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Michael Cohen on the Stand, Part II

Anna Bower, Tyler McBrien, Katherine Pompilio, Benjamin Wittes
Saturday, May 18, 2024, 3:59 PM
Wherein we finally hear from the case’s key witness—again.
The press corps outside of 100 Centre St. (Photo credit: Tyler McBrien, Lawfare)

Published by The Lawfare Institute
in Cooperation With

Previously on Trump New York Trial Dispatch: “Michael Cohen on the Stand, Part I

May 16, 2024

It’s a misty morning here at 100 Centre Street for Day 18 of Trump’s New York criminal trial.

This morning, Donald Trump’s defense attorney, Todd Blanche, is expected to continue his cross-examination of Michael Cohen. 

It’s been nearly a month since members of the press and public first began lining up for a chance to observe Trump’s criminal trial. And there’s a sense around court that the case is lurching toward an end: Earlier this week, prosecutors told the presiding judge, Justice Juan Merchan, that Cohen will be the last witness called to testify for the prosecution. The defense, meanwhile, has indicated that it may not call any witnesses at all. 

All of which might help explain why, as the case against the former president reaches a fever pitch, the vibes in the line outside the courthouse have started to get a little weird.

Around 7:00 a.m., a woman in the line crouches on top of her backpack and lights up a fat joint. Ahead of us, there’s a mysterious brown sludge heaped on the concrete. Someone has tried to cover it up with a filmy yellow poncho, but even ponchos are no match for the slurry mass that sprawls between spots 15 and 16 in the line. “Watch out for the mess,” someone hollers once the line starts moving. 

The past few days of court have drawn some high-profile supporters in Trump's entourage: Vivek Ramaswamy, JD Vance, Tommy Tuberville, Nicole Malliotakis, and Speaker of the House Mike Johnson—though Johnson didn’t deign actually to set foot inside the courtroom. 

Today brings another high-profile Republican delegation to courtroom 1530. There’s Rep. Matt Gaetz (R-Fla.), Rep. Lauren Boebert (R-Colo.), Rep. Anna Paulina Luna (R-Fla.), Rep. Bob Good (R-Va.), Rep. Andy Ogles (R-Tenn.), and Rep. Eli Craine (R-Ariz.).

We almost have a quorum here for a congressional session.

Alan Garten, general counsel at the Trump Organization, is also here. These VIPs join the regulars: Boris Epshteyn, Eric Trump, Alina Habba.

At 9:26 a.m., we “all rise” for resplendent-in-robes time, and Justice Merchan enters.

“Let's hope Boebert doesn't start vaping,” someone in the gallery quips as things get started. 

Good morning, good morning, Mr. Trump, the judge begins. Then he directs his attention to the parties: Any updates to the schedule?

Blanche, on behalf of Trump, asks to approach. Justice Merchan stands, arms crossed, as the lawyers approach the bench, leaving Trump alone at the defense table.

The lengthy discussion that follows takes place out-of-earshot. A transcript of the conversation leaves us none the wiser, as Justice Merchan apparently sealed that portion of the proceeding.

But after several minutes, we’re back on the record. Before the parties return to their seats, Justice Merchan observes that the schedule is “a little bit up in the air” right now. Noting that there are some “pretty large breaks” coming up—Barron Trump’s high school graduation, Memorial Day weekend. Justice Merchan instructs the parties to be prepared to work next Wednesday, despite that being normally a midweek sabbath.

Blanche tells the judge that Trump is scheduled to be at a hearing that day in Florida, where he is charged with willful retention of national defense information in the Southern District of Florida. But Blanche assures Merchan that Trump’s local counsel in Florida can handle the matter. And he says that he will ask Judge Aileen Cannon to excuse Trump’s presence. “I do not anticipate that she will say no,” he says.

During the sidebar, Trump keeps his eyes closed, moving only to scratch the side of his nose, but otherwise looking unbothered. He’s sporting a candy apple red tie today.

The sidebar breaks up, at last. “I apologize for all the whispering,” Justice Merchan tells the spectators in his courtroom. “I think we may be able to get started.” 

Blanche shows the prosecution a stapled stack of papers, flips to one, and circles something on a sheet with pen.

Now Cohen takes the stand, in a dark suit and pale yellow tie, two bottles of water in front of him. Justice Merchan reminds him he's still under oath, and he instructs a court officer to bring in the jury.

Once the jury is seated, Justice Merchan starts by apologizing for keeping them waiting. "But we had to take care of some business," he says.

Second, he announces that they may have to sit on Wednesday. Tell the court officer if this will cause a hardship for you, Justice Merchan says.

Blanche pops up to resume his cross-examination. Good morning, Mr. Cohen, he says. 

Blanche picks up with a line of questioning about the phones that were seized from Cohen during an FBI search at his residence in 2018. Those phones were returned to Cohen, and he later voluntarily handed them over to the Manhattan District Attorney's Office in early 2023. Earlier this week, Cohen testified that he gave the phones to an investigator with the district attorney’s office named Jeremy Rosenberg.

Rosenberg was one of the detectives you interacted with starting around the beginning of 2023? Yes, sir.

Cohen says that he texted with Rosenberg on the detective’s work phone, as well as on his personal phone. 

Blanche shows Cohen a redacted exhibit, not yet in evidence, that displays texts between  Cohen and Rosenberg. Cohen puts on his reading glasses and skims. 

Those are texts you exchanged with Rosenberg? Yes. Those aren't all the texts, though, correct? So far, no. 

Blanche offers the text messages into evidence, but Hoffinger asks permission to voir dire (that is, question) the witness on behalf of the prosecution. Justice Merchan allows it.

Mr. Cohen, are there large swathes of texts redacted in this exhibit, and therefore out of context? Hoffinger asks. I believe so, says Cohen.

“We object, Your Honor,” Hoffinger announces. 

Another sidebar. The prosecution doesn’t want Blanche to admit the redacted exhibit because the messages could be taken out of context. Justice Merchan seems to agree. He tells Blanche he can admit an unredacted version of the exhibit that shows the context of the messages. But as to the redacted version Blanche wants to admit now, Justice Merchan sustains the objection.

