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A Witness Implosion Precedes Jury Instruction

Anna Bower, Quinta Jurecic, Tyler McBrien, Benjamin Wittes
Wednesday, May 22, 2024, 11:46 PM

The evidence is all in and the parties spar over jury instructions.

The press corps outside of 100 Centre St. (Photo credit: Quinta Jurecic, Lawfare)

Published by The Lawfare Institute
in Cooperation With

Previously on Trump New York Trial Dispatch: "Michael Cohen on the Stand, Part II"

The protesters are already here in Collect Pond Park. A woman is blowing a shofar and preaching about the Bible. A man holds up an oddly specific sign, comprehensible only to the nerds truly versed in the trial’s minutiae: “WHY WON’T BLANCHE CALL SCHILLER?”

Even as the shofar-blower preaches from the park, another person begins protesting not the trial, but The Line itself. Dismayed by what he says is “cheating and cutting,” he shouts: “There is no line integrity!”

We enter court earlier than usual today. Someone in the gallery is whistling the Indiana Jones theme music for reasons unclear.

Out in the hallway, Trump—blue tie today—addresses the pool reporters with general complaints about the case. He says he should be out campaigning.

Trump’s entourage today is bigger than usual, including a number of members of Congress, along with former New York City Police Commissioner Bernie Kerik—who received a presidential pardon from Trump in 2020 for his felony convictions, and went on to assist in Trump’s efforts to overturn the election—and longtime legal commentator and Trump defender Alan Dershowitz. Also tagging along is Kash Patel, a former top aide in Trump’s orbit whom the president reportedly once sought to make CIA director. Perhaps most noticeable, though, is a brawny man sporting a jet-black pompadour, a pinstripe suit, and enormous rings on both pinky fingers. He is Chuck Zito—the founder of the New York branch of Hells Angels Motorcycle Club, who served time on federal drug charges and notably attended the wake of Gambino crime family boss John Gotti. Rep. Trey Gowdy, the Republican former congressman from South Carolina who now works for Fox News, is also here, though as a member of the press.

It's an early day: both parties are already seated at their respective tables. Just before he sits down, Trump seems to mouth "how are you" in the direction of the prosecution team.

It’s 8:45 a.m. sharp, and all rise as Justice Juan Merchan takes the bench. It’s 45 minutes earlier than the normal resplendent-in-robes o’clock. And yet here he is, resplendent in his robes, judicial authority radiating from his very being, the fluorescent lights glinting ever-so-slightly off of his meticulous gray hair.

Dershowitz is seated directly behind Trump in the first row. Zito is sitting a row behind him—his pinky rings glistening like brass knuckles.

Merchan starts by thanking everyone for showing up early and says he wants to address some issues that arose over the weekend before he brings in the jury. He announces, first, that it looks like we won't go to summation tomorrow—which is to say Tuesday. "Unfortunately the calendar is what it is," he says. He means by this that there is no way to get everything done in a three-day week (court is meeting this week on Monday, Tuesday, and Thursday only) without creating a long lag for the jury. And he would rather delay summations until next Tuesday, after the Memorial Day weekend, than to have that weekend break up either summations or jury deliberations.

The next issue relates to defense exhibits. Susan Hoffinger for the prosecution says the prosecution is objecting to two exhibits, but they’ve resolved their concerns over one of them. She has a hearsay objection with respect to the other one.

That turns out to be Defense Exhibit B1005: an email from Robert Costello's law partner, Jeff Citron, to Michael Cohen following their initial communications. Todd Blanche, for the defense, says the email is direct impeachment against what Cohen testified to on direct and cross examinations on Tuesday and Thursday. “We are not offering this for the truth, but it's certainly impeachment we can offer and cross him on it,” Blanche says.

“It would be the truth of the statement you're impeaching him with,” Justice Merchan asks. “Right?”

Responds Blanche: “Well, it depends how he answers it.”

The judge isn’t buying it. Once Cohen answers it, he says, “at that point the cat's out of the bag, the jury has heard it.”

Hoffinger rises for the prosecution: Citron's opinion “is not an impeachment of Mr. Cohen’s views of how he felt the meeting went,” she says. What’s more, whether it's impeachment or not, it's still hearsay. This document doesn't disclose what was in Michael Cohen's mind about how he felt the meeting went.

What any of this means only becomes clear only later in the day.

In any event, the judge remains firm. He mentions there's actually two layers of hearsay in the document, and at this moment, he's not going to let it in. Nowhere in this email does it express Cohen's state of mind, he says, so this is double hearsay.

Blanche suggests that he could question Cohen about this email without displaying the document to the jury, and potentially offer it into evidence depending on Cohen’s answers. But Justice Merchan is concerned that the jury could find this confusing: “So, now, they're all sitting there, wondering what is going on, what are you talking about. They won’t understand the testimony.” He says no.

Third item of business: Justice Merchan is now ready to rule on the campaign finance expert witness issue, which we discussed on Thursday.

Recall that the defense wanted to elicit testimony from former FEC Chairman Brad Smith on several key matters: what it means to influence an election for federal office, the so-called “irrespective rule,” and the press exemption. Ordinarily expert testimony is admissible for matters on which the jury may need technical guidance, but an expert is generally not permitted to present or interpret the law, the judge being the expert who is supposed to instruct the jury on the meaning of the law. Justice Merchan rules that it would be impossible for Smith to testify without interpreting the law, and that would allow the prosecution to put forward a rebuttal witness offering a competing interpretation.

The defense had promised to elicit only very basic information and to stick to a kind of FECA explanier. But Justice Merchan just doesn't see how that could be possible. This falls under the umbrella of legal opinion, he contends, and could potentially lead to three conflicting sets of legal instructions—one from the prosecution, one from the defense, and one from him. There is no question that this would result in a "battle of the experts," Justice Merchan says, echoing something defense lawyer Emil Bove said last week. He announces that Smith may testify, but only as to the most basic of issues: what the FEC is, what it does, and general definitions as to relevant terms. Bove gamely pushes for more leeway, but to no avail.

Instead, Justice Merchan invites both parties to continue to submit proposed jury instructions, though he leaves open the question of whether he'll even issue specific instructions on the subject. "The proposed jury instructions are just that: proposals," he says. We'll hash all of this out at the charge conference.

Bove is up now to push back: defining those terms is absolutely critical for the jury to understand the government's allegations, he says. This is clearly an issue Bove intends to preserve clearly for appeal. Trump looks up at Bove as he argues, then turns his gaze forward, in the direction of the bench.

The tough spot that we're in, he argues, is that the judge has not indicated a firm intention to instruct the jury on FECA. So we're restricted in what Smith is allowed to say, and we also have no guarantee that the jury will be instructed by the court. Bove asks Justice Merchan again for any indication as to  “if you’re going to instruct the jury." But Justice Merchan declines. Citing his experience presiding over the Trump Organization criminal case, he says: "When it comes to these matters, I often think that less is better." Justice Merchan also mentions that, as Bove knows, the prosecution does not have to prove the object offenses beyond a reasonable doubt.

Bove tries again, but Justice Merchan has made up his mind: the witness would be presenting the law with the authority of a legal expert—one relying on Supreme Court opinions and other legal sources, and this would not be appropriate.

What makes this case different, Bove responds, is the predicate for the 175.10 charge. The conduct is only a felony if there is unlawful activity, he argues. Otherwise, it's just an agreement to win an election. Justice Merchan has had enough. "I want to be clear, the Court has not changed its position from day one,” he says, telling Bove, “Just relax.” He reminds Bove that the People initially had four step-up theories, and that he ruled against one of them.

Matthew Colangelo now stands for the prosecution and cites the People’s Nov. 9 motion to demonstrate that the government has briefed these theories six months ago. "There's nothing new at all about the unlawful means argument in our election law theory," he says.

Because the expert witness is a lawyer, a law professor, and a former FEC commissioner, his entire experience in understanding how these terms apply is based on interpretation, Colangelo says for his last point. Justice Merchan maintains his ruling.

Blanche now asks to approach the bench about a "scheduling issue." There’s a brief sidebar, and when it concludes, Justice Merchan calls for a short, ten-minute break. Court will resume around 9:30 a.m., when it normally starts.

As we wait for the morning to resume, a reporter in the gallery says, somewhat dejectedly: "Well, it looks like we're going to be here for another week."

*          *          *

When we’re back at 9:30 am, Justice Merchan wants the parties to get started on drafting jury instructions. To figure out what’s in dispute, he wants one side to draft instructions with respect to FECA and then the other side to "do the redline" of the instructions. If the two sides can agree on the definitions of these terms, that's all the better. He also mentions his preference to keep things as simple as possible.

The jury is now back in the courtroom, and Cohen is on the stand; he is wearing a lavender tie.

Blanche greets him with a “Good morning.”

“So, we ended last Thursday. Since that time until right now, how many reporters have you talked to about what happened last week?”

Cohen says he hasn’t spoken to any reporters about the case.

“You didn’t speak to a single reporter?” Blanche asks. Cohen clarifies that he’s spoken to reporters, but not about the case. “I’ve spoken to reporters who just called to say hello.”

Now Blanche wants to talk about Cohen’s interactions with the prosecution. How many times did he meet with prosecutors this year, in 2024? “More than a dozen,” Cohen says.

More than 20? Maybe.

Closer to 20 or closer to 12? Closer to 20.

And were these meetings for more than an hour? Yes.

Were some of them for more than two hours? Yes.

When was the most recent meeting? Approximately ten days ago, Cohen estimates.

And when the prosecutors asked questions in those meetings, did they ask questions similar to the ones they asked you on Monday and Tuesday? Some of them were similar.

So some of those questions you were hearing for the first time? Yes.

Blanche asks Cohen to name a question he was hearing for the first time. Cohen says he cannot do so but that there were many such questions.

How about documents, Blanche asks. Did you review those in prep sessions with prosecutors? That's correct, Cohen says.

Do you know someone named Dan Goldman? Yes, Cohen says. I met with him while prepping for my testimony to the House Oversight Committee.

And was that one of the times you lied? Yes, sir, Cohen says.

Now we’re back to October 2016, the days leading up to the hush-money payments. Do you agree with me that you had a lot going on both in your personal life and with Trump in those first few weeks of October? Yes, sir.

