Daily Pnut Guest Post: Scott Turow On Cohen V. Trump
A special weekend edition of Daily Pnut
I spent eight years at a federal prosecutor, between 1978 and 1986, and in the 33 years since I have practiced as a criminal defense lawyer. The criminal bar is a small world, where there is frequent comic relief embodied in many appropriate sayings. One of my favorites is, “For the jury it’s always opening night.” That means that the strategies and memes that get repeated in trial after trial, and the dynamics that we see all the time when human beings misbehave, are unfamiliar to public who don’t realize they are watching a drama as ritualized and predictable as Kabuki.
That has been my view of the testimony before Congress last week of Michael Cohen about President Donald Trump, as well as Trump’s response. All I can say is that it might be opening night for the American people, but for those of us who inhabit this milieu, it’s all familiar and comes with predictable results.
Without trying to inalterably conclude that the principals in the current drama fit into these roles, the standard routine of criminal cases is that the government starts investigating someone whom they regard as a big-time malefactor, who we’ll call, for convenience and because it reflects the prosecutors’ views, “Big Scumbag.” As the government begins turning over rocks, they soon identify a confederate of Big Scumbag whose behavior is not all that much better, who we’ll call “Smaller Scumbag.” Because traditional criminal process logic, and the federal sentencing guidelines, reward cooperators with less prison time, Smaller Scumbag decides to tell what he supposedly knows about Big Scumbag.
At trial, Big Scumbag’s defense lawyers rip apart Smaller Scumbag:
“Q. You are a liar, aren’t you?“
- Yes, I am.“
- You are a crook, aren’t you?“
- Yes, I am.”
But prosecutors invariably win these cases. Why? Because they always make two big points to the jury in closing arguments.
“First,” the prosecutors say, “Smaller Scumbag is a scumbag. He is a liar and a crook. But you don’t need to take only his word for what he is saying. We wouldn’t ask you to believe someone like that on his own. He has a lot of corroboration. Look at all these documents, and the other witnesses who bear out exactly what Smaller Scumbag is saying.
“Second,” says the prosecutors, “we didn’t pick Smaller Scumbag as a witness. Big Scumbag did. Of course, we as prosecutors would like our witnesses all to be nurses and teachers and clergy-persons, people of unquestionable character. But you don’t find the members of criminal conspiracies in a convent. Criminals associate with other criminals to carry out their crimes. Who picked Smaller Scumbag to hang around with? Big Scumbag. Big Scumbag wants to tell you what a terrible person Smaller Scumbag is. And he’s right. But Big Scumbag worked with Smaller Scumbag for a decade. What does it tell you about Big Scumbag that he spent 10 years in the company of somebody he now tells you is an obvious liar and a crook? Either Big Scumbag is blind and naïve. Or he wanted to work with somebody like Smaller Scumbag, because—trumpets blare—Big Scumbag is a big scumbag! ”
It works every time.
When Michael Cohen says the following, there are some rock certainties
“In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign. Mr.Trump responded by stating to the effect of “wouldn’t that be great.”
You can stake your life that the FBI and federal prosecutors have gotten all the phone records and testimony from Trump’s assistant that will back up what Cohen is saying. Cohen would never risk another prosecution for lying if there was any credible evidence to contradict him. ‘You don’t just have to take his word.’
So, much as Trump wants to dismiss Cohen as a “rat” and a “liar,” he’s stuck with the predictable and always devastating response: Trump picked him. Trump hired Michael Cohen as Executive Vice President and Special Counsel for the Trump Organization and after a decade of having Cohen work for him, Trump cannot maintain that he was unaware of all the unsavory things Cohen did, the threats and payoffs that were routine parts of his job. The checks are right there in black and white, showing that while Trump was in the White House he reimbursed Cohen for paying off Stormy Daniels. What does it tell you about Donald Trump that this was the company he was keeping, that his lawyer was Michael Cohen, that his campaign chair was an inveterate crook and convicted felon like Paul Manafort?
Cue the trumpets.
Scott Turow is the author of ten bestselling works of fiction, including IDENTICAL, INNOCENT, PRESUMED INNOCENT, THE BURDEN OF PROOF, and the forthcoming, THE LAST TRIAL. His books have been translated into more than forty languages, sold more than thirty million copies worldwide, and have been adapted into movies and television projects. Follow him on Twitter @scottturow.