Blanche returns to the lectern and continues his cross-examination. The texts you just read were around the time Cohen testified to the grand jury in this case, correct? Correct. 

Do you recall whether prior to the indictment being unsealed, the public learned that President Trump had been indicted? Yes, sir. 

And you yourself learned that Trump had been indicted prior to the indictment being unsealed in this courtroom? Yes.

You learned that from reading the New York Times, is that fair? Yes, sir. 

And Detective Rosenberg confirmed to you that the New York Times article was accurate and that Trump had been indicted, correct? An objection is sustained.

Did Rosenberg confirm that “it was done” to you?

I'm sorry, I don't understand the question, Cohen says, shaking his head. Blanche shows him an exhibit again. 

Does that refresh your recollection that Detective Rosenberg told you that “it was done,” meaning President Trump had been indicted?

“He identified a newspaper article,” Cohen says.

“Your testimony is the text you just read was Detective Rosenberg identifying a newspaper article?” Blanche asks the question with an incredulous tone, as if to say “that’s really your testimony?”

“That’s what it says, yes,” Cohen insists. 

Didn’t Rosenberg tell you before the indictment was unsealed in this case that they told the New York Times about the indictment before they told you? Did he tell you that in a text?

Cohen looks perplexed. I’m sorry, he says, I don’t understand your question. It’s confusing.

Blanche tries again: Did Detective Rosenberg tell you, before the indictment was unsealed in this case, that “they” told the New York Times about the indictment before “they” told you? Another objection is sustained. Justice Merchan instructs Blanche to clarify who he is referring to when he says “they.”

Do you have an understanding about whether Rosenberg told you about the indictment before it was unsealed? No, sir.

He didn't tell you before there was an unsealing in this courtroom that "it was done"? No, sir.

Are you sure about that? Yes. Cohen maintains that he found out about the indictment via the New York Times article, not Rosenberg. 

Isn't it true that Rosenberg texted you, "I know you heard,” and you said, “Nice heads up, huh, tell the Times first?"—but there’s another objection, which Justice Merchan sustains. 

Blanche turns to a CNN appearance Cohen did on the day the indictment was handed up on March 30, 2023. During that appearance, Cohen said, “This indictment and this case was like David against Goliath."

Cohen testifies that he was referring to himself as David and Trump as Goliath.

And you said that you had Goliath on his back, didn’t you? Blanche asks. Sounds correct, Cohen replies.

That same day, didn't Rosenberg say to you, "You were so sharp and confident, saw the fantastic interview on CNN just now"? Another objection, also sustained.

Blanche asks if he can approach the bench for a sidebar. No, Justice Merchan says with a hint of exasperation.

Blanche moves on to another television appearance Cohen did around that time, this time on Joy Reid’s show on MSNBC. 

Do you recall Rosenberg complimenting you about your appearance on Joy Reid? Yes, sir, Cohen recalls. 

And this was around the time that the Manhattan District Attorney’s Office was telling you not to do television appearances, correct? Correct.

Cohen testifies that he also recalls making comments about the indictment on his podcast, Mea Culpa. He puts on a headset to listen to an excerpt from a May 2023 episode, entitled, "Breaking!!! Michael Cohen Reaction to the Trump Indictment." Cohen has an index finger on his mouth, and an arm up on the bench, as he listens intently to his own podcast.

Blanche offers it into evidence, and Justice Merchan allows it, overruling an objection from the prosecution.

"I wanna thank the Manhattan DA's office and their fearless leader, Alvin Bragg," Cohen's voice cuts in, as Blanche now plays the clip for the jurors. The voice that echoes through the courtroom is a much different sounding Cohen—frantic, showboating—a sharp contrast to the slow, even-keeled witness we’ve seen on the stand.

Now the headphones are back on, as Blanche has Cohen listen to another podcast clip, this time from October 2023. It’s also admitted into evidence.

It sounds like a Scorsese script: "I truly fuckin’ hope that this man ends up in prison, it won't bring back the year I lost, or the damage done to my family, but revenge is a dish best served cold. You better believe that I want this man to go down, and locked inside for what he did to me and my family." 

In that same podcast, Blanche says, would it surprise you to learn that you also said that "you are not going to lie, thinking about Donald Trump and his family sitting in Otisville prison makes you giddy with hope and laughter?" Sounds correct, Cohen replies. 

Blanche reminds the jury of Cohen's own stint in federal prison at Otisville. You testified that you didn’t enjoy being in prison? No, sir. 

Then: You’ve also said that you believe the work you did—the interviews with prosecutors, your media appearances, your podcast—played a role in Trump's indictment in this case?

I took some credit, yes, Cohen says. That’s what I believe.

You continued to call Trump various names on your podcast and even during CNN interviews? Correct. That's continued even up during this trial? Correct. 

Blanche shows an exhibit of Trump’s post on Truth Social in which he calls Cohen a “convicted liar” and a “jailbird.”

“You responded to this truth, didn't you?” Blanche asks.

“I'm not on Truth Social, sir,” Cohen responds, evidently endeavoring not to give an inch he doesn’t have to.

“On X, you responded to this Truth in kind, right? You called him ‘dumbass Donald.’ Does that sound correct?”

“Sounds correct,” Cohen replies. 

Blanche now moves on to April 21, 2024—the night before opening statements. Do you recall saying on your TikTok that night that you had "mental excitement" about this trial starting? 

Yes, says Cohen. And he says as well that he believes that there was a paralegal for the district attorney’s office monitoring his social media at the time. 

Blanche now moves on to something prosecutors spoke to Cohen about on Tuesday: his prior testimony under oath.

Blanche says Cohen has testified under oath many times: before Congress seven times, in a trial last fall, and during his own two guilty pleas. Blanche asks, Was the oath that you took every single time the same oath that you took Monday morning in this courtroom? Yes. The location doesn't change the oath? Correct. 

