I knew it would be a weird day in court when I saw that Chuck Zito was in the house. Zito is the Hells Angels hell-raiser who served time on a drug charge, attended his friend John Gotti’s wake, and punched out Jean-Claude Van Damme—among other qualifications for being in Donald Trump’s entourage. He was wearing cool, pointy blue-suede boots. That made me prefer him to Alan Dershowitz, who told the row in front of me during a break that “this is the weakest case I’ve seen in 60 years of teaching.” Sure, Alan.
Judge Juan Merchan had hoped to finish the trial this week, so he started court 45 minutes earlier than usual today. But for various scheduling reasons, he let us know that closing arguments won’t come until next Tuesday, just after Memorial Day.
Before summoning the jury, Merchan ruled on the admissibility of certain testimony from two witnesses. The first was Robert Costello, well-known in the New York Bar as a legal thug; the defense would later call him as its main witness, to disastrous effect. Costello rolled his eyes at the judge and tried to intimidate him from the witness stand, which led an irate Merchan to clear the courtroom of the jury, press, and some spectators. A chaotic exit ensued.
But that was eight hours later in the day. In the morning of the 19th day of the Trump Trial, Merchan limited Costello’s testimony. For instance, he would not admit into evidence an email from Michael Cohen to Costello that the defense wanted to use to show what Cohen was thinking. “Nowhere in this email does it express Mr. Cohen’s state of mind,” the judge said. “It’s double hearsay.”
The defense also tried to clear the way for Bradley Smith, the former chair of the Federal Election Commission, to take the stand. Before the trial began, Merchan had ruled that Smith—a law professor—could not testify that this case involved a “novel” interpretation of campaign finance laws. Now, Todd Blanche, Trump’s lead lawyer, wanted to revisit the issue.
Blanche seemed desperate for Smith to give the jury his very conservative take on campaign finance laws, which basically comes down to anything less than passing a bag full of cash (more on that, in a different context, later) is kosher.
As usual, Merchan made perfect sense when he said that if he let the defense call an expert witness to interpret the law, he’d have to let the prosecution call a witness to interpret the law, which would mean three different instructions to the jury. The judge underscored that he was the judge and only his instructions on the law would be delivered to the jury. Once Trump’s lawyers understood that their witness would not be allowed to bring rightwing legal spin into the courtroom, they scrapped his appearance.
This morning, I was sitting up close on the far right side and had my best view yet of how many jurors were taking notes. Most held identical white legal pads and scribbled things down only sparingly, like students who don’t want to be overwhelmed by too many notes when studying for the final.
Blanche resumed his cross of Cohen, which–after a terrific morning on Thursday–had gone downhill when he failed to crack the incriminating recording Cohen had made of Trump with an iPhone in his pocket.
His first line of attack today was to make Cohen out to be a tool of prosecutors. Blanche established that after turning on Trump, Cohen had held about 20 meetings with the D.A.’s office, most recently on May 11. Cohen acknowledged that Daniel Goldman, a former federal prosecutor, helped prep him for his congressional testimony.
If Blanche’s aim was to make Cohen seem like the puppet of Democrats, I’m not sure he succeeded. Goldman is now a popular congressman from New York City. The jurors are from Manhattan, but at least a few may have absorbed some of Goldman’s good press since his district includes a good portion of the borough.
Then Blanche returned to one of the key periods in the case—October 2016—when Cohen was completing the hush-money deal with Keith Davidson, the attorney who represented Stormy Daniels. Blanche tried to show that Cohen was just too busy in late October to worry about something so minor as Daniels blowing the Trump campaign sky-high.
After all, Cohen was involved in a $7 million real estate deal with his brother; handled the endorsement of Trump by a niece of Martin Luther King Jr.; worked with National Enquirer Publisher David Pecker and Trump Attorney Mark Kasowitz on an investment in a company called I Payments; and helped Tiffany Trump when she was subjected to an extortion attempt. And, of course, there were those prank calls from a 14-year-old.
On re-direct, the prosecution will contend none of this would have prevented Cohen from also keeping Trump updated. But as usual, Cohen was caught lying about some details.
In prior testimony, Cohen had, for some reason, described a taxi medallion acquisition proposal as a real estate deal. On the stand, Cohen had to stick to that lie so as not to be accused of lying again, and predictably, Blanche busted him for it.
