the trial, which is scheduled to begin in late March, though it may be pushed to a later date.
In the civil case, Cohen took the stand without preparing for the testimony with lawyers from the attorney general's office, according to two people with knowledge of the matter. Cohen became so worried about the lack of assistance that his lawyer, E. Danya Perry, prepared him to object on his own behalf.
Hoffinger is more likely to take a hands-on approach. Her office had interviewed Cohen more than a dozen times before Trump's indictment, vetting his story for months, and prosecutors have gathered testimony that could corroborate much of his account.
In the civil case, Cohen was more of a peripheral witness, headline-grabbing but inessential to winning. But he is at the heart of the criminal case.
It was he, as Trump's fixer, who paid the hush money to actress Stormy Daniels. He and Trump discussed the payment to Daniels, prosecutors say, and in a separate conversation that was recorded, they spoke about another hush-money deal with a former Playboy model, Karen McDougal. There are also documents and phone records that will directly match some of what Cohen is expected to say about the hush-money deals.
Former prosecutors said those records could bolster Cohen's credibility, even if jurors dislike him or have concerns about his 2018 guilty plea to numerous felonies, some connected to the deals.
“But they (jury) may choose to believe him because when he says, `I had conversations with Donald Trump about paying hush money to Stormy Daniels,' it's backed up by other witnesses and other pieces of evidence.”
Cooperating witnesses are seldom choir boys. In order to have knowledge of a crime, they're often either criminals themselves or people who were present when crimes were committed.
Prosecutors typically try to preempt attacks on such witnesses by asking them questions about their vulnerabilities so the jury is prepared for the worst.
In the civil case, a lawyer from the attorney general's office who questioned Cohen, Colleen Faherty, used that strategy in some instances: For example, she made sure to question Cohen about the federal crimes to which he had pleaded guilty. Some, including counts related to the hush money, he still admits he committed. But he has said that he should not have been prosecuted for others related to his personal finances, despite his guilty pleas.