Let’s talk about Michael Cohen as a prosecution witness.
As you may know, he’s set to testify Wednesday, for the second time this week, to the Manhattan grand jury reportedly mulling charges for Donald Trump in the Stormy Daniels hush money case. You likely also know that Cohen would be a crucial witness in any trial that ensues for the former president. Of course, he arranged the payment to the porn actress in the run-up to the 2016 presidential election, to keep her quiet about an alleged affair she said she had with Trump (which he very strongly denies).
But whenever Cohen’s name comes up in connection with potential charges, the conversation may turn to the former Trump fixer’s vulnerabilities as a witness and, therefore, challenges in successfully prosecuting the man for whom he did the fixing. Those are understandable concerns, but they could benefit from some perspective.
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The bottom line is that prosecutors use challenging witnesses to make cases every day. And if Trump defense lawyers attack Cohen’s credibility and morality, they risk turning the tables back on their client.
First, on the notion of it being risky to use a witness with a criminal conviction or otherwise checkered past: It’s nothing new. Indeed, it’s routine practice for prosecutors around the country, including ones at the Manhattan District Attorney’s Office, where I was a prosecutor. People convicted of homicide, assault, theft, you name it — they’ve all been called to the stand to make cases against people charged with their own crimes.
It makes sense if you think about it. People involved in crime naturally have the best insights and information about their colleagues.
Plus, corroboration is key. Manhattan DA Alvin Bragg’s prosecutors are surely doing everything they can to back up Cohen’s evidence with other witnesses and documents, so that the case doesn’t hang on Cohen alone. Such corroboration likely has given Bragg the confidence to move forward to this point.
And when it comes to Cohen specifically, it’s important to think about what’s supposedly being used against him, exactly. Take for example his federal convictions in the Southern District of New York, where he pleaded guilty in a case that mirrors the state case Bragg is reportedly considering. As I’ve noted, Trump could have also been charged federally in the hush money scheme but, inexplicably, he wasn’t. Nonetheless, it could be dangerous for a defense lawyer cross-examining Cohen on his federal campaign finance conviction related to that scheme, because Trump himself appears directly implicated. Same goes for Cohen’s guilty plea for lying to Congress about efforts to build a Trump Tower in Moscow. (Trump also has denied any wrongdoing in that case.) Even for any of Cohen’s crimes or lies that don’t directly implicate Trump, Cohen is the man whom Trump trusted and kept close for years. So Trump lawyers maligning Cohen risks splashing back on their client. That’s not to say that Cohen would necessarily be an easy witness for prosecutors, or that good defense lawyers couldn’t score points against him in front of a jury. Rather, the important thing to remember is that this dynamic is present in courtrooms across the country every day. None of those other cases involve a former president, of course. But if and when charges are brought, the same logic applies.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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