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Defense Attacks Michael Cohen; Raises Questions About His Honesty; Trump Attorney Portrays Cohen As A Liar Out For Revenge; Transcripts Released From Day 18 Of Trump Trial With Cohen Cross- Examination; Sources: Attorney Bob Costello May Be Called As Defense Witness In Trump Hush Money Trial; Trump's Lawyers Work To Undercut Cohen's Credibility; Sketch Artist On Tense Cross-Examination Of Michael Cohen. Aired 8-9p ET
Aired May 16, 2024 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[20:00:00]
SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: And I'm not saying that to scare parents, but I think it's really important that you sort of understand that, but also that the school can be a place where kids are in active recovery, not just sporadically, but for years at a time.
ERIN BURNETT, CNN HOST: All right. Dr. Sanjay Gupta, thank you so much.
GUPTA: You got it, Erin. Thank you.
BURNETT: And don't miss the "Champions for Change" on our special Saturday night at 9 Eastern. AC360 starts now.
ANDERSON COOPER, CNN HOST: Good evening. On what was a blockbuster day in the criminal hush money trial of the former president, blockbuster because after what has at times been a meandering cross-examination of the prosecution's most important witness, Michael Cohen. Today Trump attorney, Todd Blanche was able to repeatedly raise questions about Cohen's honesty, not just in the past, but his honesty in his testimony before this jury this week.
I was in the courtroom this morning just before the lunch break. Blanche presented text messages to Cohen between him and former Trump bodyguard Keith Schiller. The messages were from October 24th 2016, and they appeared to contradict testimony Cohen gave Monday on direct examination that goes to the heart of the alleged scheme to falsify business records.
Earlier in the week, Cohen testified about texting Schiller. He said under oath that he needed to talk to Trump urgently, and Schiller was always by his side. He testified that he used Schiller's phone to speak to the former president.
Cohen told the jury in his earlier testimony that the purpose of the call was, quote, "To discuss the Stormy Daniels matter and the resolution of it." But today Todd Blanche did something the prosecutors had apparently not done, or at least not discussed with Michael Cohen in their questioning of him on the witness stand.
Blanche read previous text messages Cohen had received shortly before he texted Schiller. They showed that Cohen was responding to a 14- year-old crank caller who'd been pranking him by phone for days. Cohen texted Schiller informing him about the prank call and wanting help from Schiller about the calls and that appears is why he then called Schiller.
Blanche appeared to have trapped Cohen, arguing that the subsequent call between him and Schiller lasted only 96 seconds, and questioned whether, and this quote comes to us from our reporters in the room, "You had enough time to update Schiller about all the problems you were having and also update President Trump about the status of the Stormy Daniels situation."
It's important to remember that Cohen had never mentioned this 14- year-old crank caller in testimony. Blanche directly stated that he lied under oath earlier this week about speaking with then-candidate Trump on that day. It was a major moment on a day that saw several other notable developments, including that sources tell CNN the defense may call a former attorney for Cohen, Robert Costello, to continue the defense argument that the one-time fixer for the former president is a liar.
However, the judge also suggested summations could begin next week. There's a lot to talk about with our panel. Joining us is Robert Ray, former president's counsel during his first impeachment trial, former federal prosecutor Jeffrey Toobin, CNN anchor Abby Phillip, also three more who witnessed that pivotal moment in the courtroom today, CNN's Anchor Kaitlan Collins went after the lunch break, Norm Eisen, who was the counsel for the House Democrats during the first impeachment, was there this morning, and correspondent Kara Scannell.
Kara, what - was that moment the one that stood out to you?
KARA SCANNELL, CNN CORRESPONDENT: Oh, by far, absolutely. I mean, it was the big moment of the day. And the way that Todd Blanche did it, he spent a lot of the morning on these inconsistent statements, drawing out when Michael Cohen may have lied. And then he gets to this phone call, and he begins by saying, you spoke with the former - you testified on Monday you spoke with Trump on the 24th. Cohen says, yes. And he says, do you remember, was it on speakerphone or did Schiller hand the phone. Cohen's like, oh, I don't remember.
So he's setting it up in such a way that you think you're going back to this and then he says, and what about these text messages. And then goes exactly as you just described, just confronting Cohen with these text messages and the timestamps that were so close and that showed Keith Schiller saying to him, Cohen's complaining about this 14-year- old calling him, Schiller says at 8:02, call me. Cohen calls him at 8:02, it's a 96-second phone call. And Cohen then says, well - and Blanche is just building to this crescendo.
He is focusing in on this on Cohen. And he's like, admit it, you lied, you made up this call. And Cohen says, I'm not sure that's accurate. Later on, he tried to correct that a bit and said that the reason why he remembered this specifically was because this was, as he put it, so important, such a critical thing and so he had it in his memory. He's been telling the story for six years. I'm not sure that that did the job though.
COOPER: Norm, I mean, did you believe Michael Cohen in what his response to this was? Because his response basically evolved into, well, I was doing both. When he was cornered, he could have basically either said, you know what, I misremembered this, which would have been devastating.
Or what he did, which was, I did both. I both talked to Keith Schiller about this 14-year-old boy who I want to get vengeance against, which was bizarre enough.
[20:05:06]
And I had time to tell President Trump this crucial piece of information, which is I'm going ahead with the Stormy deal and Trump agreed.
NORM EISEN, CNN LEGAL ANALYST: There was a ferocious debate in the courtroom between the people who thought it was a true "Perry Mason" moment. And some in my row who said, eh.
COOPER: Really?
EISEN: Yes. George, our friend George Conway (ph).
