There’s been plenty of armchair quarterbacking in the week since Donald Trump became the first former president to be convicted of a felony. And one big question looms over this case and the others facing the former president: Did his lawyers fail, or did Trump?
“A good lawyer, when his client insists on doing something really stupid, throws his body in front of the freight train and prevents it,” said Ty Cobb, a White House attorney during the Trump administration. “That’s harder to do with Trump than many.”
Legal observers, including some with ties to the former president, are mixed on whether lead attorney Todd Blanche and his team made critical mistakes that led to the 34 guilty counts last week. Trump himself says it was rigged from the start, and some observers say it was unwinnable. Others say the legal team let Trump down through how it handled witnesses and arguments.
“The defense had zero strategy whatsoever,” Tim Parlatore, a former Trump attorney, told NOTUS.
But observers mostly agree on one thing: Trump created some unique challenges for his attorneys, and their decisions on how to handle a complicated client may have been pivotal to the end result.
One of the biggest potential mistakes happened even before the trial began: Trump denied having an affair. In his opening statement, Blanche repeated that denial.
That was a tough argument to stick with. Cobb put it bluntly: “I don’t believe there’s anybody in America who believes he didn’t have sex with Stormy Daniels.”
“If he had admitted it, that would have kept out much of the evidence, but he didn’t,” said Cobb. “I mean, he really hamstrung his lawyers there. And I think that’s probably the biggest error in the trial, but again, I say that really wasn’t his lawyers’ error; that was his error.”
Blanche declined to comment for this story.
Making the denial during the opening statement was a gift to the prosecution, giving them the legal opportunity to prove that it happened, said defense attorney Michael Scotto, a Scripps News legal analyst.
“If you raise something, the jury is going to be scratching their heads,” Scotto said. “So you’re never going to convince anyone that he paid $130,000 to keep her quiet because they didn’t have sex.”
While Trump’s team objected to Daniels’ testimony about the alleged liaison and requested a mistrial due to her comments, they returned to the question of sex later in the trial.
“Why belabor the point about whether there was sex or not, right?” Scotto said.
The second pivotal decision was how to handle the testimony of Michael Cohen, Trump’s former fixer and the star witness for the prosecution. Cobb argued that “the only strategy that was going to work” was the one they chose: attempting to disqualify Cohen.
Trump’s former fixer testified that Trump knew about the payment, what it was for and why it was recorded as a legal fee, putting a neat bow on the prosecution’s case. During a cross-examination, Blanche painted Cohen as a liar bent on revenge.
“They were gambling, I suppose, on the fact that if the jury didn’t believe Cohen, that the whole case might fall apart,” said former New York City Judge Barry Kamins. “And don’t forget, you know, you only have to convince one juror in order to get a hung jury.”
But despite getting Cohen to admit to stealing money from Trump — “You don’t put on a case after Cohen testifies that he stole money from Trump through that $420,000,” said Scotto — the testimony ended without a knockout blow, and the defense called Robert Costello to refute.
At least on Costello, the experts agreed: It didn’t go well.
“Obviously, their theory was not successful,” said Kamins.
Costello testifying “wasn’t worth the risk because it wasn’t even a risk,” said Scotto. “It was a certainty.”
Hindsight is 20/20, and the defense made mistakes. But some argued that Blanche’s hands were tied from the beginning because Judge Juan Merchan sided with the prosecution about the legal theory used to try the case.
Plus, they were dealing with Trump.
“When Trump tells a lie, he gets wedded to it,” said Cobb. “His narcissism embroiders it into his narrative, and he pets it every time his brain goes by it. He can’t move past it without repeating those lies. That makes him more of a liar than anybody else in the courtroom in the jury’s eyes.”
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Ben T.N. Mause is a NOTUS reporter and an Allbritton Journalism Institute fellow.