Donald Trump’s defense team rested on Tuesday without calling the former President to the stand. But some crucial points were made before the conclusion of Michael Cohen’s cross examination that veteran prosecutors Andrew Weissmann and Mary McCord explain in depth. They also weigh in on some courtroom tactics that worked and others that didn’t go over well from both the prosecution and the defense. Plus, Andrew and Mary detail some of the gambits used by defense witness Robert Costello that were admonished by Judge Merchan.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, welcome back to “Prosecuting Donald Trump.” It is Tuesday, May 21st, and we’re back to telling you the exact time because it’s relevant. It is 8:40 a.m., at least here in New York, where the trial is going on, Mary. So, I’m Andrew Weissmann and the Mary I referred to is Mary McCord. Hi, Mary.
Mary McCord: Hi, Andrew. I am going to not say good morning because for me it is 1:40 in the afternoon.
Andrew Weissmann: Okay.
Mary McCord: And I, again, want to thank all the listeners from Ireland who keep sending me recommendations. I really appreciate it. Thank you.
Andrew Weissmann: That is so cool. So Mary, while you’re gallivanting around.
Mary McCord: Yeah.
Andrew Weissmann: Taking it easy and what a great time to do it because there’s so little going on here in New York.
Mary McCord: Exactly. There’s no need to like stay up all night reading transcripts or anything like that.
Andrew Weissmann: By the way, just so you know, everyone should know what Mary is doing because Mary gets the transcripts of the trial, as a great appellate lawyer would, reads everything. So, Mary what’s on our agenda today?
Mary McCord: Yeah, obviously we’re going to take listeners through the conclusion of the cross-examination of Michael Cohen as well as the redirect examination. I mean by now listeners have consumed media through other sources, but we tried to give some of our own insight based on what we were looking for and what we saw.
And then there was a defense witness, actually there were two. We talked earlier about, would the defense put on any witnesses at all, any case at all. And so far they have put on two, but they have had their request for a third, an expert, pretty much rejected. And we’ll talk a little bit about that.
Andrew Weissmann: Yes.
Mary McCord: Before going on to what’s called a charge conference and we will explain to folks what a charge conference is.
Andrew Weissmann: And I think this is so great because I think we are going to talk a lot about arguments that can be made based on what happened —
Mary McCord: Yeah.
Andrew Weissmann: — yesterday, where we think the parties are going, the state, the defense. But let’s start with Michael Cohen and then we will move to the two defense witnesses. Just to set the scene with Michael Cohen, there was a large break and he had continued cross-examination. But that happened again with Stormy Daniels where there was this steady period of time.
Mary McCord: Weekend, yeah.
Andrew Weissmann: But here there was a even longer period.
Mary McCord: Yep.
Andrew Weissmann: I have to tell you, everyone is thinking, oh, that must be good for the state to sort of prepare its redirect, but it’s not great for the witness who’s under a lot of pressure and usually just wants to get it over with. I think it’s good for who’s done the cross. It’s good for that party here. It was the defense because that’s all the jury has to think about during that whole time period. But anyway, so we did have a much lengthier examination of Cohen than I think the parties had told the court. There was a lot of disputes about things.
Testimony was a lot longer than people anticipated. So, we went through all of the conclusion of the cross-examination. There then was a redirect examination by Susan Hoffinger and then there was a brief re-cross examination by Todd Blanche. So, Mary let’s take the lens out to sort of a big picture and what your thoughts were, especially since you got to sort of read it as a whole.
Mary McCord: Yeah, there are a few themes that I think that Todd Blanche, who was doing the cross-examination of Michael Cohen really wanted to bring out and he brought those out and he then made points about those at the end of the government’s case, when he argued that the court should grant a motion for judgment of acquittal, based on the government’s failure to prove its case in such a way that shouldn’t even go to the jury. But he was setting up a few arguments and the things he focused on yesterday to me had three themes.
One was October, all of October, but really from like the 16th through the 26th, these phone calls, the 24th, remember the phone call on the 24th where he tried to do a gotcha and suggests that the only reason that Michael Cohen was calling Keith Schiller that day was actually not to talk to Trump at all about anything, including Stormy Daniels, was to talk to Keith Schiller about getting the Secret Service onto these harassing phone calls from somebody claiming to be 14 years old.
And then also October 26th, when Michael Cohen had testified that that’s actually the day that the more important phone calls took place. The phone calls where Michael Cohen actually saw Trump’s authorization for these payments and that he would be reimbursed and testified that he was given that authorization.
What Blanche was trying to do is point to all the things that were going on at the time of those calls to say, essentially, you were so busy, Michael Cohen, Trump was so busy, there’s no way you could really remember what day you were having these conversations or what these conversations are about. So for example, he talked about things like on the 26th, that’s a day that Trump was having an ABC interview and his whole entire family was being interviewed, right?
That’s also the day that he was doing the opening of the old post office in Washington, D.C. Listeners may recall Trump leased that post office to make it into Trump Hotel, which is no longer Trump Hotel by the way but it was during his tenure as president. And that prompted lots of litigation about the emoluments clause and other fun things we can talk about someday.
Andrew Weissmann: And it was actually a focus of the civil fraud case in New York —
Mary McCord: Right, yes.
Andrew Weissmann: — that the attorney general brought.
Mary McCord: Absolutely, right, the value of the —
Andrew Weissmann: Yup.
Mary McCord: — Trump Hotel. So, the point I think that, and this is back to my big theme, the point was, number one, things were so busy, so much was going on, basically your memory cannot be good. So point one, your memory is bad. Point two was, and I think this is the most significant point of all, is that you had always operated as Trump’s attorney for the Trump Organization without a retainer agreement. Yet, you did legal services for him and his family on request all the time, after Trump became president and you had this $35,000 payments every month.
