Reading (Or Not) The Room

 I cross-examined a witness once in an administrative hearing:

Habba to Cohen: “You make money off President Trump?” “I make money off my story.” “The story is about who, Mr. Cohen?” “The story is about me,” Cohen shoots back. 

Habba asked how much money Cohen made from his book, Disloyal. Cohen does not recall. She then asks whether his income from his books are on his tax returns and tries to ask his annual income. Engoron rejects that as irrelevant. 

Between Cohen’s resistance to her questions and the AG’s objections, Habba is having a much harder time establishing a rhythm in today’s cross than in her first 45 minutes yesterday. 

But the thrust of the cross is much less about directly impugning substance of Cohen’s direct and far more about slashing and burning Cohen as a person. 

Habba is painting him not only as a felon and a liar but also 1) a spurned aspirant for a White House job 2) consumed by his animosity for Trump 3) who nonetheless earns his livelihood through his prior association with Trump. 

None of that is exactly new, however. As a colleague said to me yesterday, even a casual reader of political news could have come to those conclusions about Cohen. 

And even accepting all of that as true, it is possible, if not probable, that Judge Engoron will accept the bulk of Cohen’s testimony as true. 

Even Engoron seems a little exhausted, noting we’ve established Cohen makes money by talking and writing about Trump.

I’d never done such a hearing before, and I went in pretty much on the strength of what my client had told me (clients are TERRIBLE sources of information), and little other background. I should note that civil discovery is quite extensive and there are few surprises in testimony. The adage is “never ask a question you don’t know the answer to; but I went in blind.

Fortunately the witness wasn’t easy mark and accustomed to a far lass rigorous examination than I gave her. It was a state agency hearing (and I remember almost nothing else about it), and the state’s lawyer was shaken by my approach. He tried to tell me I didn’t need to handle this like a jury trial, but all I remember now of what he said was an idea these proceedings were not in a courtroom and my approach might not work with the hearing officer.

Either way, the next witness saw me coming and was more than able to riposte my questions. Which was more than enough for my client. He though I did a “brilliant” job with the first witness (I didn’t; says never sure I actually made an points with the hearing officer), and that I wimped out in the second witness. He fired me, sure he could do better himself.

Legal practice is like that, more often than not.

Anyway, I’ve never been quite sure I was reading the room correctly; nor that my defense wouldn’t have prevailed (I’m pretty sure his didn’t. Clients never understand what they think they do. Read “legal Twitter;” it’s full of legal experts with no expertise). But day one played to the client, and day two didn’t. For client, that’s all that mattered.

Trump forces his lawyers to play to him. Tearing down Cohen as a person plays to Trump’s ego, but even destroying Cohen’s testimony entirely probably wouldn’t collapse the mountain of evidence already presented by the state. Cohen is there because he has important inside information, but he’s really just another brick in the wall. This portion of the case will neither rise nor fall on Cohen’s trustworthiness.

Habba is, at least in part, doing what she needs to do. Lisa Rubin thinks Habba did better yesterday than today. Maybe Habba had an easier course yesterday; maybe she’s off her game today. But it doesn’t sound like she’s talking to the judge; who really is the only person that matters.

Trump may think Cohen’s credibility is shattered at the end of the day. What matters, what the judge thinks.

And no, it doesn’t help that the judge and his clerk were whispering and rolling their eyes during her cross.

But one knows the feeling:

As Trump’s mouthpiece, Cohen mimicked the boss’s own penchant for hyperbole. He once told Forbes Trump’s net worth was understated because it did not include his brand value or the value of his trademark, “one of the most valuable marks ever created.” 

The irony of Habba herself now often aping this method of speaking might be lost on her. But it’s not lost on many of the journalists assembled, this one included.