Opinion: Trump’s defense ends on one disastrous witness | CNN (2024)

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 for the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Readmore opinionat CNN.

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After the high drama ofMonday’s conflict between Justice Juan Merchan and defense witness Robert Costello, and with the jury in the Manhattan criminal trial of former President Donald Trump being dismissed Tuesday as both sides hashed out jury instructions, my expectations for the day were low.But as has so often been the case, day 20 oftheproceedingsexceeded expectations.

Part of the reason for those modest hopes was the fact that the defense case would not include testimony by the defendant. That would have beensuicidalbecause of Trump’s notorious penchant for false statements that wason exhibitin his daily press availabilities and because the judge had already ruled that he could be extensively cross-examined on his prior wrongdoing. Nevertheless, it contributed to the anticipated sense of anticlimax.

That left us with Costello as the defense’s main witness. And that contributed to Tuesday being another pivotal day, with the defense losing points it could ill afford when prosecutors resumed the cross-examination of Costello, a lawyer who once advised former Trump fixer Michael Cohen. Later, the charging conference to agree on jury instructionsshowed how dauntingthe law is that Trump faces.

Assistant District Attorney Susan Hoffinger skillfully crossed Costello with his own words,insinuatingthat he attempted to “control”Cohentothe benefit ofthen-Trump lawyer Rudy Giuliani andhis client — and prevent him from cooperating with the authorities.She tookCostellothrough his own emailed words in which he toldCohen that he had “friends in high places” — which Costello confirmed referred to Trump — andthat Cohenshould “sleep well tonight” knowing that.

Norm Eisen

Those emailsbothundermined the defense witnessandat the same time supported the prosecution case by offering evidencethat Trump was keeping asharppersonal watch on Cohen in order to maintain his loyalty after the FBI raided Cohen’s office and hotel room in 2018 as part of an investigation including the $130,000 hush money payment at the heart of the trial. Prosecutors allege that the purpose of the payment to adult film actress Stormy Daniels (who said she had a sexual encounter with Trump), was concealed in fraudulent business records. The DA also says that the payment benefited his presidential campaign and amounted to an illegal campaign contribution.

Like the“Eye of Sauron,”theattention of thesupernatural villain in“The Lord of the Rings,”this eye on Cohen, as described in court, was an uncomfortable gaze.

The juryappearedsympathetic to the narrative Hoffinger was reinforcing during this crossand continued to show hostility to Costello. Some jurorsrolled their eyes at the witness andsmiledwhen she took jabs athim. “That email speaks for itself,right?”she asked, parrying Costello’s answers by feedinghim backhis snide retort about emails that he made during Monday’s testimony, when the witness’sconfrontations with Judge JuanMerchanled himto warn Costello that his “conduct is contemptuous.”

Juries take theircuesfrom the judge, and this jury could seeMerchan’s visible annoyance with Costello on Monday; that likely colored their view of him as well.

All of that isbad newsnot just for Costello, whose clash with Merchan won Trump’s praise outside the courtroom Monday, but also for the defense.Because Costello was one of Trump’s only witnesses, there isalso the risk that he — and the jury’s reaction to his poor attitude — will taint the defense case overall.

The defense case took another step backward during Tuesday’scharging conference, in whichthejudge heard from both sides about how he should instruct the jury on the lawand resolved a series of disputes about what he would say to them. Theproblem for Trump is thateven thoughMerchan decided some questionsin the defendant’s favor(in his usual even-handedmanner),the law thatjurors must follow in arriving at their verdict is unfavorable for Trump.

To take perhaps the most notable example, one of the things the DA is seeking to prove is that Trump engaged in a conspiracy to promote his election “by unlawful means.” The defense wanted an instruction that the jury must unanimously agree on what the unlawful means were.But, as prosecutors pointed out, New York law requires no such thing. As long as each juror finds some law was broken they do not have to agree on what it is. Each juror can pick their own adventure, so to speak, as long as each picks at least one.

“The importance of the law is not deviating from the law; it’s to apply the law as consistently as possible, as the court would do in every other case. That is, there’s no reason to rewrite the law for this case,” Assistant District Attorney Matthew Colangelo pointed out, and the judge agreed, saying, “I’m not going to do that.”

Between this and much morelaw that’s unfavorable to Trump, Costello’s calamitous performance and Cohen’s solid one on redirect,I thought the net effect of the past two dayswas to take the overall points tallyall the way back to where the prosecution was last week afterCohen’s direct examination — past the critical threshold of reasonable doubt.

There was littlethe defensecould do about the law in the charging conference beyond their usual able argument. But theywould have been better off notto callCostello, just as they are better off for not having called Trump to the stand.