Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara.

The Sixth Amendment to the U.S. Constitution guarantees the right to counsel in a criminal case, no matter who the defendant is and no matter what the alleged crime is, but how exactly to mount a criminal defense is largely a matter of individual strategy. As the criminal prosecution of former President Donald Trump continues with high-profile witness testimony, I wanted to turn our attention to the defense strategy.

I’m joined this week by Ben Brafman, one of the premier criminal defense lawyers in the country who has represented people like Sean Combs, Michael Jackson, Dominique Strauss-Kahn, Sammy “The Bull” Gravano, and Martin Shkreli. We discussed what goes into building a successful defense strategy, especially with a difficult client.

Ben, my friend, welcome back to the show.

Ben Brafman:

Thank you. Thank you for having me.

Preet Bharara:

Let’s get right into it because you have been in and out of courtrooms more than anyone I think I know. First basic question, what’s the purpose of the defense lawyer? I think there’s some confusion about whether or not it’s to present an alternative narrative or simply to poke holes in the government’s case.

Ben Brafman:

Well, I think one of the primary roles is to see if you can create reasonable doubt from the evidence that is presented. It’s rare, in most cases, for a defendant to testify, and it’s also rare to actually put on a defense case unless it’s an interesting defense case that’s truthful and can significantly undermine the theory of the prosecution.

I think the primary role is to see if you can create a reasonable doubt from the government’s own evidence, and I think the Trump case is a perfect example because it’s at best a reach to create another crime to turn this into a felony. I don’t think it’s impossible, but I think it can be a reach.

Preet Bharara:

What about on the principle charge, falsification of a business record, do you think the government has proven that?

Ben Brafman:

I think there’s enough corroborative evidence without Michael Cohen to show that the evidence or the books and records or business records were altered or falsified. The real issue is did Donald Trump know it, and given who he is and how involved he was in the payment of bills or the unpayment of bills, I think it’s hard to imagine a jury concluding that the government has failed to establish that charge. Whether they’re able to show that the crime was committed to conceal or assist on the commission of another offense to turn this case into a felony is the more interesting question.

And I think regardless of the outcome, what I’ve seen so far is that Trump’s numbers continue to rise even on bad days. So who knows what the outcome is in this case?

Preet Bharara:

Let’s go back to the beginning of the trial. When you are approaching a trial on the defense side, how do you think about the opening statement? How much do you promise? How much do you preview? How much detail do you give? How much do you poke the government? And given what your strategy generally is, how do you think that Todd Blanche did?

Ben Brafman:

Well, without being in the courtroom, just reading the press, I think Todd Blanche over-promised, and I think to some extent, it opened the door and it also undermines some of the appellate issues. I think as Judge Merchan has pointed out throughout the trial, denying a lot in your opening statement creates the obligation, if you will, for the government, or The People in this case, to try their best to disprove the denial.

I think in this case, less would’ve been better in an opening statement. And when you have a controversial case where you really do not know how the important witnesses are going to present themselves and how they’re going to appear and perform, if you will, I think it’s best to sit tight and do an opening that suggests that this case is filled with reasonable doubts and then sit down.

Preet Bharara:

But Todd Blanche, like you in all your cases, has a client. Do you think if Blanche had his druthers, he would’ve done less but couldn’t because Trump insisted on Blanche making the denial about the sexual relationship?

Ben Brafman:

I think one of the key roles in a criminal defense lawyer’s life is being able to control the courtroom. And in this case, it became patently obvious that Mr. Trump was really in charge of his defense, and I think he has never been in a criminal case before, I think he has used the case more as a political platform. And I think I knew Todd Blanche, quite frankly, when he was a paralegal in the Southern District.

Preet Bharara:

So did I. He sat across the hall from me back in the year 2000.

Ben Brafman:

Right. And he was good at that job. I’ve never been in a courtroom with him as lead counsel, and from what seen, I think he is under the thumb to some extent of Mr. Trump, as is Susan Necheles. I know her for many years as a talented, good lawyer and in this case, I think the cross-examination of Stormy Daniels was both very good and also a little bit too much.

You have a hostile witness. She got some great concessions in the first hour, and it’s very, very tough to just sit down when you have a client like Trump pushing for more details. And as Judge Merchant observed, there was a failure to object to some of the more salacious details that really have nothing to do with the case.

Preet Bharara:

You mentioned objections. That has been a topic of some debate and discussion. What’s your strategy, and is there one-size-fits-all? Does it depend on the individual lawyer’s personality, the personality and demeanor and approach of the judge, the circumstances of the case? How do you think about, even if you have a legally proper objection to make, how do you choose to make it or not make it?