And just because you come back the next day, or two days later, you're still under oath? Yes.

It's like watching a boxer wind up a haymaker in slow motion. We know exactly where this is going. In your 2017 testimony before the House Intelligence Committee, was that one of the times that you have lied under oath? Correct.

You submitted a two-page letter before you testified, and then read the letter into record, and on that occasion you lied about the Moscow project? Yes, sir.

Blanche continues on this path: And there were a number of different lies? Correct.

About when you stopped the project? Correct.

The number of times you spoke to Trump about it? Correct. 

And what was the other lie? I don't recall. I think those were the two. 

And you knew at the time you were lying under oath? Yes sir.

And the reason you lied was because of your loyalty to Trump? I said that, yes.

And then you lied again on those same three topics a year later when meeting with the special counsel? Yes. 

So you lied under oath, and you lied again when you met with the special counsel? Correct.

After a rocky start, Blanche seems to be picking up steam, finally finding some sort of groove.

When you were sentenced, you said that you were accepting responsibility for lying to Congress? Yes. 

But you said that the reason why you lied was your loyalty to Trump? I worked with a joint defense agreement in order to stay on message about what Trump wanted. 

So were you accepting responsibility or blaming the joint defense agreement? Accepting responsibility.

Now to the FBI search of Cohen’s residences in 2018.  You were not aware that Gene Freidman cooperated with them? I am now, Cohen says, but no, he was not aware at the time.

Cohen blanches when Blanche refers to Freidman as his business partner, insisting that they were never partners. I leased my medallions from him, he says. I had no profit-sharing with him. If he had losses, I would not have received losses. I had no interest in his company at all. It was no different from leasing an apartment. 

Blanche moves on to Cohen's sentencing, asking if Cohen then said under oath that in the tax years of 2012-2016, he evaded paying certain taxes that he knew were not reflected on the return. Cohen confirms that he made this representation. 

Nobody induced or threatened you to plead guilty, correct? As I stated previously, Cohen says, I was provided with 48 hours within which to accept the plea, or the SDNY would file an 80-page indictment that included my wife. And I elected to protect my family.  

So you do feel you were induced to plead guilty? I never denied the underlying facts, but I did not feel I should have been criminally charged.

Blanche asks whether Cohen lied under oath to U.S. District Judge William H. Pauley when he said that nobody had induced him to plead guilty. A tense moment bubbles up when Cohen replies, "That was not true; correct." Blanche snaps: “Can we get through this?” What's the difference between “a lie” and something that’s “not true”? 

Hoffinger objects, and Justice Merchan sustains the objection.

Okay, Blanche continues, so it was a lie? Correct, Cohen admits.

Then Blanche asks whether Cohen's lawyers spoke at his sentencing with Judge Pauley, At the sentencing hearing, Cohen says, his lawyer told the judge that Cohen was willing to cooperate in the Mueller investigation. Cohen wasn’t technically not a cooperating witness, but his counsel still wanted him to get credit for cooperating.  Judge Pauley ultimately gave Cohen 36 months in prison, lower than the maximum.

Yet after sentencing, you started saying that you did not commit the tax crime? Blanche asks. No, sir, Cohen replies. I said I did not believe it was a crime I should have been charged with 

Cohen is running up against a lot of material in the record. In your book, Blanche points out, you called the tax charge bogus and 100 percent inaccurate, didn’t you? I did not believe that it’s a crime I should have been charged with. 

That’s not what you said in the book, Blanche says. In your book, you said, "Now allow me to give you the real facts. The DOJ charged the tax evasion. They are all 100% inaccurate and, most importantly, SDNY prosecutors knew it.” Right? Yes, sir. 

And you felt and still feel that you did not engage in tax fraud but had to plead guilty to protect your family? Cohen concedes the point. Correct, he says.

Indeed, as recently as April 1, didn’t you say on TikTok that the federal prosecution against you "was the most corrupt prosecution in at least the last 100 years"? This gets a few laughs of disbelief from the press, the last 100 years having seen any number of corrupt prosecutions.

Blanche now shows Cohen Defendant’s Exhibit B52, a transcript of Cohen’s CNN appearance from March 23. During that interview, didn’t you say that you hoped the tax evasion charges would eventually come out, and the SDNY’s lies would be exposed? Correct, Cohen says, as though he hadn’t minutes earlier been denying that he had contested the facts of the charges.

You testified that you provided a lot of docs to the Manhattan district attorney? They were part of the phone, yes.

Have you provided any materials that suggest the SDNY’s charges that you pleaded guilty to were not correct? An objection is sustained.

You also said that Judge Pauley was corrupt? Yes. And he's deceased, right? Yes.

You have said that you think that Judge Pauley was "in on it," and you've called the SDNY prosecutors and Pauley "fucking animals"? Correct.

The bottom line, Cohen maintains, is that in the sentencing memo and ever since, he has never disputed the facts of the case, but he still believes that he should not have been charged and prosecuted.

Blanche understandably does not want this to be the bottom line. So let me ask my question again, he says. You testified under oath at a different trial that you did not commit the crimes that you pled guilty to before Judge Pauley, correct? Correct. 

That trial was just across Centre Street, Blanche points out. What do you remember testifying back on Oct. 24 about the legitimacy of your conviction? Cohen repeats his mantra: that he should not have been charged with a tax crime. 

Cohen's message remains consistent—except when he flatly contradicts it and acknowledges that he has gone much farther. 

Blanche turns to Cohen’s charges for false statements to a financial institution, which he pleaded guilty to alongside the tax charges and the campaign contribution charges. Those charges were based on inaccurate information on an application Cohen submitted to be approved for a HELOC, or a home equity line of credit. You’ve also said that you should not have had to plead guilty to the HELOC violation either, correct? Correct. He explains the basis for that belief: He did not believe the inaccurate information on the HELOC form was “material” to the bank’s decision on whether to approve him for the line of credit.

So when you testified under oath and pled guilty that you knew at the time that your false statements on that application would be used as a decision by the bank, were you lying? Blanche asks. 