COOPER: Mm-hmm.
EISEN: He said what is everybody getting so exercised about?
(CROSSTALK)
EISEN: I will tell you ...
(CROSSTALK)
EISEN: I will tell you ...
(CROSSTALK)
EISEN: I think the same debate is erupting is in our row.
ROBERT RAY, TRUMP COUNSEL IN FIRST IMPEACHMENT TRIAL: I can't imagine for a moment that (INAUDIBLE) concluded anything else.
EISEN: I was sitting just in front of Anderson.
COOPER: I know. I wanted to grab you and be like, oh my god, Norm, are you hearing this?
EISEN: We had a quick conversation about it. It was a good moment of cross. It was a very professional and powerful moment of cross. I think if Cohen had been shown those texts by the prosecution on the direct examination, if they had refreshed his recollection, there's nothing implausible about discussing both ...
COOPER: But that's what seems like ...
UNIDENTIFIED FEMALE: Good point.
COOPER: No, I get that.
EISEN: ... discussing both subjects.
COOPER: It seems like a huge mistake by prosecutors, it ...
EISEN: It was not the best; it was not their finest.
COOPER: I mean, do they not know - did they not look at what the text messages were (INAUDIBLE) ...
(CROSSTALK)
EISEN: It was not their finest moment. I - my experience has been, it wasn't - it was a blow on the chin - but my experience, 30 years of doing this is that it takes more than one punch to knock out a witness.
This is a witness that the jury had believed.
COOPER: But that - okay.
EISEN: I was watching the jury at the time. I did not think it was a knockout blow.
COOPER: But here's the thing, if I'm a juror, and again, it's impossible to ...
KAITLAN COLLINS, CNN ANCHOR: You were in there.
COOPER: ... it's impossible to read these jurors, but if I'm a juror and I've heard, and I've been warned that Michael Cohen lies. The prosecutors have said this. They've set it up. I'm prepared for that. I'm prepared for he's lied in the past repeatedly. I don't know if the juror is prepared for he lied to this jury two days ago, but now he's really telling the truth. I mean, I don't know. Does that - does a juror make a difference between, oh yes, those were his old lies, but he's really now telling the truth.
EISEN: Jurors understand. And he cleaned this up in the afternoon.
SCANNELL: He tried to. He tried.
EISEN: He was stronger after lunch. Memory is not perfect, okay? People do not have perfect recollections ...
COOPER: Okay, but ...
EISEN: ... and we're going to get redirect ...
(CROSSTALK)
RAY: It works for almost all witnesses except for an inveterate liar.
COOPER: So - but let me just argue one ...
RAY: That's a really hard argument to make.
COOPER: Just one, let me just argue one other thing because - before I - it's going to leave my mind, which is if this phone call, if his testimony previously was, it was so urgent that I talked to Trump because I got to check in with the boss on everything I do, and I'm going forward with the Stormy Daniels payment, and he's got to approve it. So I'm calling him now, it's going to be a quick phone call. I call Keith Schiller because I want to talk to the boss.
If that was so urgent and in his mind, why is he obsessing about a 14- year-old boy who's allegedly prank calling him and contacting Keith Schiller saying, I got to talk to you about this weird phone number that shows up. It's not, I got to talk to the boss or something really urgent. And calling Keith Schiller and talking to the boss and then after that conversation is over saying to Schiller, oh, by the way, there's this phone number. It's not - it seems like the 14-year-old boy is the reason he's calling.
COLLINS: What they're - I mean, you just basically made the defense's case for them. Memories are not perfect. That is exactly what they're saying to Michael Cohen, that your memory is not perfect and you don't remember exactly that you even spoke to Donald Trump on this phone call. I mean, his most devastating line after the text with the 14- year-old was, I believe I spoke with Mr. Trump. He didn't even double down on it after he was pressed on it.
And so that is exactly their entire case here that they've been saying, Michael Cohen, how can you not remember this, but then you remember this phone call with Donald Trump so specifically.
RAY: The best part of cross-examination was Todd Blanche's follow-up, which was, the jury is not interested in what you believe. The jury ...
COOPER: Mm-hmm, which he got objected on.
RAY: Doesn't matter.
COOPER: And sustained.
RAY: It doesn't matter.
EISEN: Then he ...
RAY: And those are - that's the kind of comment that you make. You don't care whether that objection is sustained.
COOPER: Right. RAY: You're communicating to the jury.
COOPER: And he said that looking at the jurors by way.
RAY: Absolutely.
COOPER: Yes.
RAY: Absolutely.
ABBY PHILLIP, CNN ANCHOR: I - as Kaitlan said, look, I think the issue with Michael Cohen is that particularly when you have animus toward another person, which they have demonstrated pretty clearly, it is also plausible for the jury to believe that your memory is colored by your desire to see Donald Trump behind bars. And that's why this moment, I think, is so devastating because he is so crystal clear on everything that is bad for Donald Trump's case, but on everything - from the mundane to other things that apparently, at the time, he was really worked up about, he cannot remember it.
[20:10:01]
And that is both a problem from the case's perspective, but I just think in general for Michael Cohen, this is the issue with him, is that you cannot always be sure. Yes, he's been telling the story for six years, but in those six years, he's been trying to get Donald Trump convicted of crimes.
COOPER: It was also fascinating in the courtroom today because I had not - I must admit - I have not listened to Michael Cohen's podcast, Mea Culpa. But it was played - shocking - but it was played - a moment of it was played in the courtroom today. And it was so fascinating because, Michael Cohen's testimony has been very even keel.
