Trump attorney Todd Blanche did several thing he wasn’t supposed to on Monday – and he probably did it on purpose.
On the first day of actual arguments in Donald Trump’s criminal trial, the former president’s defense counsel tried to plant some objectionable seeds in the minds of jurors. In his opening statement, Blanche portrayed adult film star Stormy Daniels as a liar who sought to “extort” his client and Michael Cohen, Trump’s former personal attorney, as a dishonest rogue who took it upon himself to commit crimes that just so happened to benefit the Republican candidate.
More than a half-dozen times, Blanche said things that sparked objections from prosecutors – objections that were sustained by Judge Juan Merchan, including the claim that there’s nothing illegal about buying someone’s silence (it depends, for example, on whether someone seeks to evade campaign finance laws while doing so). Twice during opening Blanche’s remarks, Merchan called lawyers from both sides to approach the bench for a sidebar in response to something the defense counsel had said.
“It was weird,” MSNBC legal analyst Lisa Rubin commented, “not just because there was one objection, but because of how many there were relative to the brevity of Todd Blanche’s opening statement.”
It was also a tactic. The line about nondisclosure agreements being legal – and another defense that Trump merely followed bad legal advice – had already been ruled inadmissible prior to the trial beginning; Blanche said it anyway. That led to multiple interruptions, Rubin noted, but at the same time, “he still planted the seeds of doubt in the jurors’ mind.”
Writing for CNN, Norm Eisen, former counsel for the House Judiciary Committee, wrote that Monday’s spectacle was, to him, highly unusual: “There were repeated objections that were upheld – probably the highest rate of upheld objections to an opening that I have seen in my 30-plus years of practicing law.”
“He knew that these were objectionable things he was saying,” Catherine A. Christian, a former prosecutor with the Manhattan District Attorney’s Office, told MSNBC. “They were objected to, but you can’t unring the bell,” she noted – meaning that you can’t make jurors forget what they heard, “and prosecutors can’t appeal an acquittal.”
But that strategy could backfire, too. Katie Phang, another legal analyst with MSNBC, argued that all the objections to Blanche’s opening statement could hurt his credibility with jurors. “When Blanche went beyond what he was allowed to do, not only did the objections get sustained… it interrupted flow,” Phang observed. “And that sends a message to the jury that Blanche is doing something wrong.”
It’s not a given that Blanche “doing something wrong” would harm Trump’s chances before a jury; those judging the state’s case against the former president could well conclude that Blanche is merely being a pugnacious defender of his client’s interests. But Neil Katyal, a former acting U.S. Solicitor General, argued that if jurors pay attention to Blanche’s legal arguments, rather than his objectionable attacks on witness credibility, they would spot a number of fallacies.
For one, Katyal said Monday night, the idea that Michael Cohen would have decided to pay off Daniels – and take out a home equity loan – of his own volition, without consulting Trump, is “thoroughly implausible.” And if the money Trump paid Cohen was truly for “legal expenses,” not to evade campaign finance laws and buy an accuser’s silence, then jurors will soon discover that there’s little to support the defense’s theory.
“That is going to be a problem,” Katyal said. “As an attorney, the last thing you want to do is over-promise in your opening statement and tell the jury the evidence is going to show something and it doesn’t actually turn out to show it. That’s when you blow your credibility.” After all, what witness would agree to testify under oath that “these payments were for legitimate legal expenses,” Katyal asked.
“It’s just unthinkable,” he said – and an auspicious way to begin one’s defense of a man facing 34 felony counts. “A really poor way to start,” Katyal said, “which is why Trump has always been scared of not just the other trials, but this trial in particular.”
