The prosecutors in the Hush Money trial are expected to wrap their case after Michael Cohen's testimony this week. So how is it going so far? For once, Trump claims to be happy with his lawyers’ performance after a long history of fractious relationships with his attorneys. But the problem is that they are not doing a particularly good job defending him-- in fact, Trump’s legal team has made several considerable, and at times baffling, missteps over the course of the trial that have increased the odds of a conviction.
Most devastatingly, lead attorney Todd Blanche, in his opening statement, repeated Trump’s claim that he never had a sexual encounter with Stormy Daniels. That was followed by days of testimony last week that — if you believe Daniels’ very persuasive account — effectively demonstrated that a central plank of Trump’s defense is a lie and has been a lie for years, and that the jury cannot trust even Trump’s lead counsel to tell them the truth.
Prosecutors had no choice but to put Daniels on after Blanche affirmatively called her a liar in his opening statement, and they had to elicit considerable detail about the sexual encounter in order to establish her credibility in response to Blanche’s attack inside the courtroom and Trump’s years of attacks outside of it. Not only was that the appropriate way for the government to defend the integrity of its investigation and its witness, it was also an unmissable opportunity for them to tank the credibility of Trump’s entire legal defense.
Another major misstep occurred in the form of defense lawyer Susan Necheles’ cross-examination of Daniels. Necheles went to considerable lengths to suggest that Daniels had been motivated by money when she agreed to keep her story quiet in the run-up to the 2016 election. But that doesn't actually matter-- to prevail on the charges, the prosecutors only needed Daniels' testimony to establish that she and Trump had sex. And if Trump doesn't testify, then Daniels' testimony goes unrebutted.
It is also very bad when the witness manages to embarrass the cross-examiner, as Daniels did on multiple occasions. Trump’s legal team appears to have assumed that Daniels was dumb. What emerged instead from Daniels’ time on cross-examination was a woman who is resourceful, sharp and quick-witted. She effectively turned the tables on Necheles, likely making her more sympathetic and credible in the eyes of the jury.
The government’s case also began with some witnesses (the former publisher of the National Enquirer David Pecker and Daniels’ former lawyer Keith Davidson) who Trump’s legal team should have portrayed as peripheral to the government’s case, and as lacking any direct knowledge of Trump’s conduct in connection with the alleged falsification of business records (the actual core of the case). Instead, Trump attorney Emil Bove pursued oddly long and wandering lines of cross-examination that scored few clear and relevant points for the jury to take away.
As the government’s case draws to a close after Cohen’s testimony, the most important decision will be: should Trump's lawyers put him on the stand in his own defense? The answer is clearly “no,” and no competent defense lawyer would advise him to take the stand under the circumstances. The prosecutors have a wealth of material with which to discredit him on cross-examination, including a long history of lying that has been substantiated by major court rulings and jury verdicts in civil proceedings against him in the past year.
Trump is also thin-skinned and incapable of answering difficult questions straightforwardly — very bad traits for any witness on cross-examination. In addition, Trump has testified in his defense twice in the last six months, and both were a disaster. It won't be long before we find out if Trump will be a three-time loser.
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