'If you try to stare me down one more time, I will remove you from the stand,' the judge warned Trump witness Costello on Monday. Costello re-took the witness stand Tuesday morning.
Aysha Bagchi,Bart JansenUSA TODAY
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The defense has rested after calling just two witnesses in former President Donald Trump's criminal hush money trial.
Trump had initially said he would testify in his defense, but subsequently backed out. He claimed he could not testify because of a gag order restricting his potentially intimidating attacks on witnesses and jurors, but Judge Juan Merchan made clear that this did not preclude Trump from testifying.
Earlier Tuesday, defense witness Robert Costello was back on the witness stand after the judge threatened Monday to throw out his testimony for contemptuous conduct.
Merchan has said closing arguments are set for May 28, with jury deliberations to follow next week.
Follow USA TODAY's live updates from inside and outside the Manhattan courtroom as Costello continues testifying:
Lawyers to argue over crucial jury instructions later today
Although jurors have been excused for the rest of the day, Judge Merchan said proceedings will resume at 2:15 p.m. EDT today for the lawyers. The two sides are set to make arguments to Merchan about the instructions he will give to the jury, before jurors begin deliberating next week.
Those instructions could be crucial to the outcome of the case. Merchan will tell the jury what the applicable law in the case is. He will then task them with not just deciding what happened factually in the case – for example, whether former President Donald Trump authorized Michael Cohen to pay p*rn star Stormy Daniels hush money – but also determining whether Trump's actions violated the law.
To convict or acquit Trump, 12 jurors must come to a unanimous decision.
– Aysha Bagchi
Judge excuses jurors until Tuesday after defense rests
Judge Juan Merchan excused jurors not just for the rest of today, but also for several coming days. He said they don't have to come back until Tuesday, when the prosecution and defense will present closing arguments in the case.
– Aysha Bagchi
Costello says Rudy Giuliani was first to talk of 'back channel'
Before the defense rested, Trump witness Robert Costello testified that Rudy Giuliani was the first person to use the term "back channel" to describe communications from Michael Cohen to Costello to Giuliani, and back the other way.
Cohen previously testified that Costello proposed creating a back channel of communication to Trump through Giuliani, at a time when Cohen's office had been raided by the FBI. Cohen described Costello as "sketchy."
Trump lawyer Emil Bove showed jurors an email from Costello to Cohen, speaking about having had a conversation with Giuliani. "He said thank you for opening this back channel of communication," Costello wrote, adding that Giuliani asked Costello to keep in touch.
– Aysha Bagchi
Costello says communication to Cohen was privileged in email
Before the Trump defense rested, Trump lawyer Emil Bove showed jurors another email from Costello to Cohen that was dated April 21, 2018.
Bove emphasized to jurors that Costello labeled the email as protected by attorney-client privilege, perhaps seeking to suggest to jurors that Costello was acting in an attorney-like capacity to further Cohen's interests, rather than pressuring Cohen to help Trump.
Costello wrote to Cohen, appearing to reference Rudy Giuliani: "I spoke with Rudy. Very Very Positive. You are 'loved'." Costello added that, if Cohen wanted to have a call, Costello would give him more details.
Costello confirmed to Bove that Cohen didn't respond to the email by disputing that Costello was his lawyer.
– Aysha Bagchi
Costello email expresses fear Cohen 'played' him
Trump lawyer Emil Bove asked Robert Costello more questions on "redirect," which is an opportunity for lawyers to rehabilitate their own witnesses when it comes to any issues raised on cross-examination.
Bove displayed an email from Costello to Michael Cohen, in which Costello expressed a fear that Cohen had "played" him.
"Please remember if you want or need to communicate something, please let me know and I will see that it gets done. I hope I am wrong but it seems to both Jeff and I that perhaps we have been played here," Costello said, possibly referencing his law partner, Jeffrey Citron.
– Aysha Bagchi
Hoffinger kept Costello in control with tight questions
In prosecutor Susan Hoffinger's cross-examination of Costello Tuesday morning, she kept the Trump witness under tight control with a series of questions that only invited "yes" or "no" answers. On Monday, Costello showed a strong inclination to expound on his answers beyond what a question actually asked for.