Around that time, Blanche elicits from Cohen, he was dealing with some significant restructuring of his taxi medallion business, along with an issue with a loan or sale related to an investment property. What’s more, Cohen was working with the diversity coalition for Trump supporters; he was working closely with David Pecker on another issue about iPayments; and he was helping Tiffany Trump with a photo extortion issue. The man was having a busy month. It ain't easy being a fixer.

There’s a lot more back-and-forth about taxi medallions and other matters with which Cohen was keeping himself busy that month. Blanche asks Cohen more about his work on the Tiffany Trump blackmail issue and other matters that were unfolding specifically on the week of Oct. 24, 2016.

We zero in on two calls between Trump and Cohen on Oct. 26, 2016. Cohen testified on direct examination that the reason he wanted to speak to Trump on that day was to get approval for the payments. Do you remember what Trump was doing on that day? Blanche asks, but Cohen doesn't remember. Blanche shows him Defense Exhibit B168, which we can’t see—it’s presented only to the parties and the judge.

Do you remember that Trump was going to sit down for an interview with ABC News that morning? Does it ring a bell that it was going to be with his entire family too, including Melania?

An objection is sustained.

With all that going on, why focus on Stormy Daniels?

Because it was important to me, Cohen says.

Was fixing Tiffany Trump's situation important to you? Wouldn't that be something you would update her father about? It was important, yes, but I didn’t update Trump on it. My recollection is that I spoke to Trump about Stormy Daniels because that was what he tasked me to take care of, and that's what I had been working on, Cohen says.

We get closer to the heart of the matter: the meeting between Trump, Weisselberg, and Cohen about the "retainer agreement" and the reimbursement structure. Blanche asks about the RedFinch payment, of which Cohen says he gave RedFinch only $20,000, though he sought $50,000 in reimbursement. Cohen says he withdrew the cash over two days, and Blanche asks whether he brought a "duffel bag" of cash. No, Cohen says. It was a small brown paper bag.

After that $20,000, you were square? He would've liked the additional $30,000 as well, Cohen says, with a deadpan matter-of-fact tone.

“Well, we—fair enough,” says Blanche.

We're getting some great imagery of Cohen the fixer: answering and placing dozens of phone calls a day, running around town with a brown paper bag filled with tens of thousands of dollars in cash. "Pants on fire" frantic all the time.

Blanche launches at Cohen: Have you paid back the Trump Organization the money that you stole from them? No sir, Cohen says.

The RedFinch subplot has taken center stage.

During the conversation with Weisselberg about the alleged cover-up of the $130,000 payment, Blanche asks, you lied to him about how much you owed to RedFinch? Correct, says Cohen.

Did you steal from the Trump Organization, correct? Correct, says Cohen.

There was never an expectation that there would be a retainer agreement, right? You had never had a retainer agreement for Trump or his children or his family, right? Correct and correct, says Cohen.

Blanche starts to ask a question but stops himself. Sorry, that was a terrible question, he says.

Apart from that one conversation with Weisselberg, did you have any other conversations with Weisselberg about your role as Trump's personal attorney? Yes sir, says Cohen.

More questions about how Cohen never had a retainer agreement, never would have one, in fact.

The defense submits Defense Exhibit B260 into evidence; it’s a Jan. 31, 2017 email from Weisselberg to Cohen. The email reads: “Thank you. You never stopped in for a bro hug. Anyway, please prepare the Agreement we discussed so we can pay you monthly.”

Why would you have to prepare an agreement so that you could get paid monthly? Blanche asks. In order to get the reimbursement, Cohen explains—the $35,000 per month.

Blanche lowers his voice as if he’s caught Cohen in a trap. But you testified that there would never be an agreement. Yes, says Cohen, seemingly unimpressed by whatever trap Blanche seems to think he’s sprung.

Blanche asks why payments would be signed by Eric Trump and Donald Trump Jr., though we already know why: they were signatories on the Trust account.

Now we're talking email signatures. Starting in 2017, Cohen signed his emails as he always had—except instead of as personal attorney to the CEO of the Trump Organization, now his signature identified him as personal attorney president of the United States. You told everyone about your new role? Blanche asks. Well, not everyone, says Cohen.

You told TMZ? Yes.

You gave a little scoop to the NYT? Yes.

You announced it on Hannity? Yes.

We see Defense Exhibit B261, Cohen's Jan. 27, 2017 goodbye email to the Trump Organization. It’s a pretty typical office goodbye email—nothing exciting here. Cohen seems to have announced to the organization that he would soon be beginning a gig as, yes, the personal attorney to the president.

As Trump’s personal attorney over the course of 2017, Blanche elicits from Cohen, sometimes Cohen would help out on a case, and sometimes he would help Trump find another lawyer with more expertise. A specific instance: In February 2017, Cohen worked with another Trump lawyer, Marc Kasowitz on a series of subpoenas that Trump wanted to issue, including to the State Department. It’s not clear what these subpoenas were about.

What effect did the appointment of Special Counsel Robert Mueller in May 2017 have on Cohen's attorney-client relationship with Trump? None, says Cohen, and says he played no role in selecting Kasowitz.

Were you happy, sad, or indifferent about Trump hiring Kasowitz? Probably happy, Cohen says, and he notes that he wasn't really part of that case or that work, even though he was still formally Trump’s personal attorney.

Cohen confirms that did some legal work for First Lady Melania Trump on an issue regarding Madame Tussaud’s wax museum.

Part of Cohen's job had always been not just legal work, but also helping Trump and his family with any array of issues, right? That’s correct.

Blanche begins to ask about the retainer agreement that Cohen entered into with Weisselberg but an objection from the prosecution is sustained.

How much were you paid every month in 2017 from Trump personally? That would be nine checks, he says, each of which was $35,000, Cohen says. The other two checks were from the trust.

You continued to get paid all 12 months? That was the agreement that was struck?

Yes, correct, says Cohen.

You also did a ton of consulting work in 2017? How much were you paid? Approximately $4 million from six clients.

One of those clients, he says, was AT&T, which paid Cohen $50,000 a month for "consulting and advisory work," on the issue of the company’s proposed acquisition of TimeWarner.

Another client was Columbus Nova—a firm linked to Russian oligarch Viktor Vekselberg—which paid him $80,000 a month.

You never told Trump that you had all these consulting arrangements? An objection is overruled. In fact, Cohen says, it was Trump who introduced the CEO of AT&T to Cohen.

Another client was Novartis, who paid Cohen $100,000 per month in a one-year deal.

How many times did Cohen interact with them in exchange for that? Around six communications the entire year.

That's $200,000 per communication, notes Blanche, a point that Cohen does not resist.

Blanche’s point is that there’s nothing that unusual—given Cohen’s business in 2017—about his arrangement with Trump, in which he was supposedly being paid a huge amount per month for legal work that was, in fact, very occasional. Blanche begins to ask something about the "retainer agreement with Novartis"—but prosecutor Susan Hoffinger objects, and the objection is sustained. It's a consulting agreement, it turns out, not a retainer agreement.

We turn to still more clients. One is Franklin Haney, also introduced to Cohen by Trump, regarding some matter involving the Tennessee Valley Authority and a nuclear power plant.

Blanche’s point is a strong one but he seems to be losing his audience. It’s possible to bore a jury with too-long a list of someone else’s giant no-work contracts.

Blanche now turns to the period when the Stormy Daniels payment story broke in 2018. Cohen told many people—two of Cohen’s friends, Melania, several reporters on the record, others—that Trump knew nothing about it, right? Cohen confirms this.

Now he’s onto Cohen’s encounter with the law at the time of the FBI’s search warrant against his house and office. We see Defense Exhibit B1006: an April 23, 2018 email from lawyer Costello to Cohen, which reads: "Michael, I spoke with the person you asked me to and he said that he would find out exactly how the matter ended up in the SDNY and in particular who in Main Justice approved this." The "person" here is Rudy Giuliani.

Would it surprise you to learn that you communicated with Costello on the phone 75 times? The number seems excessive, Cohen says, but it’s possible.

Would it surprise you to learn that you spoke for more than nine hours with him over the course of a few months? No, sir.

Would it surprise you to know that one call lasted more than one hour and 30 minutes? No.

As we get bogged down in more questions about Costello, we're back to the typical confusing style of Blanche’s cross-examination: scattered questions, jumping around in time, unclear where we're heading. The point appears to be that Cohen was not, in fact, the subject of a pressure campaign at the hands of Costello but was, rather, actively engaged with Costello and was solicitous of his involvement in Cohen’s case.

We backtrack to Cohen's income from consulting, the $4 million. Blanche wants to know: How much is the most money you've ever made in an 18-month period of your life? More than $5 million, Cohen says.

How did you make money between pleading guilty and publishing your book? I didn’t, Cohen says.

Yet though he had no income during that time, Cohen paid tax "deficiencies," legal fees, and living expenses, Blanche elicits.

In fall 2020, faced with mounting costs and few job prospects, Cohen did what so many New Yorkers have done before him, and will continue to do: he started a podcast. But, apparently, he wasn’t done expanding his media empire. Blanche asks: You're also pitching a TV show based upon your life? I am not pitching it, Cohen says, but there is a television show. The proposed name of the show? “The Fixer.”

Justice Merchan, in all of his grace and mercy, cuts in: we're gonna take a ten-minute break.

*          *          *

It's 11:35 a.m., and the parties are back. Justice Merchan is back, Cohen is back. The jury is back. We're all back.

And Blanche is back to the proposed show about Cohen's life, "The Fixer." Cohen says he's also considering a third book, though he's not in negotiations to get paid for it yet. You said that you're considering a run for Congress, Blanche asks. Cohen confirms that he is considering it.

We tack back to Cohen's role as personal attorney to Trump.

Trump trusted you? Yes.

His family trusted you? Yes.

His wife trusted you? Yes.

Part of your job was to give him counsel and discuss legal issues with Trump? Yes.

Hoffinger asks to approach and there’s a sidebar in which the prosecution complains to Justice Merchan that Blanche is “straying now, again” into an advice-of-counsel or presence-of-counsel defense. “Where are you going with this, Mr. Blanche?” Justice Merchan wants to know.

Blanche emphasizes that he’s not making an advice-of-counsel argument, but rather laying the groundwork for arguing to the jury that Cohen’s testimony is unreliable because of the “breach of trust he engaged in” in betraying Trump. “You made that out,” says the judge. “You can leave it.”

