Day 21: The Critical Closing Arguments

Todd Blanche and Joshua Steinglass try to sum it up for the jury — and us.

My apologies for not keeping up with these dispatches. As you might imagine, this week has been craaaazy.

All of you know the outcome, but I want to continue to give you a sense of how things unfolded day by day. 

Tuesday, May 28, Day 21, was set aside for closing arguments, and it started for me with a sense that the momentum was moving in the prosecution’s direction. I heard that one Trump staffer said over the holiday weekend: “We’re fucked.”

My response as we waited in line for the courthouse to open:

Hope so.

I was feeling more confident because Trump’s case — such as it was — ended on a hugely self-destructive note. As I reported last week, Trump would have been so much better off not putting on any defense. 

Then, he could have ended the trial cleanly, with the burden not just legally but psychologically on the prosecution. Once Trump forced his lawyers to put Robert Costello on the stand and Susan Hoffinger blew him out of the building and across the street with the power of her cross, it was getting much harder to see how he could win. Trump had taken a huge swing and whiffed.

He had his usual posse today — Jason Miller, Alina Habba, Susie Wiles (his campaign manager), plus Don Jr., Eric Trump, Lara Trump, Tiffany Trump, son-in-law Michael Boulos, and commentator Deroy Murdock.

Nobody expected Melania and Barron, but how about Jared and Ivanka? They haven’t shown up once.

As law in New York State requires, the defense closes first, followed by the prosecution. Trump told the press this was some kind of conspiracy against him.

Todd Blanche, Trump’s lead lawyer, delivered his team’s closing argument from an inconspicuous lectern on the right side of the courtroom. New York law does not permit an attorney to stroll up and down the jury box. 

He began with the same line he used in his opening argument: “President Trump is innocent. He did not commit any crimes, and the DA has not met their burden of proof. Period.”

Here are just a few of the other “periods” Blanche used to cover a slim argument:

“The payments were compensation to him — period.”

“There is no falsification of business records — period.”

“Cohen was President Trump’s personal attorney — period.”

“There is no way that you can find that President Trump knew about this payment at the time it was made without believing the words of Michael Cohen — period,”

Oh, did I forget to mention it? Blanche also called Michael Cohen a “liar” more than 30 times, though Blanche himself told the biggest lie of the day, as we will see. I like those moments when Blanche would take a break from “liar” and say something fresher, like, “He’s the human embodiment of reasonable doubt.”

Blanche’s voice always has the same studied urgency, as if he’s somewhere between pleading legally and pleading literally. Now, he was pleading with the jury to understand just how humongous a liar Cohen was.

“You cannot just minimize the lie and say, ‘Well, maybe he made a mistake,’” Blanche said as if he was captain of the parsing police. “A lie is a lie.” I mean, he’s literally an MVP of liars. He lies constantly.” Blanche was inspired by popular culture: “Have you guys heard of a GOAT, like the G.O.A.T., the greatest of all time? ... Michael Cohen is the GLOAT. He’s literally the greatest liar of all time!”

Clever, Todd. I played with the goat thing a lot three years ago when Meredith Stark and I started Old Goats. You’re doing it….um. As my kids would say: Awkward.

The only part of Blanche’s argument I responded to was when he talked about the Trump Tower “conspiracy.” He tried Occam’s Razor approach without labeling it as such (“In life, usually the simplest answer is the right one”) and argued, “There was no conspiracy.” I must admit I bought this a bit or thought the jurors might. “It doesn’t matter if there was a conspiracy to try to win an election. Every campaign in this country is a conspiracy ... a group of people who are working together to help somebody win.”

There’s some truth to this, and campaign operatives have been “interfering in elections” for centuries. I imagine some jurors are a little jaded about politicians and the press and figure all of us get together on coverage all the time. That’s a gross exaggeration, but there’s certainly plenty of evidence for it in American history, from the party-sponsored newspapers of the 19th Century to the Los Angeles Times’s’ hand-in-glove relationship with Richard Nixon in the mid-20th Century to Roger Ailes’s advisory relationship with George W. Bush in the 21st.

Blanche argued that “catch-and-kill” was just a variation on all of this and was “nothing unusual,” He added, “It’s done all the time...It’s a regular practice...It’s not uncommon...Again, it’s not surprising.” And catch-and-kill has, in fact, been used before in politics. Blanche reminded jurors that Arnold Schwarzenegger did it when running for governor of California and super-agent Ari Emanuel did it for his brother Rahm when he left as White House chief of staff under Obama to run successfully for mayor of Chicago.

