United States elections 2024
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The Trump Trial Could End Next Week | National Review
The wild card is Robert Costello, Cohen’s former lawyer.
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The Trump Trial Could End Next Week
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By ANDREW C. MCCARTHY
May 17, 2024 10:34 AM
The wild card is Robert Costello, Cohen’s former lawyer.
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The criminal trial of former president Donald Trump wrapped up for the week with Michael Cohen still on cross-examination. Trump’s former lawyer, Cohen is the deeply flawed but nonetheless essential witness in the prosecution brought by Manhattan DA Alvin Bragg — an elected Democrat who pursued the case after federal prosecutors elected not to charge Trump — knowing they’d otherwise have to rely on Cohen — and after Bragg himself shut the investigation down in 2022 before reviving it the following year.
JAMES LYNCH
The trial is not in session today because Judge Juan Merchan accommodated Trump’s request to attend the high-school graduation of his youngest son.
As I noted in a column Wednesday, after first indicating that they had more testimony to present after Cohen, prosecutors abruptly announced that he would be their final witness. They hoped to rest this week. Even though they didn’t quite make it, the trial still appears headed for a swifter conclusion than many anticipated.
Team Trump lawyer Todd Blanche says he has an hour or two left in his cross-examination of Cohen. I have a number of criticisms of the defense (some I’ve mentioned before — see, e.g., here and here — and some I’ll address separately), but it was smart not to finish Cohen’s cross-examination this afternoon. That’s because when Blanche is done, prosecutors will be permitted to do redirect examination, an attempt to repair some of the damage done by Blanche’s withering impeachment of Cohen’s version of events. Because Blanche didn’t finish, the last thing ringing in the jurors’ ears as they headed home for three days was Blanche’s attack on Cohen’s credibility, which appears to have been effective. Also, while I don’t know if Merchan has a different practice, the usual rule is that the party may not discuss the case with a witness it has called while that witness is on cross-examination. Hence, by not finishing his cross-examination yesterday, Blanche blocks prosecutors from using the weekend to alert Cohen to problems with his prior answers and to prepare him for redirect examination.
After Blanche concludes Cohen’s cross on Monday, prosecutors will do what I am betting will be a brief redirect. Cohen is not a good witness. If you’re Bragg’s team and you’ve already squeezed what you think you need out of him, you want him off the stand — and you don’t want to give Blanche a few more hours of re-cross to parade before the jury Cohen’s serial lying, Trump obsessions, victim complex, and general unsavoriness.
Unless prosecutors change their minds over the weekend, they will then rest the state’s case. At that point, the defense will move for a directed not-guilty verdict from Judge Merchan, which we can be confident he will peremptorily deny. (Here, I am not addressing what I think should happen; the purpose of this post is to assess what is likely to happen, and when.) Then the defense presentation will begin.
More fromANDREW C. MCCARTHY
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I expect that to be short, too. The defense has not made a commitment about whether Trump will testify, but there is scant chance of that. Trump is presumed innocent, and the state bears the entirety of the burden of proof — i.e., to meet the weighty criminal-law standard of guilt beyond a reasonable doubt. Team Trump will thus rely on the weakness of the prosecution’s case and, in particular, of its star witness, Cohen.Right now, Trump’s lawyers are in a good position to take that position (although not as good as they should be — I’ll get to that in a separate post). By contrast, if Trump testified, the case would become a measure of his credibility, not of the sufficiency of Bragg’s evidence.
As a witness, Trump would have to address the salacious Stormy Daniels testimony, which should not be in the case. Plus, Merchan ruled that, if Trump testifies, prosecutors may inform the jury that (a) Judge Arthur Engoron ruled in the recent civil-fraud case that he committed persistent fraud over many years, and (b) a federal jury found him liable for defaming E. Jean Carroll — i.e., for making knowingly false statements — in last year’s sex-abuse case. (The fact that Trump is appealing these findings does not change the fact that they are findings made after a trial, and thus fair game on cross.) By not testifying, Trump would keep these two damaging court verdicts out of the case. As for Stormy, Trump’s lawyers will correctly argue to the jury that her graphic testimony was irrelevant to the real issues in the case — namely, whether Trump, with fraudulent intent, caused his business records to be falsified, and whether such fraudulent intent included an intention to conceal a second crime.
