Trump's legal team rested the case on Tuesday after taking what The New York Times described as a “minimal defense.”
The Times probably did not intend to downplay its defense of President Trump with that statement. The article explains that the Trump campaign had only two witnesses compared to 20 for the prosecution, which means prosecutors have the burden of proving every aspect of the case. This is not at all unusual, considering that the defense does not have to present any evidence at all. The truth is that Trump's defense was not minimal. It was terrible.
After prosecutors laid out their case, Trump's lawyers could have relied on what they said in cross-examination and factored it into their closing arguments. Instead, they chose to present two witnesses. One is a paralegal in Trump's chief lawyer Todd Branch's office, and Robert Costello is a former federal prosecutor who has represented a number of high-profile clients, including Rudy Giuliani and former Yankees owner George Steinbrenner. He was the one who was advising Michael at one point. Cohen.
Paralegal Danny Sitko was essentially put on the stand as a records custodian to admit some of the call records. Mr. Costello had just visited the Republican-led House Special Subcommittee on Federal Weaponization and was thrown in to attack Mr. Cohen, Mr. Trump's former fixer and key witness for the prosecution. The paralegal worked well. But Costello was an unmitigated disaster for Trump's defense team.
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The idea appears to have been to build on Mr. Costello's comments about Mr. Cohen's testimony at Mr. Trump's trial, made in the wake of an appearance before Congress last week:[v]Virtually everything he said about me was a lie.”
According to Politico, Costello told CBS during the congressional hearing that he had a brief conversation with Trump lawyer Todd Branche, but that the discussion “was not witness preparation.”
Costello was referring to the lack of preparation for Congressional testimony, but that could apply to trial testimony as well.
Perhaps Costello was trying to discredit Cohen on Tuesday, piggybacking on exaggerated media reports that he was a weak link in the prosecution's case after he was convicted of tax evasion, campaign finance violations and lying to Congress.
But Cohen, certainly carrying baggage that Trump's legal team could and will use, endured three days of cross-examination by Branch, described by legal forum JustSecurity as “sometimes sulky and at times scathing.” Cohen remained calm, and perhaps even composed, presenting himself to the jury as a man with a corrupt past, but telling the truth about that wrongdoing. Notably, Cohen never seemed to attract the wrath of the trial judge, Judge Juan Marchan.
In contrast, Costello displayed remarkable arrogance toward Judge Marchand, yelling “gene” at the judge's ruling on Monday, rolling his eyes and engaging in a standoff with the judge when Marchand reprimanded him. Costello was likely performing for Trump, but it was a highly destructive performance, at least in part in the presence of the jury, which drew the judge's disapproval.
In fact, Costello succeeds in angering Marchan so much that Marchan allows Costello to fully dress up in court, calls Costello's behavior “disparaging,” and removes him from the witness stand. He threatened to destroy his testimony completely.
There was also Costello's performance during cross-examination by prosecutor Susan Hoffinger, who, in contrast to Cohen, gave a masterclass in dissecting Costello. MSNBC's Katie Huang said: “Costello's petulance towards Hoffinger only increases his dislike from the jury. He is being impeached on display after display.”
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If Costello's mission as a witness was to undermine Cohen's credibility, he failed. What he has done is undermine his own credibility and perhaps introduce an atmosphere of mob-like loyalty to the jury, which Trump's defense team said will deter Cohen from cooperating with the government. It is likely to give the jury the impression that he tried to do so. Ironically, Costello's testimony coincided with the appearance of comedian Joe Piscovo as Trump's court aide, perfecting the tone of “The Wise Guys.”
It's worth remembering that the defendant doesn't have to make a case at all, but once he does, the evidence is fair game for the prosecution. My former prosecutor colleague Julie Grohovsky used to very effectively remind jurors of that in closing arguments in cases where the defense chose to litigate. The former training director argued that while the government bears the full burden of proof throughout the case, that does not mean the jury cannot consider weaknesses in the evidence presented by the defense. Simply put, the presumption of innocence does not mean you are free to submit shoddy evidence or testimony.
If the New York jury finds Trump guilty, Trump's legal team may regret their decision to file the lawsuit in the first place. Legendary lawyer Johnnie Cochran used the phrase “garbage in, garbage out” when he argued that forensic evidence was tainted in the OJ Simpson case. Trump's legal team may have had to remember Cochran's words when deciding whether to file a lawsuit using Robert Costello.
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