The Defense Strategy Is Risky

Deny the tryst, deny the payments, and call everyone else a liar. There’s only one problem, and it’s a big one.

Defendant Trump with his defense counsel, Todd Blanche. Photo by AP

Trump’s legal team faced a crossroads as the ex-president’s criminal trial was set to begin. 

Down road one, they could concede that Trump tried to cover up payments to Stephanie Clifford aka Stormy Daniels, but argue that any man in Trump’s position might do this to protect his marriage and reputation.

That could earn Trump a misdemeanor for falsifying business records but avoid a felony for attempting to conceal another crime like illegal election influence. If this is just a “paperwork” case, as Trump likes to argue, then perhaps it would be better to admit the ledgers were questionable, but try to hold the line there.

Down road two, Trump could go scorched earth. He could deny that he ever had sex with Daniels, argue he paid her off because she was extorting him, maintain there’s nothing wrong with the paperwork and that he wasn’t even aware of what Cohen was doing, and call everyone else a liar.

Guess which road Trump went down on? 

In today’s piece, I’ll walk through the opening statement by Trump’s lawyer, Todd Blanche. I’ll show how Blanche appears to have dug in too deep on the question of Trump’s complete innocence, likely at the Trump’s insistence. This led to him to take some absurd positions, overpromise on the evidence, and rely heavily on attacking the credibility of Michael Cohen and Stormy Daniels when they’re not the only witnesses around. In any event, the case really comes down to who has the receipts, and the prosecution likely has a massive trove.

Trump was just protecting his family and his brand!

Based on the opening statement, Trump has dug in, will stick to his guns, and will deny everything, down to the tryst with Daniels itself. Blanche argued to the jury that Trump’s only encounter with Daniels was in 2006 when they met to talk about her possibly getting on The Apprentice. He claims that she then tried to extort him based on that innocuous meeting alone.

In 2016, when the payoff happened, Blanche stated there were all kinds of “salacious allegations” being made about Trump, and that the “non-disclosure agreement” with Daniels was just his way of protecting his brand and his family. 

Trump had earlier denied his involvement with Daniels to the press when asked directly, so perhaps he’s trying to remain consistent with that story. Daniels also issued a denial, but later retracted it saying she thought she was required under the NDA to deny it ever happened.

There are some big holes in this defensive strategy.

The first is the idea that Cohen would take out a home equity loan and use a shell company to pay off Daniels for something that didn’t happen and that she couldn’t prove. If it never happened, that number would likely be far, far lower or zero.

The second is that Trump in turn would go on to pay a total of $420,000 to his fixer Michael Cohen over something that didn’t ever happen. (I’ll explain the $420K below.) 

The third, and perhaps most important, is that Trump’s word will be up against not only Daniels and Cohen but others who were aware of the payoff and the circumstances surrounding it.

This is worth exploring a bit more. There’s Trump’s longtime friend David Pecker, the former publisher of the National Enquirer. Pecker steered the payoff away from his company AMI and over to Cohen to handle.

Then there is Hope Hicks, who was Trump’s press secretary at the time. As NBC reported earlier this month, Hicks met with prosecutors for several hours and is expected to be a witness for the state. According to an FBI agent in an earlier criminal case around the same matter, Hicks was involved in the negotiations with Stormy Daniels’s lawyer, Keith Davidson, to prevent Daniels from going public about the sexual encounter with Trump in 2006. 

And there are other witnesses who dealt directly with Cohen on the question of the payments, including not only Davidson but the then Chief Content Officer of AMI, Dylan Howard. 

Negotiations between the Trump campaign and Daniels’s attorney began in earnest in October of 2016 following the infamous Access Hollywood tape that was already destroying Trump’s election chances. Trump believed yet another scandal could end them.

As the FBI affidavit in the Cohen case states,

I have learned that in the days following the Access Hollywood video, Cohen exchanged a series of calls, text messages and emails with Keith Davidson, who was then Clifford’s attorney, David Pecker and Dylan Howard of American Media Inc., the publisher of the National Enquirer, Trump, and Hope Hicks, who was then press secretary for Trump’s presidential campaign.

That’s quite an electronic trail between Cohen and other people, including Davidson, Pecker, Howard and Hicks. Will any of them testify that Trump 1) did in fact have a sexual encounter with Daniels, 2) was trying to cover it up by routing the payoff through Cohen, and 3) cared primarily about how such a story might affect his election chances? The likelihood is high. And these witnesses aren’t so easily impeachable as Cohen and Daniels.