Basically his point was, it didn’t matter. You didn’t have a retainer agreement because you continued to provide legal services for Mr. Trump’s family and Mr. Trump and his personal capacity throughout 2017. Didn’t you Michael Cohen? And his answer was basically yes. There’s times he represented Tiffany Trump, there’s times he did work for Melania Trump. There’s other things that he did related to Trump.
So, Todd Blanche’s point was everything that the prosecutor drew out on direct about this wasn’t really a retainer. Those documents, those invoices that said it was a retainer. It wasn’t really a retainer because it was reimbursement. He is saying that’s bunk because you’ve always done your legal services for Mr. Trump without a retainer.
And you just continued to do that. So, that was his point too. And he came back to that as motion for judgment acquittal. This is basically him getting paid for providing legal services to Mr. Trump as his personal attorney, without a retainer agreement, because that’s how they’d always done it.
And then his third point was you benefited financially, hugely from Mr. Trump, not only from your books, but your podcast and your merchandise to the tune of over $4 million. And essentially, this is what you’re in it for, right. Anything you can do to help your financial position. Now that didn’t go completely perfectly for Todd Blanche because at one point —
Andrew Weissmann: To say the least, that was one of my favorite cut points but go ahead.
Mary McCord: Yeah, go ahead, you describe it.
Andrew Weissmann: At some point, this is the old aphorism which is, it’s like one question too many.
Mary McCord: Oh, one question too many, absolutely.
Andrew Weissmann: And so it was like you have a financial interest in the outcome of this case and he said, yes. And it’s like, and in fact you would benefit from a conviction. And he goes, no, actually I think I probably, just from a financial point of view, I think I’d benefit from an acquittal because it would give me that much more to talk about.
Mary McCord: To keep talking about in the future. And when you think about it and he’s so right.
Andrew Weissmann: So right.
Mary McCord: Because then Trump would go on to do whatever he is going to do, maybe be the president, maybe not be the president. There’d be lots of things for Michael Cohen to keep talking about.
Andrew Weissmann: Frankly, it’s a point that Trump keeps making. He used to say when he was president, I’m the best thing ever for the media, like for CNN and MSNBC, because it’s something for them to grouse about.
Mary McCord: Yep.
Andrew Weissmann: And so he’s like, I’m good for them. It was like he borrowed a page from that. So that particular point, a lot of times defense lawyers, who sometimes don’t have a lot of cards to play, play this sort of just emotional, just see if somebody on the jury is going to be like, can you believe he’s making that much money?
Mary McCord: Right.
Andrew Weissmann: It’s not really tethered to any logical argument. It’s just sort of like, oh he’s really profiting from that guy.
Mary McCord: Yeah, exactly.
Andrew Weissmann: Which is true. I mean he said it all on direct and —
Mary McCord: He had. This really wasn’t new, but it’s kind of, I felt a little bit to make the jury kind of think, oh, you know, you’re unsavory, if they didn’t already think that, which is hard to imagine they wouldn’t have. But you have profited for this man and now you want to see him, him in prison. Now, of course, you may be surprised that I left out a fourth overall point, which I guess I should have included, which all relates to Bob Costello. But to me, that’s its own separate thing.
Andrew Weissmann: Yeah, right.
Mary McCord: And there’s a theme to it but like the overall themes, I think that Todd Blanche was setting up his summation to basically be there’s no falsification of business records. He really was being paid for legal services. Doesn’t matter that there was no retainer agreement because this is always the way it’s been. Michael Cohen has always provided legal services without a retainer. And therefore the government’s case just falters from the get-go just from the —
Andrew Weissmann: Yeah.
Mary McCord: — business records.
Andrew Weissmann: One of the things that Todd, I would say, amplified was the fact that Michael Cohen had stolen some money from the Trump Organization. That had actually come out on —
Mary McCord: Direct.
Andrew Weissmann: — direct but it was teased out more. A lot of the media is getting this wrong and saying, oh, why didn’t they bring this out on direct first? They did.
Mary McCord: Yep.
Andrew Weissmann: So, the point is that some of the reimbursement that formed the 420,000 payment that, you know, was divided up over a year involved this company called Red Finch. And in fact, the way it had worked was that Michael Cohen had paid Red Finch 20,000 and not 50,000. And he gets this reimbursement for 50,000 from Donald Trump, but he doesn’t pass that along. So, he basically pocketed the 30 and he says, yeah, I did. By the way, super candid, he’s —
Mary McCord: He admitted it, yep.
Andrew Weissmann: He’s just like, yep, that’s what I did. And it was kind of self-help because I was really annoyed about my bonus being slashed so much.
Mary McCord: Yep.
Andrew Weissmann: So, I kind of made it up that way. And I thought the biggest significance of that, which Todd Blanche didn’t specify enough, was like it shows that he’s willing to do something behind Donald Trump’s back.
Mary McCord: Yeah.
Andrew Weissmann: That will obviously be an argument that comes up in summation on the defense side. But what it made me think about was something that we used to do all the time when we were dealing with corroborating witnesses constantly in organized crime cases, is that the defense would have this litany of all of the terrible things that the witness had done.
And so with Michael Cohen, you can have, okay, he stole $30,000. He lied in Congress. He did all sorts of terrible things. And in summation, I would say, let’s just go over those for a second. What is the proof that he stole $30,000? Let’s see, well Michael Cohen admitted it.
Mary McCord: His words.
Andrew Weissmann: Exactly.
Mary McCord: His words. Right.
Andrew Weissmann: And what is the proof of this? It’s Michael Cohen. Is there any corroboration for that? No, it is Michael Cohen saying it. So when it is something bad about Michael Cohen, you are supposed to take his word, the word of somebody who is a perjurer and a liar and a thief and you know, throw all the adjectives you want, that you take to the bank, that is to be believed, and it is absolutely like writ in stone. But as soon as he says anything negative about the defendant, even if it’s corroborated up one side and down the other, that’s unbelievable.
Mary McCord: Right.
