Jun.03

electoral-vote.com

Dem 51

   

GOP 49

Let the Monday Morning Quarterbacking Begin

Did Todd Blanche do a good job of trying to defend Donald Trump? He didn't get the result he wanted, but at least he gave it his best shot, right? Well, a substantial number of lawyers think he blew it. See, for example, here, here, here, here, here and here. Each author has his own ideas about what Trump and Blanche should have done better. Note that in some cases, Blanche probably told Trump what he wanted to do and Trump (stupidly) vetoed it. Basically, Trump forced his lawyers to take a page out of his own playbook: Deny everything and attack everyone. That doesn't work in court. Here are some of the highlights of the critical pieces:

• Stormy Daniels: This is a biggie. Trump insisted that he never had sex with Stormy Daniels. He made Blanche also insist on this, even though just about everyone on the planet who consumes news in any form knows this is a lie. The consequence of this insistence is that the prosecution put Daniels on the witness stand to say that she did have sex with him for 45 seconds. They needed this to establish a motive for Trump's cooking the books. Without this motive, nothing makes sense. Trump could have instructed Blanche to say: "Stormy met Donald at a celebrity golf tournament. She was instantly struck by how handsome and charming he is, and said she wanted to have sex with him. Since he is a kind person, he agreed, just to please her." Then the prosecution would not have had to call Daniels and she wouldn't have said all the damaging things she said. This boo-boo is on Trump, not Blanche.
  
  
• Lawyers on the jury: The defense was all about trying to bamboozle the jury. Unfortunately, there were two lawyers on the jury. They don't bamboozle easily and undoubtedly patiently explained to the other jurors that the case is very simple: Trump recorded reimbursements to Michael Cohen as legal expenses, which they were not. New York State law states that recording a business expense falsely is a crime. Nothing else is relevant here. Blanche should have used his peremptory challenges to prevent the lawyers from being on the jury. No defense lawyer wants a lawyer on the panel unless he is absolutely sure the lawyer is on his side (e.g., another criminal defense lawyer).
  
  
• No defense narrative: The prosecution had an easily understandable story: Trump had sex with Daniels and after the "Grab 'em by the p**sy" headlines, he didn't want this story to come out. Especially since Daniels said she felt cornered, so it was only marginally consensual. He wanted to keep her quiet so he told Cohen to pay her off and then wanted to hide the payoffs on the company books, so he claimed the payments were for legal fees. The defense had no comparable narrative, just a bunch of random attacks on some of the witnesses. Trump could have made up a story like this: "Daniels is a gold digger. We had dinner, after which she went back to her hotel room. Next day she told me I had to pay her $130,000 or she would hold a press conference saying I had raped her. I didn't want this, so I paid her. Michael is a lawyer and he arranged it all, so it was a service provided by my lawyer, hence its being recorded as legal fees." Of course, it is a total lie and Daniels would have denied it under oath, but then there would have been two competing narratives and some jurors might not have been sure which one was true beyond a reasonable doubt. Instead, there was only one narrative, the prosecution's.
  
  
• The cross-examination of Cohen: The cross went on for days. Blanche attacked Cohen for dozens of things that had no bearing on the case. Some of the things Cohen said were corroborated by David Pecker. That was pointless, because although Pecker's business was a bit sleazy, he was otherwise a knowledgeable witness. Blanche should have focused entirely on the things Cohen said for which there were no corroborating witnesses.
  
  
• The cross on the other witnesses: Trump's "attack everyone" strategy came through clearly when Blanche cross-examined each witness. For example, the prosecution put Keith Davidson, Daniels' lawyer, on the stand. Blanche could have asked him: "Have you ever seen any of the Trump Organization's records?" He would have said: "No." Then Blanche could have said: "So you don't know anything about the alleged crimes?" Davidson would have said: "No, I don't." Having a sequence of witnesses who said they knew nothing about the alleged crimes would have sowed doubt in the jurors' minds, like "Why is the prosecution putting all these irrelevant people on the stand?" Sowing doubt is what Blanche needed.
  
  
• Only one (terrible) defense witness: Since so much of the case depended on Cohen, the defense should have found witnesses who could say: "Cohen lied to me" or "Cohen cheated me" or something. Cohen was Trump's fixer. He interacted with many people on behalf of Trump. Surely many of them blame him for what Trump did. For example, Trump often stiffed vendors. He would order pianos for his hotels or hire painters, or whatever, and then refuse to pay the full bill and insist on a discount from the amount in the contract. No doubt Cohen was involved in at least some of these transactions. The defense could have gotten some of them to testify that Cohen is a double-dealing, lying, cheating scoundrel or worse and you can't believe a word he says. If the defense had paraded a dozen such people before the jurors, some of them might have begun to have doubts about Cohen's testimony, especially since Cohen's current occupation is basically making money by attacking Trump. Instead, the only substantive defense witness was Robert Costello, who was a total disaster and was read the riot act by the judge. In short, the defense completely blew it on their own witnesses.
  
  
• The summation was much too long: Blanche went on for over 2 hours. By the 30-minute mark, probably none of the jurors were really paying attention. He should have been much shorter and focused on a few items, like Michael Cohen is a convicted liar (the G.L.O.A.T. defense) and not rambled on and on.
  
  
• I didn't know about it: The approach here is to admit to Trump's approving the hush money, but claim that CFO Allen Weisselberg, a convicted felon, is the one who thought up the idea of recording the payments as legal fees. Trump could claim that Weisselberg had worked for him for decades, was a financial whiz, and he let Weisselberg handle all the financial aspects of the business. He had no idea that Weisselberg was recording the payments in the computer as legal fees. Trump could have argued that he doesn't even know how a computer works, so he couldn't even have checked on how the payments were recorded, even if he suspected Weisselberg of doing something fishy, which he didn't. After all, the crime was not paying off Daniels. That was legal. The crime was recording the payments falsely and if that was Weisselberg's doing, Trump can't be convicted for it.
  
  
• Misdemeanor vs. Felony: Blanche could have admitted right off the bat that Trump ordered the records falsified, but just to protect Melania. Mere falsification is only a misdemeanor. Only when it is done to conceal another crime is it a felony. The defense case could have been that there was no underlying crime. After all, neither Manhattan D.A. Alvin Bragg nor the feds charged Trump with any underlying crime, so with no underlying crime, it is just a misdemeanor, like a traffic ticket.
  

In short, there were a number of ways the defense could have done a much better job. Would it have mattered? Maybe. And again, it was not necessary to convince 12 people that Trump is a saint. All that was needed was to get one juror to say: "I think Trump is probably guilty, but I have some doubts and I am not going to vote to convict on account of my doubts." (V)