RAY: (INAUDIBLE) demeanor.
COOPER: very rational, very - yes, ma'am; no, sir, all this. And suddenly they play this thing, and there's a guy screaming in the room, like, using expletives.
PHILLIP: Is this the rap songs?
COLLINS: No, it's just normal ...
SCANNELL: No.
(CROSSTALK)
COOPER: No, which is, I - well, first of all I would ...
(CROSSTALK)
COOPER: ... as somebody who does a podcast. I was like, is this his actual normal speaking voice in a podcast, because it's literally yelling and it's clearly written down, because he's speaking in a way that's not - so he's written down these yells, like it's got to be all in caps. I mean, it was shocking. I was like, it (INAUDIBLE) ...
SCANNELL: Between that, just the volume of him and compared with his very calm demeanor ...
COOPER: Yes.
SCANNELL: ... that was - I also was like, whoa.
COOPER: I mean, it filled the court. I don't know if somebody turned up the volume too loud. I was like, did they - is this intentionally too loud? Oh, wait, I'm told we have a clip of the podcast. Let's play it, and play it loud, 'cause it was quite loud in the courtroom, I got to tell you. Let's hear it.
RAY: (INAUDIBLE) volume.
(BEGIN VIDEO CLIP)
MICHAEL COHEN, MEA CULPA PODCAST: I truly (expletive) hope that this man ends up in prison. It won't bring back the year that I lost or the damage done to my family. But revenge is a dish best served cold and you better believe I want this man to go down and rot inside for what he did to me and my family.
(END VIDEO CLIP)
COOPER: Oh, yes, that's what was played.
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Think he's a little biased? I don't know.
COOPER: Well, I think ...
TOOBIN: But there's, I think, a fundamental question about, Michael Cohen as a witness, which is, is the jury going to listen to him and the cross and the history of lying and say, the hell with this guy. I mean, just write him off. Or are they going to say, look, he's had this traumatic experience, he went to prison because he thought he was helping Donald Trump. Let's parse each statement and see whether those statements are corroborated. And this is really, I think, the prosecution's great hope, and this is why they examined him the way they did on direct, which was scaffolding his testimony with text messages, phone records.
Now, the big problem with today is those text messages came back to bite him, at least in this one exchange. But it is also worth mentioning that, he had years of contact with Donald Trump. It's not in debate that whether he could - whether he was in touch with him ...
COOPER: Right.
TOOBIN: ... if he's mistaken about this one phone call, one prosecution response is, so what?
COLLINS: No, no, no, but ...
TOOBIN: He was in touch for 10 years.
COLLINS: But it's not just this one phone call. And one, you also have to remember there are two attorneys on this jury who were listening to Michael Cohen admit that he agrees it's unethical for an attorney to record their client. They're listening to that. Todd Blanche is trying to catch him in other inconsistencies. He seems like he's about to catch him in another lie on Monday.
This is something I'm watching, because he asked him about recording conversations with reporters, which Michael Cohen said he did pretty often. But he said he stopped after the 2016 campaign. And then Todd Blanche pressed him on that. He said, I would have to check. And Todd Blanche responded with this knowing tone, well, we'll check together in a minute.
So it seems like he's just catching with that, maybe it doesn't change the actual documents, but it could really undermine the credibility we have.
TOOBIN: But Kaitlan, this is a controversial view, but attorneys are also human beings, and they understand that sometimes people do stupid things, sometimes people say things when they're angry and they hold grudges. That doesn't mean every word they say is a lie. And that's the challenge for the prosecutors to say, look, we know he lied and they brought out a lot of that on direct. Unfortunately for them, not everything. I mean, they certainly should have brought out this whole thing about the 14-year-old. But this wasn't a total surprise to the jury, I suspect. Obviously, I don't know.
EISEN: And that's why this case, from day one, starting with David Pecker and the August 2015 meeting in Trump Tower, where you have Pecker agreeing that there is going to be this activity, this catch- and-kill activity to benefit the campaign. And going all throughout the testimony with those corroborating notes in Allen Weisselberg's hand, there - this is one tile in a mosaic and even today, Cohen was much stronger in the afternoon, and the jury does not necessarily fixate on that one moment.
[20:15:00]
COOPER: Well, it was also interesting because all - during the - I mean, for - until the exciting end, right before the lunch break, I kept sitting there wondering, well, all Todd Blanche is talking about is just lies by Michael Cohen about things in general, not anything to do with a document that was signed about Stormy Daniels or anything to do with Stormy Daniels or anything to do with hush money payments.
And I - and to me, it felt very meandering, and I was like, okay, yes, we know the guy has lied a lot, and that's kind of big (INAUDIBLE) ...
PHILLIP: I just think ...
RAY: Except for one thing and that's another blockbuster area of this testimony, which I think is extraordinary. It doesn't seem to be something many people have picked up on, and that is the following: it is an extraordinary thing, in my experience, for a cooperating witness to take the stand and admit under oath at a trial that they pleaded guilty to something that they didn't commit. In other words, perjuring themselves at the time of the plea allocution.
Now, look, I know there's all kinds of stuff here about replaying the - how many times can he be untruthful, and how many times is he untruthful under oath. But I have to tell you, I mean, at least as I learned being a prosecutor, if you have a cooperating witness that can't tell the truth at a plea allocution, that means that that witness is basically worthless.
COOPER: He testified he lied to the judge, right, in this prior case, and ...
RAY: Denying that his plea was voluntary.
COOPER: And then when he was - when Todd Blanche asked him, well, what do you think the judge would have thought of you? Don't you think the judge would like to have known you were lying? I mean, don't you think that would have impacted his decision?
