130,000 Reasons
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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 Weissman, and the Mary I refer to is Mary McCord. Hi, Mary. Hi, Andrew. I am going to not say good morning because for me, it is 1.40 in the afternoon. Okay. And I again want to thank all the listeners from Ireland who keep sending me recommendations. I really appreciate it. Thank you. That is so cool.

So, Mary, while you're gallivanting around, taking it easy, and what a great time to do it because there's so little going on here in New York. Exactly. There's no need to like stay up all night reading transcripts or anything like that. 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,

Mary, what's on our agenda today? 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've had their request for a third, an expert, pretty much rejected. And we'll talk a little bit about that. Yes. Before going on to what's called a charge conference. And we'll explain to folks what a charge conference is.

And I think this is so great because I think we're going to talk a lot about arguments that can be made based on what happened yesterday, where we think the parties are going, the state, the defense. But let's start with Michael Cohen and then we'll 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 extended period of time. But here there was an even longer period. I have to tell you, everyone's 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

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

There was a lot of disputes about things. The 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 recross examination by Todd Blanch. So, Mary, let's take the lens out to sort of a big picture example.

and what your thoughts were, especially since you got to sort of read it as a whole. Yeah, there are a few themes that I think that Todd Blanch, 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

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 it 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 suggest 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 sought 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.

And it was actually a focus of the civil fraud case in New York that the attorney general brought. Absolutely, right? The value of the 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's 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 in 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 Blanchett'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's 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 four million dollars. 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... To say the least, that was one of my favorite cut points, but go ahead. Yeah, go ahead. You describe it. At some point, this is the old aphorism, which is, it's like one question too many. Oh, one question too many. Absolutely. So it was like, you have a financial interest in the outcome of this case. And he said, yes. 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. To keep talking about in the future. And when you're

think about it, he's so right, right? Because then Trump would go on to do whatever he's 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. 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.

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, he 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? Right. It's

It's not really tethered to any logical argument. It's just sort of like, oh, he's really profiting from that guy. Yeah, exactly. Which is true. I mean, he said it all on direct. 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've profited for this man and now you want to see 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. 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 business records. 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 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. Yep.

So the point is that some of the reimbursement that formed the $420,000 payment that was divided up over a year involved this company called Redfinch. And in fact, the way it had worked was that Michael Cohen had paid Redfinch $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 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. So I kind of made it up that way.

up that way. And I thought the biggest significance of that, which Todd Blanch didn't specify enough, was like it shows that he's willing to do something behind Donald Trump's back. That'll 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 cooperating 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 could 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

that he stole $30,000. Let's see, well, Michael Cohen- His words, his words. Exactly. 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're supposed to take his word, the word of somebody who is a perjurer and a liar and a thief and throw all the adjectives you want, that you take to the bank. That is to be believed

And it is absolutely like written 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. 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 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.

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 Redfinch was all about.

Oh, my God. It was like, and it's weird because, of course, the defense knew what it was. Well, that's just it. They took a risk there. 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 Redfinch was

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. Which by the way, $50,000, guess what?

gets you to number nine. 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, so mob, right? So understandably, when it's time to have redirect after crosses 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 Redfinch contract was. 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 want to 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 investigated journalism about Trump just not paying bills? Yeah, we've heard it in this trial, too, actually. We heard a lot about Michael Cohen, whenever Trump didn't want to pay, saying, I would get them down at least 20% off of whatever the bill was for, if not even going further and not paying at all. So this was very much on par with that. Yeah, and that hits the theme of he had to have known.

He was paying $420,000 and what it was for because he's not only a micromanager, but he's a cheapskate.

And so he's not going to want to overpay. Final point before we take a break, which is Todd Blanch's recross. I kind of wanted to pull him aside and be like, Todd, that's not your argument. That's the state's argument. So maybe you should stop because you're playing on their field. He ends his recross by saying, so isn't it a fact that Donald Trump doesn't like overpaying for things and he wouldn't overpay for things? And I'm like,

Hmm. Yeah. Okay. Why is your recross seeming like it's a continuation of Redirect by Susan Hoffinger? I mean, I was just like, that is the craziest thing. And it reminds me of the opening where he said basically the same thing. And I was like, Todd, not your point. Your point's the opposite. It was. So should we take a break and then talk some more about Susan Hoffinger's Redirect? Yes. Let's take a break.