Ben Brafman:

Well, there’s a belief that objecting too many times in testimony creates the presumption that the jury thinks maybe you’re afraid of the testimony. On the other hand, without objecting, and I think clearly many of the objections in the case of Stormy Daniels would’ve been sustained, I think in that case, with a judge who is in charge obviously and really has cautioned both sides not to turn this into a sex trial, I think objecting more probably would’ve been better.

But in hindsight, it’s very, very hard to criticize a lawyer when you’re actually not in the courtroom. And as you pointed out, each case is fact-specific. You need to feel the tenor of the trial, you need to understand who the jurors are. And I think you have two lawyers on this jury, and I think if the topic ever came up in the jury room as why did she object so frequently during the testimony of Stormy Daniels, I think the lawyers could well have explained that A, that was her job, and B, the testimony that they were trying to elicit from her was really not relevant to whether or not the books and records were falsified.

And I think turning it into a sex trial was both embarrassing to Mr. Trump and it was tawdry, I think is the right word, in what in effect was a white-collar case.

Preet Bharara:

But does that reflect poorly on the government for going into that or reflect poorly in a relevant way on the defendant?

Ben Brafman:

Well, I think in the first analysis, I think The People did not need to go into as much detail as they did, and I think it created the realization that maybe I need to challenge these facts once they’re actually in the record.

On the other hand, I think both sides probably would’ve done better, in my opinion, if they had steered away from the salacious details which, although embarrassing obviously to Mr. Trump, didn’t really advance the ball. I think the argument The People would make is the embarrassing facts of the actual sex was what Trump was desperately trying to keep from becoming public. But after the Access Hollywood, the tape came out and he survived that, I can’t imagine that a one-night stand with a porn star would have tilted the playing field to any greater degree. But that’s hindsight.

And at the time, I think the reaction of Trump has testified so far by Cohen was essentially panic mode. You got to keep this under wraps and not to protect Melania, as has been suggested, but to keep the campaign, if you will, on track. But it’s so hard with a candidate like this to figure out his motive and intent.

Preet Bharara:

As a matter of craft and strategy, if you had a trial where you knew that there was a key witness like Michael Cohen coming up, could you explain to folks how you prepare, when you start preparing? Do you salivate at the prospect? Do you try to keep yourself from being overconfident? How do you think about emphasizing the most important points, including his inclination towards mendacity?

Ben Brafman:

Well, I think salivating and overpreparing and just that type of emotion in a good, professional cross-examiner are efforts to really keep your eye on the ball. And I think one of the primary rules in a good cross-examination is you have to keep your eye on the ball and not be distracted. And I think the first rule would be to read everything that Michael Cohen has ever said publicly, to understand it, and then craft a very, very detailed, on-point cross-examination.

And the only thing that is relevant, in my opinion, is A, his credibility, and I think that is an easy lift with Michael Cohen, who’s admitted to lying, admitted to being a perjurer. I think you can overkill when you cross-examine someone like Michael Cohen, and if you assume for the purposes of this discussion that he is essentially telling the truth as he understands it, I think having him repeat parts of this case only make it worse. I think a surgical cross-examination of Michael Cohen with a quick, serious impact on his credibility, on his feelings about Donald Trump, on his obvious hatred of for Donald Trump, I think you could do that in two hours, not two days.

Then I think the trials, I’ve seen trials win, won, and lost in a redirect examination that maybe, maybe was created because the cross-examiner really didn’t think that through.

Preet Bharara:

What’s the arc of a good cross-examination generally? Do you want to begin with a bang? Do you want to begin sure but steady and build up to a bang? Do you ever care about having a bang or one of those gotcha moments? And what tone is the best to use, or does it depend on the witness?

Ben Brafman:

Well, I think with Michael Cohen, one of the things that you might want to use is there were many years when Michael Cohen was a fawning, devoted person in the Trump inner circle and had said some really wonderful things about Trump. I might want to start that way, get it into the record so that I can use it in summation, and then slowly build to what is at the heart of a cross of any witness and certainly a Michael Cohen-type witness, and that is to undermine his credibility.

I don’t think you need to end with a bang, although that’s clearly how sometimes a good cross maybe is demonstrated in TV or in a John Grisham novel, but I really think that if you end with the bang, you’re going to allow The People or the prosecution to go back over areas that you don’t need to hear repeated.