RAY: And it would have, because ...
COOPER: And Michael Cohen was like, I don't know.
COLLINS: He said the judge was in on it.
RAY: (INAUDIBLE) ...
COLLINS: He said the assistant U.S. attorneys and the judge were in on it.
RAY: That's just nuts. I mean, and that that's why ...
COLLINS: That's a pretty ...
RAY: ... and the Todd Blanche's cross-examination, so basically, whenever you get into a problem, it's always blame somebody else. Blame President Trump, blame the judge, blame the Justice Department, blame the U.S. Attorney's Office for the Southern District of New York, blame Congress.
I mean, how many places do you have to go where this guy has lied many times under oath, and it's always somebody else's fault, it's not his fault? I mean, I got to tell you, in summation, that's pretty powerful evidence to a jury to say you shouldn't believe anything this guy says. And if you have to rely on his testimony in any fashion whatsoever in order to convict Donald Trump, i.e., in order to fix Donald Trump's intent, you have a reasonable doubt. You can't have anything else but a reasonable doubt.
EISEN: And yet in that moment, when Blanche tried to push him and said, so you're not accepting responsibility. He said, I do accept responsibility. He stood up to Blanche.
RAY: For the facts, but he doesn't accept responsibility, Norm, for the most important thing, which is ... EISEN: His answer ...
RAY: He's saying that he didn't plead guilty to a crime and coincidentally ...
EISEN: That's not what he's saying, no. He's said on direct ...
COOPER: His words say that he accepts responsibility.
EISEN: He was strong in pushing back on Blanche here.
COOPER: But the meaning - his actually thoughts don't seem to accept responsibility.
EISEN: There you go.
COOPER: But he uses the phrase I accept full responsibility, constantly.
RAY: And there can't be any daylight there, because if there is daylight, that is a huge problem for the prosecution.
COOPER: We got to get a break in. We're going to have a lot more. Kara Scannell, thank you so much as always. Everyone else is going to stay here. Still to come, we just received the image the defense used of that text Cohen sent to Schiller about the crank caller. We'll show you that.
Plus, John Berman is going through today's transcripts.
(COMMERCIAL BREAK)
[20:22:05]
COOPER: A short time ago, we received images of that text exchange between Michael Cohen and then-candidate Trump's bodyguard Keith Schiller that the defense attorney showed today. Again, it was to prove their assertion that Cohen did not ask to speak to Trump about Stormy Daniels as he testified earlier in the week, but he wanted to talk to the bodyguard, actually, to Keith Schiller about a crank call or a series of crank calls.
This is the key moment, quoting Cohen's text: "Who can I speak to regarding harassing calls to my cell and office? The dope forgot to block his call on one of them."
The call was - these calls were allegedly by a 14-year-old. After that, Keith Schiller texts Michael Cohen, saying, "Call me." And shortly after, minutes - seconds later, there's a call from Michael Cohen to Keith Schiller, which he had previously testified was a call to get to Trump to tell him important news that he was moving ahead on the payments to Stormy Daniels, and he claimed that Trump had agreed.
We're joined now by John Berman, who has more on this moment. Although the full text of this cross-examination that so - that was so momentous is not out. JOHN BERMAN, CNN ANCHOR: We have almost all of today's transcript except this part, as you can imagine, which is very frustrating. But Anderson, you did a great job explaining it based on what you and others have reported from inside the courtroom.
Look, he - Todd Blanche went after Michael Cohen on this. Michael Cohen basically said, "I know that Keith was with Mr. Trump at the time and there was more potentially than this." In other words more potentially than me just talking to Keith about the kid. Maybe I talked to him about something else. Then he said, "I always ran everything by the boss immediately, and in this case, it would have been saying everything's been taken care of. It's been resolved."
And then he ultimately had to admit it, because based on what was going on, based on the text message and so on, based on the other text messages about the Stormy Daniels matter, that is how we came to the conclusion that he talked to Trump about Stormy Daniels on this phone call. It was all the other things.
Blanche challenged Cohen to confirm that his trial testimony was based on materials prosecutors showed him in preparation from questioning.
COOPER: Right. This was an important moment because then Blanche is saying, Well, wait a minute, so you're only testifying to this phone call because prosecutors showed you a call log that had this phone call, and you're claiming that that basically jarred your memory ...
RAY: This is the setup.
COOPER: ... of this crucial phone call ...
RAY: This is the setup to the cross-examination to follow.
BERMAN: And he said, yes, that refreshed my recollection.
COOPER: Right.
BERMAN: Well, we do have - just so people know ...
COOPER: But it didn't refresh his recollection of the 14-year-old caller.
TOOBIN: Can I ask you a question? What is the ultimate significance of - let's assume he just lied about all this - but does this mean that Donald Trump didn't know that he was reimbursing - what is ...
COOPER: No, but it's that he is claiming this was one of the examples. This was a key moment when he directly told Donald Trump, I'm going ahead with these payments, and Trump approved it.
RAY: And he (INAUDIBLE) do it.
[20:25:01]
TOOBIN: Okay. But we have abundant proof, including Trump's own words in a tweet ... COOPER: Right.
TOOBIN: In a financial disclosure firm from the White House, where he says, I reimbursed Michael Cohen for the - so ...
EISEN: And ...
TOOBIN: ... why is that in dispute?
EISEN: And you have additional communication the next day with Cohen, Davidson, Howard, and Pecker. And then you have two direct calls on the 26th at 8:26 AM and 8:34 AM to Trump.
