Why I Reevaluated the Prosecution's Case Against Donald Trump
A closer look at the prosecution's strategy in Trump's hush money trial reveals a crucial misstep that led to a shift in perspective. Attorney Stacy Schneider discusses the impact of a key witness absence and the implications for the case.
Stacy Schneider, a criminal defense attorney in Manhattan and former contestant on "The Apprentice," shares her personal views in this commentary. Keep reading for more opinions on CNN.
The Manhattan District Attorney’s Office made a big mistake by announcing that they were done presenting their case after calling Michael Cohen as their final witness in the Donald Trump hush money trial. Despite Cohen being a convicted felon and disbarred lawyer, he actually performed quite well when faced with the prosecution’s questions about his past wrongdoings, convictions, and bias towards the former president. Cohen remained composed and didn't lose his composure while on the stand.
Stacy Schneider
Stacy Schneider
During cross-examination on Thursday, Cohen stumbled and seemed to leave out key details regarding an October 2016 phone call with Trump about the hush money payment. This tense moment between Trump's lawyer and Cohen was a major setback for the prosecution.
The prosecution has been successful in supporting Cohen's expected testimony by bringing in other witnesses to confirm important facts and shed light on Trump's possible involvement in the alleged payment to adult film star Stormy Daniels to keep quiet about her encounter with him before the 2016 election. The jury heard from David Pecker, the former CEO of American Media Inc., Keith Davidson, Daniels' attorney who arranged the deal, Hope Hicks, Trump's former aide, and even Daniels herself. (Trump denies the affair).
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The prosecution did not include a second key witness in its case to establish that Trump intended to falsify his business records to cover up another crime. Cohen’s testimony only proved part of the alleged crime related to hush money payments, but the DA also needs to prove the actual business records crime. Trump has been charged with 34 counts of falsifying business records in the first degree, to which he pleaded not guilty. In my view, Cohen’s testimony only addressed one aspect of the case.
Cohen testified that there were three people present in the Trump Tower meeting after the 2016 election to discuss reimbursement for Daniels’ payment: Cohen, Trump, and Allen Weisselberg, then-chief financial officer of the Trump Organization. However, due to Cohen’s credibility issues, it would strengthen the case for the DA’s office to bring in a second witness to support his claims.
Weisselberg, who was Trump's right-hand man as CFO, is currently serving time at Rikers Island for perjury related to his testimony in Trump's civil fraud case.
Weisselberg's knowledge could help validate Cohen's claim that Trump agreed to reimburse him through Trump Organization as a business expense. As the former CFO, he likely has insight into Trump Organization's financial records and whether Trump was involved. Calling Weisselberg to testify could help clarify any inconsistencies in Cohen's story if the jurors doubt his testimony about Trump's awareness and approval of the plan.
Michael Cohen departs his apartment building on his way to Manhattan criminal court, Thursday, May 16, 2024, in New York.
Michael Cohen departs his apartment building on his way to Manhattan criminal court, Thursday, May 16, 2024, in New York.
Andres Kudacki/AP
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However, the prosecutors are facing a challenge. Weisselberg, who is another key witness, also has credibility issues. He has a past conviction for lying under oath. The DA’s office shared with Judge Juan Merchan, away from the jury, their concern that Weisselberg may not be truthful on the stand as his interests may align with the Defendant’s. This raises doubts about his credibility and the DA may choose not to call him as a witness to avoid damaging their case. This decision could create a gap in the prosecution's argument and potentially open the door to reasonable doubt.
It’s unlikely we will ever see Trump take the stand to explain his version. He appears to have calmed down and gotten used to the cadences 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 would not want to risk living through more questions about his alleged affair with Daniels and his friendship with Pecker, who, from his trial testimony, appears to know many Trump secrets. The former president knows that if he takes the stand, he won’t be able to close his eyes and zone out. He will have to relive the unsavory details of the prosecution’s case all over again.
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Cohen did a good job testifying about the first part of the scheme to influence the election by buying Daniels' story and keeping it quiet. However, he doesn't know about the creation of the business records mentioned in the 34-count indictment. In 2017, when the reimbursements started, he wasn't working for the Trump Organization. He was a lawyer, not a bookkeeper. If just one juror is unsure about Trump's involvement in how Cohen's payback was recorded, there might be a hung jury, and Trump could go free.
Trump's personal secretary, Madeleine Westerhout, provided a significant advantage to the defense team. She mentioned that Trump would sometimes multitask and that she had personally witnessed him signing numerous checks while on the phone or involved in other activities.
The defense could argue that Trump was focused on running the presidency in DC and not closely managing the operations in New York at the Trump Organization. If he signed checks that were presented to him, they could have been among many tasks to be sent back to the company without much scrutiny. In this case, there may have been no deliberate attempt to falsify business records. Without Weisselberg's testimony on Trump's knowledge or intentions, the prosecution's case relies heavily on Cohen. This might not be sufficient for a conviction.
Editor's P/S:
The Manhattan District Attorney's decision to end their case without presenting additional witnesses after calling Michael Cohen as their final witness was a strategic error. While Cohen's testimony supported the prosecution's case regarding the hush money payment to Stormy Daniels, it did not address the crucial element of falsifying business records. The DA's failure to call a second witness, such as Allen Weisselberg, to corroborate Cohen's claims weakens the prosecution's argument and potentially creates reasonable doubt for the jury.
Weisselberg's credibility issues, including a past conviction for lying under oath, present a dilemma for the prosecution. Calling him as a witness could further damage their case if he is perceived as untrustworthy. However, his knowledge of Trump Organization's financial records and his potential insight into Trump's involvement in the alleged falsification of business records make him a valuable witness. The prosecution must carefully weigh the risks and benefits of calling Weisselberg to testify, as their decision could significantly impact the outcome of the trial.