Andrew Weissmann: And so ask yourself what’s going on there? What that means is that by their own argument, they’re saying that there are things that Michael Cohen is saying that can be believed. And of course that’s true just because you have committed crimes and lied and it’s been in the past, doesn’t mean you’re lying about everything. So, there’s a way to turn that and to point out the sort of cherry picking of the defense in terms of what they’re doing.
Mary McCord: You know, this whole prolonged questioning about the stealing quote-unquote $30,000, then ultimately opened the door for the prosecutor on redirect to get into the details about what that $50,000 to Red Finch was all about.
Andrew Weissmann: Oh my God, it was like and it’s weird because, of course, the defense knew what it was.
Mary McCord: Well, that’s just it, they took a risk. They obviously thought it was worth getting into this whole, you stole money to take the risk of opening the door and they did fight about it. And for listeners opening the door is when a judge has already said, look, you’re not going to be able to go into this, prosecution. And here it was, you’re not going to go into the fact that the money to Red Finch was paying off a polling company to fix the algorithms to make Mr. Trump go up higher in a poll about sort of like world’s greatest businessmen of the last century or some such thing.
Andrew Weissmann: Which by the way, $50,000 gets you to number nine.
Mary McCord: Yeah, exactly, exactly, didn’t get you to number one. But the judge had said, that’s not coming in. It’s not relevant. But when Todd Blanche starts questioning Cohen about how Cohen actually did pay the CEO $20,000, he pushed him on how he made that payment and pushed him to say, well it was in cash, pushed him into, it was in a paper bag. And so understandably when it’s time to redirect.
Andrew Weissmann: So mob, so mob.
Mary McCord: Yeah, so mob right. So understandably when it’s time to have redirect after cross is over, the prosecutor says, Your Honor, the defense opened the door. We should now, he suggested there was something so nefarious about this, that the payments are being made in cash in paper bags. We need to now be able to explain what that Red Finch contract was.
Andrew Weissmann: Yeah.
Mary McCord: And Blanche protested and the judge said, I listened to it all, you opened the door. And so the jury now got to hear all about what that polling was about. And the reason that Cohen had to pay $20,000 in cash then decided to pocket 30, you know, the guy was owed 50, but Trump didn’t wanna pay it because he didn’t like only coming up to number nine. And he didn’t like that CNBC decided, oh, we’re not going to go on to the second phase of new polls where maybe he would have a chance to be a winner.
So, what have we heard, not in this trial, but for the last several years in just investigative journalism about Trump just not paying bills. And we’ve heard it in this trial too actually. We heard a lot about Michael Cohen, whenever Trump did not want to pay saying, I would get them down at least 20 percent off of whatever the bill was for, if not even going further and not paying it all. So, this was very much on par with that.
Andrew Weissmann: Yeah and that hits the theme of he had to have known he was paying $420,000 on what it was for because he’s not only a micromanager, but he’s a cheapskate.
Mary McCord: Exactly.
Andrew Weissmann: And so he’s not going to want to overpay. Final point before we take a break, which is Todd Blanche’s re-cross, I kind of wanted to pull him aside and be like, Todd, that’s not your argument. That’s the state’s argument. So —
Mary McCord: Yeah.
Andrew Weissmann: — maybe you should stop because you’re playing on their field. He ends his re-cross by saying, so isn’t it a fact that Donald Trump doesn’t like overpaying for things and he wouldn’t overpay for things.
Mary McCord: Like yes.
Andrew Weissmann: And I’m like, hmm.
Mary McCord: Yeah.
Andrew Weissmann: Okay. Why is your re-cross seeming like it’s continuation of redirect by Susan Hoffinger? I mean I was just like, that is this the craziest thing. And it reminds me of the opening where he said it basically the same thing and I was like, Todd.
Mary McCord: Yeah.
Andrew Weissmann: Not your point. Your point’s the opposite.
Mary McCord: It was weird.
Andrew Weissmann: So, should we take a break and then talk some more about Susan Hoffinger’s —
Mary McCord: Redirect.
Andrew Weissmann: — redirect.
Mary McCord: Yes, let’s take a break.
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Andrew Weissmann: So, Mary let’s talk about Susan Hoffinger’s redirect. Big picture and in some ways maybe it’s not even big picture. It’s part of my throat clearing small picture, which is as a technical matter, I was so focused on not just the substance, but just technically how people are doing. And I think everyone can hear that and the way you and I talk about the case and thinking about it, like how we would have done it.
I thought, as we have talked about Susan Hoffinger had made a mistake in connection with the way that the telephone records had been used in direct examination, but when I think about her redirect examination, I thought it was like chef’s kiss. I really thought it was terrific. I mean she made her points.
Mary McCord: Yeah.
Andrew Weissmann: And it was clear enough. She didn’t belabor it and she hit a lot of themes and she answered things. And she also did something that’s very tricky and as a sign of, I think, a good experienced lawyer. Whether a defense lawyer or a prosecutor, you both want to respond to what had happened, but you need to get the jury back to understanding your themes, your best evidence. And she did —
Mary McCord: That’s right.
Andrew Weissmann: — all of that. In other words —
Mary McCord: Yeah.
Andrew Weissmann: — you don’t want to sort of go down a rabbit hole of just responding and that way the jury is just thinking about sort of the weakest parts of your case and forgetting to think about the good parts of your case.
Mary McCord: Yep.
Andrew Weissmann: So, she managed to do all of that and quickly.
Mary McCord: Yes and I agree and this sometimes is a problem with cross-examination as well, but sometimes when an attorney just feels like you said that they need to respond to every single thing, first of all, it, it gets boring. It goes on too long. And I actually think the cross-examination went on too long and —
Andrew Weissmann: Less is more.
Mary McCord: Less is more.
Andrew Weissmann: Less is more.
Mary McCord: And then the jury —
Andrew Weissmann: And more is less.
Mary McCord: That’s right. And the jury then loses your big picture theme. So, I agree with you. She made the points that were important to make, that the jury’s going to remember that go to the prosecution’s theme. I couldn’t agree more.
