NEW YORK (1010 WINS/WCBS 880) – Donald Trump’s defense lawyers rested their hush money case without the ex-President taking the witness stand, moving the New York trial closer to the moment when the jury will begin deciding his fate.
5 P.M. - Court is adjourned for the day
Before court adjourned, the judge got stern over what he described as a a “disingenuous” defense effort to raise an argument that had been foreclosed months ago.
Bove was asking for a jury instruction that would get at, as he put it, “the fact that this entire trial was based on the word of an attorney who worked for President Trump, and he was entitled to draw some inferences from that” about the legality of various things.
The problem, as Judge Merchan saw it? The defense said months ago that it wasn’t going to use what’s known as an advice-of-counsel defense — that a defendant’s conduct was guided by a lawyer’s OK.
By deciding against it, the defense didn’t have to waive Trump’s attorney-client privilege or turn over various documents, the judge noted.
But, he complained, the defense has since tried to invoke the advice-of-counsel concept under different names, such as “presence of counsel” or “involvement of counsel.”
“My answer hasn’t changed, and honestly, I find it disingenuous for you to make the argument at this point,” he told Bove, who started to rise to respond.
The judge cut him off: “Please don’t get up. I let you speak,” he said, then added that he wouldn’t give the jury instruction, nor let the defense make such an argument in summations.
“I’m not being disingenuous, your honor,” Bove said after the judge concluded those remarks.
The discussion went back and forth a few more times before Merchan wrapped it up: “It’s not going to happen. And please don’t raise it again.”
3:10 P.M. - Discussion continues on how to instruct jurors
Another point of contention is what jurors will be told about how to view situations in which political candidates pay for things that aid their campaigns but also have other upsides.
Prosecutors want an instruction that someone’s status as a candidate doesn’t need to be the sole motivation for making a payment that benefits the campaign. Defense lawyers, meanwhile, want jurors to be told that if a payment would have been made even if the person wasn’t running, it shouldn’t be treated as a campaign contribution.
Judge Merchan said he’ll decide later but is inclined to include both.
3 P.M. - Judge denies a defense request
The judge has denied the defense’s request that he tell the jury that there was no limit on federal candidates’ contributions to their own 2016 campaigns.
Trump lawyer Emil Bove suggested the language would help the jury “have a full picture of what constitutes contributions and expenditures” and understand that Trump could have paid such sums as the Stormy Daniels payout — if it were deemed a campaign contribution — from his own funds.
Prosecutor Matthew Colangelo countered that campaign self-funding rules were “extraneous and totally irrelevant” to the case.
Judge Juan M. Merchan concluded it was unnecessary but told defense lawyers they could argue in their summation that Trump could have paid Daniels himself, instead of Cohen doing so.
2:10 P.M. - The discussion of jury instructions has begun
“Charging conferences” about jury instructions are often highly detailed, word-by-word discussions, and this one is shaping up to be so. It’s beginning with the defense asking to insert the word “willfully” at two points in a section of the instruction having to do with federal election law, and prosecutors saying that’s unnecessary.
2 P.M. - Trump speaks before discussion with judge of jury instructions
Speaking to reporters in the hallway outside the courtroom, the former president didn’t address why he didn’t testify in the trial.
With the charging conference set to take place this afternoon, Trump suggested that the judge could try to “manufacture” a crime.
“There is no crime. So maybe they’ll try to devise one right now,” he said. “The judge has been very helpful to the other side.”
10:30 A.M. - Defense rested without Trump taking the stand to testify
With testimony now concluded, Trump rose slowly from his seat, straightened his tie and whispered in one of his attorney’s ear.
Leaving the courtroom, he did not stop to speak and ignored a question about why he won’t testify.
10:30 A.M. - Judge sends jurors home
After the defense rested, Judge Juan M. Merchan told jurors they won’t be needed again in court until next Tuesday. That’s when he says both sides will give their closing arguments.
He suggests the court session may run late that day to accommodate summations from both sides — the defense and prosecution. Merchan told jurors he then expects his instructions to them will take about an hour, after which they can begin deliberating, possibly as early as next Wednesday.
Merchan noted that normally summations would immediately follow the defense resting its case, but he expects summations in this case will take at least a day and, given the impending Memorial Day holiday, “there’s no way to do all that’s needed to be done” before then.
“I’ll see you in a week,” Merchan said.
10:15 A.M. - The defense rests
“Your honor, the defense rests,” Trump lawyer Todd Blanche said.
This brings the case one step closer to final arguments.
10 A.M. - ‘He’s playing with the most powerful man on the planet’
Before finishing her cross-examination, Hoffinger questioned Costello’s true intent in maneuvering to represent Cohen, citing a June 22, 2018, email in which the lawyer complained that Cohen was continuing to “slow play us and the president.”
Costello was in talks with Cohen to represent him in the wake of an April 2018 FBI raid on his apartment, office and hotel room, but Cohen says he was wary of Costello’s ties to the White House and never hired him.
“Is he totally nuts?” Costello wrote in the email to his law partner, Jeffrey Citron
In the email, he asked what he should say to Cohen, using an expletive. “He’s playing with the most powerful man on the planet,” Costello wrote.
“That email certainly speaks for itself, doesn’t it, Mr. Costello?” Hoffinger asked Costello, mimicking the witness’ earlier answers that emails he turned over to the prosecutors’ office “speak for themselves.”
“Yes, it does,” Costello replied.
Hoffinger then asked if, at that point, Costello had “lost control of Michael Cohen for the president, did you not?”
“Absolutely not,” Costello bristled.
9:45 A.M. - Costello testimony turns to emails
Prosecutor Susan Hoffinger confronted Costello with emails he sent to Cohen in which he repeatedly dangled his close ties to Trump-ally Rudy Giuliani in the aftermath of the FBI raid on Cohen’s property.
In one email, Costello told Cohen: “Sleep well tonight, you have friends in high places,” and relayed that there were “some very positive comments about you from the White House.”
Costello testified Tuesday that “friends in high places definitely refers to President Trump.”
Hoffinger also showed Costello an email he sent to his law partner noting Giuliani was joining Trump’s legal team.
“All the more reason for Cohen to hire me, because of my connection to Giuliani, which I mentioned in our meeting,” Costello wrote to law partner Jeffrey Citron in the April 19, 2018, email. Cohen says he never hired Costello.
So far, Costello is behaving better than on Monday, when Judge Merchan scolded him for speaking out of turn and rolling his eyes.
Still, the witness is trying to tack on extra details to his answers. Hoffinger isn’t having it.
At one point, Costello said there was additional context around an email regarding Giuliani, “which I would be delighted to tell you.”
“That’s alright. Let’s move on to the next one,” Hoffinger said.
Moments later, Hoffinger asked Costello if he felt like he was being played by Cohen, as he had written in another email. Costello said he did not.
“You want me to explain it?” Costello asked.
Again, Hoffinger told him she did not. Costello huffed, adding: “Now you do want me to explain.”
9:30 A.M. - Costello’s testimony resumes
As testimony began for the day, prosecutor Susan Hoffinger showed Costello an August 2018 email in which former Trump attorney Michael Cohen told him and one of his partners to stop contacting him because “you do not and never have represented me” and another lawyer did.
Asked whether he was upset that Cohen hadn’t paid him, Costello said he was — and volunteered that he had replied to the message in an email that prosecutors didn’t show.