Trump Indicted by Manhattan District Attorney

[Voronwë the Faithful]

Ah, thanks for that correction. I thought the defense argument was, in part, that Michael Cohen did this on his own (and as far as I have heard, we haven't seen a copy of the agreement signed by Donald Trump himself) out of the goodness of his heart rather than at the direction of Trump and then Trump paid him back out of the goodness of his heart.

It can be hard to separate out the media narrative from the actual arguments made at trial.

And at the crazy "Weaponization" committee hearing, Robert Costello (who was called as a witness by Trump's defense team at the grand jury in a last ditch effort to stop the indictment went further that just saying that Cohen did it out of the goodness of his heart without Trump's knowledge. He claims that Cohen did it because he wanted to get Trump to name him Attorney General. Setting aside the question of why this would not violate attorney-client privilege (since Costello claims that Cohen told him this when he was trying to get Cohen to hire him to represent him in the criminal case against Cohen), this claim makes no sense since Cohen paid Daniels before the election.

Costello almost certainly won't be testifying in the trial. In fact, there is a good chance that the defense will not call any witnesses, and that closing arguments could start as soon as Tuesday.

[Voronwë the Faithful]

as far as I have heard, we haven't seen a copy of the agreement signed by Donald Trump himself

That is correct. Here is the copy of the agreement that was entered into evidence, with a signature line for "DD" (aka Trump) but no signature.

https://pdfs.nycourts.gov/PeopleVs.DTru ... .2016).pdf

[Voronwë the Faithful]

Two interesting notes from the transcript of the sidebar that began Tuesday's session, which I haven't seen mentioned anywhere else. First, the witness that the prosecution had originally planned to call after Cohen was not, as I and others have speculated, their election law expert, but instead another publisher representative. Second, apparently the defense had given notice that they might call Alen Garten, the Chief Legal Officer of the Trump Organization, but have now informed the prosecution that they do not intend to call him. At the hearing on the motion to remand the case back to state court after Trump tried to remove it federal court:

Garten testified that the Trump Organization was advised that Trump
had to be separated from his businesses once he took office and that he (Garten) implemented
corporate policies to create that separation. Garten stated that Cohen separated himself from the
Trump Organization in January 2017 to serve as a personal attorney to Trump. Garten stated that
Cohen received twelve payments of $35,000 in 2017 "to reimburse him for the payment that he
had made as part of the Clifford settlement agreement and also to compensate him for the work
that -- this role that he was playing as counsel [to Trump]."

https://www.nysd.uscourts.gov/sites/def ... 9.2023.pdf

So it is interesting that they decided not to call him. But not that surprising, because at that hearing,

On cross-examination, Garten testified that the Trump Organization would
typically execute written retainer agreements when attorneys were retained to work either for
Trump personally or for the Trump Organization, that those attorneys would generally submit
invoices with details of their work, and that the vast majority ofledger entries for payments to
those attorneys included descriptions of their work. (Id. at 59-64.) He testified that he was not
aware of any retainer agreement with Cohen, that Cohen's invoices did not contain descriptions
of the work he did, and that the ledger entries for Cohen similarly did not describe his work. (Id.
at 61:13-62:1, 65:1-4.) Garten testified that he did not know if Cohen actually worked on any
matters referred to him by the Trump Organization. (Id. at 62:15-17.) He also testified that
although Cohen continued to serve as Trump's personal attorney in 2018, Garten was not aware
of any payments to Cohen after 2017. (Id. at 65:16-66:15.)

[N.E. Brigand]

Around the time jury selection was under way for this trial, Donald Trump complained that Judge Merchan was preventing him from traveling to the high school graduation for his youngest son, Barron, which was scheduled for today. Never mind that the judge had only said he couldn't promise so early that today would be a day off. And about a week later, Judge Merchan informed Trump that there would in fact be no proceedings today. About a week later, everyone took note of the fact that Trump announced he would have a campaign rally in Minnesota today. Never mind that Trump said at a 2020 event in Minnesota that if he didn't win that state, he would never return there. (He lost Minnesota by 7 points.) Did that mean he was going to skip the anguished graduation? No, it turns out there was time for him to attend both, and he did. Here he is at the commencement:

[RoseMorninStar]

What a portrait.

[Voronwë the Faithful]

Excellent thread from the one and only Roger Parloff explaining why the moment on Thursday when Cohen was shown to have misremembered one phone call probably isn't as much of a big deal as many in the media have made it out to be.

[Voronwë the Faithful]

It is amazing to me how bad the coverage of this trial in the non-legal media is. The supposedly big news today is that Cohen admitted to "stealing" from the Trump Org by including $50,000 in the reimbursement for payment that he made to the tech company Red Finch when he didn't actually pay all of that to Red Finch. Jake Tapper on CNN is hyperventilating and claiming how horrible it is that the prosecutors didn't anticipate this and bring it up on direct. Accept that they did. Here is Cohen's testimony from May 13 on direct examination:

[Voronwë the Faithful]

The prosecution has rested, and the defense is now trying to call Robert Costello, which the prosecution is objecting to.

ETA: The judge is allowing only limited testimony by Costello. Still should be interesting to see what he says.

[Voronwë the Faithful]

Interesting is one word.



Wow. Just wow.

[N.E. Brigand]

I started this post a couple hours ago and returned to find it was already out of date.