Andrew Weissmann: So, big picture is one of the things that she was hitting was mistake versus lying.
Mary McCord: Yes.
Andrew Weissmann: And she’d sort of hit that right out of the box. And she gave an example of a mistake versus a lie, like someplace where Michael Cohen had mistaken the year of something and had thought something, that the question was about 2017, not about 2019.
Mary McCord: Right.
Andrew Weissmann: And it was just a mistake. And that to me is, again, thinking about summations and what I used to do as a prosecutor, one of the ways I used to address that is the defense always is going to find something that is inconsistent. Something that the witness makes a mistake on it. It’s just invariable. And the defense lawyer and, again, correctly always jumps going, that’s a lie.
Mary McCord: Yes.
Andrew Weissmann: And of course that’s what happened here with Todd Blanche going —
Mary McCord: Yes.
Andrew Weissmann: — you’re lying about the October 24th call. And of course, there’s many, many reasons that Michael Cohen would have forgotten this second subject that came up, which had to do with this harassing phone call. That’s just not that important.
Mary McCord: Yeah.
Andrew Weissmann: That is an example of sort of the million and one things that happen in life which —
Mary McCord: Yes.
Andrew Weissmann: — is not that important. And also it’s a weird call to be lying about. But one of the ways that you deal with that is first making sure the jury understands this huge difference between mistake and a lie. I used to give an example of, you know, we all know there’s a huge difference between knocking over a glass of milk and picking up a glass of milk and throwing it at somebody.
So, that’s the difference between a mistake and a lie, like doing something intentionally versus making a mistake. And one of the examples that I think Susan Hoffinger is getting at and we used to use all the time is I used to always pick an example from the defense lawyer.
And here, for instance, the defense lawyer made a mistake in his cross-examination. And it came up at sidebar with the discussion with the judge where he basically was saying that the DA and/or Michael Cohen violated grand jury secrecy and leaked the indictment before —
Mary McCord: Right.
Andrew Weissmann: — it was public. Well, it turns out there was a court order that allowed it to —
Mary McCord: Made it public.
Andrew Weissmann: — that actually didn’t allow it, made it public.
Mary McCord: Yes, made it public.
Andrew Weissmann: And so he had to correct that. And the judge, I thought, very graciously allowed him to correct it as opposed to the prosecution could have just pulled that out and been like, you’re misleading.
Mary McCord: And remember the prosecution asked the judge to give an instruction.
Andrew Weissmann: Exactly.
Mary McCord: And the judge said, I’m going to give him a chance to correct it. And frankly, as the prosecution, I would want the judge —
Andrew Weissmann: Of course.
Mary McCord: — to be given the instruction. So, I thought that was a significant sort of gift that the judge gave to the defense.
Andrew Weissmann: Absolutely. That’s an example of his total fairness. Just going back to this idea of making a mistake.
Mary McCord: Yes.
Andrew Weissmann: You picked something that the defense lawyer did. Here, for instance, you could pick the example of Todd Blanche messing up the idea of intimating that this had been leaked by one or the other party, when in fact it hadn’t. He just made a mistake and you would say to the jury, of course, that was just a mistake.
We all saw it. No one sitting there saying that Mr. Blanche lied, but what suddenly, as soon as a witness on the stand makes a mistake, it’s a lie. I mean, you know what?
Mary McCord: Yeah.
Andrew Weissmann: Like I think it’s just an example of trying to be an adult in the room and to speak about human nature and real life. And to more you can bring that in, the better. And to me, the big theme of that and the reason that’s an important theme here is because of what Todd Blanche wants to call the gotcha moment of October 24th, where essentially he wants to say and will be saying that Michael Cohen was lying about it.
Whereas, I think at, certainly the state will argue at most, he made a mistake in forgetting that there was a second topic. And I thought Susan Hoffinger just did a really good job of putting one, the October 24th call in context of many calls with the former president, then candidate Trump about this issue. By the way, almost all of the other calls and meetings were not even discussed on cross-examination, the Oval Office meeting.
Mary McCord: Right.
Andrew Weissmann: The substance of the calls on the 26th with phone records, make it clear it was with Donald Trump. They’re just going to have to say, well, he’s just lying about those, but they weren’t discussed. The notes that are exhibits 35 and 36, again, not discussed. Those were not put up on cross-examination. The defenses clearly decided we want to show those as few times as possible to the jury.
And the big issue was that the state did their homework over the weekend and realized that candidate Trump is somebody who was very, very photographed and televised during this period. It was in the weeks leading up to the election. And so they went to C-SPAN and saw that on October 24th, five minutes before the telephone call, so at 7:57 p.m., uh, the call was at 8:02, they had a video of Keith Schiller, the bodyguard, and Donald Trump together.
And so it made it much more likely and certainly corroborative that when Michael Cohen says I called one, and then they could hand the phone, that that could happen because they were together. And look, is it one to one? No, but it’s not one to one on the defense side either.
Mary McCord: Right. Doesn’t prove what Michael Cohen talked to Trump about or that he even talked to Trump, but at least corroborates that Trump was in proximity to Keith Schiller.
Andrew Weissmann: Keith Schiller’s phone, right.
Mary McCord: And could have — took Keith Schiller’s phone and it could have been handed to him.
Andrew Weissmann: Yes. And there also is other evidence from other time periods where that phenomenon happened. And Todd Blanche like fought it like crazy.
Mary McCord: Yes.
Andrew Weissmann: He raised his voice to the judge, which by the way, is a sign of like, you know, this is like the old aphorism, which is when you’re on the facts in your side of law inside, you pound the table.
Mary McCord: Yeah.
