The jury in Trump’s criminal trial got an early start to their weekend, getting sent home before 1 pm. However court wasn’t done for the day. There were issues judge Merchan needed to address and one of them involved a familiar name. No, not Michael Cohen who will take the witness stand Monday. The intriguing (for me) discussion was about admitting a document into evidence regarding longtime Trump Org CFO Alan Weisselberg. He happens to be in the middle of a SECOND stint at Riker’s Island. I’ll get to that but in the talking head discussion one of the legal pundits suggested outlines of the possible defense strategy. SODDI which stands for Some Other Dude Did It.
SODDI and it’s close relative TODDI (The OTHER Dude Did it) has been a defense tactic since forever. Sometimes it even works. Boiled down it’s telling the jury the defendant should even be here because someone (SODDI when they can’t say who) this other person(s) (when the defense can name a name or names) actually committed the crimes. The defendant had no idea what happened. There’s a nice write up of all this on a website called WR Tours. I’ve already explained the difference between the two terms, but it’s worth adding this part:
While the terms “SODDI” and “TODDI” aren’t really legal vernacular, they are real defense strategies — but both of them rely heavily on a defendant’s credibility. It’s important to understand that you need to remain consistent and clear about your innocence. In many cases, it’s wise to testify on your own behalf (even if that means implicating someone else you know for the crime).
After the shall we say colorful testimony from Stormy Daniels legal pundit Lisa Rubin said it looked like the defense theme would be to paint the entire prosecution as a “nuts and sluts” thing assuming the jury would see Daniels and therefore the whole prosecution case that way. I have to say that’s awfully Trumpy and there’s still a good chance the defense will trot out such a theme. Remember, if they can get just one juror to feel morally superior to Daniels and skip over the legal instruction they will get it doesn’t matter whether Daniel’s story is true or not then we’ll have a hung jury.
However, it’s also a given that if you thought the defense went after Daniels like a shark at a bleeding swimmer, Cohen will be facing a school of sharks. Discrediting him will be crucial for the defense which is why we’ve had all these witnesses starting with David Pecker to introduce damned near everything Cohen will testify to. Cohen was there to the bitter end of the payoff scheme which didn’t actually end until he got his last reimbursement check. The idea was to have Cohen be just another supporting witness with a few additional details to add.
By most accounts the prosecution has painted that picture pretty well. From how the whole cover up scheme was hatched with David Pecker, Cohen and Trump figuring out what to do back in 2015 to Trump employee after Trump employee testifying to gritty details. Including Trump signing the checks and how for amounts of that size he’d never do so for those kinds of sums without checking out the invoice (which testimony said was always attached) before signing a check to Cohen or authoring someone else (one of his idiot Fredo sons) to do so.
Now we get to this business with CFO Alan Weisselberg, who as Trump’s head (and trusted as much as Trump would almost trust anyone) bean counter had to know all about the whole thing. In fact, there are handwritten notes by Weisselberg on some of the documents introduced into evidence! One would think prosecutors would want to haul Weisselberg into court. The problem is not just that he’s in jail (again) but he’s there for perjury. Like Cohen he got nailed for lying under oath to protect Trump. However, there’s a huge difference between Weisselberg and Cohen.
Michael Cohen got repaid for advancing personal funds to silence Stormy Daniels when David Pecker refused to pay her off like he did McDougal. Pecker’s testimony included him telling Cohen he wasn’t Trump’s bank – that he’d never been paid back for the $150k he’d given to Karen McDougal. Not for nothing, Pecker also more or less admitted concerns about campaign finance law violations too. The money to McDougal was part of a far larger unreported ‘in-kind’ campaign contribution. So with Daniels prepared to tell make her story public a hurried means of paying her came about.
Trump is going to claim Cohen went rogue. That he had no idea what Cohen had actually done on his behalf. But here’s the thing. Weisselberg was involved too. And while Cohen only got his money back (plus extra to cover taxes – we’re talking NYC here) Weisselberg wound up with a multi-million dollar NDA that had strict language regarding cooperation with any law enforcement investigation. Now as I understand it a subpoena can pierce that aspect of an NDA but like I said, Weisselberg’s in jail for, like Cohen lying for Trump. Unlike Cohen he’s got more money due him and he’s clearly willing to keep his mouth shut, or fudge testimony or outright lie.
Not exactly a witness prosecutors would want on the stand. Of course, with him in the middle of a SECOND stint at Rikers and being old Trump’s lawyers can’t be sure Weisselberg hasn’t had enough. They probably don’t want him in court any more than the prosecution does. Especially fresh off the Daniels cross and getting a harsh reminder about not asking questions when you can’t be sure what the witness’s answer will be.
My bet is that Trump’s lawyers were quite willing to stipulate to that severance agreement even though prosecutors could have spun a bit out of it. As I wrote about earlier this week Trump won’t listen to good legal advice. The ghost of his hero Roy Cohn sits on his shoulder and says “fight every goddamned thing” and that led to the whole debate between the lawyers and the judge after the jury was sent home. We will have to wait for Monday to see how the judge rules. It’s possible we might see Weisselberg get hustled over from Rikers to make an appearance and boy could that turn into a circus show of rabid monkeys flinging turds all over the place.
But circling back, that brief comment about SODDI, which actually in this case WOULD be TODDI might, and I think will emerge as the defense strategy. I doubt Trump’s lawyers will want to hang their hats on it given all the other evidence that’s come in. But Trump? Nothing that went wrong has ever, ever EVER been HIS fault. It’s ALWAYS someone else’s fault. He threw Cohen under the bus long ago and since for years Cohen has taken every opportunity to do the same he’s in for a rough time in court.
All the evidence that backs up what Cohen will testify to on direct won’t matter to Trump. He will be demanding his lawyers blame it all on Cohen. That actually shouldn’t surprise anyone. However, it looks like Weisselberg might get thrown under the bus too. Trump is desperate and when it comes to money going out the door of the Trump Org if Weisselberg told any employee to do something because that’s what Trump wanted they’d assume he was acting on Trump’s orders.
In other words, Trump might have his lawyers claim Weisselberg is the real mastermind, and cooked up the whole scheme with Cohen’s help. And he, poor trusting Donald Trump didn’t pay attention to details and just signed whatever was put in front of him. Yes, it sounds crazy but I think there’s a pretty good chance this is where things are headed. Again, despite their arguments earlier today I don’t think Trump’s lawyers want Weisselberg anywhere near the courthouse, much less on the witness stand. Trump might think Weisselberg is “solid” and would never turn on him, and what’s going on with Manafort will make him even more so but Weisselberg is as I said doing his second stint at Rikers for Trump. He may well have had enough.
Again, I’m willing to bet the defense lawyers would have stipulated to that severance agreement long ago but Trump wouldn’t let them. Yes, having it be part of the record would sting a bit but it Trump has had them planning to blame someone else, the TODDI strategy they’ve already got Cohen.
It should be quite an interesting week coming up.
(Oh, and look again at the last part of that blocked out section about the TODDI defense. About how it tends to need the defendant to testify. Hmmmm)
Former guy’s attorneys need to think long and hard before going to the “Cohen went rogue” defense since by all accounts Cohen has receipts as it were.
As always, the defense, knowing the real evidence is clear, and screaming their client is guilty as hell, are relying on the abject stupidity and celebrity worship of at least one juror. You know…someone who worshipped this 300 lb bag of fascist shit as he appeared on their TV in the Apprentice. A good bet in my book.