Once the sidebar is concluded, Blanche takes a different approach: When did you view your attorney-client relationship with Trump as ending? Hoffinger objects, and Justice Merchan sustains the objection.

We resume discussing the exorbitant amounts of money Cohen made during much of the past decade. A question from Blanche regarding the details of the repayments Cohen received from the Trump Organization results in another objection from Hoffinger and another sidebar. Hoffinger—backed by Justice Merchan—doesn’t want Blanche to get into the question of Cohen’s taxes. Blanche says that he’s trying to focus on the money that Cohen “stole from the Trump Organization” related to the RedFinch payment, but Hoffinger indicates that she would object to this, on the grounds that the question has been asked and answered. “You asked about it a number of times,” Justice Merchan tells Blanche. “I think it’s best to move on.”

Back in front of Cohen, Blanche asks: If Trump is convicted, would that benefit you personally, financially? No, sir, says Cohen.

Then what is your financial interest in this case? His personal interest, Cohen clarifies, is that he talks about the case on his podcast and TikTok.

Blanche asks again: so would you financially benefit if Trump is convicted? "It's better if he's not, for me, because it gives me more to talk about in the future," Cohen says without apparent irony. This gets a respectable laugh from the press in the overflow room.

Blanche asks: Isn't it true that you're willing to lie under oath if it affects you personally? You would lie under oath out of loyalty, correct?

Hoffinger objects, and the objection is sustained.

Blanche rephrases: When you lied to Congress, you said it was out of loyalty to Trump—so restating that, it's true that you would lie out of loyalty, no? Yes, sir, says Cohen.

After a couple of similar questions, Blanche ends his cross-examination somewhat abruptly.

*          *          *

Susan Hoffinger begins her redirect. She has some rehab work to do on a witness who has been bruised during the cross-examination over various parts of his body.

She starts with Blanche's question about whether Cohen testified falsely in Congress in 2019. She thinks Blanche may have confused Cohen by speeding over the dates. Did you testify truthfully in Congress in 2019? Yes, ma'am, Cohen says. It was 2017 when he lied. His initial answer was a mistake.

Another clarification: The defense had asked whether Cohen discussed other matters with Trump on Oct. 26, 2016, in addition to the Daniels issue, and Cohen had said he did not specifically recollect discussing other matters. Now, reminded of this by Hoffinger, Cohen agrees he does not have a specific recollection of discussing other matters, but that he does remember discussing the Daniels matter because it was important to him.

She turns next to how busy Cohen was in October 2016—a matter that Blanche spent some time on. Weren't you busy all the time, not just then? Correct.

Were you too busy to finalize the payment? No.

Were you too busy to get Trump's approval to make that payoff? No.

Why wasn't there a retainer? Because there was no legal work I was to be paid for, so there was no representation agreement.

Did the reimbursement have anything to do with a retainer agreement? No, ma'am.

Did the $420,000 reimbursement payments have anything to do with any legal work you did for Trump or his family? No, ma'am.

Now to the consulting agreements. Did you ever tell Trump that you'd work for only him? No ma'am, Cohen says. 

Back to RedFinch, we get more info on why Cohen hired the firm. The context was a CNBC poll regarding the most famous businessman "in like the last century." At the beginning of this poll, Trump was polling toward the "very, very bottom." Through the acquisition of IP addresses, RedFrinch said that they could create an algorithm to raise Trump in the polls. Trump wanted to end up as number one, but Cohen and RedFinch thought that would be too suspicious, so they settled on his finishing in the top ten. CNBC ended up canceling the poll anyway, so Trump didn't want to pay RedFinch because he didn't feel he had gotten the benefit of what the funds were supposed to go to—even though he ended up finishing in ninth place, thanks to RedFinch.

Why did you keep the $30,000 out of the $50,000 that was supposed to go to RedFinch? "I was angered because of the reduction in the bonus," Cohen says, who said keeping that extra cash was "almost like self help." He admits that it was wrong.

Hoffinger asks Cohen about the Feb. 8, 2018 letter to the FEC that Cohen sent in response to a complaint submitted to the agency regarding news of the Daniels payment. Cohen now says that the letter omitted Trump's involvement and was intentionally misleading. Hoffinger highlights the sentence, "The payment in question does not constitute a campaign contribution or expenditure" and asks Cohen if it was true. Cohen says it was not true.

Justice Merchan instructs the jury that while Cohen pleaded guilty to an election law violation, that fact should not be used to determine Trump's guilt.

Hoffinger highlights another line from a Cohen statement to the press about the Daniels payment: "The payment to Ms. Clifford was lawful and not a campaign contribution or a campaign expenditure by anyone." Was this true? It was not, Cohen says.

Under the  circumstances of the Daniels NDA, was it perfectly legal? No ma'am, says Cohen. In response to another question by Hoffinger, he confirms that Trump personally approved the substance of these falsehoods before Cohen issued them publicly.

There’s a brief sidebar after Hoffinger attempts to ask Cohen about his allocution in federal court regarding the campaign finance charges and Blanche objects. At the sidebar, Justice Merchan agrees with Blanche that for Cohen to revisit these statements for the jury would be “very, very prejudicial.” Hoffinger can’t address Cohen’s guilty plea on the campaign finance charges either, he says.

After the sidebar ends, Hoffinger jumps to the question about whether the outcome of the trial affects Cohen personally: "It may feel like you're on trial...but are you on trial here?" Hoffinger asks. An objection is sustained.

She tries a different approach. Is your liberty at stake? No, ma'am.

Is your wife's liberty at stake? No, ma'am.

When you submitted each of your 11 invoices to the Trump Organization for services rendered pursuant to the retainer agreement, was it true or false that you were billing for services under a retainer? It was false, Cohen says. We lather, rinse, repeat for the vouchers and stubs.

Hoffinger now shows Cohen the waiver agreement he signed and submitted to SDNY prosecutors in 2019 with respect to attorney-client privilege. Cohen reads from it. At the time, Cohen had waived his attorney-client privilege with respect to his communications with Costello, though at the time, he didn't really think any privilege existed. He had waived anyway, he says, in order to answer questions.

She now goes back to when Cohen provided the fake cases to his lawyer, and asks him if he wants to tell the whole story. He says it happened thanks to hallucinations made by Google Bard, which he had used for legal research, having had no access to Westlaw. When he discovered the mistake, his team quickly reported the error to the court, he says.

After a brief sidebar, the ever-punctual Justice Merchan dismisses the jury early for lunch. But before dismissing the rest of us, the judge has something he wants to talk about.

Joshua Steinglass raises the issue of People’s Exhibits 417A and 417B, which are photos of Trump and Schiller together on the evening of Oct. 24, 2016, clipped from C-SPAN, which he wants to introduce to dispel any doubt that they were together then. This is when Cohen called and claims to have spoken to Trump, though the defense suggests he was calling to complain about the 14-year-old stalker to Schiller. The defense objects to admitting it on grounds that it is hearsay.

Blanche is up to push the point: the defense never stated or implied that Schiller was or was not with Trump on that day; instead, he says, we argued that the phone call that was made to Schiller was about a different topic. Further, he argues, both photos have the same hearsay problem, which is that nobody has laid a proper foundation for their admissibility. A paralegal finding a C-SPAN video of a Trump rally and clipping a still image is not good enough.

Justice Merchan says he's not concerned about the material’s relevance, but he wants to look into the hearsay issue, which he says he will study over lunch.

The court adjourns to let us eat and let the judge scarf down a sandwich while considering the hearsay question.

*          *          *

Justice Merchan is back, and he's discussing the People's proposal to introduce the exhibits. Depending on how he rules, a C-SPAN witness may need to make a second trip to New York to testify in the case and authenticate video from the network’s web site. Justice Merchan says he appreciates the case law referred to him by the People during lunch recess, and he also agrees the proffered evidence is relevant—but he just doesn't see how the prosecution can get past the hearsay objection.

The defense’s objection is sustained. Either the images will not come in, or the prosecution’s going to have to haul the poor guy back to New York to testify to what everyone already knows: that this is a real C-SPAN video from a real Trump rally that really occurred on Oct. 24, 2016.

Right now, it sounds like it'll be the latter. The prosecution wants this image in the record, as a response to the notion that Cohen couldn’t have called Trump that day and that the phone call to Schiller must have just been a phone call to Schiller, without Trump getting on the line.

But Blanche objects to that too. In fact, he says he "very much objects." He says we're presumably minutes away from the People resting their case, and the defense has a witness in the back who is ready to testify, and another brief witness after that. This seems to imply some degree of confirmation, at long last, that Trump will not be testifying.

Steinglass says the prosecution is trying its best, and hopes to get the witness here as early as tomorrow morning.

Justice Merchan asks Blanche why adjourning now until tomorrow morning to permit that would be prejudicial.

We take a moment now for the prosecution to reach out to the witness again, to see how quickly he can get here from Louisiana. After a brief pause, the prosecution announces that it has reached C-SPAN, and that the poor beleaguered company is booking travel now for its archive director so that he can be in court by 9:30 am tomorrow.

Blanche registers his continued objection, noting this is the "fifth or sixth time" we have to adjourn early thanks to a prosecution witness.

"Um, that's wrong," Steinglass says, almost laughing, and here in the press gallery, people are definitely laughing.

Justice Merchan recalls stopping early just one time, and for a medical reason. If scheduling were an issue, if time were of the essence, I'd agree with Mr. Blanche, the judge says. But there's no prejudice here. The judge says it's up to Blanche whether he prefers to present the case out of order—that is, to present the defense witnesses now and hear from the C-SPAN guy later—or adjourn court until tomorrow morning. Steinglass says the ball is in Blanche's court, and the defense team asks for two minutes to consult.

Blanche has wandered over to the prosecution table. He kneels down between Steinglass and Hoffinger, his elbows slung on the backs of each of their chairs. The three are in discussion. They seem to be drafting something together.

When he rises, the crisis has been averted. Steinglass says the defense has agreed that the exhibit will come in, and the parties have settled on the following stipulation: “The parties have agreed that Exhibit 417B is a still photograph taken from the end of a video which concluded at 7:57pm on Oct. 24, 2016.”

*          *          *

The jury's now back; Cohen's back; and, as expected, Hoffinger shows Cohen Exhibit 417B: the photograph of Trump and Schiller. It is entered into evidence, and Hoffinger reads the stipulation. Cohen confirms that the picture is of the two men together, as they appeared back in 2016.