BERMAN: And that was when he was making the transfer. I actually had the transcript of that call. Two days later where Cohen was asked, "Did you call Mr. Trump before you went up to set up the account to make the transfer?" He goes, "Yes." "What in substance did you discuss with him on these two calls?" Cohen said, in direct, "I wanted to ensure, once again, he approved of what I was doing because I needed approval from him on all of this."
COOPER: By the way, I should also point out earlier that morning, I guess before that, he texted Keith Schiller back, pursuing the family of the 14-year-old phone caller. He seems very obsessed on this phone call.
COLLINS: He was saying, please don't do this. I'm 14 years old.
COOPER: Yes, this ...
COLLINS: So that was when - that morning - that moment happened and then they went to break, which is a great moment for the defense to end on, obviously. Then they come back in the room, and Todd Blanche greeted Michael Cohen when he was at the witness stand. His voice was barely audible.
COOPER: Michael Cohen's?
COLLINS: He just - he said, "Good afternoon, Mr. Cohen." And Michael Cohen responded, "Mr. Blanche." But you could barely hear it in the courtroom and obviously, he's speaking into a microphone. And then the text had not been redacted when you were still in the courtroom. So, I don't believe they showed them on the screen.
COOPER: Right.
COLLINS: They redacted what they needed to during the lunch break. So, then they put them up on the screen and made Michael Cohen read what he was texting this 14-year-old that, when the kid said he was 14, allegedly, Michael Cohen responded, well, you need to tell your parent or guardian that the Secret Service is now responsible for handling this.
COOPER: Right.
COLLINS: And it just kind of - it was this moment where the jury doesn't often show a lot, and they clearly were kind of experiencing the same ...
COOPER: Right.
COLLINS: ... had the same look that you had when you came out.
COOPER: Right. Yeah, it was bizarre. But the ...
RAY: Well, and ...
COOPER: ... yes.
RAY: ... and for obvious reasons, I mean, let's not forget, this is from 2016. We're in 2024. This is eight years ago. Now, refreshing somebody's recollection with a text message - well, do you really remember that this is what happened? I mean, that's the whole point of their cross-examination. You basically testifying here because the prosecution showed you a bunch of documents and stuff, and you're telling us what you remember.
TOOBIN: What about ...
RAY: And if you hadn't been shown those documents, you wouldn't have been able to tell them anything about anything.
TOOBIN: But what about Norm's point that it wasn't just this one phone call, it was a whole series of phone calls right around this time, at exactly the time he is transferring the money. Is that all made up too?
RAY: No. No.
EISEN: And the testimony that Cohen put in, in his direct, about this call, was very general testimony. He was not purporting to remember exactly what was said back and forth. I think in the - I understand the mental excitement of that moment of confrontation. But I think in the larger scheme of things, this gigantic mosaic that corroborates Michael Cohen, the lack of any other explanation for what Trump was doing, the later corroborating statement, the long series of witnesses, the many documents, I don't believe the jury is going to seize on it.
If you had one, two, three, four knockout punches, yes, you would have laid Cohen flat. This was just one. It comes out of the (INAUDIBLE) ...
PHILLIP: Here's my thing about where - about this statement, and also just - about Michael Cohen in general: there's abundant evidence that Donald Trump knew about the hush money payments, but that is not the issue here. The issue is the falsification of business records, and from my understanding of the evidence, there's really one key moment where Michael Cohen basically makes the case that Donald Trump understood that it was going to be fraudulently put on the books as legal fees. And that was a meeting that he had with Allen Weisselberg and Donald Trump. They're only three people who know what goes on there. One of them is the defendant, the other one is not going to testify, and the other one is Michael Cohen. And so, if I'm a defense lawyer ...
RAY: Unless you believe Michael Cohen with regard to that evidence and the defense is going to make the argument in summation, his testimony is worthless and these are the examples, and you - he's trying to gild the lily and he's testifying and making it up. Unless you can believe beyond a reasonable doubt that that conversation happened and there's proof of it ...
PHILLIP: And that it happened the way that Michael Cohen said ...
RAY: ... and the way he said, right.
PHILLIP: ... it happened because it's really crucial.
RAY: Because it's only that way which would prove Donald Trump's intent. There's no way that a jury should convict on that evidence unanimously beyond a reasonable doubt. That's going to be the argument.
PHILLIP: That - and that is why the doubt that is put on the table by Michael Cohen's recollection of a conversation that he describes as being pivotal is, look, I mean, the bar is so low for the defense to just say - to convince one juror that there is not enough evidence.
[20:30:10]
I'm not saying that the preponderance of evidence is that Donald Trump knew what was going on, and that there is a common sense view that one could have that he understood that this was not going to be put on the books correctly. But in this court, it takes much less than that to get a juror to say, I don't know if I can believe this guy about this one really critical conversation that has to do with how the records, how the payments were structured so that the records could be falsified. That's the main problem, I think right now for the prosecution.
COOPER: We'll have more transcripts later. John Berman, thanks so much.
Coming up, how the jury may view a potential witness for the defense who testified before Congress yesterday, disputing Michael Cohen's own sworn testimony in the hush money trial, that's ahead.
(COMMERCIAL BREAK)
COOPER: As we've been discussing Michael Cohen's credibility came under attack today is from Defense Attorney Todd Blanche grilled him over key text messages and a phone call on October 2016. While the prosecution would like to present Cohen as a reformed liar, there are new questions already raised today about some of the testimony he gave in this trial earlier this week.
