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Questioning Resumes For Robert Costello Today. Aired 9-9:30a ET

Aired May 21, 2024 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:00:00]

SARA SIDNER, CNN HOST: What I have learned so far in my cancer journey is treating it is more a marathon than a sprint. After five months of chemo, I have not yet become cancer-free. The next phase is a double mastectomy. A 2016 study found that ten years survival rate for a bilateral mastectomy is 90.3 percent. I like those odds. So, I am going under the knife tomorrow and will be out recovering for a few weeks.

I leave you in the most capable hands. Capable and carrying. You've got Kate Bolduan here, John Berman. And if they act up, DM me. I'll take care of it.

KATE BOLDUAN, CNN HOST: You know she'll be watching no matter what. And we cannot wait for you to get back.

SIDNER: I'll be back.

BOLDUAN: Better than ever.

SIDNER: Thank you. Thank you, Kate.

BOLDUAN: Thank you so much for being with us today. This is CNN NEWS CENTRAL. CNN's special coverage of the Trump trial starts now.

KAITLAN COLLINS, CNN ANCHOR: Moments ago, Donald Trump, as you can see there, leaving Trump Tower to head here, where we are, outside of the courthouse. In minutes, the likely final defense witness for Donald Trump will be under oath and on the witness stand yet again.

We'll see if it goes better than it did the last time. Robert Costello provoked a dressing down from the judge over his courtroom behavior after just minutes on the stand yesterday. He has now been warned not to roll his eyes, say, jeeze, after a ruling, and not to stare down the judge. All helpful tips.

I was in that room when all of that happened yesterday as the judge admonished Costello and warned the former president's attorneys that if he keeps it up, everything this witness says may be stricken from the record. It was the kind of day that made you wish there were cameras inside that courtroom.

Testimony is quickly winding down inside 100 Centre Street here behind me, pushing the country closer and closer to a verdict that will go down in history no less, no matter what it is.

Good morning to our viewers. I'm Kaitlan Collins in New York.

JAKE TAPPER, CNN ANCHOR: And I'm Jake Tapper in Washington. You're watching CNN's special live coverage of Donald Trump's hush money cover-up trial.

On the 19th day of trial yesterday the prosecution rested. On the 20th, the defense may follow suit.

On the stand in moments, Robert Costello. Costello is the lawyer who offered Cohen advice when the former Trump fixer was facing charges. He's now offering an account that directly contradicts what Cohen told the jury. Costello says that Cohen relayed to him that Donald Trump knew nothing about the hush money Cohen funneled to adult film star and director Stormy Daniels when Cohen made those payments.

And you cannot ignore the possibility that Costello delivers a repeat performance of his behavior yesterday that Kaitlan just referred to and again angers Judge Juan Merchan in a way that can harm the former president's defense.

When Costello steps down, the defendants may close out its case. And then come closing arguments. And then the case of the People of the State of New York versus Donald John Trump, well, then it goes to the jury.

And, Kaitlan, as you mentioned, you were in court yesterday watching all of the chaos break out. Tell us more about that.

COLLINS: I mean, Jake, in a trial that has had a lot of insane moments, this one might take the cake so far. And typically it's been, you know, pretty normal inside that courtroom. For all of Donald Trump's, you know, bluster and posturing outside of the courtroom, he is normally quite quiet at the defense table watching all of this happen. But yesterday was a moment really like no other. And I've never seen the judge, Justice Juan Merchan, this furious as he was yesterday. And it didn't take long after Robert Costello was on the stand, though he would continue to answer questions even though the judge had sustained objections to those and he was not supposed to answer, then he would tell the attorney who was questioning him to strike it from the record, you could see how visibly irritated the judge was getting at Robert Costello as he was basically ignoring the judge, even refusing to look at him at the beginning.

And it was in that moment when the judge sent the jury out of the room, notably, and then had this complete dressing down of Costello, telling him that he was not going to roll his eyes or try to strike testimony from the record when that's something only the judge can do inside that courtroom, or even mutter audibly in - where the jury could hear it when he didn't like how the judge had ruled.

