Opinion: You can’t deny the skill of Trump’s defense lawyers

Opinion by Norman Eisen

(CNN) — Friday was a relatively low-key day in the Manhattan criminal trial of former President Donald Trump, as prosecutors offered a series of additional witnesses for putting documents and records into evidence and we await the testimony of former Trump attorney Michael Cohen on Monday.

I thought I would take advantage of the relative lull to devote my 15th trial diary on this 15th day of court to something I have seen on every one of those days: the excellent job that Trump’s defense lawyers have done for their client. That is true whether he — and Judge Juan Merchan, who on Thursday made some unfairly critical comments about the defense counsel’s failure to object to salacious evidence — appreciate it or not.

For starters, we have to grade the defense against the circumstances of the case — and they face a daunting scenario. Witness after witness, document after document, prosecutors have painstakingly assembled the evidence of the two parts of this case: that there was an alleged conspiracy in 2016 to undermine the integrity of the election by making a hush money payment to adult film actress Stormy Daniels to not go public about her alleged affair with Trump to the benefit of his campaign, and that it was allegedly covered up by false invoices and other documents in 2017, including many bearing Trump’s own signature. Trump has pleaded not guilty to the charges.

And all of that evidence is being presented to a Manhattan jury, in a jurisdiction that went 86.7% for Biden to just 12.3% for Trump.

As a lifelong (mostly) criminal defense lawyer myself, I think the defense lawyers here have responded to this challenge as well as can be expected — and indeed better. They are not likely to get an outright acquittal given the facts, the law and the jury. It’s certainly possible, but watching the evidence that has come and how this jury has reacted to it every day — with consistent focus even during the most boring presentations of accounting ledgers — that seems remote. (Although, in fairness, the defense has not yet presented their case.)

So the defense team seems to be shrewdly doing the next best thing: playing for one angry juror to block conviction. A conviction (or an acquittal) needs to be unanimous. That means a single stubborn holdout can frustrate unanimity, resulting in a mistrial. That is what they no doubt are trying for.

I think that explains the extended cross examination of adult film actress Stormy Daniels this week. Stormy had a rough time on the direct examination on Tuesday, with her testimony appearing inauthentic at times, and the judge visibly annoyed with her volunteering unnecessary salacious details.

Moreover, the defense had followed that up with laying out all of the reasons Daniels could not be trusted: bias (getting her to testify that she hated Trump), financial motivation (getting her to admit that she was making money off of the scandal) and the suggestion that she was lying (pointing out how her story had changed) and extorting Trump (pairing with her then-lawyer Keith Davidson for an alleged shakedown).

If you were going for an acquittal, you would likely stop there and save your political capital with the jury for other fights — particularly since the question of whether the encounter happened or not doesn’t really matter to the case. It’s clear the money was paid, and as a matter of law the case turns on whether that was part of a criminal conspiracy to interfere with the 2016 election and was covered up in 2017 with false documents.

And yet the defense spent hours Thursday (court was out of session on Wednesday as usual) attempting to drag Daniels through the mud, challenging every detail of the alleged 2006 sexual encounter. I found it alienating, and I suspect most of the jury did as well. But as one shrewd courtroom observer commented to me on the lunch break, if there is a single juror who was already skeptical, there was plenty of evidence in Stormy’s combative but at times implausible answers to reinforce that (such as testimony alluding to her claim she can speak to the dead).

What about Merchan’s repeated criticism of the defense for failing to make objections during the Daniels testimony? Trump lawyer Susan Necheles certainly knows how to make objections, and she deployed them when it made sense to do so. Many were upheld. But when you object too often, you run the risk of actually highlighting portions of the testimony and signaling that you are worried about them.

It seemed to me that Necheles was trying to strike that balance during the direct examination on Tuesday. You can always quibble with individual choices in hindsight, as I well know having been in that position myself. I thought that was not negligence, and I respectfully disagree with the judge’s second-guessing.

Of course, hearing that from the bench probably made the client unhappy. He’s famously tough on his lawyers. But the problem is not the lawyering, it is the case. The defense is making the best of a bad lot, and as a practitioner myself, their skill is evident.

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