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So, Mary, let's talk about Susan Toffinger's redirect, Big Picture. And this is, in some ways, maybe it's not even Big Picture. It's part of my throat clearing, Small Picture, which is absolutely amazing.

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 in the way you and I talk about the case and thinking about it, like how we would have done it. And I thought, as we've talked about, Susan Offinger 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 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 all of that. In other words, you don't want to sort of go down a rabbit hole of just responding. And that way, the jury's just thinking about

sort of the weakest parts of your case and forgetting to think about the good parts of your case. So she managed to do all of that and quickly. 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 gets boring. It goes on too long. And I actually think the cross-examination went on too long. Less is more. Less is more. And then the jury... And more is less. That's right. And

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. So big picture is one of the things that she was hitting was mistake versus liability.

Yes. And she 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. Right. 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's just invariable. And the defense lawyer, and again, correctly, always jumps going, that's a lie. And of course, that's what happened here with Todd Blanch going, you're lying. Yes.

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. It's just not that important. That is an example of sort of the million and one things that happen in life, which 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 the huge difference between a 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. You know, 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

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 it was public. Well, it turns out there was a court order that allowed it to, that actually didn't allow it, made it public. Yes, made it public. 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. Well, and remember, the prosecution asked the judge to give an instruction. 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 to be given the instruction. So I thought that was a significant sort of gift that the judge gave to the defense. Absolutely. That's an example of his total fairness. And just going back to this idea of making a mistake, you pick something that the defense lawyer did

Here, for instance, you could pick the example of Todd Blanch 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 he would say to the jury,

Of course, that was just a mistake. We all saw it. No one's 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? Yeah. 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.

And to me, the big theme of that and the reason that's an important thing here is because of what Todd Blanch 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 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, the substance of the calls on the 26th where the 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 defense has 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 men,

minutes before the telephone call. So at 7.57 p.m., 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. 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's phone and it could have been handed to him. Yes. And there also is other evidence from other time periods where that phenomenon happened. And Todd Blanch fought it like crazy. 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 don't have the facts on your side of the law inside, you pound the table. And raising your voice to a judge, not a good idea, especially this judge. Do 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 argument.

It's very technical rules. But the judge 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 he was kind of right to be like, I need to be really careful on this. And I want to get reversed 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 930 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 trials. Someone gets sick, their plane gets canceled. Can't make it, who knows? Exactly. So all the time witnesses go taken out of turn. And 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 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. Right. 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. It's weak tea. I do not know what they're doing. I can't think of a witness who would make Michael Cohen look better. I know.

I know. And we're 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 stipulation

still photo, this still screenshot from the C-SPAN video was taken from that video and that 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.

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 your testimony? Is it still your testimony essentially beyond a reasonable doubt? You know, are you still confident that 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 and just cleaned up a lot of things. And as we said earlier,

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. Yep. 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

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, 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. Yeah. 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 and 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. 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? So that sounds good because it's like, or maybe should I give more throat clearing or should we just? No, no, your throat is clear. Okay, let's take a break.

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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 on God's green earth would you do that? Because the chances that that would derail an indictment are somewhere the phrase slim to none overshadowed.

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

in the grand jury under oath. Right. 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's 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

And then use it. 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 even though they're not

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 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, yes, you do. And that is objectively unreasonable legal advice to have said that. So it's sort of

It's 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. 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... Why would... What has he offered the defense? Yeah. Right. 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 of 2018. And what co-authored

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 saying,

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 emails with Bob Costello, even asked Bob Costello to do certain things.

for him in terms of trying 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 that might not be in his best interest. And that's why he didn't hire him. And by the way, there's written communications that corroborate that. 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, which is a weird thing to say if it's true. Like, yeah, he appreciates you're telling the truth. Like, of course. Yeah. So there's just a lot of what I used to view as 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 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. Don't worry, you have friends in high places, right? Exactly. Now, of course, Bob Costello, just to be clear, takes the stand. This is your point, Marion, 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 Trump.

