The defense has had the case for only two days, but it seemed far more eventful than just about everything we had seen from prosecutors.
On Tuesday, the defense rested its case after Judge Merchan refused to allow a key Trump witness to testify to the full scope of what the defense had hoped.
Talking Points…
- Defense takes over
- Merchan says enough
- Analysis
The prosecution finished up its case by calling former Donald Trump fixer Michael Cohen to the stand. For the first two days, he was like Michael Avenatti during the early days of the Stormy Daniels complaint… the media could not get enough of him. That all ended when defense attorney Todd Blanche shredded Cohen, culminating in the big reveal that Cohen had embezzled money from the Trump Organization.
After the prosecution rested, the defense called Bob Costello, the former legal adviser for Michael Cohen, who was released from his NDA. Costello got under Judge Merchan’s skin for mumbling under his breath after Merchan regularly sustained objections by the prosecution during his testimony. Merchan eventually ordered the courtroom cleared so he could lecture Costello on courtroom etiquette.
Trump’s defense team then tried to get Bradley Smith on the stand, who Trump touted as an expert on election law. Judge Merchan, however, had other ideas.
When the defense announced that it wanted to call Bradley Smith, a former commissioner of the Federal Election Commission, Judge Merchan immediately put the clamps down on him. Merchan did not want this to turn into a trial of the 2020 election outcome, so he put significant restrictions on the scope of Smith's testimony, so Smith was pulled as a witness. Smith explained:
"Judge Merchan has so restricted my testimony that defense has decided not to call me. Now, it’s elementary that the judge instructs the jury on the law, so I understand his reluctance.
"But the Federal Election Campaign Act is very complex. Even Antonin Scalia – a pretty smart guy, even you hate him – once said ‘this [campaign finance] law is so intricate that I can’t figure it out.’ Picture a jury in a product liability case trying to figure out if a complex machine was negligently designed, based only on a boilerplate recitation of the general definition of ‘negligence.’ They’d be lost without knowing technology & industry norms.”
As the day wrapped up, Trump was very confident that his team had won this case, telling the media that the defense would be resting soon, which it did by the end of the day. This led to the legal pundits breaking down everything that had happened over the last two days, and the reviews were not flattering for Merchan. For instance, former United States Attorney Brett Tolman stated:
“I will tell you, judges, every now and then you run across the judge that has some insecurity, ego driven.
“They control the courtroom. If they’re ever challenged, it’s interesting to see their reaction. And here I think he has something personally at stake in wanting to show that he’s running a good trial, but more than that, I think he wants to see Donald Trump convicted. So then you add all that up and look, I have never seen an objection sustained so quickly.”
He also commented on the apparent bias of Merchan for the prosecution when Costello was on the stand, explaining:
“You didn’t even get the question out multiple times and the objection was sustained.
“That’s why Costello said ‘jeez’ audibly in the courtroom because you do not see that. And practicing in courtrooms, what you see is the opposite, judges attempting to show a good bench demeanor and appropriateness and a decorum about them. That was all lost here. The jury saw most of that and it will be interesting what their takeaway is.”
Even though I believe the jury is probably slanted against Trump, I just have a hard time believing that all 12 jurors can come back with a guilty verdict, given how this case was presented. But, as I have stated before, so much went wrong in this case for the prosecution that I just don’t see how the verdict could ever hold up under appeal. This will not be the case that sends Trump to prison… of that, I am sure.