If Trump were to testify, that would add several days to the trial. Without his testimony, the defense case — if there is one — will likely be brief. So far, Merchan continues to rebuff Team Trump’s request to call former FEC official Bradley Smith as an expert witness to explain why reimbursement by a political candidate for a supporter’s (Cohen’s) payment for a non-disclosure agreement (NDA) is not a campaign expenditure under federal law. Merchan is wrong on this, but there is little chance he will change his mind.
The wild card for the defense is Robert Costello, Cohen’s former lawyer. In an op-ed for Fox News yesterday, I addressed the possibility that he’ll be called as a witness. Costello is a highly experienced former federal prosecutor and savvy New York defense lawyer. He was consulted as a lawyer by Cohen after the FBI executed a search warrant at Cohen’s office and found skads of incriminating evidence. To make a long story short, Costello was released from his duty of confidentiality to Cohen (largely because Cohen shared his version of their communications with federal prosecutors) and promptly reported to the feds and, later, Bragg’s prosecutors that Cohen was lying. According to Costello, when he asked Cohen if he had anything incriminating on Trump that Costello might use to bargain with prosecutors for sentencing leniency (Cohen was facing potentially significant prison time over tax and fraud crimes in which Trump was not complicit), Cohen said he had nothing.
Costello could testify about both what Cohen told him and about what he tried to tell Bragg’s grand jury prior to the indictment of Trump: Costello says Bragg’s office did not share with the grand jury the hundreds of pages of emails and other documents that, he maintains, back up his version of events.
Costello testified Wednesday before a House subcommittee and gave the heart of his account in a 20-minute Fox News interview with Bill Hemmer and Dana Perino Thursday morning. If I were Trump’s lawyers, I’d be very tempted to put him on the witness stand. On the other hand, there is no question that Blanche made Cohen’s gargantuan credibility problems quite clear to the jury. Strategically, Team Trump may prefer to tell the jury in summation that there was no need to present any defense case because the prosecution’s case is a joke that ought to be laughed out of court.
If, as I suspect, there is little or no defense case, Merchan has alerted the lawyers to be ready to sum up for the jury on Tuesday. This is ambitious. The huge issue still to be decided in this case is: What will the judge instruct the jury about the law that must be applied to the evidence? In many criminal cases, this is so straightforward that the “charging conference” — the court session at which the lawyers argue over what the judge’s “jury charge” (i.e., instructions on the law) should be — takes less than an hour, sometimes just a few minutes.
To the contrary, I have never seen a criminal case such as this one, in which the felony statute invoked gives such insufficient notice of what it is criminalizing, and the indictment utterly fails to explain what laws the defendant has allegedly broken. Moreover, I have never seen a case in which a state prosecutor attempts to enforce federal law over which he has no enforcement jurisdiction — and in which that prosecutor appears to be making up his own version of federal campaign-finance law, diverging markedly from interpretations followed by the two federal agencies with exclusive jurisdiction over that corpus (the Justice Department and the FEC).
Consequently, I believe the charging conference in this case is going to be lengthy and contentious. Of course, Merchan is the judge and if he is determined to bull his way through it, give Bragg the leeway he wants, and move briskly to summations, no one can stop him, at least not now — an appeals court may correct him in a year or more, but if Merchan curtly denies defense objections to the legal instructions he decides to give the jury, there is no present remedy.
In any event, the jury charge and summations would then take place Tuesday. (I prefer the jury charge after summations, as was the federal practice in the Southern District of New York in my years there. In some courts, the jury charge precedes summations. I don’t yet know how Merchan does things.) I assume each side will want half a day to sum up, but that’s not yet clear.
