Opinion: Did Trump’s defense think this strategy would work on Cohen?

Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Read more opinion at CNN.

The forceful direct examination of former Trump fixer-turned-star prosecution witness Michael Cohen concluded Tuesday in the Manhattan criminal trial of former President Donald Trump. Cohen’s convincing testimony deepened the proof beyond a reasonable doubt that, in my view, the prosecution secured Monday.

Later Tuesday, lead defense counsel Todd Blanche spent hours on cross-examination to dislodge that proof. But the cross was uneven and Cohen, like Stormy Daniels before him, held his own. At least for today, the prosecution case remains intact. Whether that will change in the days ahead remains to be seen, but in any event, the cross of Cohen got off to an inauspicious start.

The day began with testimony about the January and February 2017 meetings Cohen had with Trump – the third and fourth of four key Cohen-Trump meetings that I wrote about in an earlier trial diary entry. As they did Monday, the prosecution used emails, invoices and photographs to meticulously corroborate these two meetings, in which Cohen testified to Trump’s active participation in the allegedly illegal repayment scheme at the heart of the case’s 34 felony document falsification charges.

That included Trump allegedly instructing Cohen in the February White House meeting to “deal with Allen [Weisselberg, the Trump Organization CFO],” whose handwritten notes of the hush money cover-up have been used to such devastating effect in telling the jury about the history of the $130,000 hush money payment made to adult film actress Daniels to keep her silent before the 2016 presidential elections about allegations that she and Trump had a sexual encounter (which Trump denies).

Norm Eisen - Courtesy Norm Eisen
Norm Eisen - Courtesy Norm Eisen

About an hour into Cohen’s Tuesday testimony, the prosecution switched gears to a technique we trial lawyers call “drawing the sting”: that is, anticipating how a witness is likely to be attacked on cross and acknowledging it preemptively on direct to lessen the impact on the jury.

By my estimate, Assistant District Attorney Susan Hoffinger spent over an hour, on and off, asking Cohen about his many lies denying Trump’s role in the Daniels payoff, about getting others to do the same, and about Cohen’s own prior criminal convictions, including for perjury. Cohen explained that he undertook this wrongdoing “out of loyalty” to Trump “and in order to protect him.”

One of the most effective moments of this drawing-the-sting tactic came when Hoffinger asked Cohen what he meant when he admitted in the Trump civil fraud trial just a few months ago that he had lied when he pleaded guilty in 2018 to tax and bank fraud. Cohen explained that he did not at all dispute the underlying conduct that he had failed to pay certain taxes or omitted key information on bank forms. As a first-time offender, he felt these offenses did not merit prosecution, but he said he was coerced into pleading guilty by a short-fuse threat by federal prosecutors to also charge his wife. When the defense circles back to this later in the week, instead of being able to confront Cohen with an unexplained lie to a federal judge, Cohen will be able to say, “I already explained that I was coerced.”

The direct examination finished just before lunch on an emotional climax as Cohen testified regarding Trump: “I regret doing things for him that I should not have — lying, bullying people … but to keep the loyalty and to do things that he had asked me to do, I violated my moral compass and I suffered the penalty, as has my family.”

At that moment and at multiple points during the day, I saw something I had not seen before with any witness in this trial: Cohen was talking directly to the jury, and all the jurors were looking at and listening to him. It seemed to me that he had established a genuine human bond with the jury over the course of his lengthy direct examination.

The anticipation was as keen as at any moment in the entire case as we waited for Blanche to commence the cross-examination. Indeed, courtroom and overflow-room observers usually trickle back from lunch at a staggered pace, but when I returned to the courthouse entrance, dozens were already lined up early to get back inside for a choice seat.

Because the defense is behind, Blanche had to come right out of the box swinging, and he did — but it was a swing and a miss as he asked Cohen his first question: “You went on TikTok and called me a ‘crying little s–t’, didn’t you?” Cohen, with a deadpan demeanor that I thought hid a twinkle in his eye, responded that the quote “sounds like something I would say,” eliciting a smile from even Blanche’s own co-counsel Susan Necheles.

But that has nothing to do with the underlying facts in this case, and neither did the question that followed about Cohen criticizing Necheles. Both drew objections that were sustained and triggered a bench conference with Judge Juan Merchan. While we won’t know what was said until we get the transcript, the judge appeared to rebuke Blanche and ordered the questions stricken.

That was not a good look for the jury to observe and, while Blanche could only go up from there, he continued to struggle a bit, drawing several objections that were sustained as he failed to rattle Cohen with questions about topics like his frequent media appearances despite the district attorney’s reservations (naughty, but so what?), his anti-Trump podcast (showing bias, but Cohen owned it) and even selling anti-Trump merchandise (showing financial motive, but again failing to get a rise out of Cohen).

Blanche eventually started to pick up a little steam when he contrasted how little Cohen remembers about his conversations with the DA’s office a year ago to his recollection of details about conversations with Trump back in 2016. He also got in some glancing blows on Cohen’s bias by eliciting various admissions about wanting Trump to be convicted, selling a T-shirt showing Trump in jail and the like. However, even when Blanche confronted Cohen with his most inflammatory social media comments, such as calling Trump a “dictator douchebag” and a “Cheeto-dusted cartoon villain,” Cohen was utterly unfazed.

These questions did little, in my estimation, to break Cohen’s bond with the jury, to undermine his credibility or to push back the prosecution’s proof beyond a reasonable doubt. Perhaps the defense strategy improved a bit after the afternoon break when Blanche dug into Cohen’s motive to get help with reducing his federal prison sentence when he began cooperating with the DA — but not much. By the time the judge mercifully suggested to Blanche that we break for the afternoon, it was clear Blanche had failed to make the strong showing that was needed. Indeed, it was not even close.

Of course, we are relatively early into the cross, and we have miles to go. The initial returns could turn better for Blanche or worse for Cohen. On the other hand, as my late mother often reminded me, you only get one chance to make a first impression, and Blanche’s was decidedly meh. Cohen, like Daniels before him, is making a good one on cross, at least so far. Blanche has a long break to recalibrate with court out of session on Wednesday, and he should try to do so. We will see what Thursday brings.

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