The Fat Lady Hasn't Sung Yet: The Trump Trial Continues On (Day 19)

After a break on Friday to allow for former President Donald Trump to attend his son Barron's high school graduation, court was back in session in Manhattan on Monday in the criminal trial of Trump for allegedly falsifying business records. In addition to his son Eric, Trump was joined in court today by famed law professor and commentator Alan Dershowitz.

Morning

Before testimony resumed, Judge Merchan made some evidentiary rulings. He ruled that an email from Robert Costello's partner to former Trump attorney Michael Cohen could not come into evidence, even as impeachment, as it was essentially double hearsay. Merchan also ruled that Brad Smith, the proposed defense expert regarding the FEC, would not be allowed to testify as to definitions, which Merchan deemed as interpreting federal law and usurping the court's role in terms of instructing the jury.

Blockbuster Appearance From His Former Attorney Blows Hole Through Michael Cohen's Testimony

The key takeaway from the morning's discussions between the court and the attorneys is that even though evidence will likely be concluded soon, the closing arguments will not be presented until next Tuesday. Judge Merchan alluded to a couple of issues that arose over the weekend that have made it apparent they cannot get to the arguments tomorrow (this Tuesday). It is unclear at this point what those issues are or why the arguments can't be presented later in the week (unless he's leery of holding the jury deliberations over through the Memorial Day Weekend).

George Washington University law professor Jonathan Turley attended Monday's proceedings and shared some insights regarding the morning's rulings and testimony.

Regarding the email from Costello's former partner:

...Blanche is saying that it is "direct impeachment" of Cohen's prior testimony and is not being offered for its truth. The judge is saying that it is for the truth. Blanche is saying that email from Costello's partner directly contradicts Cohen's account...
— Jonathan Turley (@JonathanTurley) May 20, 2024

...Merchan declared that this is "double hearsay" and "I don't see any probative value for impeachment."
— Jonathan Turley (@JonathanTurley) May 20, 2024

Regarding the campaign finance expert:

...Merchan has been criticized (including by me) for allowing the prosecutors to repeatedly refer to election law violations despite the fact that Trump did not committed any such violations. The jury likely believes that this is an established fact...
— Jonathan Turley (@JonathanTurley) May 20, 2024

...Judge Merchan is telling the defense to submit suggestions for his instructions but he limiting any testimony to the most general and obvious subjects like what the FEC is, its purpose, its background, and general definitions and terms...
— Jonathan Turley (@JonathanTurley) May 20, 2024

As Turley rightly notes, this puts the defense in the difficult position of potentially calling a witness who won't (can't) offer much and whose presence on the stand would likely lend to the impression that Trump did, in fact, break campaign finance laws.

If the defense elected not to call the expert witness, nor Costello (which would open up some cross-examination regarding his relationship with Rudy Giuliani and Costello essentially serving as a "back channel" of communication with Trump), nor Trump (which would be a horrible decision at this point, given the disaster that Cohen is as a witness), they may not put on much — if any — case in terms of witness testimony. (This will undoubtedly freak people — on both sides of the aisle — out, but from a strategy standpoint, it may be the wisest decision on the part of the defense. One of the hardest things to do as an attorney is learn when to shut up. But sometimes, that is exactly the right decision.)

After Merchan made his rulings, they took a brief break. Then Cohen returned to the stand for further cross-examination. Not only did Cohen acknowledge that he had met with prosecutors more than 20 times prior to testifying — the last being about 10 days ago — and didn't recall hearing a question (while on the stand) that he'd not heard before. He also acknowledged meeting with (now) Rep. Dan Goldman (D-NY) prior to his 2019 congressional testimony.

And just in case Cohen's credibility wasn't already shot through, he testified that he actually stole from the Trump Organization. As Bonchie reported earlier:

In a moment that set the internet on fire, Cohen admitted to stealing tens of thousands of dollars from the Trump organization.
...Weisselberg later paid Cohen for $60,000 rather than $20,000. Cohen admits that he stole from the Trump organization. He also told federal prosecutors about stealing the money but was never charged with larceny...
— Jonathan Turley (@JonathanTurley) May 20, 2024
...Blanche is now going in for the kill. He was that he lied to Weisselberg and "to this day you have never fixed that" and disclosed this to the District Attorney...
— Jonathan Turley (@JonathanTurley) May 20, 2024
I can't claim to know what the jury will ultimately decide in this case given how absurd and overly-politicized it is. I can say with some certainty that in any normal situation, having the prosecution's star witness admit to being a dishonest thief would be a death blow to the case's credibility. Remember, everything revolves around Cohen, who is now claiming to be a patsy who was just doing the bidding of Trump in cutting the check to Stormy Daniels.