So I would be very careful with Michael Cohen. I think getting him in and off the stand more quickly than is now being anticipated is, in my opinion, a good surprise strategy for a prosecution that may have left a lot of its best stuff for redirect that they see coming. I’ve seen a lot of cases, Preet, that were won or lost in a good redirect. So I think being careful with someone like Michael Cohen would be advisable and sometimes short and effective is better than a two-day, meandering cross that maybe doesn’t accomplish much more.

Preet Bharara:

Yeah, I’ve often said, and you and I may have discussed this, sometimes the most interesting part of any trial is the redirect, and everyone loves to talk about the direct examination and cross-examination, that’s what we talk about in movies and shows and actual trials, but I think the hardest thing to do well and in compelling fashion, but can be incredibly effective, is the redirect.

Ben Brafman:

Yep, I agree.

Preet Bharara:

What’d you make of how Todd Blanche started?

Ben Brafman:

How he started his cross?

Preet Bharara:

Yeah, he started out by asking the witness if they had ever met before, and Michael Cohen said, “No.” And then Todd Blanche said something like, “Well, in fact, didn’t you go on TikTok and refer to me, Todd Blanche, as a crying little shit?” What’d you make of that?

Ben Brafman:

I didn’t think that was particularly effective. I mean, I think you need to not make this personal, and I think if you make it personal, it sort of undercuts your role as a defender of the defendant. And I think there’s enough that Michael Cohen has said on TikTok, in both of his books, Revenge and Loyalty, which I’ve read, there’s enough in there to pound Michael Cohen on terrible things he has said about Trump.

The difficulty of making Cohen out to be a serial liar is his responses. “That was when I was in the Trump cult and part of my job was to lie for him.” So I think you got to be careful that that response doesn’t get drilled home. And I think there are enough lies through Michael Cohen that you can pick and choose so that you can limit the redirect. And in this case, the one thing that Judge Merchan has shown is he is, I think, a very smart, savvy trial judge, and I think he takes very careful note of when a defendant opens the door. And I think we both know that when someone opens the door, that’s sometimes when really bad evidence that might not have otherwise been introduced comes in.

So who’s knows what’s going to happen here?

Preet Bharara:

That’s when you take your truck and you drive your truck through the door at that moment.

Ben Brafman:

Right.

Preet Bharara:

There was another bit of testimony, and I wonder how you would use this in summation if you were the defense lawyer. Cohen was asked, “Do you want Trump convicted?” And Cohen said, “Sure,” which according to some reports, evoked some laughter among jurors or at least amusement among jurors. How damaging a statement was that to the prosecution?

Ben Brafman:

Well, I think it sort of states the obvious. I think the phrase would’ve been, “Would you want to see Trump convicted in this case?” And I think if Michael Cohen had been properly prepared knowing that response were going to have to be made one way or the other, I think Stormy Daniels said she wants to make certain that he is held accountable, and I think that is better than a flippant, “Sure.” I think if Michael Cohen had said, “I think if the jury votes to convict Donald Trump, it might be the first time in his life that he has ever been held accountable,” or, “yes, I think under the facts here, he should be held accountable.” I think the more Michael Cohen makes this personal between him and Trump, it gives a person a motive to the fabricate or exaggerate.

I think Michael Cohen is a difficult witness in that he has, over the past couple of years, not hesitated to say very bad things about Trump, and I understand it. He hates him. He really, really has, in his own mind, been royally screwed by Trump. And I think that needs to be toned down for a jury to see, is this all about Michael Cohen or is this about Michael Cohen telling the truth now maybe for the first time and doing it because he respects the proceedings and he understands that Trump needs to be held accountable?

I think it’s a very fine line, and I think with Stormy Daniels, the fact that she testified that she hates him is not as bad as Michael Cohen saying the same thing. Even though he sounds like a Brooklyn longshoreman sometimes, he’s a lawyer and she’s a porn star, so her hating him and she feels he really screwed her… I think the question to her about sex being fake in the pornography business was handled very well by her. And I also think her-

Preet Bharara:

Yeah, she said the sex was real.

Ben Brafman:

Right. And I think her answer that the sex was real, also, I think her answer that, “If I had made this up, it would’ve been much better,” is a very good response for a witness and very damaging and I think will be used very effectively in summation.

Preet Bharara:

I should point out, by the way, for listeners that you and I are recording this in the 10:00 AM hour on Thursday, May 16th, and so there’s still some cross-examination left of Michael Cohen. The redirect has not yet begun, so some other things may happen.

You mentioned summation. Given what you’ve seen so far with respect to the evidence presented at trial, how would you construct your summation if you were the defense for Trump?