Andrew Weissmann: And, you know, raising your voice to a judge, not a good idea, especially this judge. You do much better just straight argument, so clearly going to work better. But the judge said, look, it’s relevant, but sort of masterful, he said, look, I don’t think a sufficient foundation was laid for what’s called the authenticity. It’s very technical rules. But the judge basically said, yes, I know someone from C-SPAN was here to authenticate other things, but that doesn’t mean they authenticated this thing. And so —
Mary McCord: Right.
Andrew Weissmann: — he was kind of right to be like, I need to be really careful on this. And I want to —
Mary McCord: Yes.
Andrew Weissmann: — get reverse on the technical issue. And he says, I am going to allow you, the state, to call someone from C-SPAN. After a bunch of back and forth, this person was going to be able to be here on Tuesday at 9:30 a.m. And so the judge says, you know what? Defense, you have a choice. You can start your case and then we’ll take this person out of order. But it happens all the time in trial, someone gets sick, their plane gets —
Mary McCord: Yep.
Andrew Weissmann: — canceled.
Mary McCord: Can’t make it. Who knows?
Andrew Weissmann: Exactly. So, all the time witnesses got taken out of turn and the defense a lot of times tries to have that as a strategy to disrupt the flow and what we talked about last week, the order of proof. And so the judge says, you could have your choice. We could delay the trial right now.
And just start again tomorrow with that witness. So, your defense case will just start tomorrow or you can start your case now, and then we’ll just take this witness tomorrow. And sure enough, after huddling the defense stipulates, which at least at the federal level, happens all the time. And —
Mary McCord: Yeah.
Andrew Weissmann: — there’s a professional courtesy from both sides. And this is an example of, you know, the Donald Trump team just isn’t stipulating to anything. And so this kind of forced the hand because they wanted to get their case started. They wanted the jury to hear from the witnesses.
Mary McCord: Right.
Andrew Weissmann: This will be the subject of the next block, because I have to tell you, I mean who knows what the jury will think. But if this is the defense case —
Mary McCord: It’s weak tea.
Andrew Weissmann: I do not know what they’re doing —
Mary McCord: Yeah.
Andrew Weissmann: — if I can’t think of a witness who would make Michael Cohen look better.
Mary McCord: I know and we are going to get to that. One thing I want to say to make sure listeners understand when we talk about a stipulation, I think we have mentioned it before, but it’s been a while. That means the parties, both sides, can agree to something.
And so what they essentially were stipulating to was that this still photo, the still screenshot from the C-SPAN video was taken from that video. And that video concluded at 7:57 p.m. on October 24th, 2016. That is what they agreed to, that then gets read into the record as a stipulation of the parties that the jury can accept as fact.
Andrew Weissmann: And then on redirect, Susan Hoffinger figured out a way to integrate it because you might think, how is she going to do that? Because Michael Cohen wasn’t there for the photo. And so she was just really smart. She has the photo now in evidence and she just shows it to him and says, do you recognize the two people?
So, that allows her to have a picture of Mr. Schiller and it then gets displayed to the jury. So, that the point of this is what was going on. And then underscores, and so is it still your testimony essentially beyond a reasonable doubt? You know, are you still confident that is one of the subjects that happened on that call? Yes. And it was just a very good clean way to address what had happened on cross. And then she moved on.
Mary McCord: Yep.
Andrew Weissmann: And just cleaned up a lot of things. And as we said, really turned back at the end of her redirect to key points about Michael Cohen being definitive about what he told the president. He repeated that he essentially had 130,000 reasons to tell him because he wanted to get paid back. And if you want to get paid back, you need to tell him.
Mary McCord: Yep.
Andrew Weissmann: Right? So, that’s just, I think, an argument you’re going to hear over and over again. And it also goes to, that we talked about, which is if you’re trying to say on the defense side, that Michael Cohen is a louse and not acting at a charitable kindness of his heart kind of guy, he’s going to want to tell him about the 130,000. So, he gets paid back because otherwise why lay out the money.
At some point, you want credit for what you did and you’re going to want to get paid back. And it fits totally with Hope Hicks’ testimony about it just doesn’t sound like him to do something on his own. And she says, I didn’t believe Donald Trump when he said it. When he said that to me that he did it and nobody knew, we already know that’s not true, at least Allen Weisselberg knew.
But two, that doesn’t sound like Michael Cohen. So, it hit that theme. And I have to say, just as a lawyer, I was happy for her because having been in a situation where I’ve made mistakes in large cases and it gets magnified by the press, I can tell you, it feels awful.
Mary McCord: Yeah.
Andrew Weissmann: I mean because you hold yourself to such a high standard. And you know what? We all make tons of mistakes all the time. Could you imagine for, like I teach now, I’m sure there’s things I’m making mistakes on. But you know what? “The New York Times” isn’t covering it, thank God.
And so I just, on a human level, whether it’s on the defense side or the prosecution side, it’s nice to see the lawyers at the top of their game. And so I was really happy just to see, just feeling for her in terms of her direct in what happened. It was nice to see just how skilled she was and for the public to see that she really knows what she’s doing.
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Mary McCord: Yeah, totally agree. Let’s take a break now and come back and we’ll finally get to what we’ve been teasing, which is the Costello issue and then a few concluding remarks. How’s that sound?
Andrew Weissmann: That sounds good or maybe should I give more throat clearing or should we just —
Mary McCord: No, nope.
Andrew Weissmann: No.
Mary McCord: Your throat is clear.
Andrew Weissmann: Okay. Let’s take a break.
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Andrew Weissmann: Mary, Bob Costello. Let me just remind people. Bob Costello is a witness who Donald Trump said before this case was indicted over a year ago in New York. He said, wait, I want the grand jurors to hear from Mr. Costello. So, Mr. Costello, very publicly said, I’m going in the grand jury. He denigrated Michael Cohen publicly. And he went in the grand jury. I remember at the time saying, why in God’s green earth Would you do that?
Because the chances that would derail an indictment are somewhere the phrase slim to none overstates that. Because there was no chance that it was going to change the result that the grand jury would not indict, just given all the other proof. So, what that meant was that his story was something that the prosecution knew a year ago because they had an opportunity to hear him in the grand jury under oath.