Around this period of time, in response to a question from Hoffinger, Cohen says he had a number of conversations with Trump about the Daniels matter, some in person, some by phone, some longer, some shorter.

Approximately how many conversations with Trump about the Daniels matter did you have in October 2016? More than twenty, Cohen says.

Cohen says he reviewed records of the calls in preparation for his testimony, and this helped refresh his memory.

Do you have any doubt in your mind that Trump gave you the final sign off? No doubt.

Would you have paid Stormy Daniels $130,000 had Trump not signed off? No.

Hoffinger now plays People's Exhibit 265, a transcript of which Cohen confirms is accurate after a variety of technical glitches.

Hoffinger says the defense asked Cohen a lot about how he profited off books and podcasts, but setting that aside, how has telling the truth about Trump affected you? My entire life has been turned upside down as a direct result, Cohen says. I lost my law license, my businesses, my financial security, which I was fortunate early to obtain.

You were subject to attacks? Yes.

Have there been effects on you and your family? Very much, says Cohen. His voice quavers a bit.

With that, Hoffinger is done.

Blanche is back up. He asks Cohen about that last question, but wants to know how his life was turned upside down after he changed his opinion about Trump. An objection is sustained. So Blanche asks instead about Cohen losing his law license. Was that Trump's fault? Partly, says Cohen.

Blanche asks whether Cohen lost his license because of the felonies. No, not because of those, says Cohen. It was because of the totality of his conduct, including the campaign finance violations and the lying to Congress he did on behalf of Trump.

Isn't it true that you immediately lose your law license in New York when you are convicted of a felony? Yes.

Yet you still blame President Trump? Correct.

Back to the waiver agreement: Blanche is trying to catch Cohen between apparent inconsistencies in his belief about whether his communications with Costello were privileged at different times.

Now again to the Schiller call following the rally. Blanche asks incredulously whether Cohen really had time to discuss with Schiller the issue of the 14-year-old harasser and the Daniels matter with Trump all in 90 seconds. Cohen says that’s what happened. 

In 2016, you made $425,000 from the Trump Organization? Then in 2017, you were paid $420,000, in the form of $35,000 per month? Correct, says Cohen. Blanche’s implication seems to be that 2017 was just business as usual for Cohen in his compensation from the Trump Organization.

But your testimony is that the $420,000 retainer—or payment you received—was not for legal services but for reimbursement? Correct.

Blanche begins to ask about how in 2016, Trump spent about $70 million of his own money on the campaign, but an objection from the prosecution as out of scope is sustained.

Blanche has nothing further.

At very long last, Cohen is done.

The prosecution rests its case in chief.

*          *          *

The defense calls its first witness—paralegal Daniel Sitko, a cheerful young man with glasses and a light-brown beard.

Blanche starts off with the basics: Where do you work? Blanche Law.

Blanch asks: You work for me? "I do," Sitko says.

Sitko explains his work in creating an Excel spreadsheet that summarizes calls between Cohen and Costello. There are, as Blanche established earlier, a lot of these calls. Many show calls directly between the two men, but others show calls between Cohen and something labeled “DHC.” The spreadsheet—Sitko’s magnum opus—is entered into evidence.

Blanche has nothing further. Rebecca Mangold is up for the prosecution.

We've encountered each other before, right? She is smiling. We work on the same case, right? Mangold is being kind here. However nasty things can get during a trial, paralegals are not fair game. Professionals don’t go after each other’s paralegals.

Yes, says Sitko, smiling back.

Mangold asks a clarifying question about the caller column in the spreadsheet. DHC turns out to stand for Davidoff Hutcher & Citron LLC, Costello’s law firm. She also asks about a number of entries in the chart that show 0:00 for the call duration.This, he explains, denotes an unanswered call.

Sitko steps down, still cheerful. We have a new contender in the contest for America’s Favorite Paralegal.

*          *          *

The testimony of the first defense witness may have been uneventful, but we’re in for some drama yet. Blanche announces: "The defense calls Robert Costello."

An audible gasp washes over the press gallery. Inside the courtroom, journalists sit up straight in their seats and crane their necks.

But there’s nothing to see immediately—because before the witness makes his appearance, Hoffinger asks to approach the bench, and a sidebar ensues. With apologies, Justice Merchan asks the jury to step out so he can discuss the sidebar matter with the parties in open court.

“I do wish we had discussed this earlier,” he begins.

Hoffinger stands to reiterate the prosecution's objection: that Constello is being brought in to offer extrinsic evidence to rebut a witness's testimony. Hoffinger says that Costello's testimony should be restricted to two specific portions of the subject matter that Cohen had testified to with respect to Costello on direct examination—issues on which Cohen’s prior testimony has been inconsistent. Specifically, Hoffinger is referencing Cohen’s testimony that he didn't recall Costello telling him in their first meeting that Cohen ought to cooperate with the investigation of Trump, and that he didn’t recall saying to Costello that he had no negative information to share about Trump. Further, Cohen testified that on numerous occasions, he didn't tell the truth to Costello, out of fear that information would get back to Trump, so Costello’s testimony may not be reliable.

Bove says that the defense provided notice days ago of their intention to call Costello—there's no mystery here. He's seeking to elicit many facts about how Costello and Cohen's "engagement worked."

As Bove makes his case, Justice Merchan pushes back: How can Costello testify as to how Cohen felt? Or to Cohen's state of mind?

After a five minute break, Justice Merchan announces his ruling as to Costello. The defense can definitely cross-examine him as to the two prior inconsistent statements, and I'll give you some latitude to offer some rebuttal as to the pressure campaign—but I'm not going to allow this to become a trial-within-a-trial, he says.

The jury returns.

Costello enters in a dark suit, pink-faced with snowy-white hair, and takes the stand. Asked to state his name, he says: "Robert"—he stops, having startled himself—"that's awfully loud. Robert Costello."

Bove begins. Prior to working at Davidoff Hutcher & Citron, Costello was a federal prosecutor in the Southern District of New York.

Does he know Michael Cohen? Yes, he does.

Did you consider your conversation at the Regency Hotel with Michael Cohen to be attorney-client privileged? An objection is sustained, but Costello continues to answer anyway, talking over the judge. "Absolutely," he says.

Sustained, Justice Merchan repeats, and strikes the answer from the record.

At the hotel in the meeting with Cohen and Citron, Costello says that Cohen was absolutely manic, pacing back and forth, and that he asked Costello what his options were. Costello says he pointed out that a search warrant of a law office is much more difficult to get than any other place. Another objection is sustained.

Hoffinger is quick on the draw during this objection watch. She's on high alert. After two more sustained objections, Bove says he just wants to stay narrow.

Costello says that he explained that this entire situation would be resolved by the end of the week if Cohen had truthful information on Trump and cooperated with the southern district prosecutors.

Did the topic of Stormy Daniels come up?

An objection is overruled.

Costello says that Cohen began by saying that he didn’t understand why they're trying to put me in jail for some effing NDA. He continues, but another objection is sustained.

Did Trump's family come up? Yes.

What did Cohen say about Trump's family?

Yet another objection is sustained. The judge calls counsel up to the bench. “Respectfully,” says Steinglass to Justice Merchan, Bove is now doing “exactly what you just told him not to do.” Justice Merchan seems annoyed with the witness. “Right now what's happening is you are asking these questions, and he's going off, and he is telling a story,” he says to Bove. The defense needs to tighten things up. “Just get to the question you want to ask.”

While they talk, Costello is mugging for the courtroom, shaking his head and grimacing.

Bove's now back, and we're still focused on the Regency meeting. Bove says he wants to focus very narrowly on whether Cohen said anything about whether Trump knew about the payment to Daniels. Cohen said numerous times that Trump knew nothing about those payments, Costello says, that he did this on his own.

Was Rudy Giuliani mentioned? An objection is overruled. Yes, Costello says, but only briefly.

Bove shows the email from Costello to Cohen (copies to Citron) from April 18, 2016: "I am sure you saw the news. Rudy is joining the Trump legal team. I told you my relationship with Rudy, which could be very very useful to you."

We see Cohen's response: "Great news for Rudy. I know I owe you a call. I have been working with lawyers all day and just now am coming up for air. I will try you tomorrow." Costello says he took that to mean that Cohen was with another firm going over evidence that had been seized in the search warrant and they were presumably identifying documents that were attorney-client privileged.

More objections are sustained.

"Jeez," Costello says into the mic, sounding exasperated.

There are laughs in the gallery. But inside the courtroom, Justice Merchan is not laughing. He fires at Costello, "What did you just say?"

"Strike it," Costello responds.

Another faux pas. Witnesses don’t get to strike things. Only judges can do that. It's tense in the courtroom.

We see the email from earlier from Costello to Cohen. Bove asks another question. Another objection is sustained.

Costello dramatically blows out a puff of air into the mic in a kind of performative exhaustion.

Justice Merchan excuses the jury once again. The jurors are getting their steps in today. After the courtroom is cleared, the judge remains still, watching Costello closely.

“Mr. Costello, I would like to discuss proper decorum in my courtroom,” he begins. His voice is as quiet and measured as always, but he’s clearly frustrated. “So, when there is a witness on the stand, if you don't like my ruling, you don't say ‘Jeez,’ okay? 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?”

“I understand,” mutters Costello. The courtroom is silent. Nobody moves.

“Okay,” says Justice Merchan. He’s starting to get a little more animated, a little more obviously angry. “And then, 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?”

“I understand that,” acknowledges Costello. “I understand what you're saying.”

“Okay,” says the judge. “Thank you.”

The judge calls for the jury to come back in, and it seems like the moment of danger has passed. But we’re not quite in the clear yet. Costello is still watching the judge closely, managing to look pugnacious even while sitting unmoving in the witness stand. Now Justice Merchan seems to have noticed. He turns toward Costello. For a long, long moment, the two of them stare at one another.

“Are you staring me down right now?” the judge says, in a tone of disbelief and anger.

Costello tries to save himself. “No, I’m just wondering—” he manages, but Justice Merchan is done. “Clear the courtroom, please,” the judge barks. “Clear the courtroom.”

