Opinion: I changed my mind about the strength of the prosecution’s case against Donald Trump. Here’s why

Editor’s Note: Stacy Schneider is a criminal defense attorney in Manhattan and former contestant on the reality show “The Apprentice.” The views expressed in this commentary are her own. Read more opinion on CNN.

The Manhattan District Attorney’s Office made a significant tactical error announcing they were resting their case after calling Michael Cohen as their final witness in the Donald Trump hush money trial. But it’s not because Cohen, a convicted felon and disbarred lawyer, was a bad witness. He actually did pretty well in responding to the prosecution’s warm-up when confronted with his prior bad acts, convictions and bias toward the former president, staying steady on the stand and not losing his cool.

But Cohen lost his footing during cross-examination Thursday, where it appeared he omitted important information when recounting an October 2016 phone call he claims he had with Trump to discuss the hush money payment. The heated exchange between Trump’s attorney Todd Blanche and Cohen marked the biggest blow to the prosecution’s case so far.

The prosecution thus far had done a good job backing up Cohen’s expected testimony by presenting other witnesses to bolster crucial facts and provide indicia of Trump’s motives and/or complicity in allegedly buying adult film star Stormy Daniels’ silence so her story of a sexual encounter with Trump wouldn’t damage his 2016 election prospects. (Trump denies the affair). The jury heard the testimonies of: David Pecker, the former CEO of the National Enquirer’s publisher, American Media Inc.; Keith Davidson, Daniels’ attorney who brokered the deal; Hope Hicks, Trump’s former aide and campaign communications director; and even Daniels herself.

What the prosecution left out of its case, however, is a second key witness to establish that Trump intended to falsify his business records to cover up another crime. Cohen’s testimony so far served to prove the elements of the alleged “other crime,” that the hush money payments resulted from a conspiracy to commit campaign interference or to make an illegal campaign contribution. But the DA also must prove the actual business records crime, for which Trump has been charged with 34 counts of falsifying business records in the first degree. (He pleaded not guilty). How I see it, Cohen’s testimony only satisfied half the equation beyond a reasonable doubt.

According to Cohen’s testimony, there were three people in the room at the Trump Tower meeting after the 2016 election to discuss his expected reimbursement for Daniels’ payment: Cohen, Trump and Allen Weisselberg, then-chief financial officer of the Trump Organization. Given Cohen’s credibility problems, it would make a stronger case for the DA’s office to call a second witness to back up his claims.

Weisselberg was Trump’s right-hand man while serving as CFO, but he is currently serving time at Rikers Island on a perjury conviction stemming from his testimony to investigators in Trump’s civil fraud case.

Weisselberg could be the linchpin to validate Cohen’s claims about Trump agreeing to reimburse him through Trump Organization, as a business expense. The former CFO presumably knows about Trump Organization’s books and whether Trump’s hands were in them. The obvious choice would be to call Weisselberg to close any gaps in Cohen’s story if the jurors choose to discredit his testimony that Trump knew and approved the plan.

But the prosecutors have a problem. Weisselberg also has credibility issues. Namely, he has been convicted for lying under oath. The DA’s office told Judge Juan Merchan outside the presence of the jury that they believe his “interests right now are very aligned with the Defendant’s,” implying that they don’t expect him to tell the truth on the stand. The DA is not allowed to impeach their own witness, so the safest thing for them to do is not call Weisselberg at all. It leaves a hole in the prosecution’s case, and that also could leave room for reasonable doubt.

It’s unlikely we will ever see Trump take the stand to explain his version. He appears to have calmed down and gotten used to the cadences of the trial. I expect him to listen to his lawyers and exercise his right to remain silent. He has too much to lose, and he would not want to risk living through more questions about his alleged affair with Daniels and his friendship with Pecker, who, from his trial testimony, appears to know many Trump secrets. The former president knows that if he takes the stand, he won’t be able to close his eyes and zone out. He will have to relive the unsavory details of the prosecution’s case all over again.

While Cohen did an efficient job testifying about the first half of the scheme, to influence the election by buying Daniels’ story and keeping it quiet, he doesn’t know what happened when the business records that are the subject of the 34-count indictment were created. He wasn’t working for the Trump Organization in 2017 when the reimbursements began. He was a lawyer and not a bookkeeper. If one juror has uncertainty about whether Trump was involved with how Cohen’s payback was recorded on the records and by whom, there will be a hung jury and Trump will walk free.

Madeleine Westerhout, Trump’s personal secretary in the Oval Office, gave the defense team its biggest gift: She testified that Trump sometimes multitasked and that she had seen him sign a bunch of checks while on the phone or engaging in other activities.

The defense can easily argue that Trump was running the presidency in DC and no longer micromanaging what was going on in New York at the Trump Organization. If he signed checks put in front of him, they could have easily been part of a busy work pile to be FedExed back to the company with Trump barely paying attention. If so, there would have been no intent to falsify the business records. Without Weisselberg’s testimony about what Trump knew or intended, the prosecution only has Cohen to rely upon. That might not be enough for a conviction.

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