Mary McCord: Right.
Andrew Weissmann: And they could prepare for it. And one of the things that the defense side of the equation has is the element of surprise. And I thought, well, then there’s no way this guy is going to be a trial witness because that’s just an odd choice, strategically. If you thought he was useful and could be used in your trial, you would hold him close and then use it.
Nope, nope. He hopped on the stand yesterday and was subject to cross-examination. And that’s continuing this morning. And Bob Costello is also, he wanted to represent Michael Cohen and had attorney-client communications with Michael Cohen.
But Michael Cohen ultimately said, I didn’t trust him and I went with somebody else, Guy Petrillo. The record’s clear, he did go with Guy Petrillo. Technical issue, when you’re talking to somebody in anticipation of potentially hiring them, those are protected by the attorney-client privilege.
Mary McCord: Yep.
Andrew Weissmann: Even though they’re not yet sort of officially your lawyer. Those are privileged communications. And Michael Cohen had waived the privilege later when he cooperated in connection with the Southern District of New York and the special counsel —
Mary McCord: Right.
Andrew Weissmann: — investigations, which is why we are suddenly learning about all of these communications between Costello and Cohen. Costello also represented Steve Bannon. And he also represented Rudy Giuliani. He is very close to Rudy Giuliani, personally. And he also has sued to regain legal fees by Steve Bannon and I believe Rudy Giuliani to the tune of, I think, it’s like close to $2 million collectively.
He is the lawyer, who the record suggests, was the one who told Steve Bannon, you don’t have to respond to the congressional subpoena. And the circuit court said, uh, yes you do. And that is objectively unreasonable legal advice to have said that. So, it’s sort of unusual person to use. He also has a number of written communications where he says to Michael Cohen essentially, you have friends in high places who appreciate you and love you in quotes.
Mary McCord: Maybe it’s worth just pausing right there for a second. Because if listeners may be thinking, then what the heck does this guy have to do with this trial, right, and the charges against —
Andrew Weissmann: What does he offer the defense? Yeah.
Mary McCord: Right. And especially because to the extent that some stuff about Costello came out on direct, it was for things like what you just said, right. That Costello through his law partner, Jeff Citron, Jeff Citron originally right after Michael Cohen’s office was subject to a search warrant. That’s when Jeff Citron reached out right away to say, hey, you know, my partner and I, Bob Costello, would love to talk to you about this.
They did have that conversation. They had that conversation on April 17th, 2018. And what Cohen testified about and the reason the prosecution was eliciting this is because there’s a feeling of this closeness that they make clear right from the beginning that Bob Costello is very close to Rudy Giuliani. Bob Costello then sends Michael Cohen the notice as soon as Rudy Giuliani became part of like the Trump team.
Like, look, look, look, I’ve got this inside and it was to show this sort of back channel there. And the fact that, you know, there was pressure brought to bear on Michael Cohen from those closest to Trump, pressure that I think he ultimately felt that, and this is what he testified to. I shouldn’t say, I think he ultimately felt.
He testified that he ultimately, even though he did have many conversations with Bob Costello, many e-mails with Bob Costello, even asked Bob Costello to do certain things for him in terms of try to find out information through Rudy, that ultimately he thought that anything he told to Bob Costello was probably going to make its way pretty quickly to Trump’s ears. And that might not be in his best interest and that’s why he didn’t hire him.
Andrew Weissmann: And by the way, there’s written communications that corroborate that.
Mary McCord: Yes. Yes.
Andrew Weissmann: I mean there’s a number of things when, for instance, Michael Cohen goes on air and says, you know, the president didn’t know anything about the Stormy Daniels payments. There’s a communication back that says essentially he appreciates it.
Mary McCord: Yeah.
Andrew Weissmann: Which is a weird thing —
Mary McCord: Right.
Andrew Weissmann: — to say, if it’s true. Like, you know —
Mary McCord: Yeah.
Andrew Weissmann: — he appreciates, you’re telling the truth, like of course.
Mary McCord: Yeah.
Andrew Weissmann: So, there’s just a lot of what I used to view of evidence from which the jury could infer. That this is like classic mob stuff, which is the boss wants you to stay close, doesn’t want you to flip. The boss wants to figure out if you’re going to flip.
Mary McCord: Yep.
Andrew Weissmann: And what your story, what you might say and the idea that the lawyers are used to really do the bidding of the boss and not the underlaying —
Mary McCord: Don’t worry, you have friends in high places, right?
Andrew Weissmann: Exactly. Now, of course, Bob Costello, just to be clear takes the stand is your point, Mary, and says, that’s not true. He hasn’t said he didn’t communicate with Trump yet, but he basically said I didn’t pressure him. And I only thought about Michael Cohen. I was only thinking about him. And he does say that at the time of the search, Michael Cohen was adamant that he knew nothing that could hurt Donald Trump.
Mary McCord: He didn’t have anything on Trump is what he said.
Andrew Weissmann: Yes. And he says, I swear to God, this is what Costello says, I swear to God. And he repeated it over and over again. And then Costello says, you know, this case isn’t really about you. And if you just cooperated, this case would be over in a week.
Basically, he had a huge incentive to use Donald Trump as a meal ticket. That’s sort of the Costello line. To the extent he said that, it’s A, inaccurate because he actually was the subject to actually the target of the investigation. And two —
Mary McCord: Of the search warrant, yeah.
Andrew Weissmann: — even if he did cooperate, which he did and I know this like from being on the special counsel investigation, I know it from just reading what happened in the Southern District. It wasn’t over in a week. And so I don’t really know why Costello, if he said that, it was wrong. And of course, it may be that the jury finds that he didn’t say that. That this was just a way —
Mary McCord: Right.
Andrew Weissmann: — to find out what he had to say, so he could report it back. And again, Bob Costello denies that, just so it’s clear. There’s a —
Mary McCord: That’s right.