Cohen acknowledged that he continued to sign emails as counsel to Trump, and further acknowledged an email referencing ongoing monthly payments, even though he testified previously that there were to be no further payments (beyond reimbursing him). Defense attorney Todd Blanche further got Cohen to acknowledge that he continued doing work for Trump throughout 2017, including in relation to the Mueller investigation.

Then there was the money Cohen raked in while "consulting" for other clients, such as AT&T, which paid him $4 million, and Novartis, which paid him $1.5 million for approximately six conversations.

Cohen acknowledged that in a BBC interview, he stated that Trump did not know about the payment to Stormy Daniels and that "there was no way" he would have told Trump about them. He maintained up through April of 2018 that Trump had no knowledge of the payments. And then his home was raided by the FBI.

Cohen testified that following the raid, he had roughly a dozen calls with Costello. Blanche, however, pointed to records reflecting 75 calls and over nine hours of discussion, which Cohen acknowledges were privileged communications. (This would seem to undercut the argument that Costello wasn't really Cohen's attorney.)

...Blanche says that Cohen communicated with Costello not a dozen calls but 75 times. That is quite a discrepancy, particularly given Cohen's suggestion that he never trusted Costello. That is nine hours of calls...
— Jonathan Turley (@JonathanTurley) May 20, 2024

Cohen sought reassurance — via Costello — that his lawyers would continue to be paid for by the Trump Organization.

...Cohen admits that he repeatedly asked Costello to reach out to Giuliani on issues, including payment for his lawyers...
— Jonathan Turley (@JonathanTurley) May 20, 2024

Cohen also acknowledged that the money he'd been making on consulting fees dried up once he pleaded guilty. The money he's made since then has come from his book, podcast, and Trump merchandise.

...Cohen admits that he makes part of the money from his merchandise related to Trump. He also admits that he is also seeking a reality show...
— Jonathan Turley (@JonathanTurley) May 20, 2024

Cohen testified regarding his attempts to pitch a reality show called "The Fixer" — no nibbles on that as of yet. He's also contemplating a run for Congress because of his great name recognition. (That's not sarcasm — he really testified to that.) He also testified it would be better for him if Trump were acquitted, as that would give him more to talk about in the future.

Prosecutor Susan Hoffinger then began her re-direct of Cohen with an attempt to rehabilitate him as a witness because, you know, stealing isn't all that bad, really.

...She noted "you admitted it was wrongful." That apparently is enough for Bragg in a major larceny case just as the Justice Department was not moved to charge Cohen after he admitted perjury on the stand...
— Jonathan Turley (@JonathanTurley) May 20, 2024

And while Judge Merchan severely limited the scope of the defense's proposed expert testimony regarding campaign violations, he's apparently okay with Cohen testifying to them. Turley has some thoughts on that...

...Merchan is giving an instruction that it is not evidence of guilt. It is a pretty weak protection in my view. Merchan is still reminding the jury that Cohen pleaded guilty to such a violation. Again, the members likely and falsely believe that there was an actual violation...
— Jonathan Turley (@JonathanTurley) May 20, 2024

...Merchan just allowed Cohen to testify on the legality of payments to Daniels. He then overruled another objection to prosecutors saying that he pleaded guilty to campaign violations...
— Jonathan Turley (@JonathanTurley) May 20, 2024

In case you've a hankering for whiplash, the prosecution also introduced a waiver of attorney-client privilege between Cohen and Costello, in which Cohen indicated he never considered Costello his attorney, and contradicted his previous testimony that their (multiple) communications were privileged.

After the jury was excused for lunch, the attorneys presented arguments to the court regarding the admissibility of a photograph showing former Trump bodyguard Keith Schiller with Trump on the date of the infamous October 24, 2016 call.

As Cohen Wobbles, Does the Case Against Trump Fall Down? (Trump Trial - Day 18)

...Blanche is noting that he was presented clear evidence that Cohen committed perjury on the content of the call and not whether Schiller was near or with the President...
— Jonathan Turley (@JonathanTurley) May 20, 2024

Merchan indicated he feels the photo is relevant, but is taking the matter under advisement over the lunch break as to the hearsay issue.

