Thread by @AnnaBower

Greetings from The Line at 100 Centre Street, where Donald Trump’s criminal trial is set to resume with the cross examination of Robert Costello.

Will Costello attempt to “stare down” Justice Juan Merchan? And will the defense rest its case?

Follow along to find out 👇 ⬇️

Scene: A Line Dude surveys his kingdom (The Line).

The Line Dudes basically have a monopoly on line sitting for Trump’s trial.

Thanks to the Dudes, the sleep-deprived journalists covering Trump’s trial are slightly less sleep-deprived.

newyorker.com/news/our-local…

What to expect today at Trump's trial?

1. Prosecutors are expected to wrap up their cross examination of Robert Costello. Yesterday, Susan Hoffinger estimated that she had about 30-45 minutes left on cross examination.

The defense will then have an opportunity for re-direct.

2. The defense is expected to rest its case. Trump's team considered calling another witness--a campaign finance expert, Brad Smith. But after Justice Merchan limited the scope of expert testimony, Smith says the defense will not call him to testify.

3. One wild card is whether Trump might choose to take the stand in his own defense, as is his right.

Color me skeptical.

The defense said yesterday that it expected to rest its case today, suggesting that Trump will not testify.

4. The most important aspect of today's proceedings, however, is what's called the "pre-charge" conference. That's when Justice Merchan will hear argument from the parties on proposed jury charges, meaning the instructions the judge gives the jury prior to their deliberations.

We haven't seen the proposed jury instructions yet. But here are a few issues I'm looking out for:

(1) Will the jurors consider only the felony counts for falsification of business records, or will they have an option to consider the "lesser included" misdemeanor charge?

(2) The felony charge requires that Trump caused the falsification of business records with intent to commit, aid, or conceal another crime.

But do the jurors have to unanimously agree on *which* crime Trump intended to commit, aid, or conceal?

lawfaremedia.org/article/what-m…

To be continued on jury instructions, because things are getting started in courtroom 1530.

"All rise" and Justice Merchan sweeps into the room.

A court officer retrieves the witness: Robert Costello.

Costello takes the stand in a light grey suit and a polka-dot tie. Shock of white hair.

Trump, meanwhile, selected a gold tie today.

The jury enters.

"Good morning jurors," Justice Merchan says.

Susan Hoffinger hops up for cross examination of Costello.

She starts where we left off yesterday: Michael Cohen's choice to select another attorney--not Costello--to represent him in the 2018 SDNY investigation.

We see an email in which Cohen informs Costello to cease contact with him.

Then we're back to Costello's relationship w/ Rudy Giuliani.

You're very close to Giuliani? Yes

He went to your wedding? Yes

Another email: It's from Costello to his law partner, with a link to a Fox News story about Giuliani joining Trump's legal team.

"All the more reason for Cohen to hire me, because of my connection to Rudy Giuliani, which I mentioned in our meeting"

Another one, from April 2018, in which Costello tells Cohen that Giuliani wanted to thank him for opening a "backchannel" of communication.

The April 2018 emails keep coming.

"Rudy said this communication channel must be maintained...sleep well tonight, you have friends in high places," Costello said to Cohen.

That means Trump, right?

"Friends in high places definitely means President Trump," Costello says.

Another 2018 email, this one from Costello to his law partner: "Our issue is to get Cohen on the right page without giving the appearance that we are following instructions from Giuliani or the President," Costello wrote.

June 13, 2018, email from Costello to Cohen: "My friend has communicated to me that he is meeting with his client this evening and he added that if there is anything you wanted to convey...my friend will bring it up for discussion this evening."

Hoffinger is displaying all of these to show that Costello was encouraging a communication backchannel with Trump/Giuliani.

She displays another email, asking if Costello was encouraging Cohen not to cooperate. Costello says no, and Hoffinger zooms in on the first paragraph.

In the email, Costello tells Cohen that there is an effort by SDNY and others to make him believe that he is alone, that Trump and Giualini are trying to discredit him. He tells Cohen it's an effort to drain him emotionally so that he sees prosecutors as his only salvation.

HOFFINGER: Yesterday, you were asked if you cared about Trump's interests when you were representing Michael Cohen. You said no, your obligation was to Cohen. You recall that? Yes.

Then Hoffinger displays an email from Costello to his law partner.

Costello says that Cohen is slow playing "us and the President...What should I say to this asshole? He's playing with the most powerful man on the planet."

This email speaks for itself?

Yes, it does.

HOFFINGER: You went and testified before Congress during Cohen's testimony here?

COSTELLO: Yes.

HOFFINGER: It was an effort to intimidate Cohen while he was testifying?

COSTELLO: Intimidate? No.

Nothing further.

Emil Bove is up for re-direct on behalf of Trump.

He displays the attorney-client privilege waiver signed by Cohen wrt communications with Cohen.

It says that Costello has "never represented [Cohen] in this or any other matter." Is that true or false? Bove asks.

False, Costello replies.

Costello talks about the email in which he tells his law partner that Cohen "played" them. He says that every time his partner, Citron, asked Cohen about signing the retainer agreement that he would delay signing it. And Costello was concerned about representing Cohen without a signed retainer.

Bove pulls up a 2018 email that Costello sent to Cohen, which he marked as "attorney client privileged."

Did Cohen write back and say hey, you're not my attorney? No.

Let's focus on the "backchannel." Who first used that term? Rudy Giuliani, in response to my saying to him that we couldn't make this public per Cohen's request. ["This" being Costello's purported representation of Cohen in the SDNY investigation.]

Bove tries to ask about Costello saying "I will not pester you.." in an email to Cohen.

Objection from Hoffinger: Beyond the scope. Sustained.

Bove, with hint of annoyance, says "this was inquired about on cross examination."

He tries to keep going, then the parties go to sidebar. Objection sustained.

Back to a June 2018 email. The one in which Costello says "you have the ability to make that communication when you want to..."

Did you ever pressure Michael Cohen? No
Did you ever have control over Cohen? Completely not.

Every document, you provided to the prosecution a year ago? I did.
What was your purpose in meeting w/ Cohen after the Regency Hotel meeting? To discuss legal problems.
Did you someone continue to discuss retainer agreement after that meeting? Yes, it was May 3 at our office.

Things you've said at this trial have been known to these people (meaning the prosecution)? Yes.

Nothing further, Hoffinger up for re-cross.

HOFFINGER: You said you gave Cohen a retainer agreement on May 3? (Yes.)

She shows him the retainer agreement.

Cohen never signed that agreement? That is correct.
And he never paid you? Correct.

Nothing further.

"Your honor, the defense rests."

Justice Merchan tells the jurors what will happen next:

We will adjourn for the rest of the week, and then have summations -- closing arguments -- on Tuesday.

The jurors exit, but the parties remain.

The plan is for the parties to take time now to continue working on the proposed jury charges. Then we'll reconvene at 2:15 pm for the pre-charge conference.

Emil Bove: Do we have the court's permission to file the request documents (presumably meaning the proposed jury instructions)?

Justice Merchan: What we can do is mark it as a court exhibit.