I wish we’d heard even more details of the wildly profitable and now nearly worthless New York taxi medallion business and the story of Evgeny “Gene” Freidman, long known as New York’s “Taxi King,” who ended up ratting on Cohen. Freidman’s checks to Cohen bounced, and his marriage was in trouble. Cohen explained the volume of his communication with Freidman during this period as part of his efforts to find the now-deceased wheeler-dealer a lawyer and a place to live and to help “bring him and his wife back together.” I was sitting next to Janon Fisher of Newsday, who deadpanned: “Michael Cohen, Marriage Counselor.”
In one of the biggest mistakes of the trial, the prosecution didn’t prep Cohen to disclose that he also talked to Trump about other matters in late October. But it may be that Cohen was telling the truth when he testified that he had nothing to do with an ABC News interview with George Stephanopoulos two days after the October 24 call with Trump that is now at the center of the defense’s efforts to discredit him. He also said he had nothing to do with responding to the Tiffany blackmail threat.
“My recollection is I was speaking [to Trump] about Stormy Daniels because that’s what he tasked me with taking care of,” Cohen testified.
This didn’t look good because October was also when Trump was celebrating the opening of his new Washington hotel in the Old Post Office Building, and Cohen had taken an active role in Trump’s real estate projects for years. Blanche dinged Cohen in this stretch, but it was not—Thank God—another 14-year-old prankster moment. The defense seemed out of ways to directly discredit Cohen’s testimony about his critically important conversations with Trump during this period. Phew.
The cross turned to Red Finch, a mysterious tech company we had heard of but wouldn’t get the full story on until re-direct. Cohen was friendly with the owner of Red Finch. So when Allen Weisselberg, the Trump Organization CFO, was figuring out what should go into “grossing up” to the $420,000 that was used to compensate Cohen and cover the $130,000 payment to Daniels, Cohen suggested $50,000 should go to Red Finch.
Then Cohen did something stupid. He covered what he said were Red Finch’s expenses by giving the owner $20,000 in a “small brown paper bag” when he came by the office and pocketed the other $30,000. This made Cohen look like a common thief, though it came in the context of classic Trump narcissism that the jury would soon learn about.
Later, MSNBC’s Lawrence O’Donnell—who started his career writing about trials in Boston and comes to court much more often than the other big footers—made a good point when he told me that in closing arguments, the prosecution wasn’t likely to let the defense have it both ways: nailing Cohen for stealing from the Trump Organization while simultaneously arguing that the $420,000 that Trump paid Cohen—which included the Red Finch money—was just for “legal expenses.”
Blanche thought he was scoring when he said, “In the middle of that conversation [about the cover-up], you lie to Allen Weisselberg about how much you’re owed on that [Red Finch] transaction.”
Amid Blanche’s barrage of questions, I had one for him: So, Todd, did “that conversation” take place or not? I thought your whole argument was that it was a figment of Cohen’s imagination.
Cohen testified that while he had never had a retainer agreement with Trump in their 11 years together, he did need some kind of agreement. “Why would you have had to prepare an agreement to get paid monthly?” Blanche asked.
“To get the $35,000,” Cohen replied.
Blanche pressed: “And why would Don Jr. and Eric approve your payment?”
Cohen explained that the kids were trustees of the Trump trust, from which the first two payments to Cohen were drawn.
Don Jr. wouldn’t show up in the courtroom until the last day of testimony, but Eric was sitting in the second row on the left for most of the trial, in the direct line of sight of several jurors. Aren’t some of them wondering why neither testified on their father’s behalf?
Blanche then turned to Cohen’s announcement that he would be “Personal Attorney for President Trump,” which he printed on business cards and trumpeted on every show from Hannity to TMZ.
Cohen had testified on direct that he did only about ten hours of legal work in 2017 and billed Trump for none of it. I thought that sounded weird at the time, but Blanche inadvertently strengthened it on cross—a boneheaded move that almost certainly came at Trump’s urging.
Cohen testified again that he did almost no legal work for Trump in 2017 beyond briefly reviewing Melania Trump’s contract with Madam Tussauds and a small handful of other things, adding up to only ten or so billable hours. This account was convincing enough (and unrefuted), and it may have left jurors wondering why Trump—a self-described “penny pincher”—would pay him $420,000 in 2017 for so little work. Here, the defense was essentially doing the prosecution’s work. If jurors did simple math and divided $420,000 by ten hours of legal work, it would come to $42,000 an hour, about 50 times more than Trump normally pays his lawyers.