But then Robert Costello basically was staring down the judge, and that was the moment where he tried to clear the courtroom of the press, which obviously makes up most of the back of that room, Jake. You know, you've been inside that room. And it was remarkable because the press did not want to leave. They believed that they should be there to witness that moment given there aren't even cameras inside the courtroom. It was pure chaos with court officials yelling at reporters to get out of the room, to clear the room, that they'd take our questions outside. An attorney for the press protesting that they wanted to stay.

And then, of course, we saw in the transcript last night what happened in that moment where the judge said that he would strike all of Robert Costello's testimony from the record if he continued to act the way he did.

[09:05:01]

Of course, we'll find out pretty soon because he will be back on the stand.

CNN's Paula Reid and John Berman are here with me outside of the courthouse.

And, Paula, it was a fight inside the Trump team over whether to bring Robert Costello.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Yes.

COLLINS: And when I was watching that yesterday, I was thinking, this is exactly why some members of the Trump team didn't want to put him on the stand.

REID: Yes, some members of that team having a big I told you so moment this morning. The concern was how he was going to perform on the stand.

Now, his purpose for being there was to further undercut Michael Cohen's credibility. Most importantly, to testify that Michael Cohen repeatedly told Costello that he had no evidence of criminal wrongdoing by Trump. And that was what he really was supposed to offer the defense. But instead that kind of got lost in this - this spectacle.

But to put it in the full context of the case, this is not the defendant. This is not Michael Cohen. This is a b list witness who instead of helping the defense in a marginal way, instead just created the most dramatic moment we've seen so far. This is not going to make or break the case, but does appear to be a forced error for the defense.

COLLINS: Yes, they could have ended on Michael Cohen acknowledging that he stole from the Trump Organization, but instead we believe that Robert Costello's going to be the last witness. And instead of really contradicting Michael Cohen, he was kind of contradicting himself at times during his testimony.

JOHN BERMAN, CNN ANCHOR: Well, look, you'll remember that Michael Cohen indirect was asked about Robert Costello and the reasons that he did not perhaps tell him everything that later came to light. And one of the reasons Michael Cohen basically gave is he didn't trust the guy. And now Robert Costello on the stand, the jury saw some of it, not necessarily all of it, but gave them a reason, maybe, not to trust him. Oh, I can understand why Michael Cohen may not want to confide in this man who's giving side to the judge.

COLLINS: I mean, side eye to the judge, that's just - Elie, I mean, there really weren't even words for it. Maybe some four-letter words to really describe just how chaotic it was inside that room.

Elie, but, you know, Robert Costello is about to get back on the stand. Paula's right that he is kind of this sideshow, but he's not going to make or break the case here necessarily. But can you just put everything in context for us of what we are expecting today?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Kaitlan, the prosecution has rested and today we are going to hear from probably the last witness in this trial. That is the aforementioned Bob Costello.

Now, Robert Costello is a lawyer. He's called to the stand by Donald Trump as a defense witness. And he gave advice to Michael Cohen at a crucial moment in 2018 just after Michael Cohen's home and office had been searched by the FBI. And it appears the defense perspective here is that Bob Costello undermines Michael Cohen's testimony, contradicts him on key points.

For example, yesterday, Costello testified that Michael Cohen said numerous times that President Trump knew nothing about these payments to Stormy Daniels. Then he did this on his own.

Now, the cross-examination of Costello started yesterday. It will resume in a little bit when court resumes. And it seems that the defense is pushing at the point that Costello was actually trying to manipulate Michael Cohen to keep him from cooperating against Donald Trump. And they've called into question Costello's credibility. Of course, Costello created the chaotic scene that you talked about. We'll see if that continues today.

Now, let's take a moment and step back and just take a look at where we are in the trial process. This is the defense case. Costello's probably going to be the last witness there. Theoretically, after that, the prosecution can put on a very brief what we call rebuttal case. It does not appear the prosecution is going to do that.

Then we're going to take a week off, the jury is at least. The judge is going to have them come back the day after Memorial Day, whereupon they will hear closing arguments. They will be given their legal instructions and then they will begin to deliberate. The judge had a tough call. He wanted to keep closing jury instructions and deliberation sort of back to back to back. That's used usually the way it happens.