Ben Brafman:

Well, I think that the real threat, if you will, for a defense lawyer in doing a summation in this case, I think again, less would be more. I think if you get bogged down in the details of every lie or every exaggeration or every second of the cross of any of these witnesses that you may think was effective, I think you could lose by your summation.

I think a summation in this case for a defense lawyer should be an hour. And I think if they go on for a day, I think they make a mistake. I think if it’s an hour or two and it’s hard-hitting. And I don’t know which of the defense lawyers is going to sum up, I assume it’s going to be Todd Blanche, I don’t know whether he has the personality, if you will, to understand an effective summation in this case.

If I was summing up in this case, it would be a serious tone, not necessarily injecting humor, but taking the position that however tawdry some of this trial may have been, those were red herrings to keep you focused on sex while the real charge is falsification of business records. And it doesn’t appear to be any witness who will or who has testified besides Michael Cohen, any witness who can put Donald Trump personally into the creation of the business records. And even though some of the witnesses talked about how he signed checks, there was testimony, I don’t remember her name, but she put piles of checks in front of him while he was on the phone, while he was doing other things. And at the end of the day, he may very well have signed these checks.

He knows Michael Cohen is a lawyer. He sees an invoice that says, “Legal fees,” and it’s not that hard-

Preet Bharara:

Yes, but he’s also a cheapskate and he often doesn’t pay his legal fees. That’s the counter.

Ben Brafman:

Right. And watching every penny.

Preet Bharara:

That’s the counterargument. You said something important, and we talked about this some time ago when you were on the podcast and otherwise we’ve talked about this, and it seems to me that one of the best ways of approaching this case is for there to be some concession, that Donald Trump did not engage in glorious behavior, that it’s tawdry. He may have made some mistakes, but that doesn’t mean he committed a crime.

And I asked you about this in connection with one of your representations, and I asked you, “How do you deal with a client who’s difficult and maybe a jerk?” One example comes to mind that people may have read about. You recently represented a person by the name of Martin Shkreli, and you said at his sentencing, “There are times when I want to hug him and hold him and comfort him, and there are times I want to punch him in the face.”

How badly does Todd Blanche want to be able to say something like that?

Ben Brafman:

Well, Martin Shkreli was not the former President of the United States. He was difficult in that his behavior inside and outside of the courtroom sometimes appeared to be a little bit nuts. And if you remember from that case, I opened with Lady Gaga’s song, “He was born that way.” I mean, this is a guy who was on the spectrum. He had a lot of crazy stuff going on around him all the time. And I think it was very important for jurors to understand that he was not being disrespectful. He was really acting in a way that may have appeared to them to be odd, but had nothing to do with the case.

Trump, on the other hand, I think would never allow the ultimate concession that even if you believe that he had sex with Stormy Daniels, it does not mean that he committed the crime. I think there’s a way to phrase it that will not get Trump even more annoyed than he appears to be. And I might say, “Look, Mr. Trump has denied having sex with this woman, but let’s assume for the purposes of this discussion that you were to conclude that maybe he did or maybe he had sex with her and he’s embarrassed to acknowledge it. So even if you reject his denial, and even if you accept that premise, it still has nothing to do with this case.”

And the problem with saying, “It shouldn’t have become an issue,” the cross-examination by the defense team made her having sex with Trump front and center. And I think with the benefit of hindsight, I think there are some questions that should not have been asked. I mean, whether or not he used a condom, for example, is not really relevant on the issue of did he know that these books-

Preet Bharara:

Yeah, I’m not sure that was asked. I think that’s where she went off on a tangent a little bit on her own.

Ben Brafman:

Well, yeah, but I mean, what’s the difference if the charge is fudging your books and records? I mean, whether he was wearing a condom or not is not relevant, especially if he has denied having sex with her. And if you didn’t have sex with someone, whether you use the condom or not sort of begs the question. So I think it was a mistake to go into that, either by The People it should have been objected to, and I think the judge pointed that out. And then going back over it, I believe, in cross-examination, what’s the point?

I mean, it’s being strict and being very, very diligent in how you plan a cross. Sometimes not asking a question that you think is good for the home team, I think it’s hard to resist that. It’s very seductive to be able to do aha moment in a cross-examination. I mean, we all aspire to be the Perry Mason moment when you get a woman on the stand to admit that she was lying. And you’re never going to have Stormy Daniels admit that she didn’t have sex with Donald Trump because A, she believes it, and indeed she may be telling the truth about that. So what’s the point in pushing her around on that subject?

Preet Bharara:

Right. We’ve all watched A Few Good Men too many times.

Ben Brafman:

Right, right.

Preet Bharara:

Do you agree with me and virtually everyone else I’ve asked this question of that in no circumstances should Trump testify?