Lisa Rubin reports on how Donald Trump's legal strategy today is apparently to slow down the trial. Prosecutors have video evidence of Trump speaking that they wish to introduce into evidence. Some of the videos publicly aired on C-SPAN. Others were recorded during his deposition in the E. Jean Carroll lawsuits. In both cases, Trump apparently refused to stipulate that the videos are legitimate, so prosecutors have had to call technicians from C-SPAN and from the deposition transcription company that recorded the video as witnesses. (And pay to fly them to New York.) Normally evidence from reputable sources like this isn't subject to such scrutiny. What's more, despite requiring the state to bring in these witnesses, the defense has no questions for them. (The C-SPAN videos they provided demonstrated that Trump publicly denied multiple accusations of sexual assault that were made in October 2016, that he said those claims could hurt his chances of winning the election, that he promised to sue those accusers after the election, and also that he praised Michael Cohen. The videos from the deposition merely show Donald Trump saying what Truth Social is, confirming his handle there, confirming that he married Melania in 2005 and is still married to her, and confirming that it really is his voice on the Access Hollywood tape.)

Earlier today, it looked like the C-SPAN technician was coming back! As V noted before (citing Roger Parloff), much was made in the media last week about whether the defense had undermined Michael Cohen's testimony through the revelation that, although Cohen had testified that on one occasion, he spoke to Donald Trump by calling up Trump's bodyguard, Keith Schiller, who handed Trump his phone, Cohen actually had another reason to call Schiller at that time. (He was receiving harassing phone calls from someone who turned out to be a 14-year-old kid and wanted Schiller's guidance as a security profesional on how to respond.) When Trump's attorney presented Cohen with texts showing this to be the case -- implying that Cohen had spoken only to Schiller about the kid and not to Trump about Stormy Daniels -- Cohen responded that during that call he talked both about the second item with Schiller and about the first item with Trump using Schiller's phone.

And today, prosecutors introduced an image, taken from C-SPAN, showing that Trump and Schiller were together at the approximate time of that call. Or they tried to introduce that image. But Trump's team cried foul, saying that prosecutors had failed to properly admit that photograph and prove that it really came from C-SPAN. Judge Merchan seemed inclined to support the prosecution, but said that they could close the deal by bringing back the technician. Could they do that? Sure, prosecutors said, we can fly him back to New York and should have him here by tomorrow morning.

But after all that, the defense finally agreed to stipulate that the image is what it appears to be. So the prosecution rested. And the defense called their first witness.

And as V noted, that witness, Robert Costello, apparently behaved like a fool.

[N.E. Brigand]

One claim made repeatedly by Donald Trump over the past several years was that Michael Cohen only flipped on him to protect his family. Has Trump's defense team tried to make this point? That Cohen (supposedly) lied to incriminate because he didn't want his wife or father-in-law to go to jail?

[N.E. Brigand]

My favorite line from the SNL opening two night ago: "Trust me, I would love to testify. I'm not afraid to testify at all. I'm just not going to out of fear."

[Voronwë the Faithful]

One claim made repeatedly by Donald Trump over the past several years was that Michael Cohen only flipped on him to protect his family. Has Trump's defense team tried to make this point? That Cohen (supposedly) lied to incriminate because he didn't want his wife or father-in-law to go to jail?

Actually it is the prosecutors that are emphasizing that Cohen previously lied in order to protect his family but that he doesn't have that motivation to lie in this trial because there is no threat to him or his family.

[N.E. Brigand]

This is old news (confirmed under oath in court today), but I hadn't heard this story before. Robert Costello is an attorney who was angling to represent Michael Cohen in 2018 as part of a joint defense defense agreement with Donald Trump and others. Cohen and Costello communicated at some length about that possibility, but Cohen began to suspect that Costello's real aim was to keep tabs on Cohen for Trump, so he eventually withdrew. In one message, which has been public for quite some time, Costello reminded Cohen that "You are loved" and "you have friends in high places." New to me was that when that email first came to light, Costello tried to claim that the second phrase was merely a reference to an old Garth Brooks song! But Costello subsequently told a reporter, and repeated during cross-examination today, that he was in fact referring to Donald Trump.

[Frelga]

Wasn't he supposed to be a witness for the defense?

[Voronwë the Faithful]

It was an incredible miscalculation on the part of the defense team to put him on as essentially there only witness (the only other witness they called was a paralegal in Blanche's office who had put together a spreadsheet of the calls between Cohen and Costello that they wanted to enter into evidence). However, the defense got a break in that the jury has been dismissed until next Tuesday, so the lingering stench of Costello's testimony will have time to fade away.

[N.E. Brigand]

Wasn't he supposed to be a witness for the defense?

And not just for the email I quoted but for another one the prosecution in which Robert Costello, having yet to lock down Michael Cohen as a client, wrote to Jeff Cintron that Cohen "is playing us and the President. What should I say to this asshole, he is playing with the most powerful man on the planet."

Not to mention yet another email in which Costello wrote "Our issue is to get Cohen on the right page without giving the appearance that we are following instructions from Giuliani or the President."

[N.E. Brigand]

Asked why his father didn't testify in his own defense, Donald Trump Jr. today said this proceeding is a "kangaroo court," adding "You don't subject yourself to that."

So why did Donald Trump repeatedly lie and claim that he would testify?

Edited to add: If Trump is convicted, he's probably going to claim that he "wasn't allowed" to testify.

(Josh Marshall suggests that Trump could argue that he can't testify because he's under audit.)

[Voronwë the Faithful]

I am so utterly flabbergasted by the decision to put him on.

[Voronwë the Faithful]

Ouch!