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Opinion: I have changed my mind on the strength of the case against Donald Trump. here's why

Opinion: I have changed my mind on the strength of the case against Donald Trump.  here's why

 


Editor's Note: Stacy Schneider is a Manhattan criminal defense attorney and former contestant on the reality TV show The Apprentice. The opinions expressed in this comment are his own. Read more opinions on CNN.

CNN-

The Manhattan District Attorney's Office made a significant tactical error by announcing it was ending its case after calling Michael Cohen as the final witness in Donald Trump's secret trial. But that's not because Cohen, a convicted felon and disbarred lawyer, was a bad witness. He actually responded quite well to the heat of the prosecution when confronted about his past bad acts, convictions, and prejudice against the former president, remaining steady on the stand and not losing his cool.

But Cohen lost his footing during cross-examination Thursday, during which he appeared to omit important information while recounting an October 2016 phone call he claims he had with Trump to discuss the secret payment. The heated exchange between Trump lawyer Todd Blanche and Cohen dealt the strongest blow to the prosecution so far.

Until now, the prosecution had done a good job of supporting Cohen's expected testimony by presenting other witnesses to support crucial facts and provide clues about Trump's motivations and/or complicity in the alleged purchase of the silence of adult film star Stormy Daniels, hence her story of a sexual encounter with Trump. it would not harm his 2016 election prospects. (Trump denies the affair). The jury heard testimony from: David Pecker, former CEO of National Enquirers publisher American Media Inc.; Keith Davidson, Daniels' lawyer who negotiated the deal; Hope Hicks, former Trump aide and campaign communications director; and even Daniels herself.

What the prosecution left out, however, was a second key witness to establish that Trump intended to falsify his business records to cover up another crime. Cohen's testimony has thus far served to prove the elements of the other alleged crime, namely that the hush money payments were the result of a conspiracy to disrupt the campaign or make an illegal campaign contribution. But the prosecutor must also prove the actual business records crime, for which Trump was charged with 34 counts of first-degree falsifying business records. (He pleaded not guilty). In my view, Cohen's testimony only satisfies half of the equation beyond a reasonable doubt.

According to Cohen's testimony, there were three people in the room at the Trump Tower meeting after the 2016 election to discuss the expected repayment of Daniels' payment: Cohen, Trump and Allen Weisselberg, then Trump's chief financial officer. Organization. Given Cohen's credibility issues, it would be wiser for the DA's office to call a second witness to back up its claims.

Weisselberg was Trump's right-hand man while he was chief financial officer, but is currently serving time at Rikers Island for perjury stemming from his testimony to investigators in Trump's civil fraud case.

Weisselberg could be the linchpin in validating Cohen's claims that Trump agreed to reimburse him through the Trump Organization as a business expense. The former CFO likely knows the Trump Organization's books and whether Trump's hands were on them. The obvious choice would be to call Weisselberg to fill in any gaps in Cohen's story if jurors choose to discredit his testimony that Trump knew and approved the plan.

But prosecutors have a problem. Weisselberg also has credibility issues. He was notably convicted of lying under oath. The prosecutor's office told Judge Juan Merchan, outside the presence of the jury, that it believed its interests at this time were very aligned with those of the defendants, implying that they did not expect that he tells the truth on the stand. The prosecutor is not allowed to impeach his own witness, so the safest thing to do is not call Weisselberg at all. This leaves a gap in the prosecution's case, which could also leave room for reasonable doubt.

It is unlikely that we will ever see Trump take the stand to explain his side. He seems to have calmed down and gotten used to the pace of the trial. I expect him to listen to his lawyers and exercise his right to remain silent. He has too much to lose and he wouldn't want to risk further questions about his alleged affair with Daniels and his friendship with Pecker, who, based on his trial testimony, appears to know many of Trump's secrets. The former president knows that if he speaks out, he will not be able to turn a blind eye and walk away. He will have to relive the unsavory details of the prosecution case all over again.

Although Cohen did an effective job testifying about the first half of the scheme, to influence the election by buying Daniel's story and keeping it quiet, he doesn't know what happened when the business documents that make the subject of the indictment of 34 counts were created. He was not working for the Trump Organization in 2017 when the reimbursements began. He was a lawyer, not an accountant. If a juror does not know whether Trump was involved in how Cohen's reimbursement was recorded in the records and by whom, there will be a hung jury and Trump will be released.

Madeleine Westerhout, Trump's personal secretary in the Oval Office, gave the defense team its greatest gift: She testified that Trump was sometimes multitasking and that she had seen him sign a bunch of checks while he was on the phone or participating in other activities.

The defense can easily argue that Trump was running the presidency in Washington DC and was no longer managing what was happening in New York within the Trump Organization. Had he signed the checks deposited in front of him, they could easily have become part of a busy pile of work to be FedExed back to the company, without Trump barely paying attention. If that were the case, there would have been no intention to falsify business records. Without Weisselberg's testimony about what Trump knew or wanted, the prosecution can only rely on Cohen. That might not be enough for a conviction.

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