I took a “global plea,” Cohen replies. He tries to continue his explanation, but Blanche cuts in: "Please don't make a speech."

Behind Trump, Boebert looks down at her lap, either at a phone or at a piece of paper. Gaetz shifts around in his seat, and Eric Trump watches Cohen on the stand. 

The reason you lied to a federal judge is because the stakes affected you personally, right? Yes. 

And there's no doubt that you know what perjury means? I know what perjury means. 

Blanche shows Cohen an exhibit. It’s a transcript of Cohen’s congressional testimony in 2019. When a congressman asks you questions, they can go on and on, even more than I do, Blanche jokes.  There is no detectable reaction from the several congresspeople seated just 10 feet behind Blanche as he cracks this joke. Apparently, none of them see themselves in it.  

You said you were remorseful and that you were going to prison? Unfortunately correct. 

You said that you took responsibility, correct? Correct. 

But what you didn't say is that as a part of accepting responsibility you had actually lied under oath? This prompts an objection, which is sustained. 

Do you agree with me that lying under oath is not accepting responsibility? Cohen replies by asking Blanche to clarify his question; he scrunches up his face in confusion. Blanche restates it.

I accepted responsibility, and I was suffering the consequences as a result, Cohen says with finality. 

Blanche presses on: But you lied to the judge when you pled guilty? Cohen answers that judges have a wide range of discretion when issuing sentences under the guidelines. It’s a bit of a non sequitur. 

Do you think Judge Pauley would have liked to know that you had lied to him? An objection is sustained.

I don’t know Judge Pauley, Cohen says. 

It's unclear where this is going, but Blanche seems to be arguing that Cohen was lying under oath even when he was coming clean about lying under oath. It's lies all the way down.

You've blamed a lot of people over the years for the conduct that you were convicted of? I've blamed people, yes.

You blamed your accountant? Correct. 

Your bank? Correct. 

Federal prosecutors? Correct.

The judge? Correct.

Trump? Correct. 

Blanche changes tack slightly and asks whether the outcome of this trial affects Cohen personally. Yes, Cohen admits.

Back to the medallion leasing: Blanche asks about Cohen's 16 LLCs. Cohen says this kind of thing is standard in the industry, just good business practice. He regales us with the ins and outs of the taxi business. Blanche thanks him sarcastically. Cohen says he’s welcome even more sarcastically. 

Blanche begins to ask about when and what Cohen told his wife about the HELOC, but Hoffinger trips him up with an objection, and asks to approach.

Her objection is sustained, marital communications being privileged.

Blanche asks Cohen instead about what he told Michael Avenatti about the HELOC. He eventually finds his way back to Mrs. Cohen, and her knowledge or not of what he said about the HELOC. On March 11, 2018, you deleted all your texts with your wife? 

An objection to this question is overruled, presumably as the question is not going to the substance of any communications with his wife. Cohen doesn't recall.

Didn't you encourage some people to delete your messages with them on WhatsApp and Signal? Cohen says Signal does this automatically with some people like David Pecker. 

Blanche asks whether Cohen asked any specific people to delete their messages with him? Cohen doesn't recall.

Blanche now turns to Cohen's testimony to Congress about whether he ever requested a pardon. I never asked for a pardon, Cohen insists. I spoke to my attorney about it because we saw Trump talking about pre-pardoning people on television. I asked him whether it would be legitimate. 

Blanche moves ahead 10 days from that testimony to a Feb. 27 deposition before the House Oversight Committee, in which Cohen said he directed his lawyers to explore the possibility of a pardon because it was constantly being dangled in his face. He asks whether Cohen remembers being asked to reconcile that statement with his testimony. 

It's unclear what's happening here, as Blanche tries to catch Cohen on some alleged discrepancies between his 2019 congressional testimony and the deposition. These discrepancies are mostly semantic: whether his lawyers did it versus whether Cohen did it himself; whether inquiring about a pardon is the same thing as asking for one. 

The questions are a dense thicket of different lawyers, different testimonies, depositions, and different lies by Cohen (some still disputed, some admitted to, some alternately denied and conceded).

Justice Merchan cuts in for the morning break.

*          *          *

We're back, but the jury isn't, and prosecutor Matthew Colangelo is up asking Justice Merchan for some kind of limiting instruction based on Cohen's testimony about his knowledge of the Trump indictment before it was unsealed. Blanche balks, saying there were repeated sustained objections.

Justice Merchan doesn't think the matter requires instruction from the bench, but he does agree that the line of questioning was misleading and he wants the defense to clean it up, clarifying that the fact of the indictment’s existence had been unsealed by the time the New York Times published it. Failing that, he says, the prosecution can deal with this on redirect. Colangelo stands again to say that Blanche's questions were misleading.

Justice Merchan also says that the jury cannot meet on Wednesday, after all. 

The jurors are now back, and Blanche gets rolling again: One of the reasons you accepted responsibility is because you wanted to explore cooperation, yes? Yes, sir. 

Cohen testifies that once he got to Otisville to serve his sentence, he began meeting with Manhattan prosecutors. We seem to be returning to the line of questioning about Cohen's attempts to reduce his prison sentence. 

Cohen is unashamed of this. Even after his supervised release began, he says, he tried thrice to reduce his sentence. Could it be four times? Blanche asks. It could've been four.

None of these motions were successful, Blanche says, but one of the times, the stated reasons was Cohen's ongoing cooperation with law enforcement.

We jump back to Cohen's testimony in another trial, last October.

"Oh, God," a reporter groans. Much of the congressional delegation has similarly given up the ghost and left.

More questions, same theme: Cohen cooperated with law enforcement, and though he wasn't an official cooperating witness, he tried all the same to put that cooperation toward early release.

Blanche now changes tack: Do you remember questions about your desire to work in the White House? And do you remember telling Congress that you did not want to go to the White House? Cohen insists that he never wanted to work in the White House, that he merely wanted to be considered for White House jobs—that his ambition was always to be personal lawyer to the president so that he could monetize that role for other purposes. 

