Can the cross-examination of Trump’s accusers do him any good?
Michael Cohen was the first of Donald Trump’s former attorneys to testify against his old boss, but he won’t be the last.
Three other Trump lawyers have already pleaded guilty in Fulton County District Attorney Fani Willis’s conspiracy prosecution for attempting to subvert Georgia’s 2020 presidential election. Sidney Powell, Kenneth Chesebro and Jenna Ellis all accepted deals requiring them to “testify truthfully” against their codefendants, including Trump, in exchange for sentences that included no jail time.
Cohen’s situation is different from the other three. He pleaded guilty in 2018 to tax evasion, campaign finance violations and false statements, all related to his work as Trump’s personal attorney and “fixer,” and he is under no current obligation to testify against Trump. Nonetheless, Cohen’s voluntary testimony in New York Attorney General Letitia James’s civil fraud case may be a preview of the way the three other lawyers might be treated under cross-examination.
Years before he took the stand last week, Cohen made it clear that he deeply regretted his loyalty to Trump, for whom he once boasted that he would “take a bullet,” saying that Trump led him to the “path of darkness” and “dirty deeds.” Cohen’s profound disdain for Trump was evident in his books, his podcast and over 10 hours of scathing congressional testimony, but the Manhattan trial was his first opportunity for a direct confrontation.
According to observers, Cohen maintained his calm composure under questioning by Assistant Attorney General Colleen Faherty. He seldom looked Trump’s way during his turn as a key live witness for the prosecution in a case that had thus far been dominated by documentary evidence. He carefully detailed his efforts as vice president of the Trump Organization to “reverse engineer” financial statements to reach whatever inflated level Trump wanted.
“I was tasked by Mr. Trump to increase the total assets based upon a number that he arbitrarily elected,” Cohen said. The falsified documents, raised to “whatever number Trump told us to,” were then presented to banks, insurance companies, and even in Trump’s attempt to purchase the Buffalo Bills football team.
Trump’s demeanor did not match his antagonist’s. Visibly scowling, he grew red-faced and forcefully shook his head while Cohen testified, at one point dramatically throwing up his hands in disgust.
Trial lawyers do their best to discourage their clients from such demonstrative reactions to damaging testimony, but Trump is notoriously impossible to control. It may actually have been to Trump’s advantage that the New York case is being tried before a judge rather than a jury, given jurors’ tendency to be affronted by histrionics at counsel's table.
Cohen was unable to keep his own cool under aggressive cross-examination by Trump’s attorney Alina Habba, which extended over two days. Habba launched assault after assault on Cohen’s credibility, stressing his multiple felony convictions and lies in court. Cohen, who is no longer a licensed attorney, sparred with Habba over the rules of evidence. He made objections from the witness stand and occasionally deflected her questions, only to be instructed by the judge that he had to answer them.
Habba attacked Cohen as a liar and financial opportunist, who was desperate to exploit his calamitous relationship with the former president.
“Your primary income is speaking about Trump,” she charged. “The more outrageous your stories are about President Trump, the more money you make, is that accurate, Mr. Cohen?”
Continuing the hardline cross-examination, a second Trump attorney succeeded in obtaining Cohen’s admission that Trump had never explicitly asked him “to inflate the numbers” on his financial statements. That opening, however, led to Cohen’s combative response on redirect examination that Trump operated like a “mob boss” who “tells you what he wants without specifically telling you.”
Assailing the credibility of the witness is a classic cross-examination technique to which Cohen — with five years of documented hostility to Trump — was especially vulnerable. It is too soon to know how effectively that worked before a judge in New York, but similar tactics may well be less effective before a jury in Georgia.
Powell, Chesebro and Ellis all carry some of the same baggage as Cohen. Each has pleaded guilty — Chesebro and Ellis to felonies; Powell to a misdemeanor — in exchange for lenient sentences. That will surely be emphasized by the cross-examiner, probably Trump’s lead counsel Steven Sadow, who has referred to the guilty pleas as a “bargaining chip.”
On the other hand, the three are not burdened by perjury convictions, nor have they spent years vilifying Trump at every opportunity. While Cohen was inescapably seen as vindictive, the Atlanta prosecutors will be able to portray the three attorney witnesses as contrite and remorseful. By the time the case reaches trial, each one will have circulated an apology to the people of Georgia, as required by the plea agreements, a nice touch by Willis that will underscore their sincerity.
No matter how truthfully he testified, Cohen had set himself up as a punching bag. Even Trump’s contemptuous gesticulations — not to mention his recess insults, calling Cohen “totally discredited” and a “disgraced felon” — did not appear entirely undeserved.
The three Atlanta witnesses, in contrast, will need to be treated far more gently, more like errant friends, who wilted under pressure, than vile betrayers.
Ellis cried when she pleaded guilty, admitting that “I failed to do my due diligence. I believe in and I value election integrity,” she added. “If I knew then what I know now, I would have declined to represent Donald Trump in these post-election challenges." That was only the beginning.
Trump’s lawyers will face a difficult task on cross-examination. A story of redemption is far more difficult to confront than a story of revenge.
Steven Lubet is the Williams Memorial Professor at the Northwestern University School of Law. He is the co-author of "Modern Trial Advocacy" and has written many other books.