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“Michael Cohen told the truth.”
Judge Arthur Engoron wrote those words in his nine-figure ruling against Donald Trump and the former president’s civil co-defendants. Manhattan District Attorney Alvin Bragg wants the jurors in the criminal case (set to start next month) to reach that same conclusion, while Trump’s lawyers will do their best to convince them otherwise.
Criminal trials are a different ballgame than the civil fraud case that just wrapped up. For one thing, the fraud case had a judge instead of a randomly assembled group of New Yorkers to assess witnesses and evidence — and juries can be unpredictable. Plus, there's the tougher "beyond a reasonable doubt" standard that applies in criminal cases.
But we can look to Engoron’s ruling for some rough guidance on Cohen’s strengths and weaknesses as a criminal trial witness when he takes the stand against his former boss. Here’s part of what Engoron wrote regarding the leading GOP presidential candidate’s ex-fixer:
Although the animosity between the witness and the defendant is palpable, providing Cohen with an incentive to lie, the Court found his testimony credible, based on the relaxed manner in which he testified, the general plausibility of his statements, and, most importantly, the way his testimony was corroborated by other trial evidence. A less-forgiving factfinder might have concluded differently, might not have believed a single word of a convicted perjurer. This factfinder does not believe that pleading guilty to perjury means that you can never tell the truth.
Let’s focus on what follows that “most importantly”: corroboration. As I wrote last year when grand jurors were hearing evidence before indicting Trump, “corroboration is key” when it comes to witnesses like Cohen who bring some vulnerabilities into a cross-examination. The civil fraud trial bore that out, in a case that relied partly on documentary evidence that can back up witness testimony — not unlike the prosecution for allegedly falsifying business records to cover up the hush money Cohen paid for Trump ahead of the 2016 election.
To be sure, Engoron noted that a “less-forgiving factfinder might have concluded differently.” That’s where the whims of jurors come into play. But while that's something Bragg's prosecutors have to deal with, harping on Cohen’s criminality to a jury also presents defense risks, because that criminality is linked to Trump himself. So it can be hazardous for Trump to paint Cohen as a scoundrel when he was Trump’s scoundrel. That is, it may be difficult to dirty up Cohen on cross-examination while keeping Trump clean.
That will make the ever-important jury selection all the more so here, where the defense will hope for those “less-forgiving factfinder[s].”
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