Blanche then made it worse for his client. The phony monthly invoices Cohen sent Trump said “for services rendered,” but without a retainer agreement, did not preclude him from billing further, especially for work he did in 2018. Cohen would have been loathe to do that, of course, partly because it would have pissed off Trump. But he didn’t have to. He was making big money as an influence-peddler.
Instead of ignoring that, Blanche, for some reason, walked Cohen through his six corporate clients, who paid him a total of $4 million to do little real “consulting.” In the scummy world of Washington lobbying, the companies weren’t necessarily going to use Cohen to get to the new president, but they could brag to their boards that they had better access to the very top than their competitors did.
I loved this part of the trial because it offered a peek into how the influence industry works when a new president is elected. Trump had introduced Cohen to the CEO of AT&T, which paid him $600,000 in 2017 for what turned out to be only 20 “communications” (mostly emails). Novartis paid him $1.2 million for six communications. Were jurors thinking that’s $200,000 per email? BTA Bank paid Cohen a $150,000-per-month retainer, KIA paid $100,000 per month, and Columbus Nova paid $80,000 per month.
I felt like checking to make sure none of the mutual funds I own are invested in these companies but decided the damage this testimony did to the defense was worth any pangs of conscience.
As Blanche meandered down blind alleys, his client napped, not just occasionally, but much of the time. Over the course of Day 19, I used my binoculars more than a dozen times to focus on the video monitor that showed Trump and the lawyers from the front. Each time, Trump had his eyes closed, though I was never sure if he was sleeping, dozing, or resting. Whatever it was, he was not listening to the cross-examination of Michael Cohen, which the whole world knew was the most important part of his case.
Some of it was helpful to Trump. Blanche brought up the many interviews Cohen did after the Stormy Daniels story broke in 2018 in which he said, as Cohen told the BBC, that there was “no way he would have told Trump about [the hush money] at the time.”
Blanche walked Cohen through the April 2018 FBI raid and his meeting a week later with Robert Costello to discuss Costello possibly representing him, which the defense is deciding to make an important part of its case.
While they only met twice, “You were in touch 75 times,” Blanche said, in a charge that didn’t pan out. “You spoke for over nine hours over the course of a few months with Mr. Costello.”
Blanche elicited that Cohen wanted Costello to be in touch with his good friend Rudy Giuliani, who had just been named one of Trump’s attorneys, and to find out why the Trump Organization was no longer paying Cohen’s legal fees at McDermott Will & Emery, a big New York law firm.
I wracked my brain to see what the defense could be driving at and came up empty. Blanche showed the jury a few more emails that established their deteriorating relationship in mid-2018 before changing the subject back to how much money Cohen has made off of his hatred of Trump ($4.4 million since the fall of 2020).
We learned that last year, a TV studio shot a pilot for a show called The Fixer based on Cohen’s career, but it hasn’t been picked up and that Cohen is considering a run for Congress because “I got the best name recognition out there.” When Blanche suggested that was because he was exploiting his relationship with Trump, Cohen mildly replied, “My name recognition is because of the journey I’ve been on.” This was the sad-sack Cohen, in contrast to the histrionic Cohen we heard on a couple of audio clips from his podcast. I’m sure the defense hoped it might provoke an outburst of that frenzied Cohen on the stand, but it never did.
Cohen admitted he had a financial interest in the outcome of the case, but he put a surprising spin on it: “It’s better [financially] if he’s not [convicted], for me, because it gives me more to talk about in the future.” Of course, his preference was clear. When asked about using the line, “Revenge is a dish best eaten cold,” he replied squarely: “I meant it then and now.”
Blanche ended strong: “You were asked if you’re willing to lie under oath if it affected your personal life,” Blanche said. “When you lied to Congress, you said you lied out of loyalty.” Cohen tried to stall a line of questioning that he knew could be damaging with the jury.
“It’s true you will lie out of loyalty, correct?”
“Yes, sir,” Cohen replied.
This was a mistake. He should have said something like, No sir, I lied out of loyalty in the past.
