The Manhattan criminal trial of former President Donald Trump is heading into the home stretch, as both the prosecution and defense have now rested their cases. Although the parties will be back in court Tuesday afternoon to go over jury instructions, the jury has been sent home and instructed to return next Tuesday to receive their instructions, hear the summations/closing arguments, and begin their deliberations.
Unlike Monday, there weren't any fireworks Tuesday morning as attorney Robert Costello retook the stand for further cross-examination by prosecutor Susan Hoffinger. Costello testified that former Trump attorney Michael Cohen did not sign a retainer agreement and ultimately hired another firm to represent him. In August 2018, Cohen emailed Costello and his partner, Jeffrey Citron, asking them to cease contacting him and asserting that they never represented him.
Costello denied telling Cohen at their first meeting that he was well-connected to Rudy Giuliani, though Giuliani came up later in their discussions. He confirmed that Giuliani attended his wedding. Costello affirmed an email he sent to Cohen on April 19, 2018, which referenced Giuliani joining Trump's legal team, as well as one sent the same day to Citron, which stated:
"All the more reason for Cohen to hire me because of my connection to Giuliani, which I mentioned to him in our meeting."
Hoffinger questioned Costello about offering Cohen a "backchannel" to Trump.
Prosecutor Susan Hoffinger has asked Robert Costello if he was pushing Michael Cohen to retain him because he could provide a backchannel to Trump. Costello again denied it.
Hoffinger then showed Costello and the jury an email he sent to Cohen mentioning a backchannel.
"That was your email to Michael Cohen?" she asks.
"Yes," Costello says.
"The email speaks for itself, right sir?" Hoffinger says.
"No, not quite. There are circumstances about that email which I would be delighted to tell you," Costello says.
"That’s alright, let’s move on to the next one," Hoffinger says.
The comment elicited laughs in the courtroom.
A May 15, 2018, email between Costello and Citron read, in part:
"Our issue is to get Cohen on the right page without giving him the appearance that we are following instruction from Giuliani or the president. In my opinion, this is the clear correct strategy,"
Costello explained this wasn't about following instructions, but rather, getting everyone on the same page because Cohen had expressed such displeasure with Giuliani's statements to the press.
Soros funded DA’s office pulls up another email from Bob Costello to his law partner, Jeff Citron.
— Andrew H. Giuliani (@AndrewHGiuliani) May 21, 2024
Included in the email is this segment: “Our issue is to get Cohen on the right page without giving the appearance that we’re following instructions from Giuliani or the President”…
Costello testified that he encouraged Cohen to express his complaints regarding Giuliani so he could bring them up to Giuliani and work them out. Costello denied urging Cohen not to cooperate (with law enforcement) and denied pressuring Cohen to do anything. He further denied caring about Trump's interest at the time, affirming that his obligation was to Cohen.
Costello affirmed another email exchange with Citron regarding Cohen:
A 2018 email suggested that Costello was complaining that Cohen was not working with him.
The email reads in part, "Jeff. This is the response I received from Michael after sending him a detailed text followed by a voicemail one hour later at 4 pm. Turn into CNN and see how they are playing this up. Cohen has to know this yet he continues to slow play us and the president – is he totally nuts???"
"What should I say to this a**hole? He is playing with the most powerful man on the planet," the email says.
Costello denied that he "lost control" of Cohen but agreed he did not have control of him when he pleaded guilty. He denied having animosity toward Cohen, asserting that he simply doesn't believe he is telling the truth. He denied that his testimony before Congress on May 15 was intended to intimidate Cohen, calling the notion ridiculous.
On redirect, Trump attorney Emil Bove asked Costello if Cohen's assertion in the August 2018 email that Costello had never represented him was true or false: "False." He explained the reference to being played in the email to Citron was over concern about Cohen not having signed a retainer.
Trump's lawyer Bove: What did you mean when you wrote about being played?
— Inner City Press (@innercitypress) May 21, 2024
Costello: Jeff Cintron gave him the retainer agreement. Cohen put it in his briefcase, then always evaded our questions about it. He claimed he was paying MWE - he wasn't.
According to Costello, Giuliani was the first to use the term "backchannel," and it came about after Cohen expressed reservations about making Costello's representation of him public.
Costello says they'd let Trump's inner circle know through the backchannel that Costello would represent Cohen, but Cohen expressed concern, saying, "We don’t want to go public with this, it would cause a press uproar."
Bove confirms with Costello that the first mention about a backchannel was sent in an email the day after Costello told his son he'd be representing Cohen, showing him the statement Cohen was set to release.
Bove established that Cohen didn't push back when Costello wrote "attorney-client privileged" on communication to him:
Trump's lawyer Bove: You wrote, Privileged and Confidential, Attorney Client - did Cohen tell you no, you're not my lawyer?
— Inner City Press (@innercitypress) May 21, 2024
Costello: No.
Bove: Cohen couldn't be surprised you communicated with Rudy Giuliani?
Costello: Michael Cohen asked me to
Costello again denied that he pressured Cohen to do anything.
With that, the defense rested. The prosecutors elected not to call any rebuttal witnesses.
As noted above, the parties will meet with the court Tuesday afternoon to go over jury instructions, and then closing arguments will be presented next Tuesday. That leaves jurors to their own devices for a full week and over a holiday weekend. My own two cents? That's not optimal. To the extent they've adhered to the court's instructions and not discussed the case outside of court or done their own research, the temptation to do so now, with all of this downtime, is going to be difficult to resist. It's still not entirely clear to me what's prompting that significant a delay.
One other observation: I expressed some reservations previously about whether calling Costello would benefit the defense. I can't honestly say that I see that it did. Cohen had already wobbled and branded himself a liar and a thief. I don't know what Costello added, and my instinct is that the defense may have been better served to go with the paralegal, establish that there were far more calls and communications between Cohen and Costello than Cohen initially acknowledged, and leave it at the prosecution's star witness being a Liar McLiarface.
DJT’s lawyers should/may be considering a motion for mistrial based on the courtroom closure. That was unjustified & unconstitutional.
— Leslie McAdoo Gordon 🇺🇸 (@McAdooGordon) May 21, 2024
However, if they think the jury is with them, they might choose not to do so anyway. https://t.co/B8safmJVDL
The one possible positive I see from Costello's testimony is that it may have prompted Merchan to overplay his hand and may offer further grounds for a mistrial (as alluded to by Leslie McAdoo Gordon in the above tweet) or to overturn a guilty verdict on appeal, should there be one. But again, that's a risky gambit. I highly suspect Trump and his legal team would rather win outright (i.e., with an acquittal or hung jury) than have to wait for it all to play out on appeal.
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The Fat Lady Hasn't Sung Yet: The Trump Trial Continues On (Day 19)
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