When New York grand jurors were considering charging Donald Trump last year, Robert Costello testified to the grand jury as a last-minute defense witness in an apparent attempt to undermine Michael Cohen’s credibility. A year later, Trump’s lawyers ran a replay of sorts, putting the former Cohen legal adviser on the stand as their main defense witness at trial.
Of course, Costello didn’t stop the grand jury from indicting Trump. And if the former president is convicted of falsifying business records, his lawyers may wonder if they made the right call in putting the witness on the stand at trial.
More than anything, Costello’s trial testimony may be remembered for his misbehavior that caused Judge Juan Merchan to clear the courtroom — not a normal thing to happen at trial — and call the witness contemptuous for rolling his eyes and mouthing off. It’s fair to say that a witness with that temperament might not help the party that called him.
And who is Costello, anyway? He’s a lawyer connected to Trump ally Rudy Giuliani. He met with Cohen in 2018 after authorities searched the former Trump fixer’s home and office (Cohen would be convicted federally in connection with the hush money payments at the center of this state case against Trump, who wasn’t charged federally).
On direct examination by the defense, Costello testified that Cohen said he didn’t have anything on Trump and that Trump didn’t know about the hush money. Cohen testified that he lied to Costello because he didn’t trust him to represent his interests. Trump’s 34 felony counts of falsifying business records stem from what prosecutors say was a hush money conspiracy ahead of the 2016 presidential election that Trump allegedly covered up with false records. He has pleaded not guilty.
Whatever impact Costello had during direct examination by the defense, NBC News reported that on cross-examination Tuesday, “the prosecution has effectively painted him as working to keep Cohen quiet and then being angry when he failed — using his own emails against him.” For example, one email showed Costello telling his law partner that their goal was to get Cohen “on the right page without giving him the appearance that we are following instructions” from Giuliani or Trump.
So it’s safe to say that Costello wasn’t a home run witness for the defense. The open question is how much he helped the defense at all — and whether he even helped the prosecution.
It’s important to remember that the prosecution’s case doesn’t rise or fall with Cohen alone. It’s important to remember that the prosecution’s case doesn’t rise or fall with Cohen alone. The former fixer followed a parade of prosecution witnesses who corroborated him to varying degrees (though, to be sure, he was in a unique position to give certain evidence about his direct interactions with Trump). For example, when it comes to the defense notion that Cohen went rogue in paying off Stormy Daniels, former Trump aide Hope Hicks testified that she thought that it would have been out of character for Cohen to do such a thing out of the kindness of his heart. The defense rested after Costello’s testimony. So Trump himself won’t be testifying, which, perhaps unlike putting Costello on the stand, was a smart move. The defense has no burden of proof in a criminal case; the burden lies with the prosecution to prove the charges beyond a reasonable doubt. The jury is set to hear closing arguments next Tuesday and render a verdict as soon as next week. Ahead of the trial, there was speculation that the prosecution wouldn’t rest its case with Cohen’s testimony but rather would sandwich him in between less-contentious witnesses; otherwise, his sometimes-rough testimony could have been the last thing the jury heard before closing arguments, depending on whether the defense put on a case. Whatever the merit of that concern, the testimony that the jury may now be thinking about heading into the long weekend before summations came from the defense’s rough witness. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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