How To Blow Your Defense

Three ways it went south yesterday for Team Trump

Defense witness Robert Costello gets a dressing down from Judge Merchan. Image by Jane Rosenberg, Reuters

It was supposed to be the defense’s moment to eviscerate Michael Cohen. The defense would prove that Cohen is not only a liar, a cheat and a convicted perjurer, but that his story about Trump—and what he actually knew about the Stormy Daniels payment—is full of holes. 

The crowning finish would be the defense’s star witness, Robert Costello, a lawyer who had once advised Cohen. His testimony was theoretically important because he is someone, other than Trump, who allegedly spoke to Cohen about the Daniels payment. Costello has claimed that Cohen told him in 2018 that Trump “knew nothing” about hush money. This then could create sufficient reasonable doubt for at least one juror to vote to acquit.

Except it didn’t go that way.

Cohen should have been an easy target. He’s a felon, he’s got a big mouth, and he lied to Congress and to prosecutors. But Trump’s attorney, Todd Blanche, failed to tell a coherent story, jumping from point to point and losing the thread often. Some members of the jury struggled to stay awake. And Trump fell asleep. Again.

But beyond this, the defense managed to blow the three best parts of its argument: That Cohen’s memory of a key call with Trump was faulty or fabricated, that Cohen is a thief who stole money from the Trump Organization, and that famed lawyer Robert Costello could destroy Cohen’s credibility entirely.

Ready to hear how it all unraveled?

A photo is worth a thousand arguments

There was a key moment last week when it seemed the defense had succeeded in nailing Cohen in a lie, or at least an uncertainty that could weigh strongly against his credibility. It caused a lot of handwringing among those hoping to see a clear and easy conviction of Trump.

Here’s the gist of it. Cohen testified he had been talking to Trump about the payment to Stormy Daniels on October 24, 2016. But in his best moment thus far in the case, defense attorney Blanche undercut this assertion, using text messages between Cohen and Trump’s bodyguard, Keith Schiller, to suggest the call actually was only between Cohen and Schiller, and that it concerned how to get some teenage prankster to stop harassing Cohen.

In the face of the text messages, Cohen hedged his testimony a bit, and Blanche pounced. Did Cohen get his story wrong? What else might he have gotten wrong? Blanche labeled Cohen a liar.

But in a CSI-like moment on Monday, prosecutors came with receipts to save the day. They showed the judge a photo, taken from a C-SPAN video, that put Schiller and Trump together just moments before the call occurred. The defense protested, but the state said it was prepared to call the videographer in from Louisiana to authenticate the photo by the next morning, if necessary. The judge said he was willing to adjourn early to allow for the witness arrangements. Blanche then relented, stipulating that the photo was authentic and could be allowed into evidence. 

The photo tended to corroborate Cohen’s account that Schiller had handed Trump his phone so that Cohen and Trump could talk about the Daniels payment, just as Cohen had testified. Call logs showed the conversation lasted around a minute and half, more than enough time to conclude what needed to be said.

Bottom line? Cohen’s story wound up checking out thanks to that photo. We all owe that C-SPAN cameraperson a drink.

The thief stole from the fraudster

Another potentially bad moment for the prosecution came when the defense raised an issue over the $50K Cohen had supposedly paid to Red Finch, a technology company, which became part of the total repayment amount. 

The defense honed in on the fact that the actual amount Cohen had paid Red Finch was $20K, which was mostly just to keep them happy. That meant that when Cohen had sought “reimbursement” of a total of $50K for Red Finch, he was overcharging the Trump Organization and planning to pocket $30K.

Blanche sought to nail him for this. “So you stole from the Trump Organization, right?” Blanche asked Cohen point blank.

“Yes, sir,” said Cohen in response.

But this raised two interesting questions that were not so great for the defense. 

