TRUMP WON’T TESTIFY: Defense Rests in Trump’s Hush Money Trial

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Donald Trump’s lawyers finished presenting their defense case Tuesday, and the trial judge said closing arguments will be next week. Trump will not testify.

In his remarks on his way into court on Tuesday, Trump said the defense will rest quickly. “Resting, meaning resting the case,” he added. “I won’t be resting. I don’t rest. I’d like to rest sometimes, but I don’t get to rest.”

On leaving the courtroom Tuesday, Trump raised his fist but didn’t speak to reporters.

Tuesday afternoon, New York Supreme Court Justice Juan Merchan was to hold a charging conference, in which lawyers hammer out exactly how jurors should be instructed on the law before they begin deliberating.

The trial will not take place Wednesday or Friday and probably will be on hiatus Thursday if everything except closing arguments is taken care of Tuesday. Rather than try to squeeze in closings and deliberations before the Memorial Day holiday, Merchan said closing arguments would take place next week.

The last witness, Robert Costello, began testifying late Monday and spent less than an hour on the stand Tuesday. Merchan had threatened to hold him in contempt of court Monday after he showed disagreement with the judge’s rulings.

In testimony Tuesday morning, Costello quickly got testy with a prosecutor who suggested he was operating on behalf of Rudy Giuliani and Trump.

Costello is a former federal prosecutor and longtime defense attorney who advised Michael Cohen in 2018.

Prosecutor Susan Hoffinger read out an email in which Costello, writing about Cohen, said, “perhaps we have been played here.”

“Do you want me to explain it?” Costello asked.

“No,” Hoffinger replied.

When she asked a follow-up question, Costello replied sarcastically, “Now, you do want me to explain it?”

On redirect examination before both sides rested their cases, Trump’s defense lawyer Emil Bove worked to establish that Costello was Cohen’s lawyer at one time.

Bove showed Costello a waiver signed by Cohen that said, “At no time did I sign a retainer or otherwise agree to retain Costello.”

“That is a false statement,” Costello testified.

But Costello said that in a meeting with Cohen in May 2018, soon after their first meeting the month before, Cohen was given a retainer agreement and “he stuck it in his briefcase, said ‘I’ll look at it later.’ Every time [Costello associate] Jeff Citron asked him about it, he gave us an excuse.”

Costello said he continued to email and text with Cohen, including a reference to “back channel” communications with Rudy Giuliani, who was then working as a lawyer for Trump. Costello said Giuliani used the “back channel” term.

Costello also acknowledged he was concerned that Cohen hadn’t paid him or signed the retainer. Finally in August 2018, Cohen sent an email telling Costello, “you do not and have never represented me in this or any matter.”

Costello said that was “false.”

Hoffinger then put the retainer agreement for Cohen in front of Costello. He admitted that Cohen never signed it.

The judge’s charge, to take place Tuesday afternoon, is an important but often deathly dull part of any trial. The judge describes the legal parameters for the jury to consider whether prosecutors have met their burden of proof.

Like reading furniture assembly instructions written in another language, juries often struggle with the dense terminology of a judge’s charge; it’s common during deliberations for panels to ask for specific parts of the charge to be read back to them so they can try to understand the instructions better.

In Trump’s trial, the judge’s charge will be more important than most, because of the ornate legal framework that prosecutors built toward indicting Trump on 34 counts of falsifying business records.

Typically, that crime is charged as a misdemeanor, but it can be elevated to a felony if the records were falsified in furtherance of another crime.

In this case, prosecutors charge that the other crime was state election law 17-152 – conspiracy to promote or prevent an election. That law makes it a misdemeanor when two or more people “conspire to promote or prevent the election of any person to a public office by unlawful means.”

Prosecutors have said in court that the “unlawful means” here was a violation of federal campaign law – meaning that the charges are really a three-step process.

At the charging conference, the lawyers will debate how best to explain that to a jury made up mostly of non-lawyers. How the judge decides to characterize the legal standard may have a huge impact on what jurors think of the evidence – assuming they can follow the sometimes byzantine nature of charging language.

A jury’s job is to decide the facts, while a judge decides the law. During a trial, those two roles do not mix much – but a charging conference is where the judge turns over the case, with a final set of instructions, to the jury.

The trial is not being televised. The Washington Post has reporters in the courtroom and media overflow room who are posting live updates.

(c) Washington Post

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