Susan Hoffinger, the prosecutor, began her impressive re-direct by straightening out that Cohen didn’t lie to Congress in 2019 (when Daniel Goldman helped prepare him) but in 2017 on the Trump Tower Moscow deal.
Then she turned to the elephant in the room—the October 24, 2016, call to Keith Schiller to discuss the 14-year-old prankster. This could be deadly for the prosecution if it were part of a pattern of Cohen talking to Schiller and Trump about matters other than Stormy Daniels. That’s why Blanche on cross had focused on the Tiffany Trump extortion plot, the opening of the Trump Hotel in the Old Post Office Building, and other things that kept Cohen busy that month.
Crucially, Blanche had failed to present any evidence challenging Cohen’s testimony about the more incriminating call on October 26, two days after the harassing prankster call. Hoffinger is now focused on that one.
“You testified that you didn’t have a specific recollection about talking about other matters… But you did have a specific recollection about talking about Stormy Daniels’ payoff to Mr. Trump?” Hoffinger asked. “And that is because it was important to you at that time, correct?” The new and subdued Cohen gave her his patented “Yes, ma’am.”
She continued, with a crisper style than she had on direct: “Is it possible that other matters may have been discussed on those calls, but you are sure that the Stormy Daniels matter was discussed?” Cohen replied, “Yes.”
Hoffinger: “Were you pretty busy all the time or just in October?”
Cohen: “I was busy.”
Hoffinger: “Were you too busy in October of 2016 to finalize the
Stormy Daniels payoff with Mr. Trump?”
Cohen: “No, ma’am.”
Hoffinger: “Were you too busy to get his approval to make that payoff?”
Cohen: “No, ma’am.”
At that moment, I wished she had explained the prankster episode more directly, but the prosecution turned out to have a card up its sleeve on that one that we wouldn’t learn about until later.
Hoffinger then turned to the critical question of whether Cohen’s cover-up agreement with Weisselberg constituted a legal retainer. Cohen said no and explained that he never sent Weisselberg a retainer agreement because Weisselberg told him to send invoices for reimbursement instead. This was bolstered by the fact that Cohen did real legal work on the NDAs for Trump in 2018 (in contrast to 2017) and never billed Trump for it, even though the checks from Trump had stopped by that point.
Hoffinger: “Was the $420,000 payment that you were owed as reimbursement—did that have anything to do with a Retainer Agreement?” Cohen issued another “No, ma’am” and explained that his work for Trump in 2018 had no connection to the $420,000.
Re-direct now moved to Red Finch, which turned out to be a quintessentially Trumpy story.
Let’s have Cohen tell it as he did from the stand:
In 2014, CNBC.com launched a self-promotional digital poll to determine who readers thought were the “Top Business Leaders of the 20th Century.” Trump “was polling towards the very bottom, and it upset him,” Cohen testified:
He had me come to his office, and he provided me with a sheet of paper that showed it. I reached out to the gentleman from Red Finch, who assured me that he was able, through the acquisition of IP addresses, to create an algorithm that would ensure that Mr. Trump would rise and rise significantly in this poll…. We talked about what number Mr. Trump wanted to finish. Of course, initially, he wanted to be number one, but we didn’t think that was a good idea because it would, of course, raise red flags. As long as we were in the top 10, we would go into another round. And so, with Mr. Trump’s permission, I advised the CEO of Red Finch to start acquiring the IP addresses. And we had to purchase more IP addresses, and then even more again, until, ultimately, when the poll came to its conclusion, Mr. Trump was number nine.
CNBC re-fashioned the project into “CNBC’s First 25” (which included politicians and others) and, sensing something smelly, claimed its right to “take anybody out of the [list] that they wanted to,” Cohen testified. “And so Mr. Trump didn’t feel that he got the benefit of what the funds were supposed to go to, despite achieving Number 9, and refused to make the payment.”
He rigged the election, then stiffed his vendors. Sound familiar?
Cohen lamely explained why he paid Red Finch only $20,000 (in a paper bag) and pocketed the other $30,000: “I was angered because of the reduction in the bonus, so I just felt it was almost like self-help.”
It’s just a guess, but I’m not sure this pathetic and prophetic episode hurt Cohen’s credibility with jurors as much as the defense assumes. In a he-said/he-said on this part of the case, jurors might just side with the monetizing chiseler over the “Biggest Con Man of the 20th and 21st Centuries,” a list Trump would easily top without having to cheat.