[20:35:14]
This also includes Cohen's testimony on Tuesday when he claimed that he was given advice by Attorney Robert Costello in 2018. And that Costello was using his connections to Rudy Giuliani, and by extension, former President Trump to pressure Cohen, not to flip. On Wednesday, Costello appeared before the House Subcommittee on the so called weaponization of the federal government to dispute that.
(BEGIN VIDEO CLIP)
ROBERT COSTELLO, PARTNER, DAVIDOFF HUTCHER & CITRON: The story he told yesterday was that Rudy Giuliani and I were somehow conspiring to try and keep him quiet, to try and keep him from flipping. That's the term we use in the trade for cooperating. That's ridiculous. I asked for a meeting with District Attorney Bragg, because I wanted to go in there, let them look me in the eye. And let me explain all of the stuff that we had on Michael Cohen that showed that he's an inveterate liar.
(END VIDEO CLIP)
COOPER: A source famil --
TOOBIN: That's amazing. This is a guy -- he was representing him and he's calling his client an inveterate liar. And --
COOPER: To which he actually technically representing him, I mean --
NORMAN EISEN, CNN LEGAL ANALYST: Pretty --
TOOBIN: That's what I -- that's certainly what I thought --
EISEN: The Costello e-mails are like a witness.
COOPER: By the way, the defense may call him now.
EISEN: Yes.
COOPER: Although, is it weird, I mean isn't it weird that they had this testimony to get this testimony out there.
RAY: Apparently, the privilege was waived. I don't know exactly how that happened. That's what I understand.
EISEN: It would be pretty unusual to call a witness to impeach another witness on cross examination. We'll see if the judge allows it. But Costello, if he comes, his e-mails to Cohen are the most extraordinary. It's like a cookbook for witness tampering.
COLLINS: No. It's like the sopranos --
EISEN: It's exactly like the sopranos.
COOPER: By the way, I forgot to introduce Renato Stabile, jury and trial consultant.
(CROSSTALK)
COOPER: Renato, what to you, what do you think of today? RENATO STABILE, JURY CONSULTANT: Look, I mean, he got up -- Michael Cohen got absolutely hammered today. But he's a liar is not a theory of defense. We still don't know what is the theory of defense? You know, they opened as I've said that these were legitimate legal fees. There's been no evidence of that. Michael Cohen is sticking to the story that I did no legal work them. So hammering Michael Cohen and saying he's a liar. I think the jury thinks, you know, he is a liar. Maybe they have questions about some of these phone calls.
But there's other corroborating evidence. And I still don't understand what the theory is. And we all know you have to have a theory of defense, if you want to win a criminal case.
COOPER: Well, that was, Jeffrey, your argument all along, which is, OK, the prosecution has put forth a set of, you know, facts, believe them or not. What is the defense argument?
TOOBIN: Exactly, and there are certain undisputed facts in this case, the two most important of which are Michael Cohen, paid Stormy Daniels, $130,000. No one is going to dispute that. The other thing -- the undisputed fact is that Donald Trump paid Michael Cohen $420,000. Is there any explanation in front of the jury, other than this was a reimbursement for what -- for what he paid out.
Now, that means that the documents are false. That means that the corporate documents are false. The issue in the case is did Donald Trump know or cause those documents to be false? That to me is the only disputed issue in this case, because the rest of it is just proof.
COLLINS: And, Jeffrey, you know, the other point of that that was raised today and it'll be fascinating to see how the prosecution handles this is Todd Blanche grilled Michael Cohen on what he testified recently was that, you know, in the -- in 2017, 2018, he was barely doing any legal work for the Trump family. But he had -- he never had a retainer.
Well, Todd Blanche, went back and said, OK, ever since you worked at the Trump Organization, when he left his law firm, the day he met Trump and went to try to get a job there, he never had a retainer. Michael Cohen said that was correct. And Todd Blanche was trying to make the point where you've never had a retainer. So it's not unusual that you didn't have one in 2017 and 2018.
But then the question that I had sitting in there in the courtroom was, well, when Michael Cohen sent those invoices to Allen Weisselberg, they were paid pursuant to a legal retainer, it said it on every check. We looked at all 11 of them. And so the question I would have for the defense there is, OK, well, then why was he being paid pursuant to a retainer if he's never had a retainer.
TOOBIN: Because there was no retainer, because it's a lie. It was a fake.
(CROSSTALK) RAY: That wasn't the issue. The issue is whether there's a written retainer agreement, not whether or not there's -- that he's been retained.
COLLINS: No. He said, he's never had a retainer, period.
RAY: No, no, no, no.
COLLINS: I was there. Todd Blanche drilled down a couple of times today.
RAY: But what he means by that is there was no written retainer agreement.
EISEN: But here's the answer to --
RAY: It's clear that he didn't, it wasn't retained by Trump to his lawyer.
[20:40:01]
STABILE: But I think the retainer issue that's kind of a sideshow.
RAY: Sure.
STABILE: It's not like that big a deal really, you know, in the legal field whether or not you have retainer or gag you should have. But what legal -- I think the defense painted themselves into a corner, what did he do? And what did Donald Trump think that he was writing those $35,000 checks for? What did he think he was paying for? And we don't have an answer to that.
COOPER: Do you think it was effective for Todd Blanche to, you know, push the cross examination all the way to the end of the day, so that tomorrow, there's no court. And you -- and Norm, you brought this up in the elevator during the lunch break. You were like, he's going to -- he should push it all the way. He said that they spend three days ruminating on the lies of Michael Cohen.