Donald Trump. He didn't have anything on Trump is what he said. 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 to search for 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 what 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 to find out what he had to say so he could report it back. And again, Bob Costello denies that. So it's clear there's a 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 that

Cross-examination, Susan Hoffinger. Mr. Costello, what's your favorite color? Did I tell you that Michael Cohen is a liar? 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 up.

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. Exhibit. He was an exhibit of what Michael Cohen had said about why he didn't trust him. Exactly. 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, it's this witness. I mean, it was, I thought the most brazen backfire. 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 talk to them about it. This is the big explosive thing that happened in

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 some snarky things to her that I think could offend, certainly offended me. Speak into the microphone. Yeah. 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,

Jeez. 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. Oh, no, but not a discussion. At some point, he actually says, right. This is not a he says he says it's not a conversation. Exactly. I love that because it's a break. So it goes, could I speak? And he goes, no, no, not a conversation. Not a conversation.

But even before that happened, Andrew, what you saw repeatedly is questions that were objectionable that Susan Huffinger 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 Huffinger 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. And this, remember, this is a witness who's a lawyer.

A lawyer for 50 years, a defense lawyer, he testified 40 or 50 years of a defense attorney. And a former prosecutor. 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 G's as somebody was like, no, I have an agenda. I have a mission. I'm going to get out these things that I want to say, even over objection, even over a sustained objection.

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. Yes. That is not helping us. You need to just answer the question. 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. 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. That's right. 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 if you've got some, 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. Yeah. It's like, it's like I fired him. You know? Yeah, it was. It was very immature too. 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. It's a 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

And it's to me, it's a piece of that, of Donald Trump's rhetoric and conduct, of the mini-me's 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 Mershon is running the

the most responsible trial. I mean, he is like, I have like have a man crush on him in terms of how he's doing this. 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's

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 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're entitled to be here." It takes some time.

to get all of everyone out of the courtroom. And then once everyone's out of the courtroom, the judge does, and this is his, 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. And to my mind, the analogy here is as if he had done this at sidebar. Yes, that's right. There are lots of discussions at sidebar. And frankly, this was... That means it's up at the bench with usually a husher on a machine that goes,

So the jury can't hear the discussion and the people in the courtroom, including the press, can't hear the discussion. They have figured out later with the transcript. Right. 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.

Attorneys. Guests 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. Yeah. 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. Exactly. I think that's why he did it. Exactly.

Exactly. That you have two levels in which this is operating. And this is so he was basically going to admonish him. And he said twice, your conduct is contemptuous. Yep. And he says, I'll read it. I got it right in front of me.

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 try to stare me down one more time, I will remove you from the stand. I will strike his entire testimony. Do you understand me? If you had told me that the way this trial was going to go was that Michael Cohen was going to maintain his

His demeanor and composure and be unflappable, even in the face of cross-examination where it 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 who are in court. The snippy comment right afterwards when Costello was chastened, where he then turns to

Susan Hoffinger says, speak into the mic. Yeah. Two of the jurors look at each other. I mean, that's it is again, it's so off putting. Yes. But anyway, that is all continuing right now as we speak. There's supposed to be, according to Susan Hoffinger, about a half hour more cross examination. I assume 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,

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? Yeah. So we did say at the outset that one of the other things that happened yesterday is the defense made their motion for judgment of quittle. 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've proved the elements they need to prove beyond a reasonable doubt. And you should just acquit him yourself, your honor, and not even let 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? Exactly. That'll actually be an interesting legal component. And so we'll get into the weeds in that. It's like super important. And then summations are scheduled for a week from today. Okay.

And so there'll be both summations and the jury will be charged, read what the law is. With that, Mary, have a great rest of your vacation. I will. Yep. Okay. Take care. Yep. You too.

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 email us at prosecutingtrumpquestions.com.

Thank you.

And Rebecca Cutler is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.