There’s chaos and confusion as the press and the public are funneled out of the courtroom and into the hallway. Some journalists, including a lawyer representing a media coalition, object: “This is an open courtroom!” they declare. But the court officers are not interested in negotiating. Journalists mill around in the hall in front of the C-SPAN camera, gripping their laptops. The officers waiting in the hall, typically decisive, seem uncertain about what to do.

Behind the closed doors, the courtroom is now empty except for the judge, the witness, the prosecution, and the defense, along with Trump’s retinue along the two front benches.

Justice Merchan begins by acknowledging the scuffle that just occurred. The press will have access to the record of these proceedings, he says. But the upset “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. If you try to stare me down one more time, I will remove you from the stand.”

To the defense, the judge says, “I will strike his entire testimony, do you understand me?”

“Yes, Judge. I understand,” says Bove.

“Can I say something, please?” Costello tries.

“No,” says Merchan. “No. This is not a conversation.”


“All right,” says Merchan. And then, to the court officers, he asks that the press be brought back in.

The doors to the courtroom open. Journalists pour back into the room. Court officers are shouting, “Same seats! Same seats!”—like teachers trying to herd elementary schoolers back onto a bus after a field trip. Up on the bench, Justice Merchan seems to have regained his composure and once again surveys the courtroom with his usual poise. Below him, Costello sits silently on the witness stand.

“Let's get the jury in, please,” the judge says.

The jurors file back in, having missed all of this drama. Bove is back at the lectern. Smoothly, as if none of the preceding chaos had ever occurred, he begins questioning Costello about Defense Exhibit 1008, which is a May 16, 2018 email from Costello to Cohen, the bottom of which reads "I will not pester you. If you want to talk you know how to reach [Citron] or myself."

Bove asks what Costello meant by those last lines, and Costello begins to answer, but he starts pretty far afield. Hoffinger objects. The objection is sustained, and the answer is stricken. The courtroom is definitely calmer, but Bove is still off to a rocky start.

We now see a splitscreen of the email and a call log between Cohen and Costello. Next, there’s another email from Costello to Cohen, which features the line, "Please remember if you want or need to communicate something, please let me know and I will see that it gets done."

What did you mean by that? Bove asks. Hoffinger objects but is overruled. Costello explains that he was telling Cohen that if he had a message, he'd pass it on to Giuliani.

Did you ever pressure Cohen? Try to get him to interact with Giuliani in any way? No and no, says Costello.

Did Giuliani ever try to pressure you to get information from Cohen? Hoffinger objects and Justice Merchan sustains her objection. Bove tries again: Did you ever perceive pressure from Rudy? Again, a sustained objection. This time, though, Costello decides to answer anyway, with a flicker of his previous defiance: No, he declares.

Hoffinger moves to strike his answer, and Justice Merchan announces that the answer is stricken. (At least Costello didn’t try to strike it himself this time.)

Bove goes on: During your interactions with Cohen, did you consider him to be a client? Absolutely, says Costello.

Whose interests did you have in mind? Exclusively Michael Cohen’s.

Before Bove sits down, he asks, we've met before, right? Yes, says Costello, and he confirms that he also met with state and federal prosecutors and handed over documents to them.

Nothing further from Bove. Hoffinger is up. She begins by asking Costello about an email sent by his law partner Jeff Citron. On April 17, 2018, Citron reached out to Cohen by email to see if he'd be interested in meeting with Costello, correct? No, says Costello. “The email speaks for itself.”

Okay, let's take a look then, says Hoffinger, showing him People's Exhibit 512P. Accepted into evidence, we see the email, "extolling" Costello's achievements and famous clients, says Hoffinger. She asks, weren't you hoping to have Cohen as a client? I wasn't hoping for anything, snaps Costello. It's not my email. "I didn't know Michael Cohen from a hole in the wall."

But you knew of Cohen at the time based on the news that Cohen was Trump's personal attorney? Yes.

And if you could land him as a client that would be a big case for the firm? I suppose so.

And would get you public exposure? Yes, it would.

It would be a high-profile case? Probably.

This would push you into the arena with Rudy Giuliani and Trump, having Cohen as a client? Costello says he doesn’t understand the question, and Hoffinger withdraws it.

We see another email, from Costello's son, who says in response to the news that Costello has landed Cohen as a client: "Wow. That's big news. Congrats, Dad. I hope this leads to a lot of good things coming your way."

Now Hoffinger goes back to the Regency Hotel meeting. Cohen was suicidal that day, and acting very manic, Costello says. Hoffinger asks whether as a criminal defense attorney, Costello can understand how traumatic a search is.

But Costello doesn’t answer right away. Instead, he points at Hoffinger and instructs her, "Talk into the microphone, please.”

“Oh, I’m sorry,” says Hoffinger with a brusque lack of interest. She repeats her question. This time Costello acknowledges that, sure, he gets it. 

He says that Cohen told them that two nights before, he was on the roof of the Regency Hotel and that he was going to jump off because he couldn't handle the ongoing investigation.

"Did you tell the grand jury that Cohen was acting like a drama queen?" Hoffinger asks.

But we’ve had enough drama for today, and Justice Merchan—who is not a drama queen—stops the proceedings there. Before we leave, he asks Hoffinger how much more time she will need with Costello, and she estimates that she has about 30 minutes left. Bove says the defense expects a quick redirect. The defense also doesn't expect to call another witness after Costello, he says—thus effectively confirming that Trump will not be testifying.

Blanche now rises for one more matter: he moves for an order of dismissal because, he says, the prosecution has presented its case and there's no evidence the business records were false. He continues to rattle off a few reasons why this case should not go to the jury. He attacks the notion that there was a catch-and-kill scheme or that, if there was, it was criminal. For the underlying predicate crime that bumps this up to a felony, Blanche says, there's no evidence of criminal intent among any of the parties in 2016 and 2017. What’s more, there's no way the jury should deliberate based on Cohen's testimony. While Blanche talks, Trump, who has been sitting with his eyes closed for most of the day, turns toward his lead defense counsel and watches him closely.

Justice Merchan prods Blanche: So you're asking me to find Cohen not credible as a matter of law? That is exactly what I’m asking, Blanche exclaims.

So you want me to take it out of the jury's hands, asks Justice Merchan, and decide before it even gets to the jury, that this person is so not worthy of belief that it shouldn't even be considered by the jury? We didn't just catch him in a lie, Blanche says. He came in here with a history of lying.

Colangelo rises for the prosecution and begins picking apart Blanche's flurry of arguments. First, he says, the prosecution has presented evidence of the falsity of the records. Second, it has provided evidence of Trump’s intent to defraud, both in the sense of a general intent to deceive and of an intent to defraud the voting public and government regulators. And third, the jurors have heard “weeks and weeks of testimony” concerning Trump’s intent to commit, aid in the commission of, or conceal the commission of an object crime.

Justice Merchan takes the motion under advisement. And with that, we’re adjourned.

May 21, 2024

It’s Day 20 of Trump’s New York criminal trial and, barring any surprises, likely the last day of the presentation of evidence. But if the surprises of the trial’s previous 19 days are any indication, it’s best to reserve judgment until Justice Merchan leaves the courtroom.

Earlier this morning, the defense’s campaign finance expert witness, Brad Smith, said that he would not testify—leaving only one more potential witness, Trump himself, whom the defense has all-but-said will not be testifying.

But first, the defense’s second witness, Robert Costello, will take the stand to finish the disaster that he started yesterday. 

It’s 8:55 a.m., and America's Favorite Paralegals arrive, bright-eyed and bushy-tailed, to set up for the prosecution.

About twenty minutes later, Assistant District Attorneys Susan Hoffinger, Joshua Steinglass, and Matthew Colangelo walk in, offering a hearty good morning to their colleagues already in the courtroom Christopher Conroy and Rebecca Mangold tail them, not far behind.

At 9:23 a.m., Trump walks into the courtroom, immediately spots NBC’s Andrea Mitchell, points at her, and mouths something in her direction.

His enormous entourage trails behind. Today’s dramatis personae has new faces and recurring characters alike, including Donald Trump, Jr., Matthew Whitaker, Pam Bondi, Sen. Eric Schmitt, Rep. Daniel Webster, Rep. Dan Meuser, Rep. Ronny Jackson, Rep. Troy Nehls, Rep. Dale Strong, Rep. Maria Salazar, Sebastian Gorka, Chuck Zito, Joe Piscopo, and Bill White. It takes the group some time to all file in and find their seats in Trump’s rows. Trump’s defense team—Todd Blanche, Emil Bove, and Susan Necheles—mingles with the entourage.

At 9:28 a.m., it’s resplendent-in-robes time, and Justice Merchan walks in.

Steinglass makes the typical introductions for the prosecution, and Bove for the defense.

The judge greets counsel and the defendant. “By the way, I did receive your submission,” he says, thanking each side for what the press can only assume are the much-anticipated proposed jury instructions. He then asks whether the parties can “do the same for the other submissions of the charges,” confirming the press’s suspicions.

With nothing else to discuss, we’re ready for the witness. While we wait, Steinglass asks the judge whether he would like to ask the jury about their availability next Wednesday. He would.

Costello walks in and retakes the stand. After the previous day’s standoff, the atmosphere is immediately tense.

"Good morning, Mr Costello, welcome back," Justice Merchan says measuredly. ”I remind you that you are still under oath.”

After the jury returns, Hoffinger retakes the lectern to resume cross-examination.

Hoffinger and Costello greet each other good morning, and that’s just about it for pleasantries.

When we left off yesterday, she says, we were discussing that Cohen ended up hiring another lawyer to represent him in connection with the Southern District investigation instead of Costello. That’s correct, answers a poker-faced Costello.

Hoffinger shows Costello an Aug. 8, 2018 email in which Cohen asks Costello to cease contacting him and asks whether Costello provided the email to her office. “I provided a lot of emails to your Office,” Costello snaps back at her.

Unphased, Hoffinger thanks him and keeps moving.

The subject of the email reads “Statement of Account”—apparently Costello's firm was sending Cohen bills. “And you were upset that he had not paid you; right?” Hoffinger asks.

“I did—I was,” Costello responds, and begins to add, “We also replied to this—” but Hoffinger cuts him off. That’s all she wants to know, and she’s in control.

She takes us back to Costello’s first meeting with Cohen at the Regency Hotel on April 17, 2018. Tensions begin to flare up as Costello attempts to correct Hoffinger, instead of answering her questions:

Hoffinger: You discussed with him, at that very first meeting, how connected you were to Rudy Giuliani; correct?