By this point in the day, Hoffinger was scoring on re-direct, and the pessimism I had felt all weekend was beginning to lift.
Hoffinger explained that immediately after the Stormy Daniels story broke in early 2018, Cohen had, indeed, as the defense argued, lied that he had made the hush-money payment without Trump’s knowledge. But he lied about more than that. At Cohen’s direction, his attorney, Stephen Ryan, wrote a letter at that time with the line: “The payment in question does not constitute a campaign contribution.”
Why would Hoffinger—who proved increasingly appealing and effective as the day wore on—shine a light on this particular Cohen lie? Because to win a conviction, the prosecution has to prove that members of the conspiracy intended to commit “other crimes,” including violating campaign finance laws. David Pecker pulled out of the Karen McDougal non-disclosure agreement after American Media Inc.’s lawyer advised him of this campaign finance violation, a subject of much discussion between the lawyers and the judge when the jury was out of the room.
The fact that Cohen was sent to prison partly on campaign finance violations cannot be used against Trump. The judge had already told the jury this, but after a sidebar, he felt obliged to do it again, and he said he would do it a third time when he instructed on the law just before deliberations.
Merchan told jurors, “Mr. Cohen’s [guilty] plea is not evidence of the defendant’s guilt.” But he had no obligation to prevent them from disbelieving Cohen’s lie in that letter about campaign finance.
As Norm Eisen, an expert on campaign finance law, told me during a break, “The jury will listen to the judge’s instruction, but that’s like saying, ‘Don’t look at the elephant.’”
To drive home the point, Hoffinger asked, “Did Mr. Trump approve the substance of these false statements by you?”
“Yes, ma’am,” Cohen replied.
It’s a tricky maneuver—using a lie to illuminate the truth—and we won’t know until a verdict if it worked.
Hoffinger then turned to the defense’s last attack on cross—that it was all personal for Cohen. She had him distinguish the case that led to his imprisonment and this one. “Is your liberty at stake?…Is your wife’s liberty at stake?” she asked. No, Cohen said. “The other one, my life was on the line.”
She clarified that Cohen had been misled by AI-generated phony cases on Google Bard (now Gemini) and that his lawyer quickly identified them as such when he brought them to her attention. And she began pre-butting Robert Costello, whom we would hear from soon.
“I didn’t like the way he kept invoking Rudy Giuliani,” Cohen testified to a jury of New Yorkers who aren’t likely to be Rudy fans. Anything Cohen said in his conversations with Costello “would go directly back to President Trump” through Costello and Giuliani.
Then, prosecutors pulled a last-minute move—the introduction of Exhibit 417B—that may bolster Cohen’s credibility. Over the weekend, the D.A.’s Office snapped a screenshot from a C-SPAN video dated October 24, 2016, which showed Trump with Keith Schiller at a campaign rally five minutes before the pivotal call. This supported the idea that Cohen could have both talked to Schiller about the 14-year-old harasser and to Trump about Stormy Daniels in the 96-second call.
The defense told the judge that the other side had not laid a proper “foundation” for the screenshot—authentication and the like. So the prosecution said it would summon a C-SPAN archivist who had testified earlier. But that would take a day, and the Trump legal team had two witnesses waiting to go. (Robert Costello and a Blanche paralegal to validate his phone records). Would the defense cave in the interest of launching its case on schedule? We would have to wait an hour to find out.
At lunch, I noticed that the courtroom had many more familiar faces than in the early days of the trial. This goes beyond Trump’s expanding guest list.
I have begun to think of any day-tripping anchor I see there as a “Big Foot.” According to Safire’s Political Dictionary, that’s a “jocular” term from the 1980s for a “media biggie” used by “envious or bemused colleagues” and derived from the nickname for Sasquatch, the monster who leaves fearsome footprints supposedly from a Big Foot. The term has become a verb, and in the 1990s and early 2000s, when I was a Newsweek columnist, I was seen as “big-footing” the magazine’s beat reporters when I would swoop in for an interview with the candidate. I also big-footed for an afternoon in Los Angeles in 1995 when I caught a bit of O.J. Simpson’s murder trial.