Like I said, it’s a risky strategy. If the jury doesn’t believe Trump’s denials around the Stormy Daniels sexual encounter and the payoff, why should they believe him when it comes to the cover-up that led to felony charges? 

The payments were just legal fees!

As if it weren’t audacious enough to argue that Trump was paying Daniels off simply to protect his brand and family against a false and salacious accusation, Blanche also argued that the multiple payments to Cohen were not to reimburse him for money he had already paid to Daniels, but instead were just normal lawyer fees. 

Cohen, Blanche insisted, was Trump’s personal lawyer, so he was paid $35,000 a month for his legal services. Cohen received $420,000 in total, far more than the $130,000 paid to Stormy Daniels. This shows that Cohen was just earning money as a lawyer and not getting reimbursed, Blanche argued.

In other words, Michael Cohen was such a good friend to Donald Trump that he wasn’t ever expecting to be reimbursed for the $130,000 he shelled out after taking out a home equity loan to pay off the porn star Trump had banged to keep her quiet.

What loyalty!

Here’s what’s really going on. Because the $130,000 pay off was recorded as legal services, Cohen had to pay taxes on that, referred to as “grossing up.” That meant Trump paid him the $130K plus an extra $180K to cover Cohen’s tax bill on his “services,” which included a $60K bonus for being the conduit. 

On top of that, Cohen received $50K billed to a tech company that helped Trump’s online poll ratings. That adds up to $420K. 

Here’s a handy chart from the good folks at Just Security:

Cohen of course will explain all of this to the jury. And Pecker will testify about how this kind of paper trail cover-up was standard practice as part of their catch-and-kill efforts on behalf of Trump. As Pecker and Howard texted each other with respect to Stormy Daniels, Cohen would get it “all sorted” and there would be “No fingerprints.”

Trump didn’t know what his employees were doing!

Trump should have learned from his state tax fraud and false financial statements case. There, he unsuccessfully argued that he didn’t know what was going on with the financial statements, even when it was his name on them. But he has not learned that lesson.

Blanche suggested to the jury that the invoices and records were all done by people not named Donald Trump, and that when he signed checks he did so because he was the signatory on the account, not because he knew what was what.

“You’ll learn President Trump had nothing to do with any of the 34 pieces of paper, the 34 counts, except he signed on to the checks, in the White House while he was running the country,” Blanche promised. “That's not a crime.” 

The problem once again is receipts. Trump was very much in on the conspiracy to hide the paper trail leading to Daniels, so each and every instance of that cover up comprised a crime of falsifying business records. The prosecution has promised the jury that it will present testimony and documentary evidence to back this up.

We haven’t seen that evidence yet. Some of it involves Allen Weisselberg, Trump’s CFO who himself is a convicted perjurer. But what we now have is a battle of two promises: one by the defense lawyer who says Trump had nothing to do with the 34 falsifications, and a promise by the state to bring the receipts that show otherwise. It would be unusual in the extreme for the prosecution to overpromise what it could not deliver, so my money’s on the state to have the far stronger evidence here.

Everyone else is a liar, and what Trump did was fine!

It’s one thing to call Cohen a liar and to point to his criminal record. It’s yet another to call Daniels a liar and an opportunist who extorted Trump on a made-up story.

But texts, emails and even taped recordings of meetings don’t lie. And the more it’s proven by the state that Cohen’s and Daniels’s stories actually line up with the hard evidence, the more Trump will look like the real liar.

One last point: Blanche argued that paying hush money to a porn star is perfectly legal, and even influencing an election is legal. “It’s called democracy,” he said in one of the more memorable moments. Trump was within his rights to buy Daniels’s silence, Blanche insisted. In fact, he argued, famous people have to do this all the time.

This is also a very risky argument. There is a pattern of Trump buying off these stories with the help of Pecker and AMI. Pecker has already begun to testify directly about it. And while there’s nothing illegal about catch-and-kill per se, when these payments become unreported campaign contributions, it crosses over from shady to illegal. And then when you tried to hide those through falsifying your records, it becomes a felony.

That’s what’s happened here, and it won’t be hard for the prosecution to point out the difference.

Trump may have forced his legal team to stand by his absurd claims that none of the sex with Stormy Daniels ever happened, the payoff to cover that non-event was never reimbursed, that Cohen only received legal fees, and that everyone else but Trump is lying. He may even feel he needs to maintain this ridiculous narrative to keep public opinion on his side for the election.

But as a legal strategy, it’s pretty foolish. And oh-so-Trumpian.