Costello: That's not true.

Hoffinger: Well, didn't you tell him at the first meeting that your relationship with Rudy Giuliani would be useful to him?

Costello: No. That was not the first meeting. You are quoting from a different email that is—

Hoffinger: I'm just asking you a question?

Costello: That is much later.

Hoffinger: I'm not quoting from an email yet. And I'm just asking you a question and you said, “No;” is that correct?

Costello: I said "No," that's correct.

After some cross-talk, Hoffinger reasserts control. Costello confirms he is “very close” to Giuliani, that the two men have known each other for 50 years, and that Giuliani even went to Costello’s wedding.

Hoffinger now reads for the jury an email Costello sent to Cohen, in which he wrote, “I'm sure you saw the news that Rudy is joining the Trump legal team. I told you my relationship with Rudy, which could be very, very useful for you.”

“Now, when you said, ‘I told you my relationship with Rudy,’ didn't you mean that you had told him that at that first meeting—” Hoffinger begins to ask, but Costello cuts her off with a “no.”

After another denial, Hoffinger shows a different email, from Costello to Citron, with a link that said “Rudy Giuliani to join Trump team” and a message that reads, “All the more reason for Cohen to hire me because of my connection to Giuliani, which I mentioned to him in our meeting.”

The email could not more perfectly refute Costello's answers. Still, Costello remains obstinate on this point, so Hoffinger hauls more emails with Costello’s words in front of him.

That email speaks for itself, right? says Hoffinger, referencing one of Costello’s retorts from the previous day.

I'm sorry? Costello asks, slightly taken aback.

The email speaks for itself; right, sir? Hoffinger repeats.

“No, not quite, because there are surrounding circumstances—” Costello begins to say, but Hoffinger butts in with an “uh-huh.” The witness plows ahead anyway, “—about that email, which I will be delighted to tell you about.”

“That's all right,” Hoffinger says sarcastically, shrugging him off and getting a good chuckle from the courtroom gallery in the process. This, in turn, gets a stern "quiet" from a court officer.

Hoffinger briskly turns to another email Costello sent Cohen, in which he wrote, “Sleep well tonight. You have friends in high places,” and added, “P.S., some very positive comments about you from the White House.”

Yes, this referred to Trump, Costello confirms.

Hoffinger reads another, much longer email from Costello to Citron with the subject line, "Call to Cohen," and she blows up the last paragraph: “Our issue is to get Cohen on the right page without giving him the appearance that we are following instructions from Giuliani or the President. In my opinion, this is the clear correct strategy. We must reverse the Avenatti effect and restore this to a far more simple investigation of things, that while they might not look good politically and [sic] nevertheless legal.”

“You sent this email to your partner, about your goal of getting Cohen to follow instructions from Rudy Giuliani and the President without it appearing so; correct?” Hoffinger asks.

No, not to follow instructions, Costello says, “but to get everybody on the same page, because Michael Cohen had been complaining, incessantly, frankly, that Rudy Giuliani was making statements in the press that Michael Cohen didn't approve of—” Hoffinger cuts him off and thanks him, but Costello barrels on anyway, “—and that's why I said to him, if you really feel that way, make it known and tell me, and I will tell them.”

Hoffinger thanks him again, and turns his attention to another email from June 13, 2018, in which Costello told Cohen, “my friend has communicated to me that he is meeting with his client this evening” and “that if there was anything that you wanted to convey, you should tell me, and my friend will bring it up for discussion this evening.”

These emails are Costello attempting to establish the Cohen-Costello-Giuliani-Trump backchannel in real time.

After some civil back and forth, another tense moment arises:

Hoffinger: You felt that you had been played by Michael Cohen; correct?

Costello: Yes. Do you want me to explain it?

Hoffinger: No, sir. Because you had not been paid; is that right?

Costello: No.

Hoffinger: Okay. Isn't that what you meant by "being played?"

Costello: No. Now you do want me to explain it?

Hoffinger: No, sir.

Costello: When I said "being played"—

Hoffinger: Excuse me, sir.

“Judge, let him finish answering,” Bove says. “There is a pending question.”

But Justice Merchan waves him off. “There is no pending question,” he says.

Hoffinger shows more emails from Costello to Cohen—it's a full court press. He talks about the liberal media—"They want you to cave. They want you to fail"—and keeps trying to convince Cohen to talk to him. This is meant to corroborate the alleged "pressure campaign" that Cohen spoke about.

Finally, Hoffinger dramatically lands on another of Costello’s emails, this one to Citron about Cohen: “[H]e continues to slow play us and the President. Is he totally nuts??? . . . What should I say to this asshole? He is playing with the most powerful man on the planet.”

“Now, that email certainly speaks for itself; does it not, Mr. Costello?” Hoffinger asks, though it sounds like a rhetorical question at this point.

“Yes it does,” Costello answers.

Hoffinger asks whether Costello lost control of Cohen when he pled guilty.

“​​I certainly didn't have any control when he pled guilty,” Costello says.

Hoffinger ends by asking Costello why he testified to Congress on May 15. “And it was an effort by you, wasn't it, to try to intimidate Michael Cohen while he was testifying here; isn't that correct?” Hoffinger fires at him.

Intimidate Cohen? Costello asks. That's ridiculous, no.

Nothing further your Honor, says Hoffinger.

Bove steps back up and calmly displays an email from Cohen to Costello, in which Cohen said ""Please cease contacting me as you do not and have never represented me in this or any other matter." Is that true or false? Bove asks.

False, Costello answers quickly.

Now Cohen's signed waiver agreement, which read "at no time did I sign a retainer or otherwise agree to retain Costello"—this would be a false statement? asks Bove.


Yes, false, says Costello.

Now the "we have been played here" email, what did that mean?

Cohen constantly referred to a retainer agreement he stuck in his briefcase, every time Citron asked him if he signed the waiver he'd give an excuse, and made them believe Cohen paid another firm.

Were you concerned that you were representing Cohen but he wasn't signing the retainer agreement? asks Bove.

Yeah sure, says Costello.

At least one member of the jury takes notes as Bove questions Costello. Most others just watch on closely, pen in hand.

Bove shows an email from Costello that he had marked "attorney-client privilege," then transitions to discuss the "backchannel"—a word first used by Rudy Giuliani, who gave the reason that Cohen didn't want this to be public.

Another objection now, beyond the scope—sustained—Bove says this was inquired about on cross—sustained.

After a sidebar, Bove pulls up People's 208, the long email Hoffinger asked about minutes ago, especially a line in which Costello says something is "totally up to you" to Cohen. Did you ever pressure Cohen to do anything? Bove asks. Did you ever have control over Cohen?

No and no, says Costello.

Does a lawyer ever control—Bove starts to ask, but objection, sustained. I want to ask about how you practice law—Bove restarts but it’s another objection, sustained.

After two more objections in quick succession, Costello looks askance at Justice Merchan, then back forward, and subtly rolls his eyes and shakes his head.

It's a shade of yesterday's pugnacious Costello, but ultimately he restrains himself.

Bove is done, but Hoffinger says she has two more questions, which turns out to be three: You said that you gave Cohen a retainer agreement weeks later after meeting with him on May 3? Citron gave it to him, but I was in the room, says Costello. After Hoffinger shows Costello the retainer agreement, she asks, Cohen never signed it? Correct. And he never paid you? Correct.

And that's it for Costello. He steps out, and with that, the defense rests. Long suspected, now official: Trump will not testify.

Merchan addresses the jury: normally they would hear summations at this point, but there's no way to do what needs to be done in a cohesive manner—it would be too broken up. So, he excuses them until Tuesday, the day after Memorial Day.

As for the rest of us, he excuses us only until 2:15 p.m.

As Trump walks out, he smiles briefly at Andrea Mitchell. Among the big entourage, Sebastian Gorka carries a metal briefcase with what appears to be the U.S. presidential seal on the side.

*          *          *

After lunch, members of the press shuffle past the magnetometers on the 15th floor of the Manhattan criminal courthouse. The jurors have been excused until next week, but we’re back in court for an afternoon hearing that could play a decisive role in determining the fate of the former and would-be president.

At the hearing, known as a “pre-charge” conference, Justice Merchan will hear arguments on the parties’ proposed “jury charges,” meaning the instructions provided to the jury after closing arguments and before they deliberate on the verdict in Trump’s case. While the jurors in a criminal trial are the finders of fact, it’s up to the judge to explain the law—to provide instructions on what the law means, how the jurors should apply the facts to the law, and what the jurors must find in order to convict Trump of 34 felony counts for falsification of business records.

The basic contours of what Justice Merchan will tell the jurors sometime next week are uncontroversial. To return a guilty verdict, he will say, the jurors must find that the prosecution proved the individual elements of the charged crimes beyond a reasonable doubt. Here, that means that for each of the 34 counts of falsifying business records charged against Trump, the prosecution must prove that Trump caused the entry of false records, that he did so with intent to defraud, and that his intent to defraud included an intent to commit, aid, or conceal another crime.

With respect to this latter element, Justice Merchan is also likely to instruct the jurors on the so-called “object offense'' that Trump allegedly intended to commit, aid, or conceal when he caused the cooking of the Trump Organization books. During pre-trial proceedings, the judge permitted the prosecution to pursue three theories related to that underlying crime: tax fraud, a violation of campaign finance regulations, or a violation of a New York state election law crime. As the trial has unfolded in recent weeks, the prosecution seemed to be zeroing in on one of those options, in particular: New York Election Law § 17-152, a misdemeanor offense that prohibits “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.”

But as the clock ticks toward the scheduled 2:15 p.m. start time for today’s pre-charge conference, the specific issues on the agenda remain somewhat murky. While both the defense and the prosecution have each filed proposed jury instructions, those proposals have not yet been made available to the press or the public. Indeed, even as we write this, the underlying submissions are still not public, so we are working off of the words spoken at the hearing without access to the source texts to which the parties referred. It’s a little bit like hearing a Bible study class without a copy of the Bible.

Justice Merchan, ever prompt, enters the courtroom at 2:15 p.m. He greets the parties to the case and spectators in the gallery: “Good afternoon.”

Thank you for submitting your jury instruction proposals, the judge begins.

