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 was an advisor to the House Judiciary Committee in the first impeachment trial and trial against then-President Donald Trump. The opinions expressed in this note belong exclusively to its author. Read more opinion pieces at cnne.com/opinion
(CNN) — After the high drama of Monday’s conflict between Judge Juan Merchan and defense witness Robert Costello, and with the jury in former President Donald Trump’s Manhattan criminal trial being evacuated Tuesday as both sides argued over jury instructions, my Expectations for the day were low. But, as often happens, day 20 of the process exceeded expectations.
Part of the reason for those modest hopes was the fact that the defense case would not include the defendant’s testimony. That would have been suicidal because of Trump’s notorious penchant for false statements, evident in his daily appearances before the press, and because the judge had already ruled that he could be questioned extensively about his prior wrongdoing. Nevertheless, he contributed to the expected anticlimactic feeling.
That left us with Costello as the defense’s star witness. And that helped make Tuesday another crucial day, with the defense losing points it couldn’t afford as prosecutors resumed cross-examination of Costello, a lawyer who once advised former Trump fixer Michael Cohen. Later, the arraignment hearing to agree on jury instructions showed how discouraging the jurisprudence facing Trump is.
Deputy Prosecutor Susan Hoffinger skillfully called out Costello in her own words, suggesting that he attempted to “control” Cohen for the benefit of then-Trump lawyer Rudy Giuliani and his client, and prevent him from cooperating with authorities. She took Costello through her own emailed words in which she told Cohen that he had “friends in high places,” which Costello confirmed were referring to Trump, and that Cohen should https://twitter.com/KatiePhang/status/1792914663291646242 knowing it.
Those emails undermined the defense witness while supporting the prosecution’s case by offering evidence that Trump maintained close personal surveillance of Cohen to maintain his loyalty after the FBI raided Cohen’s office and hotel room. Cohen in 2018 as part of an investigation that included paying $130,000 for silence at the center 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. Prosecutors also say the payment benefited his presidential campaign and constituted an illegal campaign contribution.
Like the “Eye of Sauron,” the attention of the supernatural villain in “The Lord of the Rings,” this eye on Cohen, as described at trial, was an uncomfortable gaze.
The jury seemed to sympathize with the narrative that Hoffinger was reinforcing during this exchange of statements and continued to show hostility toward Costello. Some jurors rolled their eyes at the witness and smiled when she launched attacks. “That email speaks for itself, right?” he asked, refuting Costello’s answers and returning his sarcastic reply about the emails he made during Monday’s testimony, when the witness’s confrontations with Judge Juan Merchan led him to warn Costello that his “conduct is derogatory.
The jurors take note of the judge’s observations, and this jury was able to see Merchán’s visible anger with Costello on Monday; it’s likely that also influenced his opinion of him.
All of it is bad news not only for Costello, whose confrontation with Merchan earned praise from Trump outside the room on Monday, but also for the defense. Given that Costello was one of Trump’s only witnesses, there is also a risk that he, and the jury’s reaction to his poor attitude, could tarnish the defense’s case overall.
The defense’s case took another step back during Tuesday’s arraignment hearing, in which the judge heard from both sides about how he should instruct jurors about the law and resolved a series of disputes over what he would tell them.
The problem for Trump is that, although Merchan decided some issues in favor of the defendant (in his usual impartial way), the law that jurors must follow to reach their verdict is unfavorable to Trump.
To give perhaps the most notable example, one of the things that the Prosecutor’s Office is trying to prove is that Trump participated in a conspiracy to promote his election “by illicit means.” The defense wanted an instruction that the jury must unanimously agree on what the unlawful means were. But, as prosecutors noted, New York law requires no such thing. As long as each juror believes that some law has been broken, they do not have to agree on what it is. Each member of the jury can choose their own adventure, so to speak, as long as each one chooses at least one.
“The important thing about the law is not to deviate from it; it is to apply it in the most coherent way possible, as the court would do in any other case. In other words, there is no reason to rewrite the law for this case,” said the assistant prosecutor. Matthew Colangelo, and the judge agreed, saying, “I’m not going to do that.”
Between this and much more case law unfavorable to Trump, Costello’s calamitous performance, and Cohen’s strong one in the redirected trial, I thought the net effect of the last two days was to bring the overall point count back to where the Prosecutor’s Office was last week After Cohen’s Direct Examination: Beyond the Critical Threshold of Reasonable Doubt.
The defense could do little about the law at the impeachment hearing beyond its usual skillful arguments. But they would have benefited from not calling Costello, just as they would have benefited from not calling Trump to the stand.
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