Legal expert: Prosecutor undercut Trump lawyers' strategy to "destroy" Michael Cohen's credibility

Cohen's testimony shows he "had access to Trump almost without restriction," law professor says

By Marina Villeneuve

Staff Reporter

Published May 13, 2024 1:54PM (EDT)

Michael Cohen, Former lawyer of the former United States President Donald Trump arrives for the 2nd day of testimony against Former President Donald Trump of civil fraud trial at New York State Court. (Lev Radin/Pacific Press/LightRocket via Getty Images)
Michael Cohen, Former lawyer of the former United States President Donald Trump arrives for the 2nd day of testimony against Former President Donald Trump of civil fraud trial at New York State Court. (Lev Radin/Pacific Press/LightRocket via Getty Images)

Prosecutors began their questioning of once-devoted Trump fixer Michael Cohen Monday with an eye toward humanizing the disbarred attorney and emphasizing his direct contact with the president, according to a legal expert.

Cohen took the stand Monday in a Manhattan courthouse as prosecutors used his testimony and evidence from phone records to audio recordings to put together the pieces of Trump’s alleged scheme to quash salacious stories about extramarital affairs with hush money and then disguise those payments as legal fees – all in violation of state law. 

Cohen testified that Trump told him he would be repaid for paying off adult film star and director Stormy Daniels, who has long claimed she and Trump had a sexual encounter at his Lake Tahoe hotel suite in 2006.

“I was doing everything that I could and more in order to protect my boss, which was something I had done for a long time,” Cohen said, according to The New York Times

The jury will weigh whether they see Cohen “as an immoral Trump fixer trying to atone for his sins, or a vindictive employee out for revenge,” Syracuse University College of Law professor Gregory Germain told Salon. 

NYU Law emeritus professor Stephen Gillers said prosecutor Susan Hoffinger sought above all to “humanize Cohen.”

“She wanted to establish a basis for the jury to trust him,” Gillers said. “And she wanted to show the jury that Cohen will also say complimentary things about Trump.”

After days of testimony from witnesses who described Cohen’s devotion, interactions and frustrations with Trump, prosecutors on Monday sought to demonstrate his once close relationship with Cohen. 

“She needed to show that Cohen has a basis for knowing what his testimony will reveal because he had access to Trump almost without restriction,” Gillers said. “Finally, she wanted to establish that Trump was a micromanager, who insisted on knowing everything about what his subordinates were doing. All of this aims to establish Cohen’s credibility before the cross examination tries to destroy it.”

Last year, a Manhattan grand jury indicted Trump with 34 felony counts of falsifying business records – including checks, invoices and general ledger entries. Prosecutors say Trump schemed to pay off Daniels, model Karen McDougal and a doorman who falsely claimed Trump had an affair with a housekeeper.

Trump pleaded not guilty to those charges and denies the extramarital affairs he allegedly covered up to preserve his 2016 presidential campaign. 

Trump’s defense team has repeatedly warned jurors that Cohen simply cannot be trusted, pointing to his  time in federal prison for tax fraud and perjury. 

Trump attorney Todd Blanche has said Cohen is “obsessed” with the idea of sending Trump to jail, and that he has a history of misrepresenting conversations with Trump.

“I submit to you that he cannot be trusted,” Blanche told jurors in his opening statement.

Trump’s lawyers say Cohen was not a salaried employee at the time of the Daniels’ payoff. The defense team says Cohen acted on his own accord to pay off Daniels, and is now blaming Trump for his own decisions.

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On Monday, Cohen discussed his childhood and how he entered Trump’s inner circle by purchasing Trump properties, landing a job as his special counsel, working with the National Enquirer to quash salacious stories, renegotiating bills for the businessman and speaking to Trump frequently in the lead-up to the 2016 election.

“The only thing that was on my mind was to accomplish the task, to make him happy,” Cohen testified, according to The New York Times.

Cohen said he would lie on Trump’s behalf – and constantly sought approval and credit from Trump. He said he always kept Trump apprised of his efforts to kill negative stories, particularly after the “catastrophic” release of the “Access Hollywood” audio recording in which Trump bragged about grabbing women by their genitalia.

“‘Women are going to hate me,’” Cohen recounted Trump saying to him about the prospect of Daniels speaking publicly about their alleged sexual encounter. “‘Just take care of it.’”

Cohen said Trump also said: “Guys may think it's cool, but this is going to be a disaster for the campaign.’”

Cohen testified that in summer 2016, he worked to keep McDougal’s story about an alleged extramarital affair with Trump quiet. In one call with Cohen, former National Enquirer publisher David Pecker and Trump, Cohen said Pecker discussed a potential $150,000 payment to quash the story. 