Now, later today, after they're done with the witness, the judge is going to start talking to the lawyers about jury instructions. This is a really important part of the process. This is where the judge gives the jury their instructions on the law. And I just want to hit some highlights here as to what the judge is going to tell them. He's going to start, as he must, with the indictment itself. And let's

just remind ourselves, the charges here are falsifying business records in the first degree. There are 34 counts of that. One for each check, ledger, and invoice. And the judge is going to give the jury what we call the elements, the pieces that make up the crime. There's really two elements here. The first one is that the prosecutors have to prove that Donald Trump knowingly made or caused a false entry in the business records. Now, to understand that, we have to remember the way the money flowed. Michael Cohen first paid $130,000 to Stormy Daniels and later was reimbursed $420,000 by Donald Trump and the Trump Organization. And the allegation is they falsified those records to try to make them look like legal fees when, in fact, these were hush money payments to Stormy Daniels.

Prosecutors are going to point to the documents largely. They're going to point to the checks, some of which were signed by Donald Trump. They're going to point to the invoices which say the word "retainer," and they're going to argue that right there is the falsification.

[09:10:03]

The second and final element of this crime is that it has to have been done with the intent to commit, aid or conceal some other crime. Now, to this moment, the prosecutors have never specifically committed what that other crime is. They've mentioned federal campaign finance, state campaign finance, tax fraud, although that really hasn't been developed. So, I expect that what we're going to hear from prosecutors today is our theory is this was a campaign finance crime. It was actually a payoff meant to affect the election. They tried to hide it by making it look like an attorney's fees.

So, when this resumes, Jake, we've got some really important business ahead of us today. Bob Costello will finish his testimony, and then later on we're going to get into the all-important jury instruction, Jake. So, big day ahead in court.

TAPPER: Big day.

Elie Honig, thank you so much. My panel's here, along with criminal defense attorney Bill Brennan. He represented Donald Trump's payroll corporation in the tax fraud trial, and Trump himself in his second impeachment trial.

Jamie, we're about to see the last few hours of testimony in this case. We're - we're not going to see it. We're going to get little tidbits of it and sketch -

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: Right.

TAPPER: Sketch artists will make their renderings as well. The defense is expected to rest this morning. Talk about the moment we're in because, obviously, whatever happens, whatever the verdict is, this is a moment in history.

GANGELL: Well, first of all, let's see if Robert Costello gets through the rest of his testimony today. That seemed to me to be a performance for an audience of one, Donald - Donald Trump. And Judge Merchan, and Bill knows, is a very even tempered, soft-spoken, even when he's angry. The fact that he warned him not once but twice and said, you'll get removed, it was quite a moment.

I think what Elie just said, big picture, is actually the most important thing, we won't get to till next week. But the focus of those jury instructions, we've heard a lot of testimony. The jury's going to weigh all of that. You know, Hope Hicks, some people we've forgotten. David Pecker. How that all comes together when the judge gives those very precise jury instructions.

TAPPER: Yes, no, fascinating. And let's talk about exactly that, that confrontation between the witness, Robert Costello, the defense witness, and the judge, Juan Merchan, because we got the full transcript, as happens. It's not like we don't ever get it. We just don't get it in real time.

Costello had been loudly expressing disdain for Judge Merchan, sustaining many of the prosecution's objections in his testimony. And then this happened. Merchan, "Mr. Costello, I would like - I want to - I would like to discuss proper decorum in my courtroom." Costello, "but - I'm sorry, go ahead." Merchan, "I want to discuss proper decorum in my." Costello, "right." Merchan, "OK, so when there's a witness on the stand, if you don't like my ruling, you don't say jeeze, OK? And then you don't say strike it because I'm the only one that can strike testimony in the courtroom. Do you understand that?" Costello, "I understand." Merchan, "OK. And then if you don't like my ruling, you don't give me side eye and you don't roll your eyes. Do you understand that? Do you understand that?" Costello, "I understand that. I understand what you're saying." Merchan, "OK, thank you. Let's get the jury back. Are you staring me down right now?" Costello, "no, I'm just wondering how." Merchan, "clear the courtroom, please. Clear the courtroom."

