Trump’s Lawyer Botched His Closing Arguments. I Think I Know Why!
Yesterday saw closing arguments in the Manhattan trial of Donald Trump for falsifying business records, the first-ever criminal trial for a former president. In this high-stakes final endeavor, it appeared that Manhattan Assistant District Attorney Joshua Steinglass’ summation significantly outmatched that of Todd Blanche, the former president’s chief defense counsel. As a former prosecutor myself, I was surprised that Blanche’s three-hour argument failed to focus on what it needed to—the element of the charged crime on which prosecutors’ proof is weakest. Instead of offering clarity in this area, Blanche undercut his best points by making other arguments contradicted by overwhelming evidence or common sense.
The best example? His flailing attempt to dismiss the prosecution’s strongest evidence—the “smoking gun” notes of Trump Organization CFO Allen Weisselberg showing how the conspirators “grossed up” Cohen’s $130,000 reimbursement for the purchase of Stormy Daniels’ silence, and then hid it by adding other cash to Cohen. All Blanche could conjure up was the mind-boggling insistence that Weisselberg’s written words—“gross up”—“were a lie!” Blanche gave no actual reason why the notes weren’t true; he simply asserted that the $420,000 “gross-up” sum was for legal expenses. Throughout, his meandering argument fell short of telling the jury a coherent story.
By contrast, Steinglass checked every box on a prosecutors’ closing argument list, albeit at excessive length. He methodically connected the evidence to each element of the crime and reminded jurors how it all supported the prosecution’s theory of the case: “The defendant used his own business records as the vehicle to disguise the reimbursement because he didn’t want anyone finding out about the conspiracy to corrupt the election.”
It’s mystifying why Blanche failed to pounce on the fact that during weeks of testimony, prosecutors never even identified which criminal law’s violation they were alleging that Trump committed or concealed by falsifying his records. Committing or concealing another offense is the element of the crime that prosecutors need to prove beyond a reasonable doubt in order to elevate misdemeanor falsifications to felonies, as the grand jury alleged. One tears apart a chain of proof by hammering the weakest link. Blanche didn’t.
He did say briefly that there was no evidence that Trump knew he was committing a campaign law violation. But a defendant’s knowledge is almost always proved circumstantially; the elaborate scheme to “gross up” and therefore disguise the $130,000 reimbursement to Cohen demonstrated a consciousness of guilt sufficient to prove knowledge of illegality. As Steinglass put it, the plot involved “a whole lot of time, thought, and energy to conceal the truth.”
Indeed, the prosecutor walked right through the door Blanche left open: He gave a plainspoken narrative of the election law crimes that Trump and his co-conspirators were concealing: “Once money starts changing hands on behalf of a campaign, that’s federal election campaign finance violations,” he said. In other words, Trump acted in concert with others to falsify documents with the aim of covering up election law violations. Why else would he have bothered to falsify them?
Then, turning one of Blanche’s arguments on its head, Steinglass uplifted the case’s meaning for the nation: “Blanche said … ‘There’s nothing wrong with trying to influence an election—it’s called democracy.’ In reality, this agreement at Trump Tower was the exact opposite. It was the subversion of democracy.”
Blanche’s summation, too, went long—court lasted into the evening last night. At several points, Blanche indulged in misbegotten arguments, quite likely at the insistence of his demanding client, the former president. For example, Blanche apparently felt obliged to say that Trump “has unequivocally and repeatedly denied” the sexual encounter with Stormy Daniels “ever occurred.”
There are two reasons it didn’t make sense to offer that lame denial. First, whether or not the sexual encounter occurred had no bearing on the elements of falsifying business records. Second, as a witness, Daniels proved “more than capable of rising to the occasion,” even in the face of a “ruthless” cross-examination, convincingly affirming her story that the encounter did happen, as the New Yorker’s Naomi Fry put it.
Further, Blanche’s repeated attacks on Cohen and his credibility took Blanche far into overkill territory, likely in another effort to assuage his client. It doesn’t make a lot of sense to consume jurors’ attention hammering over and over again on something they already know—that Michael Cohen is a liar and that they should credit only his corroborated testimony—but Blanche did it anyway.
Steinglass had two sharp answers to Blanche’s lengthy thrusts. First, Steinglass noted that “we didn’t pick [Cohen] up at the witness store. The defendant chose Michael Cohen to be his fixer because he was willing to lie and cheat on Mr. Trump’s behalf.” Second: “It’s difficult to conceive of a case with more corroboration.” Like the tape of Cohen’s conversation with Trump where he proposes paying $150,000 to his former lover, Karen McDougal, in “cash,” to buy her story.
Blanche did score rhetorical points in characterizing Cohen as the “MVP of liars.” To his credit, Blanche also reminded jurors that no other witness corroborated Cohen’s testimony that Trump approved the Weisselberg “gross-up” scheme. The problem for Trump and Blanche is that there was consistent and overwhelming testimony that Trump was an obsessive, penny-pinching micromanager who would not have signed checks for $420,000 marked as legal fees to Cohen without having had them explained. As Steinglass put it: “If Donald Trump is checking invoices for his decorator, you can bet he’s checking invoices for Michael Cohen.”
Blanche rightly emphasized that prosecutors never called Weisselberg and others who helped run the business. Weisselberg’s absence could look suspicious since the jury was not informed that he had been jailed for perjury in his unrepentent loyalty to Trump, even on the witness stand in another case. Unfortunately for the defense, it undermined that point by calling attorney Robert Costello. It’s a very safe guess that it was Trump who insisted on that disastrous testimony from Costello. Jurors will figure that if the defense could call Costello, it could have called Weisselberg or others.
A politician-defendant like Trump who steers his defense toward the court of public opinion rather than to the jury increases his legal jeopardy. The problem for the former president is: So does a defense that fails to focus on a potential prosecution Achilles’ heel, and then distracts the jury from the prosecution’s weakest point by flooding the zone with unimportant or overdone arguments.
None of these mistakes in Blanche’s summation necessarily hurt Trump when it comes time for a verdict. But they don’t help.