Former US President Donald Trump’s legal team already had a tough job defending him in the hush money trial, but he made their job even harder.
The surprise unanimous verdict to convict Trump came after weeks of testimony and legal argument that examined the details of apayment made to Stormy Daniels, a porn star, back in 2016.
But Trump was not on trial for paying off a porn star.
Although having an affair and spending US$130,000 ($211,000) to keep it quiet might be unsavoury, it is not illegal.
The former President’s lawyers went all-out to deny it anyway, defending him against claims that went well beyond the scope of the case and spreading themselves too thinly.
The law Trump was accused of breaking had a narrow definition.
He was accused of intentionally falsifying business records to disguise payments to reimburse his fixer, Michael Cohen, for paying Daniels to keep quiet about sleeping with him.
The prosecution’s closing argument, delivered by Joshua Steinglass, included a lengthy section about Trump’s involvement in what he called an “elaborate scheme” to cover up the affair.
The case against him created some space for Trump to argue that he had not intended to disguise the payments or that Cohen had lied about his involvement in a plot to keep the payments to Daniels off the books.
What was required was a forensic analysis of what could be proven about Trump’s intentions and actions at each stage of the conspiracy – creating a more difficult path for the prosecution towards proving their case beyond reasonable doubt.
Instead, Trump directed his lawyers to deny all accusations put by the prosecution – including that the affair with Daniels took place at all, and that Cohen had been paid in return for offering her “hush money”.
These counter-claims were much more difficult to prove and undermined by lurid details from Daniels about her encounter with Trump in a hotel room in 2006, where she said she spanked him with a copy of a magazine.
There was also a problem with the defence team’s attempt to undermine Cohen, who has been convicted of tax evasion and would not generally be considered a reliable witness on the stand.
Todd Blanche, Trump’s lawyer, said in closing that Cohen was the “GLOAT” – the Greatest Liar of All Time, and pointed to dozens of complaints he had made about his former boss that suggested he was not a reliable witness.
Stormy Daniels testifies on the witness stand as a promotional image for one of her shows featuring an image of Trump is displayed on monitors in Manhattan criminal court. Photo / AP
At the beginning of the former lawyer’s cross-examination, Blanche asked Cohen straight up: “You went on TikTok and called me a ‘crying little s***’ didn’t you?”
Cohen replied: “Sounds like something I would say”.
However, the defence team only produced one witness to undermine Cohen’s character, to the prosecution team’s group of several voices to support his claims about the hush money.
That witness, Robert Costello, suffered from his own issues in court and was admonished by the judge for repeatedly complaining about his decision to sustain prosecution objections.
After he responded to one objection by saying “jeez”, Justice Merchan read him the riot act.
“You don’t say ‘jeez’. And then if you don’t like my ruling, you don’t give me side eye, and you don’t roll your eyes,” he told Costello.
By the end of his time on the stand, it had become clear that he was no more attractive as a witness than Cohen – the man he had been sent out to undermine.
Above all, experts say the defence line taken by Trump’s team followed his political playbook: to call his opponents liars and shout over them.
While this strategy has served the former President well in the political arena, it was less successful in court.
“It’s a surprise to no one that there was most likely a lot of pressure from the client to paint certain people as liars,” Anna Cominsky, a professor at New York Law School, told the BBC.
“That’s not necessarily the best defence strategy. Stormy Daniels didn’t have to be a liar for [Trump] to win.”
In the end, even the most Trump-aligned jurors were convinced that Daniels’ story was substantially true and were unsure about an often-scattergun defence strategy to explain what appeared to be incriminating invoices and cheques bearing his signature.
In trying to deny everything, Trump proved nothing – and was landed with 34 convictions.
With three more trials against him still pending, he might think more carefully about his legal strategy next time.