But the “nothing unusual” stuck in my craw. The vast majority of American journalists don’t pay for stories or use sleazy means to get someone elected. Part of what Trump’s team was trying to do was to normalize the ethical and journalistic sins of the National Enquirer. Make it just another publication. It’s not. So, working with AMI really did constitute some kind of conspiracy, especially when it became a way to skirt campaign finance laws. 

Blanche wasted a lot of time trying to make the Access Hollywood tape into a small bump in the road — something like finding out that Trump had slipped two points in Michigan or the New York Times had criticized him for something. It was just one of those things “that happens all the time in campaigns,” Blanche said, in a lie of Trumpian proportions. “The government wants you to believe that the release of that tape, from 2005, was so catastrophic to the campaign that it provided a motive, a motive for President Trump to do something criminal. But there is no evidence of that… it was not a doomsday event,” and Trump “never thought that it was going to cause him to lose the campaign.”

This was preposterous, and I bet the jury knew so. Anyone old enough to vote in 2016 — meaning all 12 jurors — knew that the tape was a huge deal. “You heard [from the prosecution] that politicians reacted negatively to the Access Hollywood tape,” Blanche said, “But they didn’t testify.” 

What? Who are “they”? No, “they” didn’t testify because there were too many Republicans heading for the exits from the 2016 Trump campaign to fit in Foley Square, but now most of those same people are loyal MAGA soldiers. Blanche conveniently omitted that John McCain would have definitely testified to the “Access Hollywood” fiasco if he wasn’t dead, and inviting former House Speaker Paul Ryan, another who found it a “doomsday” event, to testify would have once again been…awkward. Ryan has one foot out of the Trump camp but one still in. 

Blanche then tried to rely on the jurors’ collective amnesia and confusion. “You heard that there was even talk about something consequential for President Trump, who was the Republican nominee. But none of that happened. None of that is true.” 

The “something consequential” was Trump withdrawing from the race and being replaced, which would have been a cataclysmic event and was never a serious possibility, given the unprecedented logistical challenges of replacing a presidential nominee. But to my mind, this was code red, a BFD, whatever you want to call it. Blanche was flatly lying about the reaction to the tape for a simple reason: His argument is in trouble and he will throw anything against the wall and see if it sticks. 

He even took to airing a clip from the campaign trail that obviously favors the prosecution. We’ve already seen this clip twice and will likely see it when Joshua Steinglass closes for the DA: “If five percent of the people think it’s true, and maybe ten percent,” Trump said at a rally of the charges from women. “We don’t win.” 

That is the clearest distillation of Trump’s motive for committing these crimes, and I understand why his defense attorneys must try to discredit it. But they failed.

Blanche should have had better luck with legal expenses, retainers, etc. Earlier, I expected he would introduce evidence that Cohen performed more than 10 hours of legal work for Trump in 2017. If he had — if Cohen had done, say, 100 hours of legal work — then even a cheapskate like Trump might have paid him $35,000 as a combo of legal work and reimbursement. That would have spelled a hung jury or even an acquittal.

But the defense just didn’t have the goods to pierce the People’s case. Blanche tried to say that Cohen “lied to you when on direct he said he did ‘very minimal’ work’” in the case of Summer Zervos, a Celebrity Apprentice contestant who sued Trump. When Blanche added that Cohen had been “co-lead counsel,” I thought I had missed something from earlier in the trial. Would Blanche score here on Cohen misleading the jury on this work? Apparently not, because the jury never saw any records proving Cohen did significant legal work on that matter or anything else beyond spending an hour or so reviewing Melania’s contract with Madame Tussauds’ Wax Museum. 

So why bring up Summer Zervos at all? Because they didn’t have anything real.

This was driven home to me when Blanche discussed the checks, invoices and ledger entries that are the physical evidence in the case. Don Jr. and Eric Trump signed the first two checks to Cohen. “They [the prosecution] called Michael Cohen, and they did not call Don or Eric,” Blanche said in his tinny tenor tone of phony triumph. 

This would have sounded OK if the defense had mounted no case. But now, it looked lame. Last week, Trump called Bob Costello — a guy he barely knows — to defend him on the stand but not his own sons. If he were innocent, his boys would be talking all about legal retainers, etc., but they can’t. They were apparently in the dark about the scheme, but they would have been slain on cross unless they had wanted to commit perjury.

Blanche also tried to say there was no way Cohen would work for free as “President Trump’s Personal Lawyer.” But that argument could only work before we learned that Cohen made $4 million as an influence peddler. He didn’t need to risk billing the man who was still his golden goose. Cohen, in 2017, had one of the sweetest gigs going: more than $4 million in “consulting” plus a “grossed up” $420,000 in reimbursements from Trump — all in exchange for doing almost no work. 

When Blanche got to Exhibit 35 — the “smoking gun” documents in Allen Weisselberg’s handwriting —he gamely offered, “The point of this document is that it contains lies.”

