The Democrats' latest Get Trump campaign to smear the former president and keep him off the campaign trail is circling a crusty drain into a gutter of ignominy. When the prosecution rests in this Manhattan bookkeeping trial, which may be late Monday or Tuesday, this Russia! Russia! Russia! redux could be mere hours—or days— away from jurors. The timing depends on at least three considerations:
- Will the defense mount a defense?
- If so, will the defense be able to get two key witnesses to testify?
- Would Donald Trump testify?
Whether it's hours or days will depend upon how much rehabilitation the prosecution will need to do in its re-direct questioning of Michael Cohen. Cohen, who was annihilated by Trump attorney Todd Blanche on Thursday, will return to the stand on Monday for more questioning. Court was dark on Friday so that Trump could attend his son Barron's high school graduation. The former president also shoe-horned in a fundraiser in Minnesota on Friday night. What, no family rager at Mar-a-Lago for Barron?
Regardless, don't expect miracles in the final few days of the Trump trial. There's only so much that judges are willing to do to stay in the good graces of a daughter fundraising off daddy's job or to keep those squash game invitations coming. Granting a directed verdict isn't likely on the "to-do" list.
When star witness Cohen, a "serial perjurer," is done punching the time clock for the prosecution, the defense will ask for a directed verdict of not guilty or make another motion for a mistrial for putting on a witness prosecutors knew would lie on the stand.
Trump's team members have spent hours cogitating over whether they should mount a defense. On one side there are those lawyers who say Trump needs to do his best to direct a JDAM into the heart of the prosecution for the benefit of the court of public opinion. The other side says Team Trump should do a mic drop, declare that the prosecution didn't prove its still-unstated case, and ask for an acquittal.
As usual in criminal legal cases, fates favor the prosecution. Their case resembles a teetering Jenga game. The case's uncharged crime resurrects zombie misdemeanor charges, the statute of limitations of which has run out, and transmogrifies them into 34 felonies based upon an action—paying an adult movie contortionist extortionist $130,000 to take her and her stories of having sex with Trump in 2006 and go away. The payments were paid by Trump attorney Michael Cohen. Regardless of the suspicious nature and derivation of the case, a New York jury could will likely find him guilty.
The uncharged portion of the case is campaign finance violations. So far the people who have testified to the existence of campaign violations are Cohen and the adult mattress actress Stormy Daniels.
The judge has already shrink-wrapped the kind of testimony the actual campaign finance expert, former Federal Elections Commission chairman Brad Smith, can attest to when or if he testifies.
Cohen has been the only person called to assess Trump's state of mind on whether he believed payments to Cohen were written to skirt election law or simply as a retainer for legal services. The person who arranged the payments is sitting at Rikers Island prison.
Former CFO Allen Weisselberg was jailed for perjury in Trump's other New York case about the value of his real estate holdings. He was at a meeting with Cohen and Trump on the 34 payments to Cohen. Weisselberg hasn't been called to testify because it won't help DA Alvin Bragg's case.
In what former federal prosecutor Andy McCarthy called "one of the sleaziest moves I've seen in a long time," instead of calling Weisselberg to testify, Bragg introduced the former CFO's separation agreement with the Trump rganization into evidence to signal to the jury that the agreement wouldn't let him testify, which is untrue.
"Bragg, who won't prosecute anyone, prosecutes [Weisselberg] twice in two years..." McCarthy said incredulously.
So it's Cohen or nothing. Unless...
Another possible witness is Cohen's former attorney, Robert Costello, whose devastating evidence to the feds and the FEC about his former client's lying is what convinced them to decline to bring campaign violations against Trump. Costello's testimony before the Congressional Subcommittee on the Weaponization of Government was the first look many had at Costello's story and why he could provide evidence that Cohen lied throughout the trial. At the behest of the feds, Cohen waived his attorney-client privilege, freeing Costello to tell his story. Go back and read that last sentence.
In his extraordinary testimony, Costello told the subcommittee:
After the US Attorney’s Office supplied me with the [attorney-client privilege] waiver, they requested an extensive document production, which I complied with, and after that, two Assistant US Attorneys and two FBI agents interviewed me for approximately 3 and ½ hours. I told them that Cohen’s allegation was a lie and proved it with the numerous emails, text messages, and contemporaneous memos to the file. After that, the US Attorney’s Office never dealt with Cohen again—having concluded, rightly, that he was a habitual liar and totally unreliable witness. That office chose to not bring any charges against President Trump. Clearly the correct decision. But the same cannot be said for the New York District Attorney’s Office.
Finally, will Trump himself take the stand? Todd Blanche reportedly told the judge that he would keep his case short. And that likely means he will not put the former president on the stand. If he did, his testimony would go on for days in what lawyer and commentator Mark Levin described as a "This is your life, Donald Trump" humiliation ritual.
The trial resumes on Monday morning.
On this week's Adult in the Room podcast, I talked with Mike Davis of the Article III Project about this case following the outrageous Stormy Daniels testimony. It's a helpful wrapup of the state of play in the case.
via pjmedia