What Did You Say?

The Appearance of Michael Cohen: A Wreck in Search of a Race

By: Jonatan Turley | May 13, 2024

Read more at https://jonathanturley.org/2024/05/13/the-appearance-of-michael-cohen-a-wreck-in-search-of-a-race/

Below is an expanded version of my New York Post column on the appearance of Michael Cohen Monday in the Manhattan prosecution of former President Donald Trump. His testimony will not be for the intestinally weak or ethically strong viewers. It has all the draw of a Nascar race on a rainy day.

Here is the column:

Michael Cohen is to criminal justice what car crashes are to Nascar: few want to admit it, but he is the perverse draw for the wreck-obsessed. The difference is that Cohen was already a rolling smoking wreck when he pulled up to the track.

Even for those of us who have long been critics of this case and its dubious legal theory, it has been surprising to see that the prosecutors had no more evidence than what we previously knew about. The assumption was that no rational prosecutor would base a major criminal case virtually entirely on the testimony of Michael Cohen who was just recently denounced by a judge as a serial perjurer peddling “perverse” theories in court.

The calculus of Alvin Bragg is now obvious. He is counting on the jury convicting Trump regardless of the evidence. He believes that all he needs is to check the boxes on the elements of the crime, no matter how unbelievable the vehicle.

The reason is that Bragg likely fears a directed verdict more than a jury verdict. After the government closes its evidence, the defense will move for a directed verdict on the basis that the evidence is insufficient to sustain a conviction.

In other words, when the prosecution rests this week, Trump’s counsel will stand and ask Merchan to end the case before it is even given to the jury. Many of us agree with that assessment. After three weeks of testimony, there is still confusion on what crime Trump was allegedly seeking to cover up.

Bragg has vaguely referred to using the denotation of payments to Daniels as “legal expenses” as a fraud committed to steal the election. However, the election was over when those denotations were made.  Moreover, many believe that such a characterization for payments related to a nondisclosure agreement was accurate. (Hillary Clinton’s campaign claimed in the same election that hiding the funding for the Steele dossier as legal expenses was perfectly accurate).

Judge Juan Merchan, in my view, has failed repeatedly to protect the rights of the accused in this case. However, he can claim that there was enough alleged to give Bragg the chance to make his case.  Thus far he has not done so and, if he is truly neutral, Merchan should grant the motion.

Bragg is counting on not only a motivated jury but a motivated judge to keep this anemic case alive. All he hopes that he needs to do is get this to a Trump-loathing jury to set aside any reasonable doubt. To do that, he found the ultimate motivated witness with a record of saying whatever serves his interests and those of his sponsors.

Even with a New York jury, however, you cannot assume that every juror will jettison doubt when it comes to the unpopular defendant. Yet, Bragg first has to show Merchan that someone claimed to have evidence directly tying Trump to an intentional fraudulent scheme to conceal a crime.

Thus far, Bragg is not even close. Indeed, many of his witnesses helped Trump more than they hurt him on the actual charges.

Bragg started with testimony on the killing of a story by David Pecker, former publisher of the National Enquirer tabloid, on an uncharged transaction to kill a story of a Trump affair with a different woman, Karen McDougal, a former Playboy model.

The relevancy was marginal but the testimony backfired in that Pecker admitted that Trump told him that he knew nothing about any reimbursement to Cohen for any hush money. He further said that he had killed or raised such stories with Trump for decades before he ever announced for president. He also said that he had killed stories for other celebrities and politicians, including Arnold Schwarzenegger, Tiger Woods, Rahm Emanuel and Mark Wahlberg.

For good measure, Pecker noted that Cohen often exaggerates and became loud and argumentative.

Witnesses said that Trump likely had a mix of motivations including sparing his family from embarrassment. Daniels’ own counsel contradicted the prosecution’s reference to the payment as “hush money.”

Prosecutors now need Cohen to check virtually every box on his own. It is not enough to say that Trump wanted to hush up the alleged affair. That is no crime and NDAs are common and legal.

Cohen has to say that Trump specifically knew and approved of the characterization of the payments as “legal expenses.” He further has to establish that Trump intended the denotation to conceal the payments for the purposes of election violations or fraud.

That could make this a “he said, he said” case, but only if Trump were to actually testify. However, Merchan’s earlier rulings make such testimony highly unlikely. The court approved a sweeping scope for cross examination if Trump dares to take the stand. No competent lawyer would advise him to do so after Merchan’s rulings.

That is exactly where Bragg wants to be: with a “he said” not a “he said, he said” case. With Trump effectively silenced, Bragg will argue that that is enough to get this to the jury and he can then allow the New York jury to jettison any notion of reasonable doubt when it comes to Donald Trump.

For most people, this cynical calculation will be immaterial when Cohen is called. Calling a convicted, disbarred, serial perjurer to any court is a spectacle in itself. Cohen seems like he has never met an oath that he does not want to break.

Indeed, he appears eager to expand his collection by announcing in the midst of the trial coverage that he is running for Congress. Given the blind rage of many New Yorkers, he could well succeed with single-issue, anti-Trump voters. If so, we will all be back just to see if a vortex to the netherworld opens up when Cohen stands on the House floor and swears that he is taking the oath “without . . . purpose of evasion.”

But before he becomes Rep. Michael Cohen, he will have to appear for his Nascar moment, though he will be the first wreck in search of a race.