In this trial, where there is only one seat per news organization in the courtroom, getting big-footed means watching the trial for a morning or afternoon in the overflow room (no big deal) so someone “bigger” can see the action live.
I rode down the elevator with big foot Rachel Maddow, whom I first met more than 15 years ago when we often appeared together on Keith Olbermann’s old MSNBC show. I told Rachel that the architectdesigned 100 Centre Street also did 30 Rock. If you look hard enough, you can see the brilliant deco designs on the elevator doors, railings, and ceiling adornments. The difference is that while 30 Rock gleams, almost nothing has been done to this building since it was completed in 1941. “Thirty Rock and Dirty Rock,” Rachel quipped before generously telling me the line was mine. She also said that attending ramshackle schools in the 1980s after Proposition 13 slashed California’s education budgets made her accustomed to dilapidated public buildings.
After lunch, we had our answer about the screenshot’s admissibility. It was shown to the jury. We’ll have to wait for the verdict and any interviews with jurors to learn if this was a little Perry Mason moment of its own or didn’t do enough to dislodge doubt about the call.
Hoffinger ended her last shot at shoring up Cohen’s credibility by returning to that all-important question of doubt.
After showing phone records that established Cohen and Trump spoke by phone more than 20 times in October 2016 alone, she asked whether Cohen had any doubt that he had a conversation in which Trump told him to “work it out with Allen Weisselberg”? “Any doubt that Mr. Trump gave you the final sign-off”? No, and no. “Would you have paid off Stormy Daniels without that sign-off?” she asked. “No, because I wanted to be sure I got the money back,” Cohen said calmly.
Hoffinger then played a tape of Cohen and Keith Davidson talking about the hush money in a code they both understood and that, by now, the jury might, too. Cohen’s old, loud, agitated voice filled the courtroom. He mused that he “could go completely rogue…It’s not just me, it’s my entire family…Nobody’s thinking about Michael…Who else would do this?…I wasn’t gonna play penny-wise, pound foolish…I hate the fact that we did it.”
Hoffinger asked: How has telling the truth affected your life?”
“I lost my law licenses, my businesses, my financial security,” Cohen said. “To name a few.” At this point, his voice seemed to catch a bit, and the jury noticed.
It was a good way to end the direct examination of Michael Cohen.
Re-cross was the defense’s last shot at destroying his credibility.
“Was losing your law license President Trump’s fault?” Blanche asked, arguing that tax fraud and lying on records weren’t on Trump. “And is one of the reasons why you lost your license to practice law because of those felonies?”
Cohen fought back, in part to remind the jury he had also gone down on campaign finance violations: “No, because of the totality, including the campaign finance violations, two counts, as well as the… lying to Congress.”
Blanche got a little traction by borrowing the prosecution’s argument about Trump’s penny-pinching to wonder why he would pay Cohen $420,000. But there was an easy answer, which was likely occurring to the jury by now: to shut him up.
“In the 11 years you worked for President Trump, did you recall him ever willingly overpaying for something?” Blanche asked.
“This was the first time he ever paid for any NDA,” Cohen quietly replied.
Blanche tried to reload and fire again on Cohen’s credibility, but his lack of experience caught up with him again. His re-cross was a scattershot affair, moving from a boring discussion of attorney-client privilege with Costello to a brief return to the 14-year-old prankster, to Cohen’s “lies” about seeking a pardon.
Almost out of time, he began a line of questioning about Red Finch that went nowhere. After the judge sustained an objection, Blanche said he was done.
The cross of Cohen–the most important part of the trial for the defense– ended with a whimper.
At 3:12 p.m., Josh Steinglass from the D.A.’s Office stood and
said, “Your honor, the people rest.”
At this critical juncture, the defense made a mistake, the magnitude of which will remain unknown until a verdict. If Trump’s lawyers had left it there, they would have had a clean and simple argument that this case was so ridiculous that no defense was necessary. This would have made Trump’s decision not to testify in his own defense seem perfectly sensible, not a dodgy and hypocritical invocation of the Fifth Amendment. Instead, they ended with a horrible witness who might leave the jury wondering: Is that all they got?
Trump was egged on by Fox Nation, but this was his doing. Last Wednesday, Costello testified before a friendly House subcommittee and denounced Cohen as a liar. I learned from a good source that Trump loved that and ordered his defense team to scramble and put Costello on the stand.