But it doesn’t, which is the heart of Trump’s problem. Documents don’t lie.

Blanche scored on some minor points. Cohen had no receipts or other proof of a lunch at an Italian restaurant with David Pecker. And I never bought that Cohen secretly taped Trump in his office to show Pecker that Trump approved of the hush-money payment to Karen McDougal. I still don’t know why he made that tape. 

But I do know the tape incriminates Trump.  

Later, prosecutor Steinglass described the tape as “nothing short of jaw-dropping. It’s unique because it shows a presidential candidate engaging in a scheme to interfere in an election, and that’s why they’re so desperate to discredit it.” 

The latter was a reference to many hours of testimony from experts about the phone itself and phone records. On cross, Emil Bove had done an excellent job of challenging the chain of custody of the phone and throwing sand into jurors’ eyes on whether there was something nefarious about the call ending suddenly. 

The conspiracy-mongering was in-bounds (if a little desperate), but it was just plain stupid for Blanche to tell jurors to listen to the tape for themselves and figure out if they hear the incriminating number “150” (for the $150,000 to pay Karen McDougal) come out of Trump’s mouth.

Jurors will obviously listen. What will they hear when the volume is turned up? They’ll hear “150” —and dispense with much of Blanche’s argument.

At the end, Blanche got sneaky. “You cannot send someone to prison based on the words of Michael Cohen,” he said, in a bid to make jurors think it was their role to decide if a president should be incarcerated. But that IED blew up in his face.

“Saying that was outrageous,” the judge told Blanche after the jury left for lunch. Mentioning sentencing to gain sympathy with jurors who have no say at all in punishment but might not know it “is simply not allowed,” he said. Merchan added given Blanche’s long experience, it was “hard for me to imagine how that was not intentional.”

It might not have been. Lawyers make mistakes all the time. But after lunch, Merchan made him pay for it by turning to the jury and telling them to disregard Blanche’s comment. Not a good final look for the defense.

***

If I walked you through all of Josh Steinglass’s five-and-a-half-hour closing argument, I would have to revisit every day of the last five weeks. Blanche deserves more space here because he barely put on a case. But Steinglass showed why he has been, from the start, the best attorney in the courtroom. He went about an hour too long, but there was little likelihood that jurors would punish him for their fatigue. The head of the prosecution team acknowledged “trading brevity for thoroughness,” but it paid off. And late in the day, he won jurors over by joking about “beating a dead horse.”

Steinglass is an effective litigator and true public servant who has worked in the D.A.’s office for 26 years. He began by explaining that the prosecution's “mountain of evidence” was incomplete. Landlines, for instance, which Cohen sometimes used to call Trump, are not included in the call records. The same, of course, is true for Cohen’s encrypted communication.

After all the phone, email, and text records we’ve seen, my only reaction is, Phew! Glad we didn’t have to endure more.

Steinglass walked through all of the defense’s arguments about Stormy Daniels, Keith Davidson, and Dylan Howard being involved in a celebrity extortion racket. It sure sounded like one from their testimony. But then he made a simple and devastating point: “Extortion is not a defense to falsifying business records.”

I finally began understanding why the 2015 Trump Tower “conspiracy” meeting was so important. Pecker’s damning testimony, Steinglass said, means “you don’t need Cohen to prove [they were] intervening in the election.”

As for Stormy Daniels, “We don’t have to prove sex took place…but Mr. Trump knew what happened, and that reinforced his incentive to buy her silence.” Steinglass told jurors: “It makes you uncomfortable to hear [the discussion of sex], but that’s the point.” They “didn’t want the American public to pay attention to it.” 

“Stormy Daniels is the motive,” he said as the pieces of the prosecution’s case moved firmly into place. “He [Trump] wouldn’t pay $130,000 grossed up just because he took a photo [with Daniels] on a golf course.” 

Steinglass explained how Hope Hicks confirmed that Trump was more worried about the election than Melania’s reaction — a central point for the prosecution to prove: “Mr. Trump’s opinion was that it was better to be dealing with it now and it would have been bad to have that story come out before the election.” 

In the bathroom, I worried to Adam Klasfeld, one of the best reporters here, that Steinglass had forgotten to use my favorite part of Hicks’ testimony when she quotes Trump telling her that Cohen was acting on his own and without Trump’s knowledge “out of the kindness of his heart.” Hicks on the stand then demolished this by saying Cohen would never do anything like that because he wasn’t a “charitable” or “selfless” person. This piercing logic for why the old Cohen would never do anything without the boss’s approval did as much as anything to seal Trump’s fate.

I need not have worried about Steinglass deftly deploying Hicks’ testimony. Not long after the break, he gestured to his left toward Trump and rammed that “kindness of his heart” line right down his throat.

