As Donald Trump’s criminal trial in Manhattan reaches a critical turning point, an amusing paradox has emerged. For once, Trump claims to be happy with his lawyers’ performance after a long history of fractious relationships with his attorneys. This might ordinarily be a welcome development for him — but the problem is that they are not doing a particularly good job defending him.
Put simply, Trump’s legal team has made several considerable, and at times baffling, missteps over the course of the trial that have increased the odds of a conviction.
Adding to the strangeness of all this is the fact that Trump’s defense team is probably the strongest group that he has assembled in any of his various legal proceedings to date. The principal lawyers are experienced criminal litigators who, as a group, are moderately to very well regarded among New York City’s white-collar bar.
At the moment, it’s impossible to know for sure how Trump will ultimately fare in the case. The trial is now likely to turn in large part on the jury’s assessment of Michael Cohen’s credibility, which has always been the central risk for prosecutors.
But it’s also clear that Trump’s lawyers are pursuing a flawed and risky strategy. Why? Most likely it’s not them, but him. Trump is the client, and he gets the final word on major decisions. So far as I can tell, this team has managed to stay on Trump’s good side by indulging — perhaps necessarily — his worst traits and instincts. It may be their downfall.
Most devastatingly, lead attorney Todd Blanche, in his opening statement, repeated Trump’s claim that he never had a sexual encounter with Stormy Daniels. That was followed by days of testimony last week that — if you believe Daniels’ very persuasive account — effectively demonstrated that a central plank of Trump’s defense is a lie and has been a lie for years, and that the jury cannot trust even Trump’s lead counsel to tell them the truth.
A bunch ofTrump-supporting legal commentators have claimed that Daniels’ testimony was irrelevant to the case — a truly baffling interpretation of events given what actually happened. Prosecutors had no choice but to put Daniels on after Blanche affirmatively called her a liar in his opening statement, and they had to elicit considerable detail about the sexual encounter in order to establish her credibility in response to Blanche’s attack inside the courtroom and Trump’s years of attacks outside of it. Not only was that the appropriate way for the government to defend the integrity of its investigation and its witness, it was also an unmissable opportunity for them to tank the credibility of Trump’s entire legal defense.
Another major misstep occurred in the form of defense lawyer Susan Necheles’ cross-examination of Daniels. Necheles went to considerable lengths to suggest that Daniels had changed her story over time and had been motivated by money when she agreed to keep her story quiet in the run-up to the 2016 election. None of that matters much under the circumstances, since the only thing that the jury really had to take away is that Daniels and Trump had sex.
It is also very bad when the witness manages to embarrass the cross-examiner, as Daniels did on multiple occasions. Trump’s legal team appears to have assumed that Daniels was dumb. What emerged instead from Daniels’ time on cross-examination was a woman who is resourceful, sharp and quick-witted. She effectively turned the tables on Necheles, likely making her more sympathetic and credible in the eyes of the jury. (All of the pearl-clutching about the intimate nature of Daniels’ testimony from the Trump-defending commentariat clearly falls flat in the year 2024.)
Even before Daniels took the stand, Trump’s lawyers were not off to a good start. For months, Trump’s pretrial court filings were laden with pointless, distracting and false broadsides about how he is being politically persecuted by his political opposition. It may have been good for his campaign, but it also made it much easier for the judge to rule against him and his lawyers on pretty much every important issue headed into the trial.
The government’s case also began with some witnesses — in particular, the former publisher of the National Enquirer David Pecker and Daniels’ former lawyer Keith Davidson — who Trump’s legal team should have portrayed as peripheral to the government’s case, and as lacking any direct knowledge of Trump’s conduct in connection with the alleged falsification of business records (the actual core of the case). Instead, Trump attorney Emil Bove pursued oddly long and wandering lines of cross-examination that scored few clear and relevant points for the jury to take away.
If you spend any time reporting on the inner workings of Trump’s legal team, as I have, several things become clear very quickly.
First, Trump is largely unmanageable. He is unfocused and not as intelligent as he thinks he is. He may have had extensive experience as a civil litigant, but criminal litigation — particularly as a defendant — is very different. Even the lawyers who have joined Trump’s legal team hoping to crack the code with him have ultimately been disappointed, diminished or both. They routinely leave or are fired. In the last year alone, these include: Tim Parlatore, Jim Trusty, John Rowley and Joe Tacopina.
Second, Trump makes the key strategic decisions in his legal cases, including his criminal cases. Yes, he does so on the basis of his attorneys’ advice — the ones working for him at the moment, at least — but he’s the decider, as another former president once said. This is not surprising. It is as it should be, in fact.
Clients are largely entitled to make the key strategic decisions in their cases, and attorneys are largely required to follow those decisions unless they independently run afoul of other ethical constraints. It is worth bearing this in mind at the moment — both because it is helpful for understanding what is going on in Trump’s trial right now, and also because if Trump loses this case, he will probably start blaming his lawyers for decisions that he himself made.
Third, Trump has two key strategies for defending himself in legal settings, and they are the same ones that he uses in political settings. First: Deny, deny, deny. And second: Attack, attack, attack. It’s something he learned from Roy Cohn and has been deploying for 50 years.
All of this has been on display in the course of Trump’s trial. You could see Trump’s handiwork in Blanche’s opening denial of Daniels’ account — a grievous strategic and tactical error for a serious lawyer. You could see it in Necheles’ unpersuasive and protracted cross-examination of Daniels and in her unsuccessful effort to portray Daniels as a liar. And you could see it in Bove’s disproportionately sharp cross-examinations of witnesses who should have been diminished and dismissed by Trump’s team.
These decisions are so obviously wrong as a strategic matter that it is frankly hard to believe that Trump’s defense team all agreed with them. These lawyers are not a bunch of hacks, and they aren’t dumb either. We may never know what went on within Trump’s legal team headed into this trial — most if not all of that information is likely to remain shielded from public view — but they almost certainly tried and failed to talk Trump down from some of these approaches.
As the government’s case draws to a close after Cohen’s testimony, Trump will have to make the most important decision in his legal cases to date: Should he take the stand in his own defense?
The answer is clearly “no,” and no competent defense lawyer would advise him to take the stand under the circumstances.
That is usually the standard advice that criminal defense lawyers give to their clients, but in Trump’s case, the government also has an unusual wealth of material with which to discredit him on cross-examination, including a long history of lying that has been substantiated by major court rulings and jury verdicts in civil proceedings against him in the past year.
Trump is also thin-skinned and incapable of answering difficult questions straightforwardly — very bad traits for any witness on cross-examination.
More to the point, Trump has testified in his defense twice in the last six months, and both were a disaster.
When Trump took the stand to defend himself in the civil business-fraud case brought by the New York attorney general, he ended up arguing with and admonished by the judge, who later ruled against him to the tune of more than $350 million.
When Trump took the stand to defend himself in the second defamation trial launched by writer E. Jean Carroll after Trump denied her sexual assault allegation, he was on and off the stand quickly after muttering under his breath and answering a few questions.
His courtroom behavior in that case later got him into more trouble when he got up and walked off during the closing argument of Carroll’s lawyer Robert Kaplan. When that happened, Kaplan later told me, “I thought to myself, ‘Okay, that’s another $10 million.’” The jury ultimately ordered Trump to pay Carroll more than $80 million.
If Trump takes the stand, it will almost certainly be over the advice of his own lawyers. And it could be disastrous for the former president — whether he knows it or not.
Source Agencies