The first defense witness was Daniel Sitko, a young paralegal in Blanche’s law office assigned to review discovery materials. On Friday, when Trump decided Costello must testify, Sitko made a summary chart of the calls between Cohen and Costello. He came up with 75 calls but backed off when pressed on cross about whether he was sure of the accuracy of that number, which included numerous very short voicemail messages. A total bust for the defense.
Regardless of the number of calls, it wasn’t clear what the defense was driving at, though it seemed to have something to do with letting Costello dump more slop on Cohen’s head.
After Sitko stepped down, the jurors left, and the lawyers argued about the parameters of Costello’s testimony. Hoffinger said the prosecution had just learned that morning that he was definitely coming.
The defense wanted Costello to be able to testify about Cohen’s state of mind and whether he had a retainer agreement with Cohen, which the judge thought was peripheral to the case. He reminded the lawyers that Cohen was not a defendant: “I’m not going to let this become a trial within a trial.”
But Merchan also let defense attorney Emil Bove remind the prosecution that it could not make it seem as if Costello had been tampering with a witness.
It’s hard for me to express just how arrogant and smug a witness Robert Costello turned out to be. From the moment he took the stand, this well-groomed, ruddy-faced, silver-haired, self-appointed master of the legal universe embodied everything I had come to despise about a certain kind of egotistical and pseudo-tough New Yorker. Costello is a former federal prosecutor–never forget that!– who has defended the likes of George Steinbrenner and Leona Helmsley and borrowed a little of his nasty affect from each. Add a dollop of Giuliani and Trump, and you got a real Gotham delicacy.
It was no surprise to learn—after he first tried to deny it—that Costello is extremely close to Rudy.
Costello testified that after the FBI raided Cohen’s apartment in April of 2018, he and his law partner, Jeff Citron, met for two hours with Cohen at the Regency.
The reference to this hotel brought me up short because it was just outside the revolving doors of the Regency, where in 2017, I first met–accosted is more accurate–Michael Cohen. I tried to ask him questions about Russian collusion (everyone forgets it actually happened, according to the Mueller Report), and he rudely brushed me off. When I reminded him of that last year, just before I interviewed him onstage at a conference, he laughed and apologized.
Early in his testimony, Costello said Cohen told him at the Regency, “I swear to God, Bob, I don’t have anything on Donald Trump…“I don’t understand why they’re trying to put me in jail for fucking NDAs.” Costello added: “He [said] he did this on his own, and he repeated that numerous times.”
The trouble began after a sidebar and a series of objections, some sustained and some overruled. After a prosecution’s objection was sustained, Costello answered the question anyway, even though after a long career in the courtroom, he surely knew that was forbidden. Hoffinger asked: “Can the answer be stricken from the record, your Honor?” Merchan ruled, “That answer is stricken from the record.” Then he turned to the witness and said politely, “When I sustain an objection, you don’t need to answer it.”
The next ten minutes were among the wildest anyone present had ever seen in an American courtroom. Given that, I will explain what happened in detail using the official trial transcript.
When Hoffinger objected to a question about Giuliani, Costello said, with total disregard for the court, “Jeez.” Merchan sustained the objection and the one that followed. At that point, Costello said something almost unfathomable: “Strike it.”
Who did he think he was—the judge? The real judge calmly said, “Counsel, let’s take a minute. Can the jury please step out?” We all rose while the jurors hustled out of the courtroom.
Merchan: “Mr. Costello, you remain seated.”
Costello tried to say something, but Merchan waved him off. Now, his Honor was hacked off. “I’m sorry, go ahead,” the witness told the judge with astonishing temerity.
“Mr. Costello, I would like to discuss proper decorum in my courtroom,” Merchan said. “I understand what you’re saying.” Costello replied, though it was not clear if he did.
“So, when there is a witness on the stand, if you don’t like my ruling, you don’t say, ‘Jeez,’ OK? And then you don’t say,” ‘strike it,’ because I’m the only one that can strike testimony in the courtroom. Do you understand that?”
Costello said he did, but Merchan was now irate: “And if you don’t like my ruling, you don’t give me side eye, and you don’t roll your eyes. Do you understand that? Do you understand that?”
