Thread by @TylerMcBrien

Good morning from 100 Centre St for DAY 20 of Trump’s NY criminal trial.

Yesterday, we made it through the prosecution’s case-in-chief. But we’re not through just yet. Today, Costello is back on the stand.

I’m here reporting it all for @lawfare.

Join me, won’t you? 🧵⚖️

Also yesterday: Justice Merchan limited the admissible testimony of the defense’s potential campaign finance expert witness—who now says he won’t testify after all.

https://twitter.com/commishsmith/status/1792869628902826295

In this odd, short Washington Examiner piece Smith shared, he says prosecutors haven’t specified the underlying object offense.

A strange thing to say coming from an expert witness brought in to testify about a specific underlying object offense.

First of today’s Trump entourage I’ve spotted so far: Rep. Trey Gowdy (again).

This morning, we expect Costello to wrap up testimony and, barring any surprises, for the defense to rest their case.

Then, we expect a charging conference, which is sure to be wild and wooly.

It will also be, as @joshgerstein points out, illuminating:

https://x.com/joshgerstein/status/1792898275105706180

I've just heard another member of today's Trump entourage has been spotted in the hallway: his son, Don, Jr.

It's 8:55 a.m., and America's Favorite Paralegals™️ have arrived to set up for the prosecution.

Hungry for more Line Content today?

@AnnaBower's got you covered 👇

https://x.com/AnnaBower/status/1792901129635783106

More to watch during charging conference: acc to Ethan Greenberg @WSJ, either side could request a lesser included offense (LIO), which the judge would submit to the jury—giving them an option to find that Trump falsified biz recs but not to cover up another crime (a misdemeanor)

@WSJ Link for the @WSJ piece here: wsj.com/articles/the-b…

@WSJ Per Trump's campaign, this is today's Greek chrous: Don Trump, Jr., Matt Whitaker, Pam Bondi, Sen. Eric Schmitt, Rep. Daniel Webster, Rep. Dan Meuser, Rep. Ronny Jackson, Rep. Troy Nehls, Rep. Dale Strong, Rep. Maria Salazar, Sebastian Gorka, Chuck Zito, Joe Piscopo, Bill White

At 9:14 a.m., ADAs Susan Hoffinger, Joshua Steinglass, and Matthew Colangelo, walk in, offering a hearty good morning to their colleagues already in the courtroom (America's Favorite Paralegals™️)

Christopher Conroy and Rebecca Mangold, for the prosecution, have just arrived as well.

For any of my younger followers scratching their heads at the list of characters in Trump's entourage today, maybe this will help:
en.wikipedia.org/wiki/Joe_Pisco…

At 9:23 a.m., Trump walks in and immediately spots @mitchellreports, points at her, and mouths something I couldn't fully catch.

His entourage is huge today. It takes them a while to all file in and find their seats.

At 9:28 a.m., the ever punctual Justice Merchan walks in, "All rise."

Steinglass makes introductions for the prosecution, and Bove for the defense.

Merchan thanks each side for their "submission" and says it would be helpful to do that with "other sections."

With nothing else to discuss, Merchan brings in the witness.

Costello walks in and retakes the stand.

"Good morning Mr Costello, welcome back," Merchan says.

As we wait for the jury, a few of Trump's hallway comments just now, per the hallway reporters: “They have no case, there’s no crime…” “This should be an easy ruling.”

Trump also said the judge should rule from the bench.

While we continue to wait, Steinglass stands up and asks whether Justice Merchan would like to ask the jury their availability for next Wednesday. Merchan agrees.

More from just outside the courtroom a few minutes ago:

https://x.com/kaitlancollins/status/1792909461335519609

The jury is back, and Hoffinger is up at the lectern.

When we left off yesterday, she says, we spoke about how ultimately another lawyer hired Cohen to rep him instead of Costello and his firm.

Costello is poker-faced.

Hoffinger shows an email of Cohen asking Costello to cease contacting him and asks whether Costello provided the email.

Yes, I provided a lot of emails to your office, Costello says.

Apparently Costello's firm was sending Cohen's bills.