And because it comes up so often in discussions regarding this case, here's an explainer from CNN regarding what the prosecution is attempting to prove:

Prosecutors need to prove beyond a reasonable doubt that Trump falsified business records with the intent to commit or conceal another crime, but they don’t have to prove that Trump committed that crime. The prosecution's theory is that the second crime could be in violation of federal and state election laws or state tax laws regarding how the reimbursements to Trump's ex-fixer and attorney Michael Cohen were handled.

In other words, the prosecution doesn't need to prove that Trump actually committed an underlying crime — just that he falsified the records with the intent to commit or conceal said crime (which could be election law violations or state tax law violations). Assuming that Merchan doesn't direct a verdict on this (and there's little indication that he's inclined to do such), the jury instructions here are going to be key.

Afternoon

Following the lunch break, Judge Merchan determined that the defense's hearsay objection to the photo was valid and sustained it. Without getting too far into the weeds, the argument was basically that the C-SPAN custodian of records hadn't been asked about the photograph, and thus, the proper foundation hadn't been laid for that piece of evidence. The prosecution then indicated they may fly that witness back in (from Louisiana) — all to authenticate a photograph that only goes to prove something that isn't in dispute, i.e., that Trump and Schiller were together on the evening of the October 24, 2016, call between Cohen and Schiller. What this tells me is that the prosecution knows Cohen's flubbing of that issue really hurt their case, so they're throwing whatever they can at the wall to try to paper over that.

After further discussions, the parties reached an agreement: The photograph could come in via stipulation that the photo was a still photo taken from the end of a C-SPAN video that concluded at 7:57 pm on October 24, 2016 (approximately five minutes before the call). The photo is a screenshot from the end of a Trump rally in Tampa, Florida, that evening.

On further re-direct, Cohen testified that he spoke with Trump roughly 20 times in October 2016 regarding the Stormy Daniels situation. He insisted he would not have paid Daniels had Trump not signed off on the arrangement.

On re-cross, Cohen testified that he felt the loss of his law license was due in part to Trump, though he also acknowledged that Trump had nothing to do with the tax crimes and false bank statements and that any felony conviction in New York automatically results in losing one's bar license.

Cohen maintained that in the 90-second phone call on October 24, 2016, he not only discussed the issue regarding the 14-year-old pranking him and where to send the number with Schiller, but Schiller also passed the phone to Trump, and he updated him on everything going on with the Stormy Daniels situation.

Following the re-cross of Cohen, the prosecution rested their case. In total, they called 20 witnesses.

The defense then proceeded with their case, beginning with Daniel Sitko, a paralegal who works for Blanche. Sitko testified to a chart he prepared with a summary of the calls between Cohen and Costello, reflecting 75 calls total in the spring of 2018. There was one 96-minute call on May 27, 2018, the Sunday before Memorial Day. On cross, Sitko confirmed there was no way to verify who was on the calls from Costello's law firm. (Costello's partner, Jeffrey Citron, sat on a board with Cohen.)

The defense then called Robert Costello. The prosecutors moved to limit the scope of Costello's testimony. After the attorneys presented their arguments, Merchan ruled regarding the scope of the testimony:

Judge Juan Merchan rules that Trump attorney Emil Bove can question Robert Costello "as to two prior inconsistent statements. "
In addition, he says, "I will give you some latitude to explore the pressure campaign so you can elicit some inconsistencies and offer some rebuttal."
Merchan adds:
"I’m not going to allow this to become a trial within a trial as to whether there was, in fact, a pressure campaign and how it affected (Michael) Cohen. It’s not the purpose of this trial and I don’t want it to become that."

After being sworn in, Costello testified that he, along with his partner, Citron, met Cohen at the Regency Hotel on April 17, 2018. He described Cohen as pacing and "absolutely manic" throughout the two-hour meeting.

Costello: Mr. Cohen was pacing, he was manic. He said, What's my escape route?
Trump's lawyer Bove: Did you give instructions on cooperation?
Costello: No. I informed him-
Prosecutor: Objection!
Justice Merchan: Sustained.
— Inner City Press (@innercitypress) May 20, 2024

While Costello testified that he advised Cohen if he had truthful information on Trump and cooperated with the Southern District of New York, his legal issues might resolve, he maintained that Cohen said multiple times: "I swear to God, Bob, I don’t have anything on Donald Trump." Costello also testified that Cohen said multiple times that Trump knew nothing about the payment to Daniels. Per Costello, Rudy Giuliani was briefly discussed during the meeting.