First, Blanche wound up confirming that Cohen had received $60K more than he should have, because the $30K he had overcharged was “grossed up.” But think about it: This tends to show that Cohen and the Trump Organization were in fact falsely classifying reimbursements as “legal fees” by grossing them up for tax purposes—the very same thing that they did with Cohen’s $130K payment to Stormy Daniels. After all, if Cohen got grossed up reimbursements for paying Red Finch, then he probably got them for paying Daniels, too. It’s hard to see how this was in any way helpful to the defense.

Second, Blanche’s questioning allowed a brutal redirect by the state, which argued successfully that it was the defense who had opened the door to needing to explain the Red Finch payments. And the truth was both embarrassing and hurtful to the defense. Trump had been irked that he was near the bottom of a CNBC online poll on the most famous business persons of the last century. So he agreed to pay Red Finch to game the poll in his favor using fake IP addresses. Trump still wound up at number 9, which didn’t make him altogether happy. Cohen used this result to only pay Red Finch $20K instead of the full $50K.

Zooming out a bit, Trump’s “cheating in a poll by paying off a third party” plays into the very story the prosecution is telling: that Trump used funneled money to pay off Daniels in order to cheat in the 2016 election. Trump was worried what the public would think of him, so he rigged the system. Sound familiar? And it all went through the same shady former fixer, Michael Cohen, who has now come clean and is testifying against the kingpin.

Hey, Todd Blanche: Was it worth it to label Cohen a thief, when it would also demonstrate your own client was a poll fraudster?

Making it about him

You might recall that the defense’s crucial cross-examination of the state’s star witness began with Blanche asking Cohen if he had called him a “crying little shit” on TikTok. My mouth was a bit on the floor at that opening question, not only because it gets the jury wondering if that’s actually true, but also because suddenly this moment is about Blanche’s wittle feewings and not about discrediting Cohen.

Judge Merchan posed the perfect question to Blanche in a sidebar: Why are you making this about you?

Blanche’s star witness yesterday could have used the same advice. When Robert “Bob” Costello took the stand, he was supposed to confirm that Cohen told him back in 2018 that Trump knew nothing about the Stormy Daniels payment. Instead, he disrespected the judge and turned the afternoon into a spectacle. 

When prosecutors objected to questions posed by defense counsel and the judge sustained them, Costello began muttering under his breath audibly. “Jeez,” he said, “ridiculous,” before throwing the judge some serious side-eye. He even said, “Strike it,” in response to his own utterances. (A witness doesn’t have this power; only the judge does.) 

Judge Merchan was having none of it. He first cleared the jury and reprimanded Costello. The following comes from the transcript of the proceedings yesterday:

Judge Merchan told Costello that his conduct was “contemptuous” and reminded Costello of proper decorum in the courtroom, including not commenting on the judge’s ruling.

Costello then managed to piss off Merchan even more by glaring at him. “Are you staring me down right now?” Merchan demanded to know. He then ordered all the spectators from the room—with the notable exception of Trump’s allies. This took a bit, given all the press, but then the judge went in hard. 

He blasted Costello, declaring, “I’m putting you on notice that your conduct is contemptuous. If you try to stare me down one more time I will remove you from the stand.” Addressing the defense lawyers, he added, “I will strike his entire testimony, do you understand me?”

When Costello asked, “Can I say something?” Merchan replied, “No, no, this is not a conversation.”

Make that two drinks, one for the C-SPAN cameraman, and one for Judge Merchan after all this is finally over.

The jury returned to see a much chastened witness. It was a terrible start to what should have been important testimony. Costello’s rudeness and impertinence, and his reprimand by the judge, is likely all the jury will remember from this witness.

It’s certainly possible, as it is with every case, that there will be a rogue juror who digs in and causes a hung jury. But should Trump manage to avoid a guilty verdict—and I honestly think that is unlikely at this point—it will not be from anything his defense team did. To the contrary, they and their witnesses demonstrated a level of incompetence and disrespect that was frankly shocking but in many ways so very on-brand for Trump.

After Costello’s testimony is over, that’s likely it for the defense. The jury has the long weekend off, and closing arguments begin next Tuesday. The jury could have the case by mid-week.