How Trump’s Team Blew It

 

OPINION

GUEST ESSAY

How Trump’s Team Blew It

May 30, 2024

By Renato Mariotti

https://www.nytimes.com/2024/05/30/opinion/trump-trial-defense.html

 

Mr. Mariotti, a partner at Bryan Cave Leighton Paisner in Chicago, is a former federal prosecutor.

 

The criminal trial of Donald Trump didn’t have to end this way.

 

The prosecution’s case had flaws that couldn’t be wallpapered over even with weeks of testimony, over 200 exhibits and a polished and persuasive presentation by Alvin Bragg, the Manhattan district attorney, and his team. If Mr. Trump’s lawyers had played their cards right, they most likely would have ended up with a hung jury or a misdemeanor conviction.

 

The defense lost a winnable case by adopting an ill-advised strategy that was right out of Mr. Trump’s playbook. For years, he denied everything and attacked anyone who dared to take him on. It worked — until this case.

 

I have practiced criminal law for over 20 years, and I have tried and won cases as both a federal prosecutor and criminal defense attorney. I’ve almost never seen the defense win without a compelling counternarrative. Jurors often want to side with prosecutors, who have the advantage of writing the indictment, marshaling the witnesses and telling the story.

 

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.

 

At the beginning of the trial, Mr. Trump’s team had a clear path to victory. He was charged with 34 counts of falsifying business records related to the cover-up of a $130,000 hush-money payment that was made to the porn star Stormy Daniels. Yet the only direct evidence of Mr. Trump’s knowledge was the testimony of Michael Cohen — who has pleaded guilty to lying to Congress and charges of bank fraud, tax evasion and campaign finance violation — who hates Mr. Trump and makes money off his public commentary on Mr. Trump’s legal woes.

 

You don’t need to be a lawyer to see how this could be a powerful legal defense. The prosecution had to prove that Mr. Trump knew about and caused — or at least was an accomplice in creating — the false business records. But at the time the records were created, Mr. Trump was in the White House. The defense could argue that Mr. Cohen and Allen Weisselberg, the Trump Organization’s chief financial officer, who has pleaded guilty to lying under oath and tax fraud, came up with that scheme on their own. Mr. Trump, his lawyers could argue, was focused on his role as president.

 

Mr. Trump’s team did say something similar at various points in the trial, including during Todd Blanche’s roughly three-hour closing argument. The problem is that the defense made so many other points, and fought so many other things, that it failed to focus the jury on the weaknesses in the prosecution’s case and instead tried to fight everything and everyone, even when it gained little by doing so.

 

Although the prosecution’s evidence of Mr. Trump’s personal approval of the falsification of business records was thin, the evidence for most of the other relevant facts was rock solid. Yet the defense destroyed its own credibility by denying the undeniable, like its laughable claim that the large lump-sum payments to Mr. Cohen really were payments for legal services, including the amount that he embezzled from Mr. Trump.

 

The trial dragged on for weeks largely because of Mr. Trump’s “deny everything” approach. A savvy defense counsel would have stipulated that Mr. Trump had an intimate affair with Stormy Daniels. Instead, the defense forced the prosecution to prove that the affair occurred and proceeded to aggressively attack Ms. Daniels, whom some of the jury likely found sympathetic in her testimony. That attack gained no ground legally for the defense — little turned on whether Mr. Trump had a sexual encounter with her — but distracted from his actual defense.

 

Similarly, the cross-examination of Mr. Cohen dragged on for days because the defense sought to confront him with every lie it could identify, seemingly every misdeed he ever committed and every potential line of attack it could come up with.

 

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.

 

It may be that a not-guilty verdict was always a long shot. But if the defense had been more effective, one of the two lawyers on the jury might have voted to acquit, all that is needed for a hung jury. Or perhaps the jury would have compromised and rendered a verdict that Mr. Trump committed only a misdemeanor, which most defense attorneys would view as a win, given the circumstances.

 

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.

 

Mr. Trump’s team was a reflection of its client, always attacking and never backing down. That playbook has worked for Mr. Trump again and again. For this trial and in a Manhattan courtroom, the attitude and strategy backfired.

 

Renato Mariotti, a partner at Bryan Cave Leighton Paisner in Chicago, is a former federal prosecutor and a co-host with Asha Rangappa of the “It’s Complicated” podcast.