Michael Cohen’s first day on the witness stand in Donald Trump’s Manhattan trial gave us scores of incriminating details — many with spice about things not so nice.
The underlying purpose for prosecutors was methodical — to rebut the defenses that Trump’s lawyers would raise and to fill any gaps in prosecutors’ evidence. Throughout Monday, Cohen’s testimony went to the heart of the case. He told jurors that Trump participated in a meeting in Trump Tower in mid-January 2017, when he approved a plan to reimburse Cohen for the hush money that the latter had paid to Stormy Daniels just before the 2016 election.
There were a few other blockbuster moments. One came when Cohen testified about speaking to Trump right after he learned about the infamous “Access Hollywood” tape.
There were a few other blockbuster moments. One came when Cohen testified about speaking to Trump right after he learned about the infamous “Access Hollywood” tape. Cohen colorfully recounted that the tape was catastrophic for the campaign and that Trump feared a disaster for the campaign if Daniels’ story came out. “Women are going to hate me,” Cohen reported Trump saying. “Guys may think it’s cool, but this is going to be a disaster for the campaign.”
It is hard to imagine a more authentic quote.
Cohen also told jurors that Trump was frustrated to hear that Daniels was shopping her story: “I thought you had this under control,” Cohen said Trump told him. When the lawyer pointed out that “I have no control over what she goes out and does,” Trump allegedly replied, “Just take care of it.”
Consistent with testimony last week from Daniels’ former lawyer Keith Davidson, Cohen also told the jury that Trump ordered him to drag out the negotiations “as long as you can.” “Just get past the election,” Cohen said Trump told him. “If I win, it has no relevance, because I’m president. If I lose, I won’t really care.”
The prosecution was laser-focused on prebutting one of Trump’s anticipated defenses: that even if he was part of a scheme to falsify business records, he had no intent to deceive voters or violate election laws, a key element of the prosecution’s case to elevate the charged crime from a misdemeanor to a felony. Trump’s lawyers will claim that their client was simply buying Daniels’ silence to protect his marriage to his wife, Melania.
But Cohen said that when he raised a concern about her reaction, Trump responded: “Don’t worry. How long do you think I’d be on the market for? Not long.” (The former president continues to deny any affair with Daniels.)
Trump’s defense is further undercut by other evidence about the timing of the payoff. Daniels testified last week that Trump and Cohen’s interest in buying her story came right after the “Access Hollywood” tape surfaced. Text messages introduced by prosecutors alongside Cohen’s testimony showed the urgency of getting the deal done before the election.
BOVE: He went rogue?
— Katie Phang (@KatiePhang) May 3, 2024
HICKS: YES
BOVE: sometimes Cohen did things that were unhelpful?
HICKS: he liked to call himself a fixer or Mr. Fix it. “It was only because he first broke it.”
Another potential legal defense for Trump, hinted at early in the trial, was that Cohen “went rogue” (as Trump attorney Emil Bove claimed) and paid off Daniels entirely on his own, without Trump authorizing it or even knowing about it. That theory is vital to Trump’s defense in the likely event that jurors believe that Trump was involved in the payoff scheme. Trump’s lawyers need to explain checks their client wrote to Cohen that appear to tie him to the cover-up scheme. Each check is a count in the indictment: As the Manhattan DA alleges, the checks, disguised though they were as legal expense payments, were actually reimbursements to Cohen for the payoff to Daniels.
On Monday, prosecutors took a hammer to the theory that Trump believed the checks were for legal services, deploying Cohen’s testimony to establish the tie between Trump and the false entries on the checks whose stubs said “Retainer.” Among other evidence, Cohen testified about two meetings among himself, Trump and former Trump Organization CFO Allen Weisselberg. Cohen told jurors that “any deal would end up going through Allen,” who “handled all the finances coming in and coming out.” (Weisselberg is in prison after he pleaded guilty to two counts of perjury in his testimony in Trump’s civil fraud trial.) On Monday, prosecutors took a hammer to the theory that Trump believed the checks were for legal services. In the first meeting, just before the election, Cohen said, he and Weisselberg told Trump “that I was going to front the money for it.” To which Trump was appreciative, Cohen testified. Cohen alleged that in the second meeting, days before Trump’s inauguration, Weisselberg, with Trump’s approval, laid out the scheme through which the new president would reimburse Cohen via those checks. Again, given the blistering cross-examination to come, jurors are not likely to take Cohen’s word alone that Trump was behind the payoff. But there is plenty of corroboration. Earlier in the trial, former White House communications director Hope Hicks testified that even she, a Trump loyalist, did not believe the former president when he told her in 2018 that Cohen had acted on his own. She testified that would not have been consistent with Cohen’s character. Furthermore, in a 2018 lawsuit against Daniels, Trump represented in a court filing that he had reimbursed Cohen for the $130,000 payment to Daniels. (At the time, Trump tried to claim that the payment had nothing to do with the campaign.) And Jeffrey McConney, the Trump Organization’s longtime controller, also testified last week that Weisselberg instructed him to “gross up” the amount due Cohen to cover his taxes if the repayment was recharacterized as “legal expenses,” covering up its true purpose. Cohen’s explanation Monday of the $420,000 he ultimately got paid corresponded precisely with the handwritten notes by Weisselberg and McConney laying out the calculation. The result is enough evidence for the jury to conclude that Trump, Cohen and Weisselberg were co-conspirators in a criminal scheme to falsify documents. Under settled law, if a conspiracy is proven, each co-conspirator is liable for acts of others in furtherance of the unlawful purpose. Under such an instruction, the jury could find Trump guilty of the 12 counts for falsifying ledger entries kept by the Trump Organization. The big question is how Cohen comes off to the jury. Throughout the trial, witnesses have shared unflattering assessments of him as difficult to deal with. He has pleaded guilty to lying to Congress. Yet, his testimony has already proved crucial in the Trump Organization’s civil fraud trial, with the judge in that case finding him credible. And even after just one day, there is already a mountain of corroborating evidence. Cohen left jurors with detail and color they will not forget when Trump’s lawyers argue — contradictorily — that the former president was not part of the scheme to pay off Daniels and that, even if he was, he did not intend to violate election law. When Cohen takes his turn being cross-examined, he can do it knowing that the corroboration of his testimony shows he has been truthful in Judge Juan Merchan’s courtroom, even if he is a character whom jurors may well be glad they never met.
Dennis Aftergut
Dennis Aftergut is a former federal prosecutor, the former chief assistant city attorney in San Francisco and currently counsel to Lawyers Defending American Democracy. He signed LDAD’s December 2021 and States United Democracy Center's October 2021 bar disciplinary complaints against John Eastman. 