But Blanche pushes. What about when, in November 2016, you texted with your daughter that you still believed you could be White House chief of staff and your daughter said she had read that Reince Priebus was being considered for the role? Cohen stands his ground. 

Do you know Kedar Massenburg, the former CEO of Motown Records? Cohen confirms that, yes, he knows him. 

Didn’t you tell him you would like to be attorney general? I don't recall.

Still in November 2016: You don't recall telling your daughter that you were with Trump, and that he was complimentary but not happy with the title you wanted, “special counsel to the president”? Cohen corrects Blanche about some of these conversations with his daughter. “My conversations with my daughter was I wanted a hybrid position, one where I would still have access to President Trump, but not be a White House employee,” he explains. 

Part of your frustration was that Trump's new chief of staff, a role that you wanted, was now trying to find you a job? Blanche asks. 

Blanche is trying to poke holes in Cohen's White House staffing story: On Tuesday, Cohen said that he just wanted to be personal attorney to Trump, but there are lots of  conversations about his wanting to be chief of staff and special counsel and attorney general and other things. 

"That was for my ego, yes," Cohen says, going back to his line from Tuesday. 

A series of questions from Blanche: When Trump appointed Gary Cohn as director of the National Economic Council, were you "despondent"? At the time, you were having a hard time getting tickets to the inauguration, right? Your daughter texted you that Trump and his people were "walking all over you," right? You were disappointed that after all the work you did for Trump, Blanche taunts, nobody offered you a job in the White House? That's not accurate, Cohen insists in response to the latter question. 

You were not embarrassed that after everything, you were left with the role of personal attorney, nothing more? That's the role that I wanted. 

Now fast-forward to September 2023 and Cohen's application for early termination of his supervised release. Did he include "fake cases" in his list of authorities? 

Cohen says he used Google Bard and typed in a series of queries regarding Second Circuit decisions on early termination of supervised release. Cohen says he got "phantom" results, because AIs want to please the user, and Cohen provided the citations to his lawyer. Those citations were inaccurate.

The cases didn’t even exist, right? Correct. 

Blanche now turns to a phone call from Oct. 24, 2016. Do you recall testifying that you called Keith Schiller that day in order to speak to Trump to "discuss the Stormy Daniels matter and the resolution of it?" Yes, Cohen recalls. 

It seems like another random rabbit hole, but it turns out to be Blanche’s big score of the day.

Blanche asks how that all works: You know Schiller was with Trump so you call him? Is he on speaker phone, or is it a private conversation? I've seen both, Cohen says, and he doesn't know whether it was a private call or speaker phone on that particular day. 

Do you have any recollection of what you said to him that day? Blanche asks. We talked about the matter, and it was resolved, Cohen says simply. 

Blanche wants Cohen to act out how that conversation with Trump might have gone, but Hoffinger objects—and her objection is sustained. 

Did you talk about this phone call with the grand jury? Blanche asks, but Cohen can't recall.

Do you recall ever talking to prosecutors about this phone call prior to Tuesday? I don't recall, says Cohen.

Blanche shows the witness and parties Defense Exhibit B255, to refresh his memory as to whether he was asked any questions about phone calls on Oct. 24.

Blanche now displays People's Exhibit 341, a log of calls between Cohen and Schiller, and highlights two on Oct. 24, the first of which went to voicemail and the second of which lasted one minute and 36 seconds.

This is the call you testified about on Tuesday, when you called Schiller, but it was really to talk to Trump about the Stormy deal. Blanche's voice is rising now; let's see what happens next. 

Blanche now shows texts between Cohen and Schiller to the jury. We can't see the texts yet, as proper redactions have not yet happened.

Blanche asks Cohen about a string of messages preceding that call that appear to come from a prank caller harassing Cohen—a person who claims to be 14 years old, no less. And suddenly, it's starting to become clear: Blanche is casting doubt—quite credibly, it seems—on the claim that this particular Oct. 24 call was actually about the Stormy Daniels matter. It was actually, he suggests, about a string of harassing calls that Cohen received.

That was a lie, correct? Blanche fires at Cohen, referring to his claim that this call was to talk about Daniels with Trump. 

Blanche is finally picking up momentum. You said you had a recollection of a phone call on Oct. 24 at 8:02 p.m., in which Schiller gave the phone to Trump, and you talked about the funding, but THAT. WAS. A. LIE. 

Cohen still doesn't budge. He says he doesn't believe this is true, but Blanche cuts him off.

"We are not asking for your belief," Blanche says furiously, "this jury is not asking"—an objection is sustained.

A reporter lets out an audible, "Woah!"

At long last, Blanche is landing some punches.

Were you ever shown in prep the text that I had just shown you between you and Schiller about the harassing phone calls? No, sir. Based upon what was going on, and based on other texts, Cohen says he believed what he had said to be the truth. 

So you weren't basing your testimony on your memory, you were basing it on documents the People showed you? To refresh my memory, yes. 

Justice Merchan says it’s time for lunch. He excuses the jury, then the witness. Blanche and the Trump team stalk out triumphantly. It has been their best moment so far.

*          *          *

At 2:04 p.m., the prosecution strolls back in and lays out its stacks of papers, binders, and other documents on the desk. Four minutes later, Trump walks back in, his entourage in tow. Gaetz has stayed past lunch. 

A few minutes later, Justice Merchan returns. 

The People had submitted their proposed special jury instruction regarding the unsealing of the indictment, but Blanche says his intention is to correct any potential misunderstanding "right out of the box" after lunch.  Justice Merchan takes a look at the instructions, but he holds off on ruling on the matter. 

Let's see how it goes with you, and if it looks like we have to clean it up some more, I'll read the instruction, Justice Merchan says. Steinglass pipes up immediately: The only relevance of these questions was to show there was some kind of improper leak, Steinglass says, and that Cohen or Rosenberg were engaged in that conduct. There’s no other reason for the entire line of questioning, says Steinglass. This is not something to be “cleaned up”; it needs to be cured by the court.

