Cohen Testimony Uncorroborated, Trump Should Demand Missing Witness Instruction: Dershowitz

(Left) Alan Dershowitz in the Senate at the U.S. Capitol, on Jan. 29, 2020. (Right) Donald Trump at Manhattan Criminal Court in New York City, on April 4, 2023. Senate Television via AP; Michael M. Santiago/Getty Images

Legal scholar Alan Dershowitz dismissed the testimony given by Michael Cohen in former President Donald Trump’s New York trial, saying that a key witness who could counter the testimony has not been called to testify.

President Trump is facing 34 counts in the New York trial for allegedly falsifying business records to divert funds to former lawyer Mr. Cohen.

The funds were supposedly used to pay adult performer Stephanie Clifford, who is better known as Stormy Daniels, to ensure she did not reveal an alleged affair with President Trump during the 2016 presidential campaign. President Trump has denied having an affair with the actress.

On Monday, Mr. Cohen told the court that he took out a line of credit in October 2016 to pay $130,000 to Ms. Clifford. He claimed that former Trump Organization official Allen Weisselberg assured him that he’d be reimbursed. Mr. Cohen added that he would not have made the payment without President Trump’s approval.

When President Trump handed out bonuses to employees in 2016, Mr. Cohen’s bonus was cut by two-thirds, which made him “beyond angry,” he stated. He claimed he was personally hurt and insulted that he paid $130,000 but was not reimbursed.

The former Trump lawyer is key to prosecutors’ attempts to prove that President Trump was personally involved or had knowledge of making the $130,000 payment to silence Ms. Clifford during his presidential bid.

In his podcast on Wednesday, Mr. Dershowitz called Mr. Cohen’s testimony unsubstantiated and said there was a “missing witness” in the case “who could have corroborated Cohen’s testimony,” Mr. Weisselberg. Yet, the government chose not to call him.

Mr. Weisselberg is “sitting in prison under the control of the government. The government snaps its fingers and puts him on as a witness. He could be called as a witness. The government has chosen not to call him as a witness. And this issue should be litigated very extensively by Trump’s lawyers,” he said.

“So it starts by Trump’s lawyers making a motion calling for a missing witness instruction, leads down to the jury. If there was a witness under the control of one side, and then that side declined to call them and his testimony would have been relevant, you can presume that the testimony would have been unfavorable. And that’s the reason they didn’t call him.”

Mr. Weisselberg was sentenced to five months in prison last month for lying under oath during testimony in the New York civil fraud case against President Trump.

The legal scholar noted that Mr. Weisselberg is “15 minutes away from the courthouse in local lockup prison. The reason the government doesn’t want to call him seems obvious[,] that if he testifies, he would testify against Cohen. He would not corroborate, he would undercut Cohen.”

Prosecuting attorney Joshua Steinglass argued that Mr. Weisselberg had signed a severance agreement with the Trump Corporation that prevented him from talking to the government.

The agreement pays Mr. Weisselberg $2 million in severance in eight installments of $250,000 with three payments remaining. If he were to talk to the government, Mr. Weisselberg risks losing on the remaining $750,000 in payments, Mr. Steinglass said.

Christopher Conroy, another prosecuting attorney in the case, said the severance agreement “offers a real explanation for why he is not in this trial.”

“What we argue is that Mr. Weisselberg’s interest right now, among other things, there are three payments due to Mr. Weisselberg during this calendar year,” he stated.

‘Uncorroborated Testimony’

Mr. Dershowitz said that the Trump legal team may “make a motion to acquit, a motion to dismiss, a motion that essentially says, look, we’ve heard the prosecution’s case and there’s not enough to go to the jury—the state has not established all the elements of the [alleged] crime.”

Such a motion is usually denied by most judges. However, in this case, the motion should be granted, he said.

Mr. Dershowitz does not expect such a motion to be granted since the judge in the case “seems to be somewhat biased against Trump.”

The legal scholar noted that despite all the days of testimony in the case, “we still don’t know essentially what the crime is.”

“We know that it is something to do with him (Trump) or somebody on his behalf. He (Trump) didn’t do this. Somebody on his behalf noting the $130,000 payments as legal expenses, rather than as money paid for a nondisclosure agreement or hush money,” he said.

“Nobody in history has ever disclosed the payment of hush money. So this would be the first time in the history of the world anybody was ever prosecuted for failure to disclose the payment of hush money.”

But even if such a crime were to be established, the crime is now barred by the statute of limitations, which even the “state admits,” he noted.

Then, a “dead crime” has to be resurrected to make the case valid, which would require the government to “prove beyond a reasonable doubt that the reason that he (Trump) or somebody on his behalf made that entry was solely to affect the outcome of the election, not in any way to avoid embarrassment in his family life, or to avoid diminution of value of his brand, or his ability to be on a television where there are contracts that permit for the abrogation of the contract based on a moral clause.”

“They have to prove beyond a reasonable doubt that that was the predominant motive for what somebody else did on his behalf. They haven’t come close to proving that. The only evidence they’ve introduced is uncorroborated testimony of Michael Cohen.”

Due to a gag order imposed on him by New York State Supreme Court Justice Juan Merchan, President Trump is unable to directly respond to Mr. Cohen’s claims.

‘No Crime’

On Tuesday, the former president justified his actions related to the case’s events, saying he only paid a lawyer an amount of money that was marked down in records as legal expenses. “There is no crime,” he said. “I didn’t mark it down as a construction of wall, construction of a building, I didn’t mark it down as electricity.”

The former president called the trial a “threat to democracy,” accusing Justice Merchan of being politically biased.

“We cannot have a country where we get to prosecute your political opponents, instead of persuading voters,” he said. “They’ve kept me here for three and a half, four weeks, instead of campaigning. Yet we still have the best poll numbers.”

Manhattan District Attorney Alvin L. Bragg, Jr. announced the 34-count charge against President Trump on April 4 last year.

At the time, Mr. Bragg accused the former president of having “repeatedly and fraudulently falsified New York business records to conceal crimes that hid damaging information from the voting public during the 2016 presidential election.”

“Manhattan is home to the country’s most significant business market. We cannot allow New York businesses to manipulate their records to cover up criminal conduct,” he said. “The trail of money and lies exposes a pattern that, the People allege, violates one of New York’s basic and fundamental business laws.”