We go back to the first Regency meeting, and already it's a bit tense as Costello answers the question then goes on to correct Hoffinger, who tells him to just answer the question please.

Q: You're very close to Giuliani?
A: Yes
Q: He went to your wedding?
A: Yes

Costello says that he didn't tell Cohen about his closeness with Giuliani at the first meeting, but Hoffinger shows him his email in which he wrote "I told you my relationship with Rudy"—meaning, "I told you before."

Costello denies again, so Hoffinger shows another email (512B) 04/2018 Costello to Citron, abt Giuliani joining Trump's legal team: "all the more reason for Cohen to hire me...as I mentioned to him in our meeting."

These emails could not more perfectly refute Costello's answers.

That email speaks for itself right? says Hoffinger.

No there are surrounding circumstances about that email which I'd be delightfed to tell you, Costello answers.

No that's alright, Hoffinger says, getting a good chuckle from the gallery (which gets a "quiet" from an officer)

Hoffinger now asks about the "sleep well tonight" "friends in high places" email—yes, this is about Trump, Costello says, so she shows People's 512G, a 5/15/18 email re: "call to Cohen"—it's long but Costello tells Citron to call Cohen, who is ignoring his calls.

Q: This email is about your goal to have Cohen follow instructions by Giuliani and the president?
A: No, not to follow instructions but to get everyone on the same page, bc Cohen had been complaining that Giuliani—Hoffinger says thanks but he plows on—had been making comments...

...in the press that Cohen didn't approve of.

Another email, 6/13/18 Costello to Cohen: "my friend has communicated to me that he is meeting with his client this evening," and asked Cohen if there's anything he'd like to convey to Trump via Giuliani.

These emails are Costello attempting to establish the Cohen-Costello-Giuliani-Trump backchannel in real time.

Costello just characterizes it as "getting everyone on the same page."

Another tense moment:

Q: You felt like you had been played by Cohen?
A: You want me me to explain it?
Q: No thanks. You wanted to get paid right?
A: No.
Q: You wanted to—
A: —so you do want me to explain it?

Merchan tells Costello there's a pending question.

More emails from Costello to Cohen—it's a full court press. He talks about the liberal media—"They want you to cave. They want you to fail"—and tries to convince Cohen to talk to him.

This is the alleged "pressure campaign" that Cohen spoke about.

HOFFINGER: In 06/2018 you were angry that Cohen was playing you?
COSTELLO: Angry? No, that's the wrong word.
HOFFINGER: Didn't you believe he was also playing Pres Trump?
COSTELLO: No I don't think that's correct.

Hoffinger asks about the question yesterday to Costello about whose interests he re had in mind (Costello said Cohen's), so she offers 512H—Costello forwarded a Cohen text (abt how he finished doc review and then met with counsel) to Citron...

...it reads: "he continues to slow play us and the president...what should I say to this asshole? he's playing with the most powerful man on the planet"

HOFFINGER: That email speaks for itself does it not?

COSTELLO: It does.

HOFFINGER: You lost control of Cohen, correct?
After some back and forth...
COSTELLO: No, I answered no.

A: Did you lose control when he pled guilty?
A: I didn't have control when he pled guilty.
Q: Do you have any animosity toward Cohen?
A: No

Hoffinger asks whether Costello went to testify at Congress recently to intimidate Cohen.

COSTELLO: Intimidate Cohen? No, that's ridiculous.

Nothing further your Honor, says Hoffinger.

Bove back up now.

Bove calmly pulls up an email from Cohen to Costello, in which Cohen said "as you do not or have never represented me in this or any other matter" Is that true or false? Bove asks.

False, Costello answers quickly.

Now Cohen's signed waiver agreement, which read "at no time did I sign a retainer or otherwise agree to retain Costello"—this would be a false statement? asks Bove.

Objection—overruled.

Yes, false, says Costello.

Back to the message between Costello and his son:

The waiver agreement is available on the docket now too: pdfs.nycourts.gov/PeopleVs.DTrum…

Now the "we have been played here" email, what did that mean?

Cohen constantly referred to a retainer agreement he stuck in his briefcase, every time Citron asked him if he signed the waiver he'd give an excuse, and made them believe Cohen paid another firm.