Blanche is back up now. He thinks it's entirely appropriate to elicit that a detective assigned to this case told a witness that this was "done."

Justice Merchan says there was nothing inappropriate about the question and will give Blanche the opportunity to clean up the issue. 

Separately, Justice Merchan says he has been informed that one of the jurors apparently has a 1:30 p.m. appointment next Thursday. So not only can we not work Wednesday, but we may have a short day on Thursday. He says he will take it up with the juror in the robing room with one attorney from each side to discuss that further during the afternoon break. 

Now Cohen is back, reading glasses out, bottle of water atop the witness stand, and the jury comes in.

Right out of the box, as he said earlier, Blanche starts to "clean up" the indictment-leak question.

Do you know that on March 30, the court unsealed the indictment? Correct.

So what you learned or heard about the indictment on March 30, by then it was unsealed, right? Cohen affirms. 

After a brief sidebar, we resume without a limiting instruction.

Now on to Cohen's TV appearances: Just to be clear, when you did those interviews, the indictment had already been unsealed by the court? Yes, Cohen says, he had read about it in the New York Times. 

Clean up complete, it seems.

We go back to the series of messages between Cohen and the 14-year-old prank texter, this time with Defense Exhibit B165 now in evidence.

Blanche shows the texts we heard about before lunch: In these texts, Cohen tells the person the number has been sent to the Secret Service because of harassment. The person apologizes and claims he's 14 years old, so Cohen asks the boy to have his parent or guardian contact him. 

And then, having successfully shown that one of the calls between Cohen and Schiller is not what the prosecution claims it to be, Blanche inexplicably drops the issue and moves on. 

He goes way back now, to the 2010 poll which Cohen said on Monday that he showed Trump, then started Is it fair to say that at the time the press regarded this as a bit of a stunt? Yes, sir. 

Then you worked with the National Enquirer, in 2011, to run a story about how strong Trump looked in the polls? Yes, sir. 

In that story, there was a positive profile of Cohen as the person who started the site, right? Yes. 

You worked very hard during your time with the Trump Organization to get positive stories in the press about what Trump was doing? Yes. 

And also about yourself, no? Cohen does not deny the point.

Asks Blanche: How did that press relationship work? Cohen explains: Cohen would reach out to reporters, ask if they're interested in a certain topic, and offer an exclusive. 

Let's take the opposite case, Blanche suggests. What steps would you take, if any, to get rid of or minimize a negative story? That's a little different, says Cohen. Instead of me calling the journalist, they would call me for comment. Then I would immediately go into Trump's office and we'd come up with a response.

You did that a lot, right? You had a Rolodex full of reporter's contact info? Correct.

And you didn't always have to go back to Trump to decide how to handle a story? No, sir. 

You mean you never answered a reporter without going to Trump?

It was my routine to ask him. 

So over the course of 9.5 years, you never commented on a story on your own? With respect to the initial comment, never, Cohen says. He never freelanced. But he would often mimic the same response to the next magazine, the next newspaper, and so on. 

Cohen essentially says that he would always consult with Trump out of fear—fear of Trump blowing up at him, fear of him losing his job over a rogue comment. 

Eventually, in 2011, Trump said he wouldn't run the following year. Shortly after, Cohen says that he worked with Davidson to remove the Daniels story from

Is it fair to say that the first time you spoke to Trump about the 2011 Daniels story, he said he was concerned about his family? Yes, and the brand.

Blanche asks whether Cohen threatened legal action to get that story down, and Cohen says yes—though Davidson effectuated it. 

Some of the reporters with whom you had close relationships were Chris Cuomo? Katie Tur? Maggie Haberman? Yes, yes, and yes. 

Blanche asks only about Haberman: Would you describe your relationship with her as very strong? Yes.

You asked her to write positive stories about you? Yes, sir, says Cohen, apparently unashamed. 

Cohen also admits that yes, if a given item were a "New York Times-style" story, he would give Haberman tips, scoops. 

Why did you record conversations with reporters? For note-taking, Cohen says. For later reference to craft responses.

When did you stop? After the 2016 election. You didn't record conversations with reporters in 2017 or 2018? I'd have to check.

We'll check together in a moment, Blanche says ominously.

Cohen thanks him sarcastically. 

Blanche is back to a thousand cuts, rather than a big wallop. 

Blanche asks about other recordings. It's not illegal to record conversations in New York, with one-party consent, Cohen says a bit defensively. 

Blanche lets out a quick laugh and says, Mr. Cohen, I did not ask you whether you were breaking the law. 

He goes on. One of the reasons you'd want relationships with reporters is to respond is to push information, to shape an article—or maybe that's not the best word, so choose the word you like—to make the article come out as favorable to you or Trump as possible? That's true. 

When asked about what type of communication he would use with what type of reporter, Cohen says that for a "private or unusual type of situation, I would go to one of the encrypted apps."

And there were 95 secret recordings on your iPhone? Correct.

Who else did you secretly record, other than reporters? Jeff Zucker, Trump.

You understand that it's not ethical to record your client? Yes, except of course crime-fraud exception.

Another non sequitur. The crime-fraud exception is an exception to the attorney-client privilege, not to the bar against surreptitious taping.

So you surreptitiously recorded your client so that you could play a privileged recorded communication with a third party? That's correct. 

Blanche asks about the meeting between Cohen, Trump, and Pecker at Trump Tower. You said the power of the National Enquirer is its "placement in supermarkets." Did you tell anyone about that before your testimony? Not that I recall, Cohen says.

We loop back around to where the cross started: Didn't you say on TikTok that Pecker's testimony corroborated what you've been saying for years? That's a very general statement, says Cohen.

Now back to the false Dino Sajudin story. You previously told law enforcement that you were concerned about the story because it was about people who still worked for him, worked with him, Blanche asks, his voice softening. You testified that all along the way, you kept Trump updated, correct? Yes, sir.

But what about things like the liquidation clause in the contract? No. Those were the kinds of things you would handle as the lawyer? Yes, sir.

Blanche jumps around again—to the McDougal story now.