Andrew Weissmann: — dispute about it. But there certainly is evidence in the record to suggest the exact opposite. By the way, my impression of the direct and cross was, just to be facetious, is cross-examination, Susan Hoffinger, Mr. Costello, what’s your favorite color? Did I tell you that Michael Cohen is a liar?
Mary McCord: Yes, that’s a perfect lead in because this was a witness I thought, now granted, I wasn’t in court, Andrew. And neither were you, unfortunately, but reading this, I was just like, oh my gosh, Costello, you are totally making the case against Trump because you are showing, you’re basically going to try everything to get your side, the Trump side in front of the jury, whether it’s responsive to the question or not.
Andrew Weissmann: Exhibit, he was in exhibit of what Michael Cohen had said about why he didn’t trust him.
Mary McCord: Exactly.
Andrew Weissmann: It was like a living exhibit and I thought a juror could easily take the view. If I thought there was any witness who could make Michael Cohen look good —
Mary McCord: Look good, I know.
Andrew Weissmann: — it’s this witness.
Mary McCord: Totally.
Andrew Weissmann: Yeah, I thought the most brazen backfire.
Mary McCord: Yep.
Andrew Weissmann: And you know, we don’t know how cross is going to continue today. But I know a ton of people who are in the room and talked to them about it, this is the big explosive thing that happened. And in case anyone didn’t follow the news yesterday, to Mary’s point about sort of, that he did not to our mind come off as dispassionate lawyer, just telling you what happened.
He was way too eager and way too dismissive of the judge and of Susan Hoffinger. He said things, some snarky things to her that I think could offend, certainly offended me, speak into the microphone.
Mary McCord: Yeah.
Andrew Weissmann: At some point after making comments out loud, which some MSNBC colleagues who were in the courtroom said, they heard in the back of the courtroom, they could hear the witness, after the judge sustained an objection by the prosecution, the witness saying out loud, geez.
Mary McCord: And to be clear, this is after, because I think even before, I think that was like icing on the cake and clearly that’s when the judge and we’ll go through the judge, you know, sent the jury out to have a discussion with Mr. Costello and eventually cleared the entire courtroom.
Andrew Weissmann: Oh no, not a discussion. At some point —
Mary McCord: Yeah, yeah, yeah. No, you’re right.
Andrew Weissmann: — he actually says this is not a —
Mary McCord: He said it’s not a conversation, yeah.
Andrew Weissmann: Exactly, I love that because at some point Costello goes, can I speak? And he goes —
Mary McCord: No.
Andrew Weissmann: — not a conversation.
Mary McCord: Not a conversation. But even before that happened, Andrew, what you saw repeatedly is questions that were objectionable, that Susan Hoffinger would object to and even hearing the objection, the witness would go ahead and start his testimony, his answer. His answer would go well beyond the question. The judge would say, sustained.
Susan Hoffinger would ask for the answer to be stricken from the record. The judge agreed to strike it. And this went on and on and gone. Remember, this is a witness who’s a lawyer, a lawyer for 50 years, a defense lawyer. He testified, 40 or 50 years a defense attorney.
Andrew Weissmann: And a former prosecutor.
Mary McCord: Yes, long time ago in the early ‘80s. So, he knows that when there’s an objection that’s been made, the witness should be waiting for the judge to rule before blurting out the answer. He knows that already. But even if he didn’t, it had happened five, six times and he kept doing it, right. And the answer kept getting stricken and he kept doing it.
So to me, he had already come across, even before the geez, as somebody was like, no, I have an agenda. I have a mission. I’m going to get out these things what I want to say, even over objection, even over a sustained objection.
Andrew Weissmann: It’s so interesting, as a strategy matter, this sort of goes to the court world and the political world. In the court world, a defense lawyer preparing this witness would be, you need to tone that down.
Mary McCord: Yes.
Andrew Weissmann: Like that is not helping us. You need to just answer the question. And like from the defense point of view, coming off so partisan is not helpful. Also, by the way, he has a form of continuing duty of loyalty to Michael Cohen.
Mary McCord: He does.
Andrew Weissmann: He says that he was thinking only of Michael Cohen, but he’s like more than happy to denigrate him. Waiver of the attorney-client privilege doesn’t change the continuing duty of loyalty.
Mary McCord: That’s right.
Andrew Weissmann: That to me was shocking. But you’d want as a defense lawyer to be like, I need you to be as dispassionate as possible. Like where’s all this animosity coming from? He was your freaking former client. What is it just because he didn’t hire you? I mean there are lots of people who don’t hire you and he seemed even defensive about that. He basically was like, I didn’t even want him.
Mary McCord: Yeah.
Andrew Weissmann: It’s like I fired him. You know, it’s like —
Mary McCord: Yeah, it was. It was very immature too.
Andrew Weissmann: But it’s operating at this second level which is, if you look at it not in terms of the trial where it’s unhelpful to have that demeanor, at the bigger picture level, it’s like a Donald Trump, its rules don’t apply to me, judges don’t apply to me. It’s why you have 10 counts of criminal contempt that have been found.
This is, you engage in criminal contempt. I can engage in criminal contempt. It’s sort of, we are part of an autocratic system that doesn’t believe in the rule of law. And to me, it’s a piece of that, of Donald Trump’s rhetoric and conduct, of the mini-mes of congressional leaders and others.
Some of whom have been convicted and indicted, who show up at the trial, who then take to the air saying it’s a kangaroo court and this is injustice. Whereas, the one thing we know is that Judge Merchan is running the most responsible trial. I have like have a man crush on him in terms of how he is doing this.
Mary McCord: And there’s a good example of that, which has to do with sort of the blow up, right? So when Costello says, geez, the court says, send the jury out. Mr. Costello, I want to discuss proper decorum in my courtroom. And I think it’s worth reading excerpts of this transcript. He starts by sending the jury. In other words, people in the courtroom can hear this, including press, but not the jury because they’re out.