Ben Brafman:

Yeah, I think that would be an unmitigated disaster. You can tell just from his little press conference outside the courtroom every day at the end of the court day that he’s just not in control of what he says and how he says it. And I think putting him on the stand would encourage a conviction, even if there are one or two or three jurors who right now would be hesitant. And I think he would clearly come across as someone who is not telling the truth.

He also doesn’t have, despite the fact that he seems to be ahead because he has a base of who knows, 70 million people, I don’t think he comes across as a likable, sympathetic man and will never agree to adopt that role. I think he would come across as belligerent, as arrogant, and I think in 10 minutes of cross, I think prosecutors could press a few buttons and he would come across as arrogant and mean-spirited, and I think that would doom him.

I also think, look, you never know if there is a Trumper, if you will, on the jury. So a mistrial in this case, a hung jury in this case, as far as Trump is concerned, would be equivalent to an acquittal. You saw that in both impeachment trials where despite some damning evidence, his reaction at the end is he was found not guilty. So what’s the point?

Preet Bharara:

And final question. We’ve been talking about your work as a criminal defense lawyer, but of course that’s not how you began your career. Remind us where you began your career.

Ben Brafman:

Well, I served as a prosecutor for four years under the Bob Morgenthau in the Rackets Bureau.

Preet Bharara:

In the Manhattan DA’s Office, the very office that’s bringing this case.

Ben Brafman:

Correct.

Preet Bharara:

So I guess my question to you is, given that long history and that’s where you began your career, do you have anything to say about that office and what this case means or doesn’t mean to that office?

Ben Brafman:

I think the case is obviously important to the office because the defendant is Donald Trump, and his repeated statements was that this is a rigged trial and Bragg is a puppet of Biden. So I think it’s important for them in that regard to win the case.

I also think that office will survive and Bragg will survive whether they win or lose. And I would also note that it may well be the only trial that gets to verdict before the election. So I think in that regard, it’s important.

I know Bragg. I don’t believe that Bragg brought this case because he’s a puppet of Biden. I think he brought the case because he reasonably believes that it’s a real prosecution that should be prosecuted. I think there are a lot of talking heads who I think are reasonably good lawyers who seemingly disagree with me. But if you follow the evidence, Preet, and I know you have, and if you follow the evidence, there appears to be a crime.

The real question is should it have been brought? There are many cases in your life as a U.S. Attorney where even though you believe in your heart that a crime was committed, for reasons that maybe are as important, you defer or you decide not to prosecute. There’s something to be said for that strategy here. But I also believe that Bragg is a legitimate guy. I think he means well here. And I also believe that he honestly feels that the behavior of Donald Trump warrants prosecution so that one way or another, he will be held accountable if in fact the jury concludes that he did the crime of fudging the business records.

The interesting question, quite frankly, is where is Weisselberg in this? And I know a little bit about where he is and why he’s there, and I’m not certain that he would have advanced the ball if the prosecution found a way to call him and overcome his Fifth Amendment.

So I think the DA’s Office, the Manhattan DA’s Office in particular, will survive. I mean, it is what it is. And this guy is a former president, which is why this case is creating the kind of coverage. I’ve had business records cases where nobody except the defendant’s immediate family were in the courtroom, and this case has the world watching it, except I might point out, none of the defendant’s immediate family.

Preet Bharara:

I lied. I have one final question, a short question.

Ben Brafman:

Go ahead.

Preet Bharara:

If you had been asked to represent Trump in this case and at this trial, would you have done it?

Ben Brafman:

Well, it’s a very tough question. Some of the answers is stuff I really should not be discussing. Representing a client who is a forceful, powerful person, I think he might have done well with someone like me who has managed to convince powerful people to just listen to me. And at the end of the day, the argument I’ve made is you’re having a heart attack. I’m a cardiologist. I may not be able to save you, but you got a lot better chance listening to a cardiologist when you’re having a heart attack than if you’re winging it. So sometimes that statement works, and I’m not certain it can work with Donald Trump.

So at the end of the day, it’s a hard question for me to answer truthfully.

Preet Bharara:

Well, I think you did. Ben Brafman, thank you so much for taking the time. Really appreciate it.

Ben Brafman:

No, my pleasure. It’s good to speak to you again, Preet.

Preet Bharara:

For more analysis of legal and political issues, making the headlines become a member of the CAFE Insider. Members get access to exclusive content including the weekly podcast I host with former U.S. Attorney Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at (669)247-7338. That’s (669)24-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost.

I’m your host, Preet Bharara. Stay tuned.