Didn't you previously tell the government that Trump said he didn't think the McDougal story would hurt him? I would need to see that document, please. Sure, says Blanche, and shows him Defendant’s Exhibit B127.

Cohen relents. Initially, yes, Trump didn't think the McDougal story would hurt him.

Blanche goes back to the earlier wound he opened: The 2016 phone call either with Trump or about the 14-year-old prankster but certainly with Schiller's phone. How many calls were you getting a day? Hundreds, Cohen responds, and Blanche seems genuinely taken aback. Let's just say 50, conservatively, he says, then making a few back of the napkin calculations: so more than 50,000 phone calls between 2016 and today? The implication is that he can’t possibly remember any of them.

Cohen responds. These phone calls are ones I've been talking about for the past six years; they've been all-consuming, significant calls, so I remember the substance, if not the timing.

You mean to tell me you were talking about these calls for the past six years? Setting aside the tens of thousands of calls Cohen received or placed since 2016, Blanche one: Do you have a specific recollection of the June 16, 2016, call? He shows Cohen the call log, and Cohen says yes he remembers it, based on the other documents. I recalled the conversation based on the other documents.

I understand, Blanche says, but that's not what he's asking. He's asking if Cohen has a specific recollection of that conversation on that phone call on that day in June?

Now back to the surreptitious two minute, 51 second recording of Trump, in which Cohen says "our friend David." 

Recall, Cohen says, that Pecker was being considered for CEO of Time Inc. at the time, and there was a concern about a secret box of documents that would change hands to whoever succeeded Pecker if he left. 

Blanche brings up the "hit by a bus" comment about Pecker, and asks: Was the concern here even beyond the election—meaning, this conversation wasn't tied to the election? Yes, sir, Cohen replies.

Later, Cohen says, Pecker told him not to worry—there was nothing in the files, and he wasn't being considered for CEO of Time anymore.

Now to the bit on the recording about "financing," when Trump said to pay in "cash." Isn't it true that when you worked for him, Trump would very often purchase things in cash? Blanche asks. He would even buy certain properties with cash, and "without financing"? Well, yes. 

So when you say that Trump is rich and you pay all cash, you’re not saying that Trump or his sons go down to the bank with a bunch of bags full of cash to buy something, you’re saying that it’s not financed. We’re just going to pay with cash. We’re not going to finance, right?

That’s correct.

Blanche wants even more clarification to hammer the point home—when Trump says cash, he “was talking about green, that’s not what he is talking about, is it?”

“It was, which is why, sir, I used the word—no, no, no, check. We needed to do it by check,” Cohen replies. Blanche, seeing an opening, jumps in: Isn't that the point right when the recording cut off?

The recording cut off because I got a phone call, Cohen says calmly.

Blanche changes tack, and asks slowly: What phone was that recording on? It was one of the two phones, Cohen replies, still calm.

Blanche tacks back to the recording, showing the transcript cutting off right at the word "Check."

Just so I understand, Blanche continues evenly, you're in a meeting with Trump about the financing or cash with the McDougal story, but the bank calls, and you just answer that call? What was it about? Cohen first says he can't recall, then ventures a guess that it was probably about an identity theft incident he was being subjected to at the time.

Blanche sees another opening: So you do recall or you don't recall?

You sure about that? he adds.

Blanche picks at another inconsistency: you use encrypted apps, but some of the most key communications were just on text, right? And the documents—the non-disclosure agreement itself—were just emailed back and forth?

Between myself and Mr. Davidson, yes, Cohen says.

We stop there for afternoon recess. 

Merchan excuses the jury, and asks an attorney from each side to join him in the robing room, presumably to discuss the juror's Thursday 1:30 p.m. appointment. 

Trump and company exit, and we break for 10 minutes.

*          *          *

At 3:24 p.m., he walks back in with Blanche at his elbow, smiling with him, seeming happy with his performance. 

Justice Merchan returns to fill us in on the conference. Steinglass suggests waiting and seeing where we're at on Thursday, not promising the jury yet they can leave at 1:00 p.m. That makes sense to Blanche—if it comes to it, we can address it that afternoon. 

Justice Merchan agrees. Let's get the witness.

I want to talk for a minute about the $130,000 payment you made to Mr. Davidson, Blanche starts.


You learned along the way that another news org wanted to buy the story, yes? At what point did you hear that? When we failed to transfer the $130,000 as per Davidson's cutoff date.

It was ABC correct? Yes.

You learned that ABC had offered about the same amount of money you were going to pay? Yes.

Who was the reporter—setting aside whether it's true or not, Blanche adds quickly—you learned this from? John Santucci, Cohen says, after blanking on his name at first.

Do you recall saying to Pomerantz that Davidson on behalf of Daniels was engaging in extortion? An objection is overruled.

Yes, Cohen recalls saying that they were extorting Trump.

Blanche clarifies that Cohen reached this extortion conclusion because of the timing of the election? And you didn't pay for a while? Yes, we went several weeks without paying, Cohen says.

But ultimately you did, says Blanche, promising to return to that.

Blanche continues, you called the payments hush money, but make no mistake, this was a completely legal binding contract? Yes, sir, Cohen says, then Blanche declares confidently: Let's pull it up.

We see the NDA appear on the four screens around the courtroom.

An NDA, a settlement between two parties, happens all the time, Blanche asks, but it sounds like a statement. Yes, they do, says Cohen. 

Now the pseudonyms. Who came up with Peggy Peterson and David Dennison? Mr. Davidson, says Cohen.

You testified that in your work with the Trump Organization, you reported directly to President Trump? Yes, sir.

And for the organization, you did legal work? Cohen thinks for a second. No, not much legal work.

Cohen agrees that he would work on "new projects," including "The Apprentice."

And that was for the Trump Organization? asks Blanche. No, I don't think "The Apprentice" would be for the Trump Organization.

Cohen's other duties included legal work for Don Jr., possibly Ivanka, and Melania. And you never had a retainer agreement with any of those individuals, and the reason was you didn't need one because you were employed by the Trump Organization, and that you didn't have to worry about getting paid?