He says, when there is a witness on the stand, if you don’t like my ruling, you don’t say geez, 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? Costello says, I understand. Court says, 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? The witness, I understand that. I understand what you’re saying. Court says, okay, thank you. Let’s get the jury back.
Before the jury comes back, the judge says, are you staring me down right now? The witness, no. I’m just wondering how, and this is when the court says clear the courtroom, please, clear the courtroom. And the witness, do you want me to answer your question? Then the transcript, it is not even the judge, it’s the court officers attempting to clear the courtroom, it’s a person in the audience saying, Your Honor, may I object on behalf of the press? You’ve got the press saying we are entitled to be here.
We are entitled to be here. It takes some time to get everyone out of the courtroom. And then once everyone’s out of the courtroom, the judge does, and he is being careful about the record. He acknowledges that this courtroom is made up primarily of the press. And I can appreciate that the press wants to be present for every part of these proceedings. Therefore, this record is not sealed.
The press will have access to this record. He just had to clear it. He says, because of all these arguments and frankly, the witness’s behavior is why he felt the need to clear the courtroom. But he immediately recognized I’m going to have a problem on appeal, if I make this unavailable to the public and the press.
Andrew Weissmann: And to my mind, the analogy here is as if he had done this at sidebar.
Mary McCord: Yes, that’s right.
Andrew Weissmann: There are lots of discussions at sidebar. And frankly, this was —
Mary McCord: That means it’s up at the bench with usually a husher on a machine that goes ssh, so that the jury —
Andrew Weissmann: Right.
Mary McCord: — can’t hear the discussion and the people in the courtroom, including the press, can’t hear the discussion.
Andrew Weissmann: Exactly.
Mary McCord: They have to figure out later with the transcript, right.
Andrew Weissmann: Right. And there’s a transcript, so you find out what happened. This was actually more open than a sidebar because the other thing is the first two rows of the courtroom were there also. So, all of the defendants —
Mary McCord: Attorneys —
Andrew Weissmann: Guests.
Mary McCord: — and guests.
Andrew Weissmann: Were there and their guests were there and the same thing on the prosecution side. So, it was actually, it was sort of the public and press rows were taken out. So, it was actually better than a sidebar.
Mary McCord: Yeah.
Andrew Weissmann: In terms of how much access there was. It also, strategically, and I’m not saying the judge did it for this reason, but it did have the effect of not giving Costello a public audience.
Mary McCord: Exactly. I think that’s why he did it.
Andrew Weissmann: Exactly. That you have two levels in which this is operating.
Mary McCord: Right.
Andrew Weissmann: So, he was basically going to admonish him and he said, twice, your conduct is contemptuous.
Mary McCord: Yep.
Andrew Weissmann: And —
Mary McCord: And he says, I’ll read it. I got it right in front of me.
Andrew Weissmann: Yeah.
Mary McCord: After he says what you said, your conduct is contemptuous right now, I’m putting you on notice that your conduct is contemptuous. If you tried to stare me down one more time, I will remove you from the stand. I will strike his entire testimony. Do you understand me?
Andrew Weissmann: If you had told me that the way this trial was going to go was that Michael Cohen was going to maintain —
Mary McCord: Composure.
Andrew Weissmann: — his demeanor and composure.
Mary McCord: Yes.
Andrew Weissmann: And be unflappable, even in the face of cross-examination of what involved his wife and his daughter, and was still going to maintain his composure and be respectful of the defense lawyer and the judge. But the first real substantive witness on the defense side, who is a former prosecutor, a lawyer was going to go off the rails, I would have been like what?
This, by the way, was totally picked up by the jurors, according to many people who I’ve spoken to are in court. The snippy comment right afterwards when Castello was chastened, where he then turns to Susan Hoffinger says, speak into the mic.
Mary McCord: Yeah.
Andrew Weissmann: Two of the jurors look at each other. I mean it is, again, it’s so off putting.
Mary McCord: Yes.
Andrew Weissmann: But anyway, that is all continuing right now as we speak.
Mary McCord: Yup.
Andrew Weissmann: There’s supposed to be, according to Susan Hoffinger, about a half hour more cross-examination. I assumed it’s going to be on some of these documents. I would probably cross him on his duty of loyalty and how it is that he had no problem hopping on TV to denigrate Michael Cohen, again, in keeping with what he did yesterday on the stand. So Mary, where are we in terms of the trial? Like what’s going to happen next?
Mary McCord: Yeah. So, we did say at the outset that one of the other things that happened yesterday, as the defense made their motion for judgment of acquittal. We’ve talked about this before. This always happens at the end of the government’s case. It’s basically the argument that the government’s case is so weak, there’s no way that they proved the elements they need to prove beyond a reasonable doubt.
And you should just acquit him yourself, Your Honor, and not even make the defense put on a case, not even go through closing arguments, not even have jury deliberations. That is always made by defense counsel kind of no matter how strong the government’s case is. So today, this afternoon, they’re going to do a charge conference.
It’s where they talk about what the instructions to the jury will be. And on Thursday, I think, they will get those instructions. So when we come back Friday, we can talk directly about that. What is the jury going to be told about how they decide this case?
Andrew Weissmann: Exactly. That will actually be an interesting legal component. And so we will get into the weeds in that. It’s like super important. And then summations are scheduled for a week from today. And so there will be both summations and the jury will be charged, read what the law is.
With that, Mary, have a great rest of your vacation.
Mary McCord: I will. Yep.
Andrew Weissmann: Okay, take care.
Mary McCord: Yep, you too.
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Andrew Weissmann: As trial continues, Mary and I will be here twice a week to keep you up to speed. Thanks so much for listening. And we’ll have another episode for you this Friday. And we want to answer your questions as they come up. So, send us questions and you can leave us a voicemail to do so at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@nbcuni.com.
This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Catherine Anderson. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.