David French, a Times columnist, hosted a written online conversation with Rebecca Roiphe, a former assistant district attorney in the Manhattan district attorney’s office, and Ken White, a former federal prosecutor, to discuss Donald Trump’s Manhattan trial and Michael Cohen’s testimony.
David French: Let’s start with a big-picture question. I have less trial experience than either of you, but this deep into a trial, I always had a sense of the momentum of the case, of who is winning and who is losing. Who is more pleased with the course of the trial so far — the prosecution or the defense?
Rebecca Roiphe: In my view, the prosecution is happier about how things are going than the defense. They have established the backbone of the case, which is the false records, and they have provided a great deal of circumstantial evidence tying Donald Trump to those records and establishing his intent.
Ken White: When you ask who is more pleased with the course of the trial, remember that Trump is usually pursuing a public relations and political strategy at the expense of good courtroom strategy. In that sense, I suspect Team Trump is happy that he’s getting lots of airtime to push his narrative that he’s a victim of the elites and that the trial doesn’t seem to have had much of an impact on his polling numbers.
If you ask me as a trial lawyer, I agree with Rebecca that the D.A. is doing a solid job proving the elements of its case and telling the story in a way likely to grab the jury. So far, they are hitting all the necessary points.
French: Stormy Daniels’s testimony was far more riveting and disturbing than I anticipated. She described a sexual encounter that was fundamentally exploitive and potentially even predatory. In the aftermath, Trump’s lawyer moved for a mistrial, claiming that the details of that testimony could prejudice the jury. What was your assessment of her testimony? Did the prosecution make a mistake in asking her to describe the details of the encounter?
White: This is all on Trump. He’s the one who decided, for ego reasons, to make repeated claims that the sexual encounter never happened. He could have rendered the details irrelevant by keeping his mouth shut, but he had to call her a liar. That makes it relevant. Yes, her description was skin-crawling. She wasn’t a great witness — she was argumentative and had trouble answering questions directly — but she did what the prosecution needed her to do.
Roiphe: The prosecution was in a difficult position. It needed to establish that this story would have been disturbing, so much so that Trump would find it necessary to suppress it. But the judge had admonished them not to bring out too many details. The media got caught up in the sex scene at the expense of the real point of the testimony, and it’s possible that the jury did as well. But I don’t think it will ultimately undermine the case.
French: Is the judge’s decision to deny the motion for mistrial a reversible error?
Roiphe: I don’t think this will cause a huge legal problem for the prosecution on appeal. Defense lawyers call for mistrials all the time, and judges have a great deal of latitude in dealing with moments like these when testimony slips out that should not have.
French: Let’s talk about Michael Cohen for a moment. His testimony is obviously crucial for the prosecution, but as is often the case, the prosecution is using the testimony of a criminal to try to convict the defendant. How vulnerable are criminal informants to impeachment, and how do juries tend to process their testimony?
White: It’s a rookie mistake for a prosecutor to try to argue, “Actually, our cooperator isn’t that bad.” Cohen is that bad. Redemption tour and podcast or not, he’s a convicted liar. Fortunately the D.A. isn’t making him out to be an angel.
Roiphe: The prosecution has done a great job in setting up Cohen’s testimony. They have used other witnesses to paint him as a misfit, a liar, a bully. You don’t have to like Cohen to believe him. There are so many dots that have already been connected that Cohen is simply going over ground that has already been paved.
White: And prosecutors seem to be using the classic move of using Cohen’s dishonesty against Trump, by showing to the jury that Trump chose Cohen precisely because he’s a crook. Watch for them to lean into that theme in closing: Cohen is a dishonest person who does dishonest things, and that’s why Trump needed him.
Roiphe: There are a few key pieces of his testimony beyond what has already been established that the prosecution hopes the jury will believe. Namely, that Trump led this scheme and was directly involved in the cover-up.
French: I want to share my chief concern about the case. Readers may recall that to secure a conviction for a felony, the prosecution doesn’t just have to prove that Trump falsified business records but that he did so in furtherance of another crime. In your judgment, is the prosecution doing enough to establish that crucial element of the case? And is that element of the case legally robust enough to survive an appeal?
Roiphe: I am not as concerned about the vulnerability of this case as others have been. There has been a lot of testimony about Trump’s concern about these women’s stories and how they would affect the election. This testimony has come from pretty uncontroversial witnesses like Hope Hicks. In a way, it’s just common sense: Why were all these people involved in such a coordinated and intricate effort to make these payments and then lie about them? There are very few plausible reasons other than the one the prosecution has set forth.
White: The jury will be less worried about the nuances of the “furtherance of another crime” element than we commenters are. Juries tend to absorb things on a big-picture story level. The D.A. has done a very solid job connecting Trump’s deceit and hush-money payments to campaign concerns, not to family embarrassment.
French: It would be a dreadful outcome for the country if Trump is convicted before the election, only to have that conviction reversed afterward. It would provide rocket fuel for the argument that the prosecution was little more than partisan election interference.
Roiphe: For the D.A.’s office, in terms of the legal question, this just doesn’t look all that different from other cases that it regularly prosecutes. Sure, the means are different. But I think the New York courts will see this as consistent with the very broad interpretation they have given to this statute.
