Opinion: Trump’s Defense Was About as Strong as Childhood Name-Calling

There is little doubt as to which side in the Trump hush-money trial did a better job in closing arguments. Todd Blanche barely stopped short of chanting the schoolyard taunt “Liar, Liar, Pants on Fire” in his closing summation. This was a surprising move by former President Trump’s lead defense counsel, who by some accounts invoked “lie” about 60 times in his rambling two-hour long argument. But a mantra of name-calling does not make for a coherent defense strategy.

Towards the end of his summation, Blanche did give the jury a David Letterman-style “Top Ten” list of reasonable doubts, which he prefaced by saying he would go through it before he sat down. Apparently, Blanche is unfamiliar with the journalism term “burying the lead.” Taken individually, there was nothing wrong with Blanche’s substantive attacks on the prosecution’s case. Among the better—albeit poorly developed—points was the argument that it was Michael Cohen who created the fake invoices, not Trump. Blanche would have been better off to have started with a roadmap of his attack and then methodically guided the jury to areas where reasonable doubt might be found about the strength of the government’s evidence. Such an approach would have been well-suited to Blanche’s primary experience as a prosecutor given that prosecutors must build cases.

But a common rookie misunderstanding of criminal defense is that the defense does not need to build a case but can just take pot shots at the prosecution. While this is legally true, because the defense doesn’t have to prove anything at all, the reality for criminal defense counsel is much different. As a former prosecutor who won my first criminal defense case, I believe that it is critical to build a defense case just as prosecutors build their cases. Jurors cannot viscerally grasp the concept that the defendant has no burden of proof and that it is enough to just cloak the defendant in the presumption of innocence. Acquittals have to be earned through evidence. For the defense, that evidence can be either through witnesses they present or the testimony they elicit on cross examination. Trump’s team crashed and burned with the substantive witness they did present— attorney Bob Costello—who was nearly held in contempt by Judge Merchan for his arrogant and insulting behavior toward the judge. Their cross-exams were mostly unfruitful as well.

Read more at The Daily Beast.