Dana Bash, you're - you're -

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: That was very dramatic.

TAPPER: I was holding back also. I mean, I am classically trained.

I - but what do you make of all that?

BASH: You know, Jamie said that she thinks it was for an audience of one. That is a phrase that we have all used now for the last, I don't know, seven, almost eight years. Of course talking about the politics of working with and working for and trying to persuade and reach Donald Trump. And we have been talking since the beginning of this trial about the fact that you can't separate the politics outside from what's going on inside. And Robert Costello is somebody who has worked hand in glove with Rudy Giuliani. He is somebody who intimately knows both the law and knew better. He knew exactly what he shouldn't be doing, even though he did the opposite on that stand. And knows the politics and the inner workings and kind of the dynamics of Trump world. And he was clearly trying to show Donald Trump that he's - he's on his side and that he gets it and he understands the frustration that Trump has expressed for the judge, and he decided, I'm going to do it in a way that you can't.

TAPPER: That's one theory. It's a good theory.

I also wonder, and I'd love to just go down the row here and get your guys take on this. I also wonder how much you think that he was there, Bob Costello, either on his own, or perhaps somebody had suggested, who knows, to go in there and like convey to the jury, this judge is not fair. This is not a fair judge. And I'm here to illustrate that in a way that the lawyers can't and that the defendant can't.

[09:15:05]

LAURA COATES, CNN ANCHOR: Well, that is odd to have done so given the very fact, remember, Todd Blanche, council -

TAPPER: Oh, this is clearly unusual.

COATES: It's odd for a lot of reasons.

TAPPER: Clearly unusual to do so, yes.

COATES: But Todd Blanche made the comment to the judge as to why he said, your honor, we don't want you to tell this jury that you have found Donald Trump to be in violation of your gag order. This jury is with you day in and day out, weeks at a time. They now respect you a great deal. To have you say that he has violated your order would be so prejudicial to our client.

The judge actually agreed. And so now to have a witness come in whose job it was to say to the judge and to the juror, they respect this judge now, that they're going to disrespect him in the courtroom after he has gone through and sat through so many witnesses, I think is a miscalculation for a number of reasons, but primarily because, look, juries, they respect and like judges. They may not like the prosecutor. They may not like the defendant or the defense counsel or a witness, but the judge, their whole role is to make sure that they have that decorum set.

And so it's really barking up the wrong tree.

TAPPER: So, Elie, before I come to you I want to show you the reviews for Bob Costello's behavior in at least one place were very, very positive, and by that I'm, of course, referring to the defendant.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), FORMER U.S. PRESIDENT AND 2024 PRESIDENTIAL CANDIDATE: You saw what happened to a highly respected lawyer today, Bob Costello. Wow, I've never seen anything like that. Highly respected.

(END VIDEO CLIP)

TAPPER: Elie.

HONIG: I think it was a huge misstep thus far to call Bob Costello by the defense. A couple of reasons. First of all, Bob Costello knows better than that. Not only is he a lawyer, I'm, I don't know, proud or not proud, but he was at the Southern District of New York many years before I was.

TAPPER: Head of the criminal division, right?

HONIG: Yes. He knows what he's doing. I mean the - you live in court. You know how outrageous that is.

I think Paula hit it on the head when she said this is a b level witness. I don't think he's scoring any substantial points that weren't already there. If you wanted to show Michael Cohen has contradicted himself, that was already in the record. And really to sort of crystallize it, the choice that prosecutors had, as we head into what's going to be a one-week off for the jury is, do you send them into that week last having heard Michael Cohen say, oh, yes, and I stole $60,000 from the Trump Org, or do you send them into the week off having heard this chaotic sort of mess from Costello?

Now, important to note, the jury was not in the room for the worst of what happened yesterday, but they could - they were definitely there when the judge started shutting him down. I think it's backfiring so far.

TAPPER: Bill, what do you think?

WILLIAM J. BRENNAN, FORMER TRUMP PAYROLL CORP. ATTORNEY: I agree with Laura and Elie. It was a huge, huge step backwards for the defense. You know, there's a rule of evidence, 403, and it's - it's a test and it - the test is, is the probative value, does it outweigh the prejudicial effect? And it certainly didn't here. For what little this witness had to offer, to go in there and take one Judge Merchan, as Laura said, jurors in general like and respect judges. Judge Merchan is Steven Spielberg's central casting version of a judge. They adore this man. It was - it was foolish. And like Jim Croce (ph) said, Jake, you don't tug on Superman's cape. You can't win a fight with the judge.

TAPPER: You don't spit into the wind?

BRENNAN: Don't pull the mask off the Lone Ranger.

TAPPER: You don't pull the mask off the old Lone Ranger?

BASH: Do you think that - because you are the only one here who has actually been in Trump world and been kind of a part of that dynamic when people are trying to please the defendant. Do you think that part of what he did was - I know he's not, obviously, his lawyer right now, but he's obviously been very involved with Trump confidants. You think that was part -

TAPPER: Attorney general Bob Costello.

BRENNAN: I'm going to bite my tongue when the - in Trump world thing.

BASH: OK. BRENNAN: I represented -

BASH: Yes.

BRENNAN: The former president at the impeachment.

TAPPER: That's all she meant.

BASH: That's what I meant.

BRENNAN: No, I - no.

BASH: That's what I meant. Thank you for clarifying.

BRENNAN: I think it could be - that could be the issue. I mean you just - the lawyers have to run the show. The client - I don't care if the client is the former president of the United States. The lawyers have to - the client can talk about pleading guilty or pleading not guilty, testifying or not testifying, and maybe some input on waiver trial versus jury trial, but that's it. I mean this was a disaster yesterday because we're talking about this guy. He's like that guy that comes to a wedding and starts a flight. Nobody's talking about the wedding, they're talking about the goofball that started the fight.

TAPPER: Bill -

BRENNAN: We should be talking about the $60,000 theft from a client.

TAPPER: Bill, we've talked about this many times. If you didn't want me at your wedding, you - you shouldn't have been invited - you shouldn't have -

BRENNAN: I thought you could control yourself, Jake.

TAPPER: It shouldn't have been an open bar.

Jeff, before we go, back to take a quick break, here is who - speaking of ingratiating yourself with Donald Trump - here's who the Trump campaign said will be attending court today. We'll have Donald Trump Jr., former Acting Attorney General Matt Whitaker, former Florida Attorney General Pam Bondi, Senator Eric Schmitt from the great state of Missouri, Congressman Daniel Webster, Congressman Dan Meuser, I'm sorry if I mispronounced that, Congressman Ronny Jackson, the former White House physician, Congressmen Troy Nehls, Congressman Dale Strong, Congresswoman Maria Salazar, former White House aide Sebastian Gorka, Chuck Zido, former "Saturday Night Live" star and "Johnny Dangerously" co-star Joe Piscopo, Bill White.

What do you to make of it all?

[09:20:00]

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Well, it's central casting of a different kind. But, look, I mean these are - now there are so many people who want to come into the trial to watch this that the campaign is regulating them and there just aren't enough seats in the courtroom.

But, look, this is all to give the former president, the defendant in this case, some measure of comfort, that people literally have his back.

Interestingly, yesterday, as Kaitlan was reporting, his supporters were allowed to stay in the courtroom as the press and others were cleared.

TAPPER: Yes.

ZELENY: That was certainly odd to say the least.

But I think that the bigger point is of all this, Bob Costello has been on Fox News a lot. He was testing before the House last week. So, Donald Trump wanted that Bob Costello to show up.

TAPPER: Yes.

ZELENY: And he did show up. But the big question is, will it sort of take away everything that Michael Cohen said yesterday.

But look, we still don't know how the jury processes any of this. So, we can talk about it a lot, but they may not have seen it as all that unusual because, as Elie said, they weren't in there for most of it.

TAPPER: On the stand right now witness Bob Costello and Emil Bove, the Trump attorney, is going to be doing a directed in minutes. This is going to happen. Are we going to see another episode of law and disorder? Will Costello keep his eye rolls and mutterings of jeeze in check? Much more of CNN's special live coverage. We're going to squeeze in a quick break. Stay with us.