Were you concerned that you were representing Cohen but he wasn't signing the retainer agreement? asks Bove.

Yeah sure, says Costello.

At least one member of the jury takes notes as Bove questions Costello.

Most others just watch on closely, pen in hand.

Bove shows an email from Costello that he had marked "attorney-client privilege," then transitions to discuss the "backchannel"—a word first used by Rudy Giuliani, who gave the reason that Cohen didn't want this to be public.

Hoffinger has lobbed a few objections, most sustained, and mostly based on hearsay from what I can guess. Costello keeps saying "Giuliani said this" or "Giuliani said that."

Another objection now, beyond the scope—sustained—Bove says this was inquired about on cross—sustained.

After a sidebar, Bove pulls up People's 208, the long email Hoffinger asked about minutes ago, especially a line in which Costello says something is "totally up to you" to Cohen.

Q: Did you ever pressure Cohen to do anything?
A: No
Q: Did you ever have control over Cohen?
A: Completely not
Q: Does a lawyer ever control—objection, sustained.
Q: I want to ask about how you practice law—objection, sustained.

After another two objections, Costello looks askance at Merchan, then back forward, and subtly rolls his eyes and shakes his head.

It's a shade of yesterday's pugnacious Costello, but ultimately he restrains himself.

Bove is done—two questions from Hoffinger.

Q: You said that you gave Cohen a retainer agreement weeks later after meeting with him on May 3?
A: Citron gave it to him, but I was in the room.
...

...Hoffinger shows Costello the retainer agreement—Cohen never siged it? Correct. And he never paid you? Correct.

And that's it for Costello. He steps out.

THE DEFENSE RESTS.

Trump will not testify.

Merchan is now addressing the jury: normally you'd hear summations now, but in a case like this, summations will take a while, as will his jury instructions, which he predicts will take an hour.

Bc we're meeting only today and Thurs, Merchan says there's no way we could do what needs to be done in a cohesive manner, it would be too broken up—best thing would be to adjourn now until Tues. At that time they'll hear summations, then the jury charge, then deliberations.

Thinking ahead to next Tues, Merchan isn't 100% sure we'll finish both summations, so he asks if they'd consider working late that day.

Jury is excused until next week, after Memorial Day.

Now we're all excused until 2:15, when we're pick up the charging conference.

As Trump walks out, he smiles briefly at @mitchellreports. Among the big entourage, Sebastian Gorka carries a metal briefcase with what appears to be the U.S. presidential seal on the side.

Apologies for the delay — the press was held up during Trump's hallway remarks, so I only just got back into the courtroom, in medias res.

Bove is up now for the defense, arguing about the dangers of conflating civil and criminal charges, as far as I can tell.

Colangelo is up now, explaining that "unlawful means" doesn't mean criminal—it means violation of law—and he cites case law to that effect.

Bove now, reiterating his objection to bumping up a criminal conspiracy charge using a civil object.

Bottom line argument: for a conspiracy to be criminan you need a criminal object.

Merchan asks about falsifying biz records in the first degree, which requires intent to defraud that includes intent to commit another crime—Colangelo says the statute could have said "criminal means" but it didn't. It says "unlawful means."

Colangelo argues that the object crime doesn't need to be completed and that prosecution cited cases where the defendant was acquitted with the object crime.

The problem is that the mens rea, or the predicate, has to match the highest mens rea of the objects—that's black letter law—says Bove. Oterhwise, you just have a civil conspiracy that can't be used to elevate.

Merchan nods his head understandingly, and thanks him. We move on.

Another line in the instruction: defense wants to include language that in 2015-16 there was no limit for a candidate's own contribution to their campaign. Colangelo says it's extraneous and totally irrelevant for the facts of the case.

Just to be clear, Merchan says, he's reserving judgment on the "willfully issue"—but on this current issue, the campaign contribution limits issue, he's going to strike it. Defense is free to argue it on summation, but he'll keep it out.

Next dispute: more FECA instructions, how to define contribution and other terms: Bove says defense wants to make clear to the jury that there's a zone of 1A protected activity.

