Editor's note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee during the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Read more opinion on CNN.
CNN —
After a heated confrontation between Judge Juan Marchan and defense witness Robert Costello on Monday, and as the jury in former President Donald Trump's Manhattan criminal trial was dismissed on Tuesday as both sides rushed through jury instructions Following my dismissal, my expectations for the day were low. But, as is often the case, the 20th day of litigation exceeded expectations.
One reason for such modest expectations was the fact that the defense case did not include testimony from the defendant. It was suicidal, as President Trump's notorious propensity for false statements was on display on daily news programs, and a judge had already ruled that he could be subject to extensive cross-examination about his past misconduct. It was probably an act. Nevertheless, it contributed to the expected sense of anticlimax.
This left Costello as the defense's main witness. And Tuesday was another important day. When the prosecution resumed cross-examining Costello, the defense did not concede any points. Costello was a former legal adviser to Trump's former fixer, Michael Cohen. Later, prosecution negotiations to agree on jury instructions revealed just how difficult the law Trump faces.
Assistant District Attorney Susan Hoffinger manipulated Mr. Costello's words to “control” Mr. Cohen and prevent him from cooperating with authorities for the benefit of then-Trump lawyer Rudy Giuliani and his clients. He hinted that he was doing so. She said that Costello himself told Cohen that he had “friends in high places” (Costello acknowledged that he was referring to Trump) and that Cohen said it should be done. “I'll sleep well tonight.” I know.
Provided by Norm Eisen
Norm Eisen
These emails undermined the testimony of defense witnesses, as well as the FBI's search of Cohen's office and hotel room in 2018 as part of an investigation and the $130,000 hush money payment that is at the heart of the trial. It supported the prosecution's case by presenting evidence that Trump personally kept close tabs on Cohen in order to maintain his loyalty. Prosecutors allege that the purpose of the payments to porn actress Stormy Daniels, who alleges she had a sexual relationship with Trump, was hidden in fraudulent business records. Prosecutors also say the payments benefited Trump's presidential campaign and amounted to illegal campaign financing.
Like the supernatural villain's “Eye of Sauron” in “The Lord of the Rings,” this look at Cohen, described in court, was an unpleasant look.
The jury appeared sympathetic to the story Hoffinger was reinforcing during this cross and remained hostile to Costello. Some jurors rolled their eyes at the witness and smiled when she attacked him. “That email speaks for itself, doesn't it?” she asked, parrying Costello's answer and feeding back a mean-spirited rebuttal about the email that Costello made during her Monday testimony. At the time, the witness confronted Judge Juan Melchan, who warned Costello that his “conduct was contemptible.”
The jury will follow the judge's decision, but the juror would have seen Marchan clearly irritated with Costello on Monday. That likely influenced the jury's view of him.
All of this is bad news for Costello. It's bad news not only for Costello, whose confrontation with Marchand outside court Monday drew praise from Trump, but also for the defense. Because Mr. Costello was one of Mr. Trump's only witnesses, there is also the risk that the jury's reaction to him and his poor behavior could taint the defense's entire case.
The defense case took another step back at Tuesday's charging conference, where the judge heard from both sides about how to instruct the jury on the law and resolved a series of disputes over what to say to the jury. The problem for Trump is that even though Marchan (in his usual even-handed manner) decided some questions in favor of the defendant, the laws that jurors must follow when deciding a verdict are against Trump. It is to be.
In perhaps the most notable example, one of the things the DA's office is trying to prove is that Trump engaged in a conspiracy to promote the election “by illegal means.” The defense had asked for an instruction that the jury must unanimously agree on what the illegal means were. But, as prosecutors pointed out, New York state law does not require such a thing. Each juror does not have to agree on what the law is, as long as they think it has been violated. Each juror can choose his own adventure, so to speak, at least as long as he chooses one.
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“The importance of the law is not to deviate from the law. It is to apply the law as consistently as possible, just as the court does in every other case. That means there is no reason to rewrite the law in this case,” said Assistant District Attorney Matthew Colangelo, to which the judge agreed, “that's not our intention.”
Given this, along with the plethora of laws going against Trump, Costello’s dismal performance, and Cohen’s solid performance on re-examination, I thought the combined effect of the past two days was to bring the overall point total back up to where the prosecution was after Cohen’s direct examination last week: above the crucial threshold of reasonable doubt.
There was little the defense could do about this law at the prosecution conference other than make standard competent arguments. But just as it would have been better not to have called President Trump to the stand, it would have been better not to have called Costello either.