(COMMERCIAL BREAK)

[09:25:55]

COLLINS: Welcome back to CNN's special live coverage of Donald Trump's hush money trial. Moments ago, on his way into the courtroom, we heard from the former president, speaking, as he typically does on a daily basis, to reporters.

Here's some of what he said.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), FORMER U.S. PRESIDENT AND 2024 PRESIDENTIAL CANDIDATE: And we'll be resting pretty quickly. Resting me (ph), resting the case. I - I won't be resting. I don't rest. I'd like to rest sometimes, but I don't get to rest.

But we are - we have a phenomenal case (ph). We've won the case by any standard. Any other judge, he would have thrown this case out. Any other judge.

(END VIDEO CLIP) COLLINS: The former president predicting that they will be resting their case as well today after we saw the prosecution rest yesterday. You could see a coterie of aides and allies behind him. Donald Trump has been bringing an entourage with him almost every single day to court. Often they are sitting shoulder to shoulder in the first two rows behind the defense table. There's - yesterday there was even a moment where they had to kind of wrangle to put some of them in a certain row, some of them had to go sit in the back because there were so many of the former president's allies inside that courtroom.

Any minute now, though, we do expect Robert Costello to be back on the witness stand after a drama pack day yesterday.

And, Paula Reid, you know, with Robert Costello, we talked about how there was a lot of apprehension about putting him on the stand, what that was going to look like, what they were going to get.

REID: Yes.

COLLINS: IT won't be Trump's attorneys questioning him, though, when he gets back on the stand. It's the prosecution. And yesterday, right before the prosecutor, Susan Hoffinger, said she had about 45 minutes left with Robert Costello. And there was a really notable moment where, in addition to everything else that happened yesterday, he leaned forward and asked her to speak into the microphone when she was asking him questions, and she didn't say anything. She just started - continued with her questioning. But I saw two jurors exchange looks. And you don't often see anything from this jury. They give nothing away. But they kind of exchanged this knowing look after he did that.

REID: What else do you do? That is absolutely bizarre. There are undercurrents of sexism there, instructing a prosecutor on how to do her job. It's clear that this was not a helpful witness for the defense. So, it will be interesting to see - and this prosecutors had overnight to see what else they think they might be able to mine from Costello that would be helpful, right?

Let's hone in on this idea that Michael Cohen didn't trust him. Does this witness, in some ways now, really help kind of validate some of Michael Cohen's judgment? This is an opportunity for prosecutors. Rob Costello won't make or break the case, but given what jurors have perceived so far with Rob Costello, there's an opportunity for prosecutors to dig a little bit deeper with Rob Costello.

COLLINS: Well, and we've seen how the prosecution and the defense in other cases have used breaks in time, whether its overnight or over a succession of days, John, to find new material. I mean one of the biggest fights that they had yesterday that was overshadowed by all of this was, they found a photo of Donald Trump - a video of Donald Trump and Keith Schiller together onstage in Tampa, Florida, October 24, 2016. That was the night of that much disputed phone call that Michael Cohen testified he had with Donald Trump where he called Keith Schiller and he put him on the phone. And it was this huge fight over even just getting a screen graph of that video into this. You can see there, there's Keith Schiller. He's the one in the white tie - or the white shirt with the red tie there. And it was remarkable though because prosecutors said they found this video over the weekend, they didn't previously have it, after the defense was kind of disputing, not that they were together, but that Michael Cohen was telling the truth about that phone call.

BERMAN: Yes, that's a potentially big deal, this video right there, because it took place right before the phone call that is now in dispute. So now the jury has video evidence that Schiller and Trump were together and certainly could have shared a phone call, even if it was only 90 seconds long.

And you bring up a great point here. You know, Robert Costello is only testifying again today because of what happened yesterday, because it took so long. Costello easily could have finished yesterday if the judge hadn't needed to clear the courtroom at any point, or they hadn't had the fight over this photograph before. And the prosecution wouldn't have the chance to go home and do homework and get ready for today. I expect they'll be brief because this prosecution generally has. They'll hit a few points they want to be clear and then move on.

[09:29:59]

One last point I just want to make based on what we just saw from Donald Trump as he's entering the courtroom. I'm just struck by how reactive he's been this whole trial. And he caught himself in that very statement.