Colangelo argues that this is not an accurate statement of the law, and in any event, irrelevant.

Merchan sums up that the prosecution wants this paragraph: The terms contribution and expenditure include anything of value including any purchase payment loan or advance made by any person to influence the election to any federal office period.

The judge seems to agree.

It's a bit difficult to follow because, for some reason, each side's proposed jury instructions are not yet available on the public docket.

So we can't follow along with anything as we go.

We're discussing a few more lines the defense wants in, including "legal expenses are not campaign related."

Defense also wants to include examples of how FECA provisions are applied in practice, especially since Justice Merchan limited their expert witness's potential testimony

Merchan reserves decision, but he's inclined to remove examples and include both sides' sentences.

Next issue is "press exemption"—Bove requests adding
"legitimate press function is a broad concept," "for example, solicitation letters seeking news subscribers to a publication"

Merchan says he doesn't have a problem with that, but is inclined to strike the line: "legitimate press function is a broad concept."

Bove says that "normal legitimate press function" is an extremely broad concept as interpreted by the FEC and that they proposed an attenuated example in order to stay away from the facts of this case.

Next issue: accomplice as a matter of law

Defense requests that the phrase "participated in a crime be" used, and the prosecution requests "participated in [and was convicted of]."

Merchan says we're "playing with fire" with prosecution's wish to include their language and to mention Cohen—he's worried that because he was convicted, that bc he pled guilty, the jury will draw an inference as to Trump's guilt or innocence.

PSA: Because this is so difficult to follow without having the actual proposed jury instructions, I'm only livetweeting sparingly here, out of an abundance of caution.

Merchan turns to "the most challenging issue facing all of us, and that's how you pronounce this word—eleemosynary" (which means charitable)—getting a laugh from both sides. A rare moment of levity. He suggests avoiding the problem altogether and strikes it without objection.

Overall impressions thus far: Merchan is reserving decision on most things, but even when he does, he voices an inclination in one direction or another.

He seems to be siding with the prosecution on some things, the defense on others, and meeting in the middle where possible.

We're debating the expanded instruction on the intent elements, now "intent to defraud," defense proposes "when his or her conscious objective or purpose to lead another into error or disadvantage," but Colangelo doesn't like "lead another" bc intent to defraud doesn't need...

...to be directed toward any person or a specific person

Merchan doesn't show his hand, but moves on to "intent to commit or conceal another crime," which Bove says raises a similar issue.

Merchan jumps ahead to the final one on the submission, which he says he's particularly concerned about: the defense wants to add w/r/t the second element, intent to commit or conceal another crime the people must establish BARD two separate intents: the intent to defraud...

...and the intent to aid or commit another crime.
There's nothing in the statute about "2 separate intents," says Colangelo. It would rewrite the statute.

It appears to be semantics, but it's not says Merchan. It would be a material change in the statute: a 2nd mens rea.

Another general impression—there doesn't seem to be much contention between the sides in the hearing. They must have worked out quite a bit in private conference. We're moving briskly through the submission.

"Tell me about the final two paragraphs" Merchan tells Bove.

But I have no idea what they're talking about because I can't see and have never seen the final two paragraphs.

I'm having flashbacks to college—trying to follow the lecture when you haven't done any of the reading.

I may be lost, but I am not alone. Solidarity out here in the wilderness.

https://x.com/eorden/status/1793000857417511078

We turn to "unlawful means"—Colangelo says the most critical point is the jury does not need to conclude unanimously what the unlawful means are—which the defense opposes.

For more on jury unanimity requirements, read me and @qjurecic in @lawfare: lawfaremedia.org/article/what-m…

"The importance of the case is not a basis for deviating from the standard application of the law," says Colangelo. "There's no reason to rewrite the law for this case."

Merchan agrees with the prosecution.

Colangelo says something that @qjurecic and I argued in our piece: the only proof obligation the People have (which is a high one) is to prove BARD Trump made or caused false entries with intent to defraud and intent to conceal/commit—no proof requirement as to the object crime.

