NEW YORK — Donald Trump’s legal team dropped its case in his hush money lawsuit on Tuesday after calling just two witnesses and opting not to have the former president testify in his own defense.
But despite what Hollywood courtroom dramas might suggest, that’s not all that unusual, according to criminal defense attorneys and former prosecutors.
The reason is simple: prosecutors must prove their case, while the defense only has to prove that there is a reasonable doubt that their client committed a crime. And lawyers don’t necessarily have to call several witnesses to poke holes in a prosecutor’s case.
“The burden is on the prosecutor, and it is a high burden,” said Sarah Krissoff, a white-collar attorney and former federal prosecutor in New York.
Trump has been accused of falsifying records at his company to conceal the true nature of payments made to one of his lawyers, Michael Cohen, in 2017. Prosecutors say the money was intended for Cohen’s work to suppress negative stories about his boss during the 2016 presidential campaign, including a story about an alleged sexual encounter with a porn actor, Stormy Daniels. Trump, who denies Daniels’ statement, has said the company correctly classified them as legal fees.
Krissoff and other experts say most of defense attorneys’ work takes place during cross-examination of prosecution witnesses, when they can challenge their testimony and credibility.
“The defense’s story will come out during cross-examination, and then they will put it all together during the closing statement,” she explained.
It is not unusual for attorneys to call only a few witnesses of their own, or none at all.
Much of the defense team’s work happens before the trial begins, and includes trying to ensure that incriminating evidence is not admitted into the trial and never seen or heard by the jury, Krissoff added.
“What you see in a courtroom is really just a small part of the work they do,” she said.
And while Trump has dangled the prospect of testimony for weeks, legal experts say it will likely never happen.
“There was no guarantee that if Trump were to testify that he would stay on point and not go completely off script in a way that would at best be unhelpful to the defense and at worst harmful to them ,” said Richard Serafini, a criminal defense attorney in Fort Lauderdale, Florida, and a former prosecutor at the U.S. Department of Justice.
Krissoff agreed, adding that having a suspect testify could also open the door for other evidence and information to be introduced at trial that could be damaging.
“They did the math and decided they’ve made enough progress,” she explained, referring to Trump’s lawyers. “They feel they have done the damage to the prosecution’s case and will be able to stand up next week and argue that there is not enough to convict the former president.”
Legal experts said it was surprising that Trump’s lawyers had called witnesses.
The defense’s key witness was attorney Robert Costello, who testified Monday and Tuesday about conversations he had with Cohen in 2018, after the FBI raided Cohen’s home and office. Costello testified that Cohen told him at the time that Trump knew nothing about the $130,000 in hush money paid to Daniels.
“I’m not sure Costello has moved the needle in Trump’s favor,” said Mark Bederow, a New York criminal defense attorney and former prosecutor in the Manhattan district attorney’s office. But he and other legal experts said Trump’s lawyers were right to focus on Cohen’s credibility.
Cohen testified that Trump knew all about the plan to pay off Daniels. But under cross-examination, he also admitted to stealing thousands of dollars from Trump’s company and lying during congressional testimony. Cohen also claimed he was innocent of crimes including tax evasion and bank fraud, despite pleading guilty to these crimes in 2018. Cohen said his guilty pleas were themselves lies.
“His lack of credibility is simply shocking, in terms of his personal bias, his financial motives, his lying and stealing from the company he worked with, his dishonesty and his own client’s recordings,” Bederow said.
One potential witness who never took the stand was Allen Weisselberg, the former chief financial officer of the Trump Organization. According to the testimony of some witnesses, Weisselberg was aware of the payments to Cohen.
But Weisselberg was sentenced last month to five months in prison for lying under oath during his testimony in the civil fraud case brought against Trump by the New York attorney general.
“The problem was neither side could really call him,” Krissoff said. “He is in custody because he has been in court in the recent past. It was impossible for him to be a credible witness.”
Closing arguments in the trial are expected on May 28.
___
Follow Philip Marcelo on twitter.com/philmarcelo.