Legal expert: Next witness Michael Cohen may be the "only person" who can connect Trump to scheme

Legal experts say the Manhattan criminal trial of former President Donald Trump could hinge on the testimony of his ex-fixer Michael Cohen – who served time in federal prison for tax fraud and perjury and now vows he’s telling the truth about Trump’s alleged scheme to aid his 2016 election bid by disguising pay-offs to kill salacious stories as routine legal fees.

Prosecutors charged Trump with 34 counts of falsifying business records, and say voters deserved to hear the stories he fought to kill before Election Day.  Each count is punishable by up to four years behind bars. 

Prosecutors are elevating the falsification of business records charges to felonies because they allege they covered up an underlying crime – including violation of New York’s election conspiracy statute, which says it’s a misdemeanor to “conspire to promote or prevent the election of any person to a public office by unlawful means.”

Trump has pleaded not guilty to the counts, which lawyer Todd Blanche has dismissed as “34 pieces of paper.” 

Cohen, who is expected to testify as soon as Monday, is crucial to the case. Trump’s defense lawyers are arguing that they paid Cohen legal fees and that Cohen – who wasn’t a Trump salaried employee at the time – then decided to pay off adult film star and director Stormy Daniels on his own accord.

Prosecutors are pointing to dry but crucial financial records — including checks with Trump's signature and internal documents showing those payments logged as legal fees — that they allege show Trump's role in a scheme to falsify internal business records to cover up reimbursements to Cohen for his payments to Daniels.

Still, one legal expert said that the defense team is likely to argue there's no smoking gun yet that undoubtedly shows Trump knew about the scheme to falsify the records.

“We have not yet gotten a direct connection between Trump and these documents,” said New York Law School professor Anna Cominsky, director of the school’s Criminal Defense Clinic. “From what we know, Cohen may be the only person that can make that connection.”

Trump has been fined $10,000 so far for violating his gag order in the case – at times for insults lobbed at Cohen, who has used his social media platforms to criticize Trump ahead of and during the trial.

On Friday afternoon, Trump grinned as Judge Juan Merchan instructed Cohen to hold off on any more statements about Trump. The former president’s lawyer, Todd Blanche, had asked the judge to do so.

“That comes from the bench,” he said after prosecutor Joshua Steinglass said the D.A.'s office cannot force Cohen to stop, according to The New York Times.

Trump’s defense team is continuing to press their case that prosecutors lack direct evidence linking Trump himself with the alleged scheme.

“You'll learn President Trump had nothing to do with any of the 34 pieces of paper, the 34 counts, except he signed on to the checks, in the White House while he was running the country,” Blanche said in his opening statement. “That’s not a crime.”

Blanche has also repeatedly pointed to Cohen’s lack of credibility and animus toward Trump: “I submit to you that he cannot be trusted.”

Cominsky said on top of the indirect evidence provided by numerous witnesses called by the prosecution, Cohen could add a potential description of Trump's direct role in the scheme.

“Potentially Cohen saying something like: ‘I spoke with Trump about this,’” Cominsky said. “‘This is what we agreed to do, and this is why we agreed to do what we did. Trump knew that I wasn't providing any legal services. He knew this was reimbursement for the payment that I made. And we were doing this all for the campaign. We were doing this all to make it so that voters would never know about this.’”

Trump’s defense team grilled Daniels in cross-examination this week in an effort to disparage her credibility. Trump denies any sexual encounter with her and claims she extorted him.

Cominsky said it’s unclear whether jurors will buy that everyone in the case is lying besides Trump.

The defense also seeks to convince jurors that Trump – described by numerous witnesses as a micro-manager – could have missed a scheme that involved checks drawn from his own account. 

But Cominsky said Cohen will undoubtedly face intense questioning about his credibility. 

“We know that they tried to do that with Pecker, where they're clearly doing that with Daniels, and we certainly know that they're going to do that with Cohen,” Cominsky said. 

Matt Cameron, a Massachusetts criminal defense lawyer and co-host of the podcast “Opening Arguments,” said he’s expecting Cohen to largely corroborate evidence provided by other witnesses.

“They’re going to make sure that nothing that Cohen says won't have already been said by someone else or shown in some of the documents,” Cameron said. “We all know that Cohen's not the best witness. These kinds of witnesses never are for the prosecution. So I think they're doing everything they can to just have a very strong foundation underneath him with credible witnesses who have no reason to lie about these things who are testifying as to the details that he's going to confirm.”

COHEN’S ROLE IN PAYOFF

New York prosecutors have cited text messages, witness testimony, audio recordings and other records to allege that Trump violated state law in a scheme to pay off Daniels, model Karen McDougal as well as a doorman who falsely claimed Trump had an affair with a housekeeper. 

Daniels testified about her X-rated 2006 encounter with Trump in Lake Tahoe, how he discussed the possibility of her appearing on “The Celebrity Apprentice,” and how she eventually received a $130,000 settlement to keep quiet.

Daniels said she and Trump talked on the phone several times after their 2006 encounter, and that she visited him at Trump Tower. Trump gatekeeper Rhona Graff testified she recalled seeing Daniels visit Trump Tower to discuss an “Apprentice” appearance before 2015.

Trump, for his part, has claimed that he hasn't seen or spoken to Daniels "since I took a picture with her on a golf course in full golf gear including a hat close to 18 years ago."