We're talking about People v. Mackey—again.

lawfaremedia.org/article/what-m…

Defense objects to excluding tax law violation charges at all because there's insufficient evidence—Colangelo says the records refutes this claim, cites Weisselberg's handwritten notes on the First Republic bank note.

Colangelo continues, Part of intended concealment here was to camouflage the reimbursement as income—to do that, or as a consequence they doubled it, grossed it up for tax purposes. That's the tax fraud.

BOVE: The problem with this theory and why it shouldn't go to the jury is that Cohen testified that he didn't know anything about it—cites the transcript when Cohen says "I don't know, and to be honest I didn't think about it, I just wanted to get my money back."

Colangelo says he separately testified that it was grossed up because he was going to take it as income—there's competing evidence we can present to the jury, but doesn't think that's necessary. Cohen also said the checks he received were reimbursements and bc of retainer.

Let's take 10 minutes, Merchan says.

See you in 10.

We remain seated as Merchan walks back in and retakes the stand.

That was pretty much what I had, Merchan says, but opens the floor.

Bove first: some instructions defense requested, first a limiting instruction w/r/t bias, modified from the Trump Org trial Merchan presided over

Steinglass says he doesn't think this charge is necessary—the voir dire satisfied this problem and says it was more appropriate in the Trump Org, bc Trump wasn't a defendant there, so it was actually about keeping him out of it...

...Steinglass continues that when instructing a jury, saying they shouldn't hold bias against the defendant is unnecessary, standard charge covers this.

Merchan accepts the People's modified version of the defense's version, even though he doesn't think it necessary.

Next up is curative instruction on hush-money payments, instructing the jury that it's not a crime.

What the defense is asking is for you to make their argument for them in a jury charge—it's totally inappropriate, says Steinglass.

Merchan agrees—that would take it too far.

We're now discussing limiting instruction on the Access Hollywood tape and the reaction to it, esp with regard to Hope Hicks' testimony.

Merchan is leaning toward the People right now, but invites the defense to send him portions of the Hicks transcript, and he'll revisit it.

Steinglass calls one proposed defense line outrageous: "AMI did not admit to any violations of the law in those agreements"

I wasn't trying to be outrageous, Bove says.

We're discussing Cohen's guilty plea or AMI's non-prosecution agreement is evidence of Trump's guilt, and Merchan says that he intends to give substantially the same instruction that he gave during the trial.

Steinglass does not intend to use either as evidence of Trump's guilt.

We turn to proposed instruction on involvement of counsel—door was opened by govt on direct of Cohen and Pecker, relating to the McDougal agreement, and a description of it as "bulletproof"—which suggests that it had been vetted by counsel.

As Bove continues to pronounce FECA as "fay-kuh" vs. the more common "fee-kuh," I wonder if he's getting his revenge on everyone who keeps mixing up the the pronunciation of his name ("boh-vee" vs. "boh-vay").

Merchan is dismantling the "presence of counsel" argument defense made earlier in the proceedings, which morphed into the phrase "involvement of counsel."

"Please don't get up," Merchan says to Bove as he starts to stand to argue. "I let you speak, it's my turn to speak."

"I've never seen an instruction like this, it's certainly not in the CJI—and it's also just flat out wrong," Steinglass says in response to a jury instruction proposed by the defense related to cell phone and messaging app evidence...

...Steinglass adds: "I would suggest those arguments be based in the actual record and not the imaginary record."

Steinglass requests instruction on retainer agreements—through their cross of 3 separate witnesses, defense erroneously suggested that retainer agreements don't have to be in writing, Steinglass says, directing the judge to §1215.1 (I think): ww2.nycourts.gov/attorneys/lett…

Bove argues that 1215.1 is followed by 1215.2, which sets out exceptions (again, I believe this is the cite, but we'll have to check it against the record):

I'll read the rules, I'll read the decisions, and I'll get back to you on that Merchan says. He'll make every effort to get jury instructions to the sides by the end of Thursday so they may have the full weekend to work on summations.

And with that, we're done for the day.

Join me, @qjurecic, @AnnaBower, Ben Wittes, and @katherinepomps as we unpack it all, live on Trump's Trials & Tribulations, NY Trial Dispatch, for @lawfare: