Michael Cohen is the most important prosecution witness in elected progressive Democratic district attorney Alvin Bragg’s prosecution of former president Donald Trump. This should be a huge problem for Bragg, notwithstanding the unfailing help his prosecutors get from Judge Juan Merchan.
Trump’s former lawyer and self-described “fixer” — who, as former Trump aide Hope Hicks observed in her testimony, usually had to “fix” things only after he’d first “broken” them — has turned with a vengeance against his former boss. The bias is so unabashed that as late as last week — when prosecutors should have been telling him to lay low and keep his mouth shut — Cohen was appearing on an internet platform ripping the former president while clad in a T-shirt depicting Trump behind bars in an orange jump suit. (Cohen also heralded his coming run for Congress!)
Unconstrained hostility in a witness should be a flaw Bragg can’t overcome because, even without it, Cohen is not a witness on whom any prosecutor would want to rely. It is not enough to say he is a convicted perjurer — having pled guilty to lying under oath during the Mueller “Russiagate” probe. Just a few weeks ago, a federal judge in Manhattan concluded that Cohen had committed additional perjury in either — or both — (a) his 2018 guilty plea allocution (the statement a defendant makes when asked to explain his conduct) to federal tax- and bank-fraud charges, and/or (b) his testimony at Trump’s New York State civil-fraud trial just a few weeks ago. That’s because — you can’t make this stuff up — Cohen now says he was lying under oath when he admitted guilt to over $4 million in tax evasion and related false representations to financial institutions.
Yes, Cohen claims he was committing perjury, independent of his prior perjury conviction, when he was explaining how he committed fraud and made false statements to banks. Go it?
On this score, the jury in Trump’s trial will learn that Bragg’s team has misled them. In the state’s opening statement, prosecutor Matthew Colangelo (formerly a top lawyer in the Biden Justice Department) claimed that Cohen had pled guilty and gone to jail over guilty pleas to two campaign-finance felony charges. In point of fact, those charges had little if anything to do with why Cohen went to jail — his three-year sentence (which should have been longer) was driven by the tax evasion and fraud charges in which Trump was uninvolved.
Moreover, where Cohen was not telling the truth in his federal guilty plea was when he attempted to acknowledge guilt to the two campaign-finance charges. I am not accusing him of lying — he’s not a very good lawyer and he may not have understood the law, but his participation in the payments for non-disclosure agreements to two women who claim to have had extramarital affairs with Trump circa 2006 — Stormy Daniels and Karen McDougal — were technically not campaign expenditures, and therefore should not have been the basis for guilty pleas.
Cohen pled guilty to campaign offenses because he was trying to sell himself to federal prosecutors as a cooperating witness against Trump, hoping they prosecutors would ask the judge not to send him to prison; and the prosecutors took the plea to campaign offenses because they knew they’d never have to prove those offenses in court or defend them on appeal (generally, a defendant who pleads guilty waives his right to appeal). In the end, prosecutors did not accept Cohen as a cooperator because they found him too dishonest and unreliable — he was sent to prison after they submitted a scathing pre-sentencing memorandum to the judge. And neither the Justice Department nor the Federal Election Commission proceeded against Trump because they lacked evidence of federal campaign violations.
As Cohen takes the stand, it wouldn’t be the Trump trial if we didn’t have Judge Merchan trying to cover himself for a misstep. Last week, with Cohen beclowning himself online and in his podcast (yes, Cohen has a podcast — and guess whom it’s about!), Merchan admonished prosecutors to direct their star witness to stop making public statements about the case and the defendant.
We’re now in the fifth week of trial. One of the abundantly obvious problems with Merchan’s overwrought, constitutionally dubious gag order against Trump is that it only suppresses Trump’s speech. Trump’s lawyers have constantly complained to the judge that it was ridiculous that such witnesses as Cohen and Stormy Daniels were out in public yapping incessantly about Trump, but Merchan wouldn’t let Trump respond.
Merchan rebuffed Trump’s request that the state’s principal witnesses be similarly gagged, scoffing that only Trump, not the witnesses, was on trial. That observation was as nonsensical as it was banal. If, as Merchan insisted, he was trying to protect the integrity of the trial – i.e., trying to shield the jury from out-of-court publicity — then it shouldn’t matter whether the source is Trump or Cohen.
Now, finally, after weeks of Cohen’s antics, Merchan finally tells him to zip it just as he’s about to get on the witness stand. The judge’s pose as impartial and evenhanded is laughable. He waited until late last week to issue an admonition that he could have issued at the very start, when he gagged Trump. But evidently, as long as the prejudicial statements were coming from a trial participant who was bashing Trump, Merchan didn’t see it as a problem — at least until it got too embarrassing to further ignore.