Let’s start with the proposed instructions on the Federal Election Campaign Act, he says. He notes that the defense requested that the word “willfully” be inserted twice in the first paragraph of its proposed instructions. This is hard to follow for those of us who don’t have copies of the first paragraph, or any paragraph, referenced by Justice Merchan.

The judge opens the floor to Bove to address the matter. The crime at issue in this case requires an intent to commit or conceal another crime, Bove explains. That other crime, “we now know,” is New York Election Law § 17-152, he says. As Bove tells it, the election statute is now positioned as the sole “object offense” in the People’s theory of the case. In other words: The prosecution apparently intends to ask the jurors to find that Trump falsified business records in order to commit or cover-up a conspiracy to promote his election to the Presidency by “unlawful means.” The other potential object offenses—tax fraud, federal campaign finance violations—have been sidelined.

But the Federal Election Campaign Act remains relevant to the case, Bove explains, because § 17-152 requires that the conspiracy be carried out by “unlawful means.” And the prosecution has alleged that one of those “unlawful means” is a FECA violation related to AMI’s payment to Karen McDougal or Cohen’s payment to Stormy Daniels.

The problem, argues Bove, is that a violation of FECA can be either civil or criminal, or both. And criminal culpability for a FECA violation requires a much higher mens rea requirement—a person must “willfully” violate the statute.

All of which is why the defense wants the term “wilfully” included in the jury instructions on FECA. As Bove explains, omitting the “willful” language might otherwise suggest to the jurors that a mere civil campaign finance violation could constitute the “unlawful means” required under § 17-152.

“It would allow the jury to think about the predicate offense and the objects of this predicate offense in civil terms, and put President Trump in a position where this jury could convict him based on a flawed finding of some kind of intent to conceal a civil conspiracy,” Bove says.

Bove’s bottom line argument, which he repeats several times, is that for a conspiracy to be criminal you need a criminal object.

Colangelo is up now on behalf of the People, explaining that "unlawful means" under § 17-152 doesn't mean criminal—it means “violation of law.” He cites case law to that effect, including People v. Ivybrooke Equity Enterprises. And he adds that when the legislature intends to refer to a crime when drafting a statute, it knows how to do so. “The legislature could have enacted the statute that referred to a conspiracy to promote or prevent election by criminal means, but, instead, it chose the word unlawful,” he says. For those reasons, Colangelo concludes, there’s no reason to think the statute requires “criminal unlawful means,” and there’s no need to add the word “willful” into the FECA instructions.

After Bove reiterates his arguments on the matter, Colangelo expands on the prosecution's position with respect to the “unlawful means” instruction. The falsifying business records offense is committed when the defendant has the intent to defraud and that includes the intent to commit or aid or conceal in the commission of  another crime, he reminds Justice Merchan. But, the object crime doesn't need to be  completed, and there are cases in which the defendant was acquitted of the object crime. For that reason, he continues, we think it makes more sense for the court not to burden the jury with “excessive verbiage” regarding a single element of the predicate of the charged offense.

Justice Merchan, for his part, says that he’s reserving judgment on the “wilfully” issue. So we move on.

The next disputed area involves a request from the defense for an instruction that in 2015 and 2016, there was no limit on a candidate's ability to contribute personal funds to his or her campaign.

 Justice Merchan asks Bove: Why do you need that instruction?

Bove’s reasoning is a bit muddled. We want the jury to have a full picture of what constitutes "contributions" and "expenditures,” he says. While acknowledging that “the third party issue” is significant in this case, he says that “President Trump's mental state and the government's burden of proof on his mental state also matters.” To that end, he continues, the defense wants the jury to understand that as someone in President Trump's situation evaluated potentially or allegedly proposed payments by third parties—like Cohen or AMI—part of that evaluation would involve an understanding that he could have paid out of his personal accounts without issue.

Colangelo, for his part, replies that the requested instruction is “extraneous and totally irrelevant to the facts of the case. This case is not about a candidate's use of his own personal expenses for his campaign or other purposes. So, the instruction has nothing to do with the case, he contends, and it would be confusing to the jury.”

Justice Merchan sides with Colangelo. “I don’t think there’s really a reasonable view of the evidence here that requires that instruction,” he says. While noting that the defense is free to argue in summation that Trump could have paid for this himself, Justice Merchan thinks that point doesn’t need to come from the bench in the form of a jury instruction. For that reason, he decides to strike the defense’s proposed instruction on a candidate's personal campaign contribution.

Justice Merchan moves on to more FECA instructions. The defense is seeking an instruction that “the purpose of influencing an election” requires proof that the activity “clearly and unambiguously” related to Trump’s 2016 campaign. As Bove explains it, the defense wants to make clear to the jury that there is a zone of First Amendment protected activity involved in the analysis. “We think it's necessary for the jury to understand that point, so that we can make arguments around the fact of people's mental state as they were thinking about these things in 2016,” he says.

Colangelo argues that this is irrelevant, superfluous and an inaccurate statement of the law.

Justice Merchan clarifies the People’s proposed instruction on this point.  “So, what you’re suggesting is that the paragraph simply read: The terms ‘contribution’ and ‘expenditure’ include anything of value, including any purchase, payment, loan, or advance made by any person for the purpose of influencing any election for Federal  office; period?”

Correct, Your Honor, Colangelo replies.

I agree, Justice Merchan says. The defense language could make the instructions confusing, he says, and we want to make it as easy as possible for the jury.

Justice Merchan now moves to the next paragraph in the proposed instructions, in which the People have made a request for the following language: “A candidate for Federal Office does not have to be the sole or only motivation for the third-party's payment, so long as the payment would not have been made but for the  candidate's status as a candidate for Federal Office.”

Colangelo explains that the prosecution wants this language to help explain to the meaning of the "irrespective of the candidacy" test, which holds that a payment should not be treated as a campaign contribution under FECA if the payment would have been made even in the absence of the candidacy.

First, Colangelo argues that the “gloss”  identified in this additional sentence is language directly from an FEC advisory opinion, which is a binding and definitive interpretation of FECA issued by the Commission. Second, he continues, there has been factual testimony regarding the different motivations people had for paying Karen McDougal and Stormy Daniels. Given that will likely be a contested point in summation, the prosecution thinks that it’s important for the jury to receive some additional explanation about what it means for a third party to pay someone’s personal expenses and whether he would have done it irrespective of the candidacy.

Bove replies that the language requested by the People relies on an FEC advisory opinion that didn’t involve any inquiry into the subjective intent of the person making the payment. So he doesn’t think it would be appropriate to use the language from that advisory opinion here, as it wouldn’t support inviting the jurors to make an analysis involving mixed motives behind the payments in this case. However, Bove continues, the defense has proposed additional language that would provide the jurors with examples of how the FEC has applied the irrespective test.

Justice Merchan reads part of the defense proposal into the record:

There are a number of issues arising with a candidate's personal situation that may become campaign issues, that expenses arising from such controversies are not necessarily campaign expenses.

The political impact of legal issues on a campaign would not, by itself, justify the treatment of any legal expenses as campaign related. Legal expenses are not campaign related unless the underlying activities have some impact on the campaign.

If the payment had been made in the absence of the candidacy, the payment should not be treated as a contribution.

When he’s finished reading, Justice Merchan observes that the very last sentence proposed by the defense is similar to the sentence proposed by the People. The examples provided in the middle are confusing, he says. Why don’t we just leave in that very last sentence: “If the payment would have been made, even in the absence of the candidacy, the payment should not be  treated as a contribution.”

Colangelo says he thinks that sentence proposed by the People is a better explanation of the “irrespective” test. But if the judge goes with the sentence he just read aloud from the defense proposal, he thinks it should be modified to make reference to a third-party payment. Those are the circumstances we’re talking about in this case, he reminds the judge.

Justice Merchan says he’s inclined to split the baby: He wants to insert a sentence proposed by the People as well as the last sentence in the paragraph proposed by the defense. And he wants to remove the examples requested by the defense. But while that’s his inclination, he says he’s reserving decision on the matter.

Moving to the final matter on FECA definitions, Justice Merchan discusses the parties’ proposed language regarding the “press exemption,” under which federal campaign finance law does not apply to the expenses involved in press coverage of a campaign. He explains that the defense requests the following language: “This is called a press exemption, given that the press function is a broad concept—for example, the term "legitimate press function" includes solicitation letters, seeking news subscribers to the publication.”

I don’t have a major problem with that language, Justice Merchan says. Why don’t we just strike the phrase “legitimate press function is a broad concept” and leave the rest?

Bove says that would be fine with the defense, but Colangelo objects on behalf of the People. The prosecution agrees that the “broad concept” language should be stricken, he begins, but there’s other language included in the defense proposal that is “unnecessary.”

In particular, the prosecution feels that the jurors will likely be able to understand the meaning of “normal and legitimate press function” without needing additional instruction or explanation. And the examples of the press function provided by the defense proposal–”sending solicitation letters, seeking new subscribers”—are confusing, because they have nothing to do with this case. It’s hard to see how those examples help the jury understand what a legitimate press function means, Colangelo continues, and it’s odd to select those examples over other ones. If the court is inclined to provide examples, we think he should be something more closely related to the facts of this case, he concludes.

Bove responds: The issue, judge, is that the concept of a “normal and legitimate press function,” as defined by the FEC, actually is a very broad concept. He explains that the defense proposed “attenuated” examples in order to stay away from the facts of the case so that the jurors can have a sense of the breadth of the concept, while at the same time avoiding legal instruction that serves as a metaphor one way or another with respect to the facts of this case.

I think we're better off staying away from any facts too close to parallel the facts of this case, Justice Merchan says. “I don't see any prejudice to the People in any way by saying: Listen, sending out solicitation letters,  seeking new subscribers would be a legitimate press function.” So that’s how we’re going to go with that one, he declares with an air of finality.

Justice Merchan next turns to the question of “accomplice as a matter of law” in a discussion that is almost completely incomprehensible without access to the source text.  He says that “it really comes down to the same thing, three times over again, of the Defense is requesting that the phrase ‘participated in the crime’ be used and that the name ‘Cohen’ be used.” By contrast, the prosecution is “requesting that the term ‘participated in’ and ‘was convicted of two crimes’ be used and, also, the phrase ‘the accomplice.’”

The judge asks Steinglass–who has taken over from Colangelo on behalf of the prosecution–to justify the government’s position. He does so in some detail, citing regularly to the New York Criminal Jury Instructions on which he says the prosecution based their draft.