Hoffinger repeatedly asked Costello simply to verify he wrote what was displayed in emails shown to the jury, or either confirm or deny a certain meaning to the emails.
At one point, Costello said he would be "delighted" to explain something about an email Hoffinger showed to the jury.
"That's alright. Let's move onto the next one," Hoffinger replied.
– Aysha Bagchi
'What should I say to this a--hole? He is playing with the most powerful man on the planet.': Costello to law partner
Before the Trump defense rested, prosecutor Susan Hoffinger displayed an email that Costello sent to his law partner, Jeffrey Citron, seeming to refer to Michael Cohen with an expletive term.
"What should I say to this a--hole? He is playing with the most powerful man on the planet," Costello wrote.
Costello has testified he was operating in a lawyer-like capacity for Cohen at the time. But Hoffinger likely wanted the jury to believe Costello was acting in the interests of then-President Donald Trump, not Cohen.
– Aysha Bagchi
Defense rests without calling Donald Trump to testify
Former President Donald Trump's defense team rested without calling their client to the witness stand. Judge Merchan is now giving the jury instructions on how the upcoming schedule will unfold.
– Aysha Bagchi
Hoffinger shows emails backing Cohen's testimony
Prosecutor Susan Hoffinger has displayed a series of emails that appear aimed at buttressing Michael Cohen's testimony that Costello pushed a back channel of communication with Trump through Rudy Giuliani, and pressured Cohen not to cooperate with federal investigators.
In one email to Cohen, Costello said Cohen thought Trump and Giuliani wanted to discredit him and throw him under the bus, and Costello thought Cohen was wrong. Costello told Cohen that if he really believed he was not being supported by his "former boss," he should make his position known.
"You have the ability to make that communication when you want to," Costello said.
– Aysha Bagchi
Costello denies discussing Rudy Giuliani closeness in first meeting with Cohen
Hoffinger has begun cross-examining Costello again this morning. She started by asking Costello if he discussed being closely connected to former New York City Mayor Rudy Giuliani in his first meeting with Michael Cohen. Costello denied that happened in the first meeting.
However, Costello confirmed to Hoffinger that he and Giuliani are close and have known each other for years, and that Giuliani was at Costello's wedding. Costello also agreed he did at some point tell Cohen his relationship with Giuliani could be very useful to Cohen.
Cohen testified that Costello proposed creating a back channel of communication with Trump through Giuliani after Cohen's office was raided by the FBI in 2018.
– Aysha Bagchi
Trump: Merchan should dismiss hush money case before jury considers evidence
Former President Donald Trump told reporters Tuesday that Judge Juan Merchan should throw out the case against him for lack of evidence before the jury considers it.
“I think it would be great for Judge Merchan to rule from the bench and determine that this is a witch hunt,” Trump said. “Any other judge would have thrown this case out.”
Trump said his defense would be resting soon. Bob Costello, who was scolded Monday for his reaction to Merchan’s rulings, is expected back on the stand to testify as a legal adviser to former Trump lawyer Michael Cohen.
Trump said he would talk to reporters again after what he expects will be a short day in the “ice box” courtroom.
“We’ll have another little scrum in a little while,” Trump said. “It should end a little bit early today.”
– Bart Jansen
Judge Merchan arrives for Day 20 of trial
Judge Juan Merchan entered the courtroom at 9:28 a.m. EDT. The lawyers didn't raise any issues they wanted to discuss before bringing in Trump witness Robert Costello and the jury. Merchan didn't address the heated developments in the courtroom on Monday, including a brief period when he forced reporters to leave and then further admonished Costello for "contemptuous" behavior.
– Aysha Bagchi
Trump and son Don Jr. arrive in courtroom
Former President Donald Trump and his legal team entered the courtroom at 9:23 a.m. EDT. The prosecution team has also arrived.
Trump is joined for the first time in this trial by his eldest son, Donald Trump Jr. The Trump middle son, Eric Trump, has joined on several previous days. The presumptive Republican presidential nominee's supporters sit in the first two rows of benches behind the defense table.
– Aysha Bagchi
Who has already testified in Trump's criminal trial?