STABILE: Look, you can look at it both ways. In some ways, I think I would have gotten him off the stand and ended with him and just been done with him, then you get some distance. And then if you're going to put on a defense case, maybe they're going to call an expert. They say, I don't know, some election expert. Then you start fresh on Monday, because the prosecution would have had to get up today and do their redirect.
It's a little tougher to do it when you don't have three days to prepare, because sure the defense is reviewing the transcript. But guess who else is, the prosecution. And they're going to figure out all the things they need to fix on Monday. So what would have been maybe a 45-minute redirect might be an hour and a half redirect on Monday, now that you gave them those three days.
COOPER: That's interesting.
RAY: Yes, maybe. But I know if the prosecution had done redirect today, they wouldn't have finished.
EISEN: Can I --
RAY: It was still have gone over to next week.
EISEN: On Kaitlan's very interesting retainer point. This is one of the most obscure areas of law. The reason --
COOPER: Which makes your eyes sparkle.
EISEN: It does. It's very -- I would've talked to you about it in the elevator. I would've cornered you in the elevator. The law of retainer letter.
The reason he didn't need a retainer was because he was employed by the Trump Organization.
COLLINS: Right.
EISEN: He was in house. In house lawyers don't need a retainer letter. When you leave under New York rules, you are supposed to have a written retainer. So it is proof that he was not actually doing legal work, that he didn't have a written retainer letter, that's why Hoffinger closed. That was one of her last points in the closing.
PHILLIP: You're saying that when he was working for Trump at the time, he didn't need one.
EISEN: He didn't because he was, yes, he was in house.
COLLINS: At Trump Org.
PHILLIP: At Trump Org, yes.
EISEN: So the -- that was one of the many Todd Blanche lines of questioning that fell flat today. There were times when the jury was bored.
COOPER: There was a lot of questioning about what Michael Cohen wanted after the election. We know what position he wanted in the White House. There was a lot of testimony about that, which I thought I didn't see it going where. Did you? I mean --
EISEN: It was interminable. And it led no place.
COOPER: I mean, Michael Cohen kept saying I wanted to be personal attorney to, you know, Donald J. Trump, which a line he repeated.
EISEN: I like your impression.
COOPER: I mean I just -- I lost interest in it halfway. You know, they were claiming, no, you want to be special counsel. And that was a phrase his daughter had used. I mean, it just seemed --
PHILLIP: I think it would also be a mistake for the defense to try to weirdly convince the jury that this wasn't about the election. I mean, that is also one of the things that I think is kind of settled, like we know --
STABILE: Well, I mean, look they say they're going to call this election expert, I think the judge is going to allow them to call. I think it's Bradley Smith and his order, he said that they can call him to say, you know, this is how the Federal Election Commission works. These are some of the definitions. But there's one definition that I think you need to watch out for, and what is a personal expense, versus a business expense.
And the election law says and it's 52 USC 30114. And it says it's a personal expense, if you would have made it irrespective of your campaign. And the argument that they've been trying to weave in the defense is that he would have made this payment to Stormy Daniels to protect his family, to protect Melania.
So I think they're going to try and argue he would have made this payment irrespective of the campaign. Therefore, it is not a campaign finance violation. And that's --
RAY: Therefore by the way, the Federal Election Commission would have agreed now whether we'll be able to get that, it sounds unlikely. But if you had gone to the Federal Election Commission and truthfully disclosed, we want to make this payment to Stormy Daniels. We want her to go away. We think that it may have some effect on the outcome of the election. Will you approve this as a campaign expenditure? The FEC would have looked at them, like what are you out of your mind?
So it can't both be what the prosecution has. It can't both be, wait a second, this is a concealed campaign expenditure. If the people who sort of make those fine judgments are like, wait, no, of course, it's a personal expense. I mean, you know, the John Edwards case is essentially a proof of that.
STABILE: Exactly. The John Edwards case then creates an interesting legal issue and I think that's one reason why you strategize to have those two lawyers on there because they're going to be like getting this.
[20:45:08]
COOPER: Do you think that anything today's proceedings change what do you think that the jury is thinking about this case? And also Todd Blanche got very heated on this. I mean, he called him a liar. He grabbed the microphone like closely like someone like drunk at a party might, you know, grab a mic and his voice was loud in the room. He at one point, you know, said to the jurors, like they don't want to hear you know, whatever. Do you think is that effective? I mean, it was attention --
STABILE: Which on Michael Cohen it's, you know, you got to pick your witnesses. You can't just, you know, be a bull in a China shop with everybody. But I think with Michael Cohen, I think it was totally fine.
RAY: It was a wedding singer moment. COOPER: It was. Yes. Renato Stabile, thank you so much really fascinating. Not only did Trump's lawyer Todd Blanche raise his voice as I just said at times, he also raised his hand with some dramatic flair to put a visual on the point. My next guest captured some of that -- those intense moments. So we'll talk to one of the great courtroom artists ahead.
(COMMERCIAL BREAK)
[20:50:11]
COOPER: In searing cross examination, Michael Cohen today, Donald Trump's lawyer, Todd Blanche, grilled Cohen on all the times he previously gone under oath, raised his right hand and then lied. This was one of those combative moments captured by the ultra-talented veteran courtroom sketch artist Jane Rosenberg, and we're very glad that she's back with us tonight.
You've got to be exhausted. I appreciate you coming in to talk about the day. I mean, to many people in the courtroom, this was an exciting day with the cross examination toward the end of it, you captured this moment of Todd Blanche, raising his hand that was in his cross examination of Michael Cohen. And he was repeatedly saying you've, you know, sworn in a courtroom, you've raised your right hand. When you saw that, had you already started to sketch? Or did you suddenly have to shift and start a whole new sketch of Todd Blanche raising his arm? I mean did you know this was going to be the moment?