“This issue is also extremely important to us,” Bove responds. He wants to ensure that “in summation we don't open the door to changing that limiting instruction” that the judge has previously issued on the matter.

Justice Merchan rules that “we can make ‘crimes’ plural. But my caution still applies: that if you try to bring up the convictions to the guilty pleas and make it appear as if those were the only crimes that he pled guilty to or the only violations that he pled guilty to, that could open the door to the People making further argument.” He also rules that Cohen will be referred to not by name but as the “accomplice.”

Next issue: how to define intent? Merchan says, “The People propose to add, ‘Thus, a person acts with intent to defraud, when his or her conscious objective or purpose is to do so.’ The defense suggests, ‘Thus, a person acts with intent to defraud, when his or her conscious objective or purpose is to lead another into error or to disadvantage.’”

Colangelo notes that the government’s proposal is simply language from the Criminal Jury Instructions. And after hearing Bove briefly argue for a deviation from that language, Justice Merchan rules, “I appreciate your argument. I'm going to stick with the standard language.”

This then leads to an impenetrable discussion concerning what instruction the judge should give on what it means for the defendant to “cause” false business entries to be made. The prosecution apparently wants the judge to instruct the jury that it can find that Trump “caused” the false entries so long as it was a “reasonably foreseeable” consequence of his conduct. 

Colangelo says that the “reasonably foreseeable” language proposed by the prosecution is directly supported by the case law. He cites a case, People v. Myles, in which a defendant’s conviction for falsification of business records was affirmed after the defendant attached jumper cables to the electrical box outside his home and, in doing so, made or caused false entries in the records of the power plant. He didn’t personally alter the power company’s billing records, Colangelo explains, but applying jumper cables supported the conviction. On facts like the ones we have in this case, he continues, we think this is a straightforward explanation of the law that’s important for the jury to understand.

Bove, for his part, worries aloud about the interaction between an instruction on accessorial liability and the government’s concept of causation. It “doubles up” on the concept of accessorial liability, Bove contends, and would allow the jurors to convict someone for “causing the causer” of the false entries. “It is a situation where Allen Weisselberg caused someone to do something and President Trump causes Allen Weisselberg,” Bove says.

Justice Merchan says he’s in agreement with Bove. “I’m going to strike that portion” of the jury instructions, the judge announces.

The parties exchange further arguments on this matter and Justice Merchan reserves decision on it. He says, however, that his “inclination” is to strike the government’s foreseeability language from the jury instructions. 

Justice Merchan then goes through several other items—although, again, it’s difficult to determine exactly what those items are without seeing the underlying documents.

He leaves in place the “expanded charge on intent.”

He seems inclined to do the same with respect to the “intent to defraud” instruction, though he reserves judgment on it.

He rejects a defense attempt to add language concerning the portion of the first-degree business records falsification statute that reads: "That the defendant did so with intent to defraud, that included an intent to commit another crime, or to aid or conceal the commission thereof." The defense had proposed to add language, stating that "Thus, for the second element, the People must establish beyond a reasonable doubt two separate intents, the intent to defraud, and the intent to aid or conceal the commission of another crime, which I will define for you shortly." Justice Merchan agrees with the prosecution that this would amount to a change in the statute.

The parties then turn to a lengthy series of arguments over what appears to be a relatively simple set of competing instructions. Says Justice Merchan, “beginning with the Election Law Section 17-152 predicate, the People are proposing language that reads, ‘Thus, a person acts with the intent that conduct be performed, that will promote or prevent the person from public office by unlawful means, when his or her conscious objective or purpose is that such conduct be performed.’” Conversely, the defense proposes a lengthy pair of paragraphs that emphasize that “Evidence that President Trump was present when others agreed to engage in performance of a crime, does not by itself show that President Trump personally agreed to engage in the conspiracy.”

Colangelo argues that the government’s proposal is simply a CJI instruction adapted for the present purpose. Bove argues for an instruction that emphasizes the willfulness of the defendant’s conduct. The two spar for a while over whether a “mere presence” instruction is appropriate. They spar as well as to whether the instruction should refer to “multiple conspiracies.”

Justice Merchan then turns the conversation to the “unlawful means” language under § 17-152. “The most critical point here is that the jury does not need to conclude unanimously what the specific unlawful means are. That's the key point here,” says Colangelo. “The key point here for this instruction is to advise the jury that, yes, there has to be some unlawful means, and to alert them as to what those unlawful means are, but also advise them that they don't have to unanimously agree on each of the unlawful means.”

Surprisingly, Bove seems to concede the point that the law is on Colangelo’s side here. He describes this matter as the “heart of the dispute” but he then says he “understand[s] the law that's been cited here” but, nonetheless, “We think your Honor has some discretion.” The current case is “obviously, an extraordinarily important case,” he says. So “we submit that the jury should be required to make very specific findings, as specific as Your Honor's discretion would permit, so it's very clear what happened at this trial.”

Justice Merchan asks Bove directly whether he agrees that this is not ordinarily required. Responds Bove, “Certainly. We think it's important under the circumstances of this case and think it's in your Honor's discretion to make clear the record here.”

Colangelo responds that the importance of the law is not deviating from it for the extraordinary case.

“I agree,” says Justice Merchan. “What you're asking me to do is change the law, and I'm not going to do that.”

We move then into a discussion of how much proof the jury should be instructed is necessary of the object offense to the extent that the object of the conspiracy was Trump’s election. Bove argues, “we think that the Government does have to put forward some proof of the objects of the 17-152 conspiracy.” And, he argues—returning to his earlier point—that those objects have to be actually illegal. “Because, otherwise, the jury could find that there was a conspiracy to promote President Trump's election without unlawful means, in which case, that would not support what the Government is going to ask this jury to do.” 

Colangelo responds that under New York case law, the government does not even have to identify an object crime—though, of course, it has in this case. “Where there's no obligation to identify even the object crime, there is no reason to be held to the proof standard of the object crime,” he contends. “What we have to prove is the Defendant's intent and the intent to aid or conceal.”

Justice Merchan now moves on to the tax offense and unlawful means. The defense objects to including this instruction on grounds that the evidence simply doesn’t support tax offenses as an object crime. But Colangelo argues this is hogwash and recites the record evidence of tax shenanigans. A lengthy back-and-forth ensues over whether the tax matters should go to the jury—a matter on which Justice Merchan does not rule.

The judge then turns to a quick discussion of how he should present the elements of the 34 charges. It’s not entirely clear what the dispute is here, but it’s quickly resolved, as Bove offers an alternative to the government’s proposed language and Colangelo offers no objection to it.

 Justice Merchan now announces a ten-minute break.

*          *          * 

When we return, the judge declares that he’s finished with the matters he wanted to discuss, and he asks Bove to raise any issues he may have. Bove has several: 

  • “We proposed a limiting instruction with respect to bias that is specific to President Trump.” Steinglass argues that this is unnecessary, that the voir dire process has already taken care of the problem, and that the judge’s standard instruction against bias in general should do the trick too. Justice Merchan appears to agree with Steinglass but then says he will include the instruction—although he says he will adopt some “more neutral language” proposed by the prosecution in presenting it to the jury. What that more neutral language is, we don’t know. 
  • “We think it should be clear to the jury that hush money alone is not illegal.” Steinglass objects to this, noting that it’s asking the judge to make Bove’s arguments for him. Justice Merchan agrees and keeps it out. 
  • Bove asks for an instruction “about evidence that was not offered for its truth.” This is about the Access Hollywood tape and reactions to it among politicians, and Bove specifically requests “an instruction that clarifies and confirms that factual assertions in those reactions were not offered for their truth.” Steinglass objects, saying such an instruction is “unnecessary” and “retroactively limits the evidence.” Justice Merchan says he will go back and review the matter in the transcripts but that right now, he’s inclined to agree with the prosecution. 
  • Bove asks the judge “to reiterate to the jury the limiting instruction around Mr. Cohen's FECA pleas, and the AMI Non-Prosecution Agreement as well as the Conciliation Agreement.” The defense has proposed some language towards this end, he says, which the prosecution has commented upon. The judge says he is inclined to repeat the limiting instruction and will review the language, which Steinglass describes as “outrageous.” 
  • Bove next asks for an instruction regarding the “involvement of counsel” in reviewing the AMI agreement with Karen McDougal. This argument infuriates the judge, who describes it as a rehash of an advice of counsel argument made long ago. First it showed up as an advice of counsel argument, then as a “presence of counsel” argument. Now it’s showing up as an “involvement of counsel” argument. “My answer hasn't changed and, honestly, I find it disingenuous for you to make the argument at this point.” Bove defends himself, but he has stepped in it badly with this one. 
  • Finally, Bove proposes an “exfoliation instruction . . . relating to the destruction of evidence of Michael Cohen and the phones.” On this one, Justice Merchan is complimentary of the defense lawyer, saying that Bove did a very good job cross-examining the technical witness who handled the phones, and set up a very good argument for himself on summation. But the judge isn’t inclined to make that argument for the defense in jury instructions. “I'm not going to give an instruction on exfoliation to the jury in my charge,” he says. 

Bove is now done, and it’s Steinglass’s turn. He has only three issues:

  • First, he asks the judge to reiterate his instruction on redactions in the exhibits. No problem there.
  • Second is an argument about the “accessorial liability” charge that is absolutely incomprehensible without access to the paperwork Steinglass asks Justice Merchan to review.
  • Finally, Steinglass argues that the defense had misstated several times the law in New York concerning when a retainer is and isn’t needed and that a curative instruction is required. “Through their cross-examination of three separate witnesses, the Defense erroneously suggested that Retainer Agreements in New York State don't have to be in writing,” he argues. “So we believe that this instruction is necessary to cure the erroneous impression left that there is nothing improper about not having a written Retainer Agreement. It is, in fact, the law.” Bove argues that Steinglass is wrong on this point. The judge takes the point under advisement. “If after reading the rules and the decisions I determine that there is a requirement that there be a retainer, we are going to have to have a follow up as to how to deal with this. But until I get to that point, there is no need to argue it.”

Justice Merchan declares that he will make every effort to finish writing the jury instructions by the end of the day on Thursday “so you can have the full four-day weekend to work on your summations.”

And with that, we are done.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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