“No problem – I’ll take care of it,” Cohen testified Trump said. 

Cohen said Trump directed him to speak with former Trump CFO Allen Weisselberg – who is currently in jail after pleading guilty to two counts of perjury in Trump’s civil fraud trial.  

Cohen testified that Weisselberg told him to avoid going through the Trump Organization to pay off McDougal.

“It was typical for everyone” to discuss financial matters with Weisselberg,” Cohen testified, according to MSNBC correspondent Katie Phang.

The National Enquirer’s publisher, American Media Inc., ended up paying McDougal $150,000 in August 2016. 

But AMI CEO David Pecker testified that after receiving legal advice, he called off a deal for Cohen’s LLC to pay AMI $125,000 for McDougal’s nondisclosure. 

By October 2016, Cohen was negotiating with Daniels’ lawyer Keith Davidson on a $130,000 payment for Daniels through a non-disclosure agreement. The payment to Daniels came from another Cohen LLC. 

In a Monday guest essay for The New York Times, Andrew Weissmann, a former senior prosecutor in Robert Mueller’s special counsel investigation, said Cohen’s baggage poses a ”significant risk” for Manhattan DA Alvin Bragg.

“He recently claimed under oath in a New York civil fraud trial against Mr. Trump (where the court found him credible and ruled against Mr. Trump) that he lied to a federal judge when he pleaded guilty to one of several crimes,” Weissmann wrote. “By way of explanation, he seemed to contend he was pressured to plead guilty by the federal prosecutors.”

But Weissmann said prosecutors were right to call Cohen as a witness.

“Jurors often want to hear someone recount what they already know occurred, but that has not been said directly,” Weissmann said. “The jurors will then often reach a verdict of guilty, and despite having found the conspiracy existed as recounted by a key criminal accomplice — someone like Mr. Cohen — they will later say they did not believe or need that witness’s testimony.”

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Paying hush money itself is not a crime – but Manhattan prosecutors bumped up the falsification of business record charges to felonies by alleging Trump had the records falsified to conceal criminal activity. 

Specifically, prosecutors say Trump violated Section 17-152 of New York state election code, which says it’s a misdemeanor to “conspire to promote or prevent the election of any person to public office by unlawful means.”  

“Through these false business records, the defendant intended to make sure that nobody learned about the Stormy Daniels payoff and the illegal election fraud scheme launched at the Trump Tower meeting in 2015,” prosecutor Matthew Colangelo said in opening statements. 

Colangelo also said: “At the end of the case, we are confident that you will have no reasonable doubt that Donald Trump is guilty of falsifying business records with the intent to conceal an illegal conspiracy to undermine the integrity of a presidential election.”

Prosecutors have provided jurors with financial records - including checks drawn from Trump’s own bank account signed by the former president himself, and handwritten notes outlining a plan to “gross up” payments to Cohen to cover his taxes – allegedly linking Trump with the reimbursements to Cohen for the hush-money payments.

“The hard part of the case is not proving that Trump wanted to hide embarrassing information from the public, but whether he was trying to cover up a crime, such as an illegal campaign contribution,” Germain told Salon. “Cohen could be helpful to Trump or the DA if he could testify that he and Trump didn't believe, or did believe, that the payment would be an illegal campaign contribution.”

For prosecutors to make their case, legal experts say they likely need Cohen to directly link Trump with another set of business records: the post-election Trump Organization ledgers that allegedly disguised Cohen’s hush-money reimbursements as legal fees. 

Cohen touched on that issue in his testimony Monday, when he said he would not have paid $130,000 for Daniels' deal without expecting to be paid back. 

Cohen also addressed another hurdle for prosecutors — Trump's reluctance to use emails and his lack of an email address. Jurors saw a text message from Melania Trump asking Cohen to call "DT" on his cell.

“During certain conversations, he’d comment that emails are like written papers — he knows too many people who have gone down as a direct result of having emails that prosecutors can use in a case,” Cohen said, according to Politico.

Cohen and other witnesses called by the prosecution have described Trump as a frugal micro-manager who closely scrutinized financial decisions.

Trump’s team has argued he had a “complete lack of knowledge or intent” about the checks, invoices and ledger entries. They maintain that the $420,000 payment to Cohen was for a legal retainer. 

“I don't expect they're going to call a witness that says that President Trump had anything to do with what was written on the ledger, with generating the check, with the invoice coming in,” Trump attorney Todd Blanche said in opening statements.

By Marina Villeneuve

Marina Villeneuve is a staff reporter for Salon covering Trump's legal battles and other national news focusing on major legal and political narratives.

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David Pecker Donald Trump Karen Mcdougal Keith Davidson Michael Cohen Stormy Daniels