French: Has the defense scored any obvious points? My perception, much like yours, is that the prosecution has done a solid job of building its case. But are there any surprising weak points? What’s the defense’s best moment so far?
Roiphe: I thought the defense scored some points with Stormy Daniels, even though overall her testimony was solid. Trump’s lawyer Susan Necheles argued that Daniels had a vendetta, that she hates Trump and that she has been inconsistent in telling this story. But the jury doesn’t really have to think her motives are innocent, as long as they believe the basic story. And I don’t think the defense managed to blow up her testimony in any important way.
White: The defense’s attempts to shame Stormy Daniels for being an adult film performer fell flat, as they should. I think the defense’s best opportunity to really shine will come during the cross-examination of Michael Cohen.
French: Justice Juan Merchan has one of the most challenging jobs in trial judge history. He’s presiding over the prosecution of a former president, and Trump is an extraordinarily defiant defendant. How’s he doing?
Roiphe: One of the hardest things for the judge is whether and to what extent to take into account the identity of the defendant in making decisions. For the most part, the judge has treated this like any other trial and in that way has done a solid job and appeared impartial.
White: Justice Merchan has a thankless job. The defense is treating him extremely disrespectfully, and the prosecution is being impatient. When he is cautious and methodical, as he has been in taking the gag order and contempt issues slowly and carefully, half the country is frustrated that he hasn’t thrown Trump in jail, and half is furious that he’s persecuting Trump.
Roiphe: The gag order has really been a test. It would be such a spectacle to throw a former president in jail for contempt. It would have played right into Trump’s victim narrative.
White: Overall, he seems to be doing a thoughtful, patient job.
French: My understanding is that the defense wasn’t necessarily planning on calling a large number of witnesses, and I certainly don’t expect Trump to testify. When their turn comes to make their case, what do you expect? How much will the defense tell its own story, as opposed to resting mainly on cross-examination of prosecution witnesses?
Roiphe: Some of that might depend on how well Cohen holds up on cross-examination. If the prosecution looks as strong as it does now at the time the government rests its case, I think the defense will feel a lot of pressure to put on some sort of case.
It’s hard to know what sort of defense they would put on, given that they never really settled on one theory. They went in with the sweeping argument that Trump did nothing at all wrong. They would have a hard time establishing that his conduct was perfect. But they may be able to buttress some of the smaller arguments they have raised if they can call witnesses who could undermine the prosecution’s argument about his intent.
White: The Trump team will make the decision based largely on political strategy, not courtroom strategy. They may offer some witnesses who will advance the campaign narrative of Trump the victim.
French: In normal circumstances, applying a political strategy to a criminal prosecution would be foolish. You could make yourself popular but still go to jail.
Roiphe: The defense essentially shifted the burden to themselves to prove their client is perfect, when all they had to do was show that the prosecution failed to prove its case. But from a political perspective, that’s so Trump, and it has worked for him.
French: In this circumstance, how much could a political victory help Trump legally? This would be a state conviction, not federal, so his control over the Department of Justice doesn’t matter, and he would not have the power to pardon himself. But would a political victory make a conviction fundamentally irrelevant?
Roiphe: Practically, the appeals process will inevitably take time, and I doubt if Trump wins the election, he would be sent to state prison. So maybe in the long run, it’s not a terrible miscalculation.
White: Since the Mueller investigation, Trump has consistently done things that are foolish legally but promote his narrative — his brand. We saw that recently in the E. Jean Carroll trials, we saw it throughout the investigations leading up to the four criminal cases against him, and we’re seeing it in court now. The smart play here, for instance, would have been to say it doesn’t matter whether or not he had a relationship with Stormy Daniels, because that renders big chunks of the case irrelevant. But character is destiny, and Trump’s character is egotistical and combative.
French: Let’s end with some lightning round questions. First, since the trial has started, in your view has the chance of conviction gone up or down?
Roiphe: Up.
White: Up significantly.
French: Trump is supremely irritated by the judge’s gag order, and while gag orders are infrequent, they’re not all that unusual. Is the gag order in this case justified?
Roiphe: Yes, although I think there should be an exception when witnesses like Michael Cohen have been so public and vocal.
White: We should thank Trump for making law on gag orders. We have a very detailed D.C. Circuit opinion now that will be extremely helpful in a First Amendment area that was previously not well charted. By being so willing to antagonize the judge and by being able to afford lawyers to brief and appeal the gag order, Trump’s helping clarify the law.
French: One last question: J.D. Vance has been mentioned as a potential Trump vice-presidential pick, and he showed up at court on Monday to support Trump. Who is the next V.P. hopeful to make an appearance?
Roiphe: The ghost of Kristi Noem’s dog?
White: It’s going to be Alex Jones or any cop who has pepper-sprayed at least five student protesters.
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Rebecca Roiphe, a former assistant district attorney in the Manhattan district attorney’s office, is a law professor at New York Law School. Ken White, a former federal prosecutor, is a partner at Brown White & Osborn in Los Angeles.
Source photographs by Charly Triballeau, MediaNews Group/Reading Eagle, Michael M. Santiago, and The Washington Post via Getty Images.