JANE ROSENBERG, COURTROOM SKETCH ARTIST: I did not know it'd be the moment. And I did start another one with him leaning over the podium like this, which he does a lot. But then he raised his hand and I had to switch that, so.
COOPER: So can you just raise an arm and --
ROSENBERG: And he did it so many times. He raised his --
COOPER: Right.
ROSENBERG: You swore and tell the truth, and what did it mean? And --
COOPER: In fact, at a certain point, the judge seemed to sort of be like, OK, you know, we got it. Let's move it along. But did you have to, like raise the arm or do you start a whole new sketch?
ROSENBERG: No, I raised the arm.
COOPER: OK.
ROSENBERG: Well, I mean, doesn't always work but I -- that's what I did this time, because I had so much else already in there. I felt, Oh, I think I can just put that arm up. It's there now. Just pull it up.
COOPER: You've heard a lot of cross examinations. Did you think -- I mean did this one register to you in any particular way? ROSENBERG: No.
COOPER: No. You didn't think was as excited? Like, I haven't seen many. So I thought the end was incredibly --
ROSENBERG: No. Cross is often exciting, and it should be. And lawyers get really excited when they're going to cross somebody I think.
RAY: That's why they call it the crucible of cross examination.
COLLINS: Well, and Todd Blanche is not really well practiced in a cross examination. I mean, he -- I think he would even acknowledge that. And so today, it was really a big test for him and took for him to kind of have, you know, this disbelieving tone in his voice as Michael Cohen was answering his questions, raising his hands, raising his voice kind of this high pitched voice at times to kind of say, no one can believe what you're saying Michael Cohen.
COOPER: It seemed almost apoplectic at times, like, are you kidding me?
COLLINS: Yes, he would say, are you finished now? Please don't give a speech. I understand your characterization, but we just read it. Nothing on that letter is not the truth. And I'll just say one moment that I noticed today was after a break, they were walking back in the room. Normally Trump strides in by himself. He's at the front of the room -- he comes in alone, and then everyone trails behind him. He and Todd Blanche were walking side by side kind of talking to one another. You never really see Trump like that with his attorney walking into the room.
ROSENBERG: No, you're right. He's always behind him, Todd Blanche.
EISEN: I will say that in some of those more shrill Todd Blanche moments, including the two at the end, where he confronted Cohen, and there was an objection and the objection was sustained. Those were moments that -- the jury paid, I thought, hard to discern attention. They were very attentive. You couldn't read them. They were visibly annoyed with Blanche. I saw eye rolling, really looking away. It was too much and it detracted.
It shows his lack of experience, because it actually detracted from the point he was making. He would have been better to let the revelation that he had elicited from Cohen breathe, rather than being objected to and so loud and unpleasant. I mean, it looked to me like the jury was not liking Todd Blanche very much in those moments.
RAY: Well, editorializing while you're cross examining a witness is usually a bad idea. I mean, that's not what you're there to do. You're there --
COOPER: Bad from a legal standpoint or just from a jury impact?
RAY: From a tactical jury impact standpoint, you know, the jury is not interested in your editorializing. They want to try to get to the facts, just like every jury wants to get to the facts. But that moment with the, you know, the hand raised, or whatever, I'm sure that you dated your work, and probably know that the time to, right? Someday that will probably appear on Todd Blanche's office wall I'm sure for fee.
ROSENBERG: It is.
RAY: But there you go.
TOOBIN: I love critiquing lawyers as much as the next person. But you know, every time I've talked to jurors, almost always what you hear from them is, oh, you know, the lawyers were fine, but the evidence was X.
RAY: Yes.
TOOBIN: And they, you know, they don't parse the performance of the attorneys as much as we do. And I think, you know, this is one of the great things about the jury system is that I think the evidence actually matters a lot more than the performance of the lawyers.
[20:55:05]
PHILLIP: Yes. The person who does parse the lawyers is definitely Trump.
RAY: Yes.
PHILLIP: And I mean, if our friend Arthur Dahlia (ph) was here, he would say, you know, Trump and his other attorney Susan Necheles has way more experience in doing across than Todd Blanche. But once that moment happened, I was like, OK, that's why Todd Blanche is doing this cross examination.
He, Trump is a very, you know, he likes to archetype people and just sort of put them in their categories. I can imagine this is speculation, but I can only imagine him thinking, wanting to have somebody with the physicality of Todd Blanche, who is actually a very kind of broad shouldered type of person, to be able to do that kind of aggressive, sort of in your face challenging of Michael Cohen, that Susan Necheles is an incredible professional. But she's -- that's not how she conducts herself in doing her job. And stylistically, it's a choice whether it will matter to the jury, I don't know, but it probably matters.
RAY: I think that's a high theater moment. And although Jeffrey is correct to point out that it's still ultimately about facts, but high theater moments, people are human. You know, facts are not everything, people. When it comes to jury deliberations in my experience, those are emotional moments, in addition to facts gathering, moments and theater -- TRIALS are theater after all, theater matters. Theater matters.
ROSENBERG: I've seen lawyers without theater, and you can go to sleep.
RAY: That's not a problem with this panel Jane.
COOPER: Jane Rosenberg, thank you so much as always.
ROSENBERG: OK. Yes.
COOPER: We return with Michael Cohen's former attorney and current legal adviser Lanny Davis his taken whether his client dug a hole for himself or did well for himself and also the its take on the prosecution today going into the final stages of this trial. We'll be right back.
(COMMERCIAL BREAK)
