Is it possible to use a lie to illuminate the truth? If the lie is told by the serial liar Michael Cohen in the right context, the answer is yes. Credit the prosecution in the Trump felony trial for pulling off this tricky maneuver.
On Monday, we finally got closer to a key factor in this case: campaign finance law. To convict Donald Trump of a felony, the jury must find that he falsified business records (or directed that they be falsified) with “the intent to commit another crime.” Trump need not be found guilty of any of those other crimes — in this case, it could be tax fraud, intervening in an election or violating campaign finance laws — in order to convict him. But he needs to have crime in mind in at least one of those areas.
Late in the morning, Susan Hoffinger — a prosecution lawyer on her game — drew Cohen’s attention to a letter written by his lawyer, Stephen Ryan, after the Stormy Daniels hush-money story broke in The Wall Street Journal in 2018. At that time, Cohen was still in Trump’s camp, telling the world that he had paid the $130,000 to Daniels on his own. In his letter, Ryan wrote, “The payment in question does not constitute a campaign contribution.”
Hoffinger asked, “Was that a true statement?” Cohen, in his new, polite incarnation, replied, “No, ma’am.” This told the jury: Here goes Cohen, lying again. In other words, because Cohen was such a known liar, it is more plausible than not that he was lying when he said the payment was not a campaign contribution, to protect Trump and himself.
After a sidebar, Justice Juan Merchan turned to the jury and repeated instructions he had already given, during direct examination of Cohen, when the subject of his 2018 guilty plea in the criminal case that sent him to jail for 13 months came up: “Mr. Cohen’s guilty plea is not evidence” of Trump’s guilt.
The judge was basically saying to the jury, “I know you may think these two guys both intended to commit this other crime, but you can’t use Cohen’s guilty plea to convict Trump.”
As Norm Eisen, an expert on campaign finance law, told me during a break, “The jury will listen to the judge, but that’s like saying, ‘Don’t look at the elephant.’”
To emphasize the point further, Hoffinger asked, “Did Mr. Trump approve the substance of these false statements by you?” This brought another “Yes, ma’am.”
The prosecution caught another break when Merchan refused to allow Bradley Smith, a Republican and former chair of the Federal Election Commission, to testify about his conservative interpretation of campaign laws. The judge said if he allowed that testimony — which the defense desperately wants — he would have to let the prosecution call an expert witness with his or her opposing interpretation. Merchan concluded that as judge, it was his job — and his job alone — to interpret how campaign finance law should be regarded by the jury.
All in all, this was an unsexy but significant win for the prosecution.
