Why Michael Cohen’s Testimony Will Be So High-Stakes

With Stormy Daniels’ time on the witness stand soon to end, the suspense at Donald Trump’s criminal trial in Manhattan builds toward the next truly dramatic moment: Michael Cohen’s appearance. There’s no way to exaggerate how memorable his testimony will be. Cohen can tie together all the threads of the criminal scheme with which Trump is charged.

Cohen will tell the jury how Trump led him to pay former adult film star Stormy Daniels $130,000 to buy her silence about their sexual encounter so that voters wouldn’t learn about it before the election. Cohen will share the nitty-gritty of what led up to Trump’s checks to Cohen that were marked “Retainer,” and will tell the jury that both knew there was no retainer agreement and the checks were reimbursements for the payoff. (Trump denies the sexual episode and claims the checks were payments for legal services.)

Trump’s trial lawyer—presumably lead counsel Todd Blanche —will cross-examine Cohen aggressively. Given Cohen’s admitted lies, and his guilty plea to federal charges of tax evasion, making false statements, and campaign finance violations, Blanche will score significant points. That is unavoidable and normal when prosecutors use cooperating co-conspirators—but prosecutors have powerful tools to stop the spin.

Cohen was Trump’s personal lawyer and fixer when this sordid tale unfolded. The federal charges to which Cohen pleaded guilty and served 13 months in prison arose from the same scheme for which Trump is on trial. Trump was the unnamed “Individual 1” in Cohen’s federal indictment.

In this case, Trump is charged with 34 counts of falsifying business records—11 alleged reimbursement checks and 23 entries in the Trump Organization’s books. Per the indictment, Trump intended the falsified records to conceal Cohen’s preelection payment to Daniels on Trump’s behalf. Before the election, Trump wanted his fingerprints nowhere near the deal.
How do prosecutors disarm the defense that Trump didn’t know about the payoff? How do they answer Trump’s argument that jurors cannot credit a liar like Cohen when he says he was following Trump’s orders?

The answer is “corroboration, corroboration, corroboration”—of every material fact that Cohen tells the jury. Corroboration comes in two basic forms.

The first is the supporting testimony of other witnesses. On Monday, for example, Jeffrey McConney, the former Trump Organization controller for 35 years, testified that “Trump paid extremely close attention … to any outgoing cash.” That buttresses what Cohen will say: There’s no way that Trump signed a series of $35,000 checks to Cohen without knowing and intending them to be reimbursement for Cohen’s payment to Daniels.

In the same vein, prosecutors elicited testimony from Hope Hicks, Trump’s former confidante, and from National Enquirer publisher David Pecker, establishing that Trump was a notorious penny-pincher and micromanager who ruled by wrath. No one, including Cohen, would last long in Trump’s employ by acting without his approval on any significant matter, political or financial.

That premise will corroborate Cohen’s expected testimony that in paying off Daniels, he was executing what prosecutors called the secret “Trump Tower conspiracy.” Pecker testified—as Cohen will—that Pecker, Trump, and Cohen agreed in late 2015 to buy off and kill salacious stories that could damage Trump’s campaign. Following that plan, in October 2016, Cohen rushed to make a deal with Daniels when her story gained value following the Access Hollywood tape. Another preelection scandal like hers would almost surely have been a knockout punch for Trump’s presidential hopes.

The second, even more powerful form of corroboration comes from authenticated documentary evidence. It doesn’t lie.

Prosecutor Matthew Colangelo told jurors in his opening statement: “Read the documents, the emails, the text messages, the bank statements, the handwritten notes, all of it.” They staunchly back up Cohen’s coming testimony that Trump knew when he wrote those monthly checks to Cohen in 2017 that they were reimbursements for his payment to Daniels.

Exhibit A: Trump’s 2017 government financial disclosure forms, which he signed, listed the payments to Cohen as a reimbursement.

Exhibit B: Notes from McConney and Trump Organization CFO Allen Weisselberg showing how the books were cooked. The notes irrefutably show the numbers in notepad chicken-scratch: The $130,000 Cohen paid to Daniels and another $50,000 he was owed were “grossed up”—that is, doubled—to $360,000 to make him whole for taxes he’d have to pay.

That’s because “each check was disguised as a payment for legal services,” and legal payments are taxable income to Cohen. If the payments had been honestly treated as reimbursements—which McConney said they were—taxes would not have been due. The eventual total came to $420,000 after a $60,000 bonus was added, likely in recognition of his “good work” in executing the scheme, to keep him silent, or both.

The notes make Cohen’s testimony explaining the money as a reimbursement virtually bulletproof.

Perhaps the strongest Cohen corroboration of all: his secretly taped conversation of Trump discussing a payment to Karen McDougal, who, in late 2016, was about to reveal details of her claimed extramarital affair with Trump. On the tape, he suggests buying her off with cash.

The dots are all there for jurors to connect:

• Trump’s expressed desire to use hard-to-trace cash;
• Pecker’s testimony about Trump’s reluctance to be associated with payoffs because “it always gets out”;
• Trump having someone else—Cohen—pay Stormy Daniels before the election; and then,
• After the election, Trump reimbursed Cohen with handwritten checks falsely recorded as “retainer.”

We can expect Cohen to be an effective witness during direct examination, as he was in his 2019 testimony to Congress about the scheme. Still, at this trial, any prosecutor questioning Cohen will be formal in tone and manner, signaling distance from a man painted in testimony as an aggressive boor and henchman.

The DAs know that on cross-examination, Blanche may goad the combative Cohen into showing the vindictiveness toward Trump that has come through in Cohen’s tweets.

Already, prosecutors have prepared the jury for that possibility, presenting a full picture of Cohen as an aggressive, intensely unlikable character when he was Trump’s legal “hit man.” They even elicited testimony from Keith Davidson, Stormy Daniels’ lawyer, that Cohen had promised to “rain legal hell on” her if she ever told the story of her one-night stand with Trump.

Prosecutors are fond of saying that crime bosses do not conspire with choir boys. Instead, criminal kingpins find people willing to surrender whatever moral code they have in order to do the boss’s dirty work.

In the end, we can probably expect something like this from the prosecutor making the closing argument: Michael Cohen may not be someone you’d invite to a family dinner. But we didn’t pick him to be the defendant’s fixer. Donald Trump did. 

It is he, not Cohen, who faces your judgment. With your verdict, you must send defendant Trump a message that has sounded in American halls of justice for more than two centuries: “No one is above the law.”