Former federal prosecutor-turned-defense lawyer Robert Costello's testimony may have backfired on former President Donald Trump's team as the prosecution rested its case on Tuesday, a legal expert told Salon.
Judge Juan Merchan sent the jury home for the week mid-day Tuesday. Jurors are set to return next Tuesday for closing arguments, with deliberations set for Wednesday, May 29.
Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying that audio recordings, internal business records and witness testimony prove he was scheming to kill damaging stories about alleged extramarital sex ahead of his 2016 campaign and disguising reimbursements to Cohen as legal fees — all in violation of state and federal election law and state tax law. Each count carries up to four years in prison, which Trump would likely serve concurrently if convicted.
Trump denies the charges, as well as the alleged sexual encounters.
Trump's defense team called just two witnesses — Costello, and a paralegal, with Trump opting not to speak in his defense.
On Tuesday, the prosecution continued their cross-examination of Costello, who has worked as Rudy Giuliani's lawyer.
Costello on Monday lambasted the credibility of former Trump fixer Michael Cohen — and also received a reprimand from Merchan, who told him to stop rolling his eyes, saying "jeez" and side-eyeing the judge.
John Coffee, a law professor at Columbia Law School, said Costello "greatly antagonized" Merchan.
"I don't think he helped," Coffee said.
Prosecutor Susan Hoffinger asked Costello at length about his relationship with Giuliani, and whether he worked with others in Trump's camp to ensure Cohen would stay loyal following the 2018 raid at his home.
According to The New York Times, Costello acknowledged that an email to Cohen talking about his support in the White House "definitely referred to President Trump."
Prosecutors also asked Cohen about another email in which he described his goal in his communication with Cohen as getting him "on the right page without giving him the appearance that we are following instructions from Giuliani or the president.”
Another email directly used the phrase "back channel" — a key part of prosecutors' argument about Costello's role.
In that email, Costello told Cohen he spoke with Giuliani, who “said thank you for opening this back channel of communication and asked me to keep in touch.”
Coffee said Costello didn't help the defense much overall as jurors weigh whether Trump played a role in the scheme to reimburse Cohen for payments to adult film star and director Stormy Daniels.
Coffee called the references to back channels "harmful" to the defense.
"They called Costello, but Costello basically told the jury again and again, that Trump had back channels to get information from and that's not what you want to emphasize," Coffee said. "Because the jury will say, 'Well, see? he gets everything from backchannels. He has Cohen tell somebody and somebody tells him. I'm sure that all those people told him about this.'"
Costello repeatedly asked if he could provide additional "context" in response to Hoffinger's questions.
Hoffinger declined, saying: "That's alright."
Coffee said that's in line with court protocol.
"Judges don't like witnesses to give speeches. They want a witness to answer the questions that have been asked," he said.
"Costello was a cipher — he didn't have the impact they wanted," he added.
By Tuesday afternoon, prosecutors and the defense began hashing out the crucial wording of jury instructions.
Prosecutors are elevating the falsification of business records charges to felonies because they allege Trump caused the falsification to conceal an underlying crime. Manhattan District Attorney Alvin Bragg alleged that Trump tried to “conceal criminal activity, including attempts to violate state and federal election laws." New York’s election conspiracy statute says it’s a misdemeanor to “conspire to promote or prevent the election of any person to a public office by unlawful means.”
That means prosecutors not only have to prove to jurors that Trump led to the falsification of the business records with an intent to defraud — they also have to prove he had a direct role in falsifying the records.
Cohen testified about a key 2017 meeting at Trump Tower where he said Trump approved the reimbursement plan.
Coffee said even if the jury has misgivings about Cohen's credibility, they could rely on the prosecution's overall evidence of Trump's role as a micro-manager boss who wanted to know about financial decisions.
"I think the jury kind of overall sense that there was a conspiracy of interacting people and all of them reporting up to Trump," Coffee said. "He was the boss. No one doubted who was in command. And if you believe who's in command and you wouldn't dare go behind his back that suggests the jury is is likely to attribute things to him."
Coffee said the jury instructions about how to weigh Trump's involvement will be crucial.
"I'm sure the defense team is going to insist that you must find that witnesses told you that he had actual knowledge and they communicated to Donald Trump that there would be this repayment system," Coffee said. "And the government is going to want that they're going to say you can find this from all the facts and circumstances, et cetera. So the most important area of the jury instructions will be: what do you have to find?"
Coffee added: "Cohen did testify several times that these payments were not for legal services. But that still is not quite enough. You want to know that he was aware that the system was mischaracterizing these payments, these payments for legal services."
Coffee said Trump could have "constitutional arguments and some statutory arguments on the appeal."
""The Supreme Court doesn't like the idea that anything you omit in an election campaign can be seen as an attempt to subvert or cheat in that campaign," Coffee said.
Coffee said Trump could also raise questions about whether a state prosecutor can charge him for charges related to a presidential election.