Cohen’s decision to pocket part of the Red Finch guy’s cash presented a delicate problem for Steinglass. But he solved it with a nifty little argument: “The defense is trying to have it both ways,” denying that the $420,000 was a reimbursement at all. “If that’s true, there was no theft,” Steinglass said. And if Cohen did steal the money, as he admitted on the stand? “It’s not a defense from falsification that one of the conspirators was stealing from another,” Steinglass said.

 By this time, I sensed that whatever else they thought, everyone on the jury knew damn well that it was a reimbursement. Even Trump admitted as much in a civil deposition in Stormy Daniels’ California NDA suit. 

One of the best parts of the trial was when Steinglass did schtick in the courtroom. It was a risky but clever way to defuse the October 24th, 2016 call.

That call was the single best argument for the defense. On Blanche’s cross a couple of weeks ago, Cohen had been blindsided by a chain of texts that seemed to show he was calling Keith Schiller about a 14-year-old prank caller who was harassing him, not Trump about Stormy Daniels. This was where Blanche had shrieked at Cohen: “You’re a liar!”  The prosecution helped limit the damage by deploying a C-SPAN screenshot showing Trump and his bodyguard together at a campaign rally five minutes before the call. This helped, but a bit more repair was now necessary.

Steinglass cradled an imaginary phone in his ear and set a timer. “This is a little experiment,” he said with a puckish smile. “I will be Cohen.” Then he began imitating Cohen, without the New York accent:

“Hey, Keith. How's it going? It seems like this prankster might be a 14 -year-old kid. If I text you the number, can you call and talk to his family? See if you can let them know how serious this is. It's not a joke. Uh-huh. Yeah. All right. Thanks, pal. Hey, is the Boss near you? Can you pass him the phone for a minute? I will just wait a couple of seconds.”

“Hey, Boss. I know you're busy, but I just wanted to let you know that that other thing is moving forward with my friend Keith and the other party that we discussed. It's back on track. I'm going to try one last time to get our friend David to pay, but if he’s not, it's going to be on us to take care of. Aha. Yeah. All right. Good luck in Tampa. Bye.”

“Forty-nine seconds.”

Having proven that Cohen could talk to both Schiller and Trump in 49 seconds (the real call lasted 96 seconds), Steinglass apologized to the jury: ”Sorry if I didn’t do a good job.”

In fact, the jury and almost all of the reporters thought he did a terrific job with this bit, and if the prosecution wins, it will be discussed in law schools for decades.

As we had learned, Cohen updated Trump many times on the progress of the complicated hush-money negotiations, but the most incriminating call came two days later — on October 26, when Cohen got the final OK from Trump just two hours before he went to the bank to wire the money.

Throughout, Steinglass would lapse into too-long rehabilitations of Cohen. But some were helpful. “We didn’t pick up Michael Cohen at the witness store,” he said with a touch of irony. He suggested Cohen could be a “good tour guide” as the jury reviews the evidence.

On the question of whether Trump et al. were truly interfering in an election, Steinglass made a point I hadn’t focused on. The National Enquirer's reach extends far beyond its circulation of 350,000. The headlines trashing Hillary Clinton and boosting Trump were seen by anyone at a supermarket checkout or a Walmart. That’s tens of millions of voters.

This brought me up short: the 2016 election that changed the world was close enough that it could have been determined by all this tabloid shit. Scary.

Steinglass ended by going after Trump hard, with the “IF YOU GO AFTER ME, I AM COMING AFTER YOU” tweet and a selection of the especially nasty things he has said about people over the years that were admitted into evidence by one side or another for differing reasons. I love that Trump has to sit and listen to all of this abuse for the third or fourth time. 

But the jury, after watching Steinglass in rapt attention for more than four hours, was getting restless. The judge sustained objections from the defense when Steinglass said that after Trump posts something incendiary, there are “throngs of followers who interpret that as a call to arms.” This is obviously true in the outside world, but inside a courtroom, it is considered “prejudicial.” After a sidebar, the judge instructed him to tell the jury: “I’m not saying it was his intention to get his throngs involved.”

Steinglass overreached again by urging jurors not to let Trump get away with “shooting someone on Fifth Avenue.” These were Trump’s own words, of course, but prejudicial and irrelevant in this context. Not long after that objection was sustained, the court finally adjourned.

It was dark outside. I saw Trump sharply pull his jacket down with both hands as he passed me on the aisle, a gesture of frustration. His campaign manager, Susie Wiles, and a few others in his entourage looked as if they were at a funeral. They had been so busy attacking the judge and Cohen and Stormy Daniels that they didn’t seem to realize how strong the case against their man had turned out to be.