There are a few decisions which, by law, are left entirely to the defendant. Whether to plead guilty. Whether to testify. But trial strategy is the lawyers’ domain. And with any other defendant, there is a good chance that the lawyers defending Donald Trump could have mustered a defense that would have sufficiently countered the prosecution’s narrative to get an acquittal, or at least a hung jury. Even with the defense provided, there were serious doubts whether the jury would find the defendant guilty. It did.
The defendant blamed the corrupt judge and rigged trial. He called it a disgrace, over and over. He lied about his ability to defend himself, claiming the gag order prevented it when the choice was his whether to testify. Of course, testifying would have been critical if he wanted to claim innocence, but then he would have been subject to cross. There is no one who believes he would have done well on cross.
Justice Juan Merchan was exceptionally fair to the defendant, far more so than judges usually are to defendants. His charge, that the jury did not have to be unanimous as to the crime he intended when he falsified business records, is legally correct under existing New York law, even if the law is dubious. Despite the defendant smearing the judge at every opportunity, the judge bent over backwards to give Trump a fair trial.
In his opening, Todd Blanche argued that the defendant never had sex with Stormy Daniels. It was irrelevant to the case and unnecessary to assert. By doing so, it opened the door to Daniels’ salacious testimony. As Andy McCarthy wrote, this was pure Trump hubris, his inability to admit fault and need to deny everything, relevant or not. For all the grievances he has against the judge and prosecution, they couldn’t have pulled it off without Trump being Trump.
There is little doubt that Blanche argued that Trump never had sex with Stormy because Trump demanded it. There is little doubt that Robert Costello was called as a witness because Trump demanded it, certain that he would destroy the disloyal Michael Cohen because that’s how Trump thinks it should work. It was a disaster on a number of levels, likely aided by Costello’s refusal to be prepped for trial because he was too important a person. He knew what he was doing and didn’t need any prep. He would give Trump exactly what Trump wanted. And in a way, he did.
Had Trump received a better, a more competent, a lawyerly defense, there was a good likelihood he would have beaten the case. But Trump is Trump. He knows more than the generals. He knows more than the lawyers. If they wanted to continue in this megalomaniac’s service, they would do as they were told.
The defense needs its own story, and in my experience, the side that tells the simpler story at trial usually wins.
Instead of telling a simple story, Mr. Trump’s defense was a haphazard cacophony of denials and personal attacks. That may work for a Trump rally or a segment on Fox News, but it doesn’t work in a courtroom. Perhaps Mr. Trump’s team was also pursuing a political or press strategy, but it certainly wasn’t a good legal strategy. The powerful defense available to Mr. Trump’s attorneys was lost amid all the clutter.
Whether Trump’s lawyers lacked the skills needed to effectively cross witnesses is unclear. From media accounts, the crosses were disjointed and largely ineffective, but that’s through the lens of people who were not inclined to be kind to Trump. Then again, Todd Blanche’s experience was as a federal prosecutor, and prosecutors rarely are skilled at cross examination. They just don’t get much opportunity to hone their skills as defendants rarely call witnesses.
Because the defense denied everything and attacked Mr. Cohen on every point, prosecutors were able to focus on the many points where Mr. Cohen’s testimony was corroborated by documents, phone records, text messages and a recording. If the defense had narrowly focused on the key points on which that testimony was not corroborated, it could have undermined the prosecution’s advantage.
Not being privy to the internal defense discussions between lawyer and client, I can’t say with certainty that Trump’s lawyers, if left to their own devices, would have tried a better case, would have crossed witnesses differently, would have conceded the points that were obvious rather than proffer incredulous denials that made them, and the defendant, look foolish and false.
But knowing what and how Trump conducted himself over the years, there is little doubt that he was directing the show and that what happened in the well was what Trump demanded happen. Trump has never had the strength or intelligence to grasp that he was not the smartest guy in the room. He dictated how the case would be tried, even though his lawyers had a duty to provide a zealous defense despite their client.
They could have asked for the judge to charge the lesser included offense of falsifying business records in the second degree, a misdemeanor. But that would have meant that Trump more or less conceded guilt as to falsifying records, even if not for some collateral criminal purpose.
But Mr. Trump’s team went for broke, deciding not to seek a jury instruction that would have permitted jurors to find that Mr. Trump committed a misdemeanor rather than a felony. It’s unclear whether that decision to deny the jury an option that would have given the defense a win was an act of hubris or a refusal to compromise, but both are characteristics of Mr. Trump that don’t translate well into a criminal trial.
This case could have been won, even in Manhattan with a jury that was unlikely to have warm feelings toward the defendant. Even with a judge who was unlikely to ever vote for him. Even with the state of the law working to facilitate a conviction by leaving the enhancement crime vague and not requiring unanimous agreement as to that final prong of the crime.
The reason Trump was convicted was Trump.