Daniels’ lawyer Keith Davidson testified that he “did everything” he could to avoid making overt threats connected to the 2016 election as he negotiated Daniels’ payment with Cohen. 

That settlement agreement, dated in late October 2016, includes Daniels’ and Cohen’s signatures – but not Trump’s.

She said as the election neared, her payment was delayed. “It made me more concerned that something bad was gonna happen, and that if it wasn't done before the election, that it was not ever going to happen because he got whatever he wanted," she testified.

Prosecutors said her story completes the narrative provided by days of witness testimony.

“Her account is highly probative of the defendant's intent, his intent and his motive in paying this off, and making sure that the American public did not hear this before the election,” prosecutor Susan Hoffinger said Tuesday.

Davidson testified that Cohen called him after the election and said Trump was “not even paying me the $130,000 back.”

Former Trump aide Madeleine Westerhout testified Thursday and Friday about her role coordinating White House meetings, and spoke of Trump’s scrutiny over his own finances even as president.

According to The New York Times, Westerhout confirmed that Cohen had an early 2017 meeting with Trump at the White House.

“Mr. Cohen was coming in to meet with the president,” she testified. 

“Was it your understanding that Mr. Trump and Mr. Cohen had a close relationship in 2017?” the prosecutor asked.

“At that time, yes,” Westerhout said.

Cohen in his testimony will likely delve into his account of that meeting – in which he’s said the two discussed how to falsely record his payments as legal fees.

Trump’s defense team has argued that loyalist Cohen grew aggrieved after not landing a White House job following the election.

ELECTION CONCERNS

Former Trump aide Hope Hicks testified that she was "very concerned" about the October 2016 release of the "Access Hollywood" tape in which Trump bragged about grabbing women by their genitals. 

She also said she consulted with Cohen in the wake of an early November 2016 Wall Street Journal story detailing the National Enquirer’s payment to McDougal, who alleged an affair with Trump. 

Hicks said it would have been out of character for Cohen to pay Daniels without alerting anyone else. 

She also provided some fodder for Trump’s defense team – saying that Cohen called himself Mr. Fix-it “and it was only because he first broke it." Hicks also said Trump was concerned about his wife reading about extramarital affairs he denied.

Jurors heard a Sept. 6, 2016 audio recording – revealed by CNN in 2018 – in which Trump and Cohen apparently talk about making a $150,000 payment to McDougal.

"‘I need to open up a company for the transfer of all of that info regarding our friend, David,’” Cohen said, apparently referring to National Enquirer publisher David Pecker. 

In the recording, Trump says: "So, what do we have to pay for this? One-fifty?"

Cohen then brings up “the financing.”

The recording is unintelligible at parts – Trump is later heard saying something, then “... pay with cash.”

Cohen then responded: "No, no, no, no, no, I got it.”

Trump then says: “Check.”

A lawyer for the Trump Organization at the time told The Washington Post that Trump was talking about cash as an alternative to “financing” through a loan.

In August 2018, Trump himself said Cohen’s payments to women “didn’t come out of the campaign; they came from me."

Daniels testified that once Cohen began speaking about the payments he made to her, she decided in 2018 to get out of NDA “so that I could stand up for myself.”

She said it was her understanding that Trump and Cohen agreed to no longer enforce her NDA.

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EXHIBITS 35 AND 36

On Monday, former Trump Organization controller Jeff McConney testified that nine of 11 checks to Cohen came from Trump's personal account, that Trump signed the checks from the Oval Office, and that the accounting department labeled the payments as “legal expenses.”

Key pieces include Exhibits 35 and 36: handwritten notes that prosecutors say lay out the plan to reimburse Cohen.

McConney testified that Exhibit 36 contains his handwritten notes calculating 2017 payments to Cohen. 

The notes read: “Bonus: $50,000” and include a calculation of “$180,000 x 2 for taxes” for a total of $420,000 divided by 12 for $35,000 a month. 

“Wire monthly from DJT,” the note reads. “Start $35,000/month Jan 2017. Mike to invoice us.”

McConney said he took those notes during a conversation with former Trump Organization chief financial officer Allen Weisselberg, who was sentenced to five months in jail on perjury charges in April in Trump’s civil fraud trial. Weisselberg previously served 100 days for tax fraud charges related to his role at the Trump Organization. 

McConney also testified about Exhibit 35: an October 2016 bank statement from Michael Cohen’s LLC that shows a $130,000 payment to Daniels’ lawyer Keith Davidson’s PLC. 

McConney said Exhibit 35 includes Weisselberg's handwritten notes.

McConney testified that Weisselberg told him sometime in January 2017 that Trump was reimbursing Cohen for an unknown reason. McConney said Weisselberg told him the payments should be “grossed up” to help cover Cohen’s state, federal and city taxes. 

Exhibit 35 notes that McConney said Weisselberg scrawled read: “$180,000 grossed up to $360,000. Add additional bonus, $60,000.” 

Those notes totaled the amounts to $420,000 and then divided them by 12 for “$35,000 per month effective 2/1/17.”

On Thursday, Trump organization bookkeeper Rebecca Manochio said that Trump and Weisselberg spoke “every day.”

On Friday, Trump’s lawyer Susan Necheles suggested that Trump and Weisselberg grew distant in 2017.