The truth is, for the entire time you worked for the Trump Org, you never had a retainer agreement? That's correct. 

And you were acting as a lawyer that whole time? Well, I did legal matters and non-legal matters. 

Blanche's line of questioning here seems clear: For Cohen's tenure at the Trump Organization, he did some legal work at least, but never had a retainer, and there's nothing wrong or unethical with that. This point is slippery, since while he was an employee at the organization there was no reason to have a retainer and he wasn’t billing the Trump Organization for legal services under a retainer that didn’t exist, whereas in 2017 he did that 11 times. 

Now we see Cohen's letter in response to a Common Cause FEC complaint—Blanche begins to read it, and asks: Cohen paid the money, and Trump reimbursed you from his personal account, right? Either from his own funds, or the trust, Cohen clarifies.

The FEC complaint was sealed, Blanche clarifies, and yet Cohen showed the "sealed" complaint to some reporters. Cohen was angry, even said he might seek sanctions, and was sick of defending himself from "frivolous allegations."

Blanche displays Cohen's statement at the time, the one in which he wrote: “Just because something isn't true doesn't mean that it can't cause you harm or damage. I will always protect Mr. Trump.”

I was validating the statement I had sent out with that paragraph, Cohen says. I wanted them to believe that it was true.

Did you tell them it was true? I called them and told them my statement was true, Cohen confirms.

Hoffinger objects about a line of questioning about Cohen lying to his lawyers, an objection which is sustained, and Justice Merchan says it’s time to stop for the day. 

He gives his usual instructions to the jury before dismissing them. The jury departs, but we're not done yet.

We should, with any luck, get some clarification on the remaining witnesses scheduling. We hear first from Emil Bove, who wants to address the potential testimony of election law expert Bradley Smith on campaign finance law. The defense wants his testimony on general definitions and terms that relate to this case, such as "campaign contribution." 

What has changed since Justice Merchan's ruling, Bove says, is that both parties put in instructions, including about the Federal Employees' Compensation Act. Bove doesn't want to encroach on Justice Merchan's potential legal instructions and wants to make sure the court is still contemplating setting up what are potential "battling" witnesses.

Bove wants to touch on basic statutory definitions and some phrases within those definitions that the defense thinks it's important that one way or another the jury gets instructions on, whether through dueling experts or another way. 

Bove would seek to elicit from Smith an interpretation of "for the purpose of influencing any election for federal office," the "irrespective rule" from the FEC's regulation, and the press exemption, along with certain definitions of contribution, limits, expenditure, and others terms.

He continues to discuss what the defense plans to elicit from Smith—trying to give the jury a sense of what the requirements are for certain terms, and how the FEC has applied them. Not hypotheticals, he clarifies, but applications in practice. 

The last issue is the press exemption, which has a basis in the statute, as well as in the FEC's regulations, and a cited advisory opinion—"just to give the jury a little bit of content around these terms." But, he says again, he doesn't want to tread on Justice Merchan's prerogative to instruct the jury.

You believe that the biggest impetus of this is because we have competing instructions, not the facts of the case and the way they came in? the judge asks Bove.

Bove says he just wants everyone to be "eyes wide open" coming into Monday, which is when this testimony could come in. 

Now Colangelo is up: 95 percent of the testimony Bove just proffered, he says, flies in the face of Your Honor's instructions, which prohibits the "interpretation and application of federal campaign finance laws."

That kind of testimony from an expert is precisely why there's a general and broadly followed prohibition on this type of testimony, Colangelo says.

He mentions this is compounded by the prosecution's expert witness: "But then we have three people telling the jury what the law is," Colangelo says, stopping to gesture toward Justice Merchan, "when there should be one."

He's not done: The possibility of any testimony on the press exemption has never been disclosed, Colangelo continues, so there's a "serious notice problem" from the outset.

Colangelo rapidly adds on more arguments, so quickly that the court reporter asks him to repeat himself. 

"Your Honor, what Mr. Bove just described is totally outside and way beyond both what Your Honor already ruled, and any generally accepted prohibition on expert testimony," Colangelo says by way of conclusion. 

Bove stands again, pushing back calmly, gently. The jury has to get alternate information, one way or another, as to how to apply these principles, Bove says. We don't think this jury should be evaluating a FECA violation, but we understand that we lost that fight. So we want them to understand what those principles are, in a fair way. 

Justice Merchan has heard enough. I don't think the fact that both of you submitted jury charges necessitates changes to my ruling to the motions in limine, he says, directing parties to pages 1–3 of his opinion, then reading from them.

What you're asking me is to enlarge this decision quite a bit, he says to Bove. He’s not going to do that and turn the trial into a seminar by competing campaign finance lawyers. 

With nothing else from either side, we turn to scheduling. "I'm doing everything possible to avoid big breaks between summations, jury charge, and deliberations," says Justice Merchan. Parties asked if we can start early and late some days, and that's possible.

Blanche says he has "not a lot" left with Cohen, and he'll be finished with the cross on Monday before the morning break. For the redirect, Hoffinger estimates under an hour. 

For the defense case, Blanche says he expects to reach a decision "very soon today" about whom to call and will communicate that to the court. There may be rebuttal witnesses, but Blanche says it's certainly reasonable to believe that in addition to Bradley Smith, the other witnesses can be on and off Monday. 

There’s a possibility, then, that  we'll be done with the presentation of evidence from both sides on Monday and have that pre-charge conference the same day.

Justice Merchan therefore asks the parties to be ready for summations on Tuesday, and he says he'll try his best to keep them to one day. 

Blanche is still leaving the question open of whether Trump will testify. 

As Justice Merchan exits through his personal door, Trump and his retinue  walk out the main door, and the prosecution begins to pack up. 

We're on the home stretch now. It's a strange feeling: The trial has felt both lightning fast and glacial at the same time.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.
Katherine Pompilio is an associate editor of Lawfare. She holds a B.A. with honors in political science from Skidmore College.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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