At first, that seemed to be the end of it. But as soon as Merchan said, “Let’s get the jury back,” he noticed something. He realized that this Trumpist witness—accustomed to getting his way in the world— was trying to intimidate him. “Are you staring me down right now?” Merchan said with a tone of incredulity. Then: “Clear the courtroom.”
For a moment, the press and spectators were stunned. Suddenly, everyone started talking, which, under normal circumstances, we were told not to do. The chief court officer, a tall and burly redhead, said: “Step outside, please. Step out and step to the side, please. Step out, please. Quiet, please. Step out, please.” The court police officer nearest me on the right side of the courtroom was more abrupt: “Get your belongings and go! Go!” I complied and rushed into the hall, where we were wrongly told that a court officer would soon brief us on what was happening.
Inside the courtroom, several reporters—maybe ten out of 54—refused to go. “Your Honor, may I object on behalf of the press? Your Honor, our lawyer is objecting. The press lawyer is objecting,” one shouted. “We have a right to remain here.” The chief court officer answered for the judge: “This is not an open forum. We will answer all questions in the hallway. Please step out. This is a [State] Supreme Court courtroom. Step out!” The arguing grew loud enough for us to hear from the hall. “You can’t throw us out! Our lawyer has a question. This is a public forum. Why do we need to step out?”
When the court officer repeated, “Everybody step out!” someone in Trump’s entourage said, “We are guests. Why do we have to leave?” It turned out most of them didn’t. Chuck Zito left, perhaps to help handle security in the hall; he once owned a bodyguard business offering muscle to celebrities. I spotted those pointy blue suede boots again and hoped he wouldn’t stomp me with them, Hells Angels-style. I didn’t see where Joe Piscopo went. Alan Dershowitz stayed.
While we were in the dingy hall, the judge apparently addressed the remaining reporters in a conciliatory tone. I was willing to cut him some slack all along but more so after I read the transcript:
Let the record reflect that the court officers had great difficulty clearing the courtroom, because the courtroom is made up, primarily, of the press. And I can appreciate that the press wants to be present for every part of these proceedings. Therefore, this record is not sealed. The press will have access to this record. The fact that I had to clear the courtroom and that the court officers, including the Captain, had great difficulty clearing the courtroom, and that there was argument back and forth between the press and including counsel for the press goes to why I had to clear the courtroom in the first place: And that is, sir, your conduct is contemptuous right now. I’m putting you on notice that your conduct is contemptuous.
Merchan seemed to be searching for some reason for what he had just done, and he found it sitting in the witness chair.
The judge told Costello: “If you try to stare me down one more time, I will remove you from the stand.”
He turned to the defense table and said, “I will strike his entire testimony—do you understand me?” Emil Bove said he understood.
Now, Merchan directly addressed Costello again: “Listen to the question and answer the question.”
Instead of backing down, Costello said: “Can I say something, please?” Because I was out of the courtroom, I can’t characterize Merchan’s tone, but I can conjure it: “No! No! This is not a conversation.” Then, he politely told the court officer to bring the press back in.
When the trial resumed, Bove had a series of questions for Costello about Giuliani and retainer agreements, but it seemed as if no one was listening. Even Trump was napping again as the very long day wound down.
After Merchan excused the jury, he began a hearing. Blanche asked for an order of dismissal—a directed verdict by the judge, just as Professor Jonathan Turley had been arguing on Fox and in the New York Post. Earlier in the day, I had tried to act friendly toward Turley in the line inside the men’s room. We don’t really know each other, but we are both Jonathans who grew up as Cubs fans a few blocks from Wrigley Field. We agreed that raising our kids as Chicago sports fans built character. He seems like a nice guy but doesn’t know what the hell he is talking about when it comes to this case–and several others.
We knew Merchan would reject the motion, but not before each side gave mini-summations of their cases—a kind of Cliff Notes version of what we will hear Tuesday. I’ll wait until then before writing about the closing arguments, which—like the judge’s instructions—are extremely important in this factually straightforward yet legally complex trial.
But I wanted to leave you with a flavor of the defense’s argument. “You’re asking me to find Mr. Cohen not credible as a matter of law?” Merchan asked Blanche, incredulous. “You want me to take it out of the jury’s hands so that, as a matter of law, his testimony should not be considered by the jury.”
“Yes,” Blanche replied, with his dozing client by his side.
Even Alan Dershowitz apparently didn’t think much of this motion.
He was on his phone.
