Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Read more opinion at CNN.
After opening with some gag order drama in which former President Donald Trump got found in contempt for the 10th time, his hush money trial in Judge Juan Merchan’s courtroom entered a new and important phase Monday, starting with the appearance of former Trump Organization controller Jeffrey McConney.
In the first two weeks of testimony, prosecutors focused on the alleged intent behind the creation of the 34 false documents at the core of the case: election and campaign crimes. But Monday as we kicked off week three, we got to the other half of the case: the 34 records themselves, with McConney as the tour guide for their creation. As with prior witnesses, both sides scored points – but the prosecution tallied many more.
Like former National Enquirer publisher David Pecker, who served in a similar kickoff role for the first part of the case in which prosecutors alleged that Trump orchestrated a “catch and kill” scheme to influence the 2016 presidential election, McConney was a longtime Trump ally. He was a financial professional at the Trump Organization for decades who proved to be an effective guide to the second phase of the prosecution’s case. A tall, stocky man with long white hair down to his shoulders and a white goatee, he was attired as we might expect from an accounting professional: gray suit, gray tie, white shirt. There seemed to be just two colors in his crayon box, gray and white.
During direct examination led by Assistant District Attorney Matthew Colangelo, McConney walked the jury step-by-step through the “grossed up” – per the notes of former Trump Organization chief financial officer Allen Weisselberg – repayment scheme in which former Trump lawyer Michael Cohen was reimbursed for hush money payments.
Two damning documents stood out from the dozens that the prosecution used McConney to introduce: In messy handwritten notes sprawling across the margins of two separate single pages, the repayment scheme was laid out. For starters, $180,000 would go from Trump to Cohen: reimbursement for the $130,000 that was paid to adult film actress Stormy Daniels, plus another $50,000 for an unrelated matter. To account for the taxes Cohen would have to pay, another $180,000 would be included. Finally, Trump would pay Cohen another $60,000 as a bonus. McConney walked jurors through the two pages detailing all that – and many more documents revealing how the allegedly illicit repayment scheme unfolded.
When defense attorney Emil Bove stepped up to begin cross examining McConney, he employed the same strategy that he had used with prior witnesses. He effectively made the point that McConney does not have any direct proof of Trump’s involvement. The controller agreed that he “rarely spoke” with Trump while at the Trump Organization, never spoke to Cohen about these issues and was never asked by Trump to make the questioned business entries.
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A similar back-and-forth unfolded after the lunch break, including when another member of the Trump Organization accounting staff, accounts payable supervisor Deborah Tarasoff, testified. She was used by prosecutors to introduce additional key documents proving the alleged scheme; the defense cross-examined her to also emphasize how far removed she was from Trump and his involvement in it.
It’s the strategy I would use for witnesses like McConney and Tarasoff if I were on the defense (and indeed I predicted it on air). But unfortunately for Trump, District Attorney Alvin Bragg is amassing even more evidence: a series of witnesses, documents and other evidence (even audio tapes) attesting to each specific aspect of both the alleged conspiracy and the cover-up. For example, Pecker and former White House communications director Hope Hicks did testify to the jury that they spoke to Trump, illuminating his intent for the jury.
While we have a ways to go on both halves of the case, prosecutors are scoring more points so far. So while Trump can feel good about his team’s effort, he can’t be very encouraged about where the overall scoreboard stands.