With the jury poised to deliberate, and perhaps even begin deliberations on Tuesday, it is highly unlikely that Merchan will take his customary off-day from the trial on Wednesday. It appears to be his goal to get a verdict by the end of next week — before Memorial Day weekend. It is not clear at this point whether the jury will be sequestered during deliberations to shield it from outside influences. Merchan has discretion to order sequestration, and sequestered juries unsurprisingly tend to reach verdicts more rapidly than non-sequestered ones. That aside, if the jury is deliberating by Wednesday, the holiday weekend will be a strong incentive to decide the case by or before Friday.
Of course, as with everything in this case, nothing is certain.
Yommie
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How can Biden save America from Trump's return to the White House? Drop out of the race.
President Joe Biden can voluntarily remove himself from the presidential race for the good of the nation and the party.
www.usatoday.com
How can Biden save America from Trump's return to the White House? Drop out of the race.
Joe Biden can go down in history as the person who beat Donald Trump twice – the second time by stepping aside.
Jeremy MayerOpinion contributor
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The November election is the rematch America doesn’t want: the two oldest and among the most unpopular candidates in our history.
It doesn’t have to be that way.
Republicans are stuck with former President Donald Trump. Unless he dies or is incapacitated medically, he’s their nominee. He may have to win to stay out of jail.
But there is a way for President Joe Biden to step aside, to voluntarily remove himself for the good of the nation and the party.
Biden could announce, anytime this summer, that he’s out. He could use the same logic that got him the nomination in 2020. He sincerely and accurately believed that he was the Democrat with the best chance to beat Trump. Now, he is one of the few national Democrats who could get Trump reelected.
Battleground state polls look bad for Biden
Recent polling of Biden against Trump looks ugly. Biden has low support among young, Black and Hispanic voters, crucial votes in swing states. Biden is seen as too old to serve a second term by many voters.
Some perceptions of candidates can be changed. But voters are unlikely to decide that Biden is younger and more vigorous than they thought.
Biden's poll numbers are awful.America, brace for a Trump victory in November.
If Democrats were to nominate Pennsylvania Gov. Josh Shapiro, he'd beat Trump like LeBron James posting up Kevin Hart. There are many others, including Gov. Gretchen Whitmer of Michigan, Sen. Amy Klobuchar of Minnesota and Sen. Cory Booker of New Jersey. Trump would look old and unhinged next to their youthful competence and sober characters.
And while Vice President Kamala Harris, who polls worse against Trump than Biden does, would have been a serious threat to take the nomination in open primaries, there is no chance a convention of Biden delegates would select her. They want to beat Trump too badly to take that risk.
What about giving up all the advantages of incumbency? Truth be told, there aren’t many this year.
Biden has had, by most standard measures, a pretty successful presidency. But he’s being blamed for high inflation, the U.S. troops withdrawal from Afghanistan and the Israel-Hamas war in Gaza. A new face works better on intractable problems like the Middle East.
Wouldn’t an open national convention be a chaotic disaster for the Democrats?
Let’s learn from Trump. When his most prominent rival, Sen. Ted Cruz of Texas, refused to endorse him at the 2016 Republican convention, which had not happened in the modern era, Trump didn’t panic. He knew that drama makes great TV. He was right.
Trump trial live updates:Latest news as Michael Cohen faces more cross-examination
An open Democratic convention would make great TV
Modern conventions are scripted and boring affairs that struggle to get viewers. An open convention with delegates rooting for Harris, Whitmer, Shapiro and others would be amazing TV. The nation would be spellbound by great floor speeches, unexpected endorsements from politicians and celebrities, rallies, music and marches.Presidential polls are useless.Will Trump win? Will Biden? Nobody has a crystal ball.
Mr. President, you’re one of the few Americans old enough to remember when conventions were fascinating and powerful. They’ve become predictable and almost pointless. Why not pull a surprise on the Republicans, and let the convention pick the nominee for the first time in decades?
Why not go down in history as the guy who beat Trump twice and saved our republic?
The first time you beat him by running. This second time, you can beat him by not running.
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