During Costello's testimony, the prosecution raised multiple objections, most of which were sustained by Merchan — to Costello's irritation, it seems.

There is another objection to a defense question for Robert Costello, which is sustained by Judge Juan Merchan.
Costello lets out a "Jesus!"
Merchan leans forward and says to Costello, "Sorry?"
There is a big audible laugh in the court's overflow room to Costello's exclamation.

Per Costello, Cohen asked him to reach out to Giuliani and authorized him to represent that his firm was "on the team."

After another dust-up between Merchan and Costello, Merchan ordered the courtroom cleared.

Judge Juan Merchan has asked to "take a minute" and told the jury to step out.
"Mr. Costello you're to remain seated," the judge told witness in a raised voice.
After another sustained objection, witness Robert Costello rolled his eyes and let out an audible sigh side, glancing at Merchan.
"I want to discuss proper decorum in my courtroom," the judge says.
Merchan also said, "You don't give me a side eye and you don't roll your eyes."
"When there’s a witness on the stand, if you don’t like my ruling, you don’t say 'jeez,' you don’t say strike it," Merchan says.
Then Costello held a long glare at the judge.
"Are you staring me down?" Merchan said.
Then Merchan said "clear the courtroom."

The courtroom was briefly cleared of media, so they were unable to describe what transpired during that time. Upon their return, Trump attorney Emil Bove resumed his questioning of Costello, who testified that during the 96-minute call with Cohen on Memorial Day Weekend, he gave Cohen legal advice.

Costello testified about another 46-minute call on June 7, 2018. Costello sent an email to Cohen following that call, indicating that he had left a message for Giuliani. Per Costello, Cohen repeatedly asked him to reach out to Giuliani because Cohen was unhappy with Giuliani's comments to the press. Costello denied ever pressuring Cohen to do anything or to interact with Giuliani. Costello testified he considered Cohen his client and felt compelled to treat him as such. Further, his firm sought payment from Cohen for Costello's services.

On cross-examination, Costello testified he met with Cohen at Citron's request. He acknowledged it was a high-profile case but denied being excited about the prospect of representing Cohen. Per Costello, Giuliani was not "in the picture at all" when he initially met with Cohen. He described Cohen as "putting on quite a show" during that first meeting and saying that he'd been contemplating jumping from the roof of his hotel two nights prior because of the pressure of a pending criminal case.

After prosecutor Susan Hoffinger indicated she had 30-45 minutes more of cross-examination, the judge excused the jury for the day. Per the defense team, they anticipate re-direct examination of Costello following that, but do not intend to call any other witnesses.

Following the jury's departure, Blanche moved for a dismissal of the case, arguing that the prosecution had failed to meet their burden of proof.

Trump's lawyer Blanche: There was no discussion at the October 2015 meeting of any catch and kill. Karen McDougal, she never even wanted her story out. Stormy Daniels? AMI wanted no part of it. So Mr. Cohen entered into an NDA. No criminal intent.
— Inner City Press (@innercitypress) May 20, 2024

Prosecutor: A rational juror could conclude the that business records contained false information. It is sufficient if the defendant set in motion the scheme that led to the false records.
— Inner City Press (@innercitypress) May 20, 2024

This comment from Merchan regarding Cohen's credibility and "fool(ing) 12 New Yorkers" is interesting:

As the defense makes its case for a dismissal of the charges, Judge Juan Merchan jumps in to ask, "So you're asking me to find Mr. Cohen not credible as a matter of law?"
"Yes," says attorney Donald Trump's attorney Todd Blanche.
"OK," Merchan says.
"You want me to take it out of the jury’s hands and decide before it even gets to the jury, that as a matter of law, this person is so not worthy of belief?" Merchan asks again.
"We didn't just catch him in a lie, your honor, he came in here with a history of lying," Blanche responds.
"He testified and he lied under oath in this courtroom," Blanche says, adding: "The consequences of that lie, if accepted, by the jury is a conviction."
Merchan is skeptical.
"You said his lies are irrefutable," he says to the attorney. "But you think he’s going to fool 12 New Yorkers?"

While Merchan's rulings throughout the trial have largely favored the prosecution (and questions regarding his bias are understandable), that comment hints at Merchan believing the jury won't find Cohen credible. Judges are loathe to take cases out of the jury's hands — so for Merchan to do so here — although there is a reasonable argument that he should, given all of the problems with Cohen's testimony — would be remarkable. For now, Merchan opted to reserve judgment on the motion.

We'll be back on Tuesday for more fun with Costello on the stand.

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