Prosecution wrapped questioning with its 11thwitnesson Monday afternoon. Here is a look back at who has already taken the stand:
- David Pecker, former CEO and president of AMI, the parent company of tabloid National Enquirer
- Rhona Graff,Trump's former executive assistant
- Gary Farro, Michael Cohen's former banker
- Robert Browning, an executive director at C-SPAN
- Phillip Thompsonwho works for a deposition company
- Keith Davidson, a lawyer who represented former Playboy model Karen McDougal and p*rn star Stormy Daniels
- Douglas Dausa computer forensic analyst for the Manhattan District Attorney's Office.
- Georgia Longstreet,a paralegal withManhattan District AttorneyAlvin Bragg'soffice
- Hope Hicks, a former Trump aide who was the campaign press secretary in 2016
- Jeffrey McConney, the former controller at the Trump Organization
- Deborah Tarasoff, an accounts payable supervisor at the Trump Organization
Trump expert witness says he won't testify after judge's ruling
An expert witness hired by Trump's defense team, Brad Smith, posted on X (formerly Twitter) Monday night that he won't be testifying. He cited a ruling from Judge Juan Merchan earlier in the day that limited what Smith could say on the witness stand.
Merchan said Smith may describe general definitions of terms related to federal campaign finance laws, but may not go further in interpreting federal law. Merchan said allowing that broader testimony would create a "battle of the experts" between the defense and prosecution that would confuse the jury. And he said it would be problematic for the jury to hear legal instructions from two experts plus the judge himself.
Smith is a former head of the Federal Election Commission, who indicated he had planned to testify about the "very complex" Federal Election Campaign Act (FECA).
"While judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen!" Smith complained.
The jury did hear that Cohen pleaded guilty to campaign finance violations, although Merchan also instructed them not to consider that when deciding whether Trump is guilty in his criminal case.
– Aysha Bagchi
Who is Robert Costello?
Robert Costello is a former federal prosecutor and Trump ally who has been called to challenge testimony from prosecution star witness Michael Cohen. According to Cohen, Costello tried to create a back channel of communication to Trump through former New York mayor Rudy Giuliani in 2018, after the FBI raided Cohen's office.
"I swear to God, Bob, I don't have anything on Donald Trump," Cohen told Costello at the time, according to Costello's Monday testimony. Cohen himself testified that he never told Costello about Trump's alleged involvement in hush money payments ahead of the 2016 presidential election.
Merchan's heated admonition against Costello came after the lawyer-turned-witness exclaimed "Geez!" following Merchan sustaining multiple objections to his testimony on Monday. Merchan first excused jurors to warn Costello about not exclaiming "Geez!," or rolling his eyes, or giving Merchan "side eye."
But during that warning away from jurors, Costello again drew the judge's ire. "Are you staring me down right now?" Merchan asked the lawyer, who was sitting in the witness box just next to the judge.
"No. I'm just wondering how –" Costello began to reply. "Clear the courtroom, please. Clear the courtroom," Merchan instructed. Several reporters protested but were still forced out.
– Aysha Bagchi
What is Trump on trial for?
Trump faces 34 felony counts of falsifying business records. Prosecutors allege the real estate mogul falsified records to cover up unlawfully interfering in the 2016 presidential election through a hush money payment to p*rn star Stormy Daniels.
– Aysha Bagchi
When will the trial end?
Judge Merchan said he anticipates holding closing arguments on Tuesday, May 28. That means the jury may have a verdict by the end of next week.
– Aysha Bagchi
Why does Trump's team say the case should be dismissed?
Trump lawyer Todd Blanche asked Judge Merchan to dismiss the entire case on Monday.
Blanche said the business records at issue weren't actually false. The records indicate Trump was paying Michael Cohen for ongoing legal services in 2017, which prosecutors say was cover for reimbursing Cohen for a hush money payment to p*rn star Stormy Daniels. Blanche said Cohen did provide Trump with 2017 legal services, in keeping with the characterization.
Blanche also argued the case should be tossed because Michael Cohen's testimony should be tossed, and the case can't stand without his testimony. "He not only lied repeatedly in the past under oath, but he lied in this courtroom," Blanche said.
Merchan could issue a ruling on Blanche's request sometime today.
– Aysha Bagchi
