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Now: Prosecution Questioning Witness Who Angered Judge. Aired 9:30-10a ET

Aired May 21, 2024 - 09:30   ET

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

[09:30:00]

JOHN BERMAN, CNN HOST: 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, you know, we're going to rest. I mean, I'm not going to rest. I never rest. This is a guy clearly stunk by all the reporting that maybe he's fallen asleep from time to time in the courtroom, doesn't want to give the impression that he's resting. You know, today we see Don Trump Jr. show up at court for the first time when people noted on T.V. that his family wasn't coming, the very next day Eric Trump or Eric, I hope he didn't have anything on his schedule for the last few weeks is Eric come every day. Don Junior only had to come today to courthouse. Now, but he seems to react to every little thing that's happening in the atmosphere.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: I do want to say, though, in the courtroom, he has somewhat to the surprise of a lot of reporters, remained professional and remain calm.

BERMAN: Trump.

REID: Except, yes, the defendant, except for one instance where he did have an outburst during Stormy Daniels time on the witness stand. He was admonished by the judge. But far more so than in his civil cases where he was constantly having outbursts. He has held it together, at least in the courtroom, and then goes outside to the microphone and sort of unleashes.

KAITLAN COLLINS, CNN HOST: Yes. And the judge has really, you know, tried, when you're watching it, he's bending over backwards, to be fair to Donald Trump. I should note the judge is back on the bench. Robert Costello is back on the witness stand. He's entered the courtroom. He's walking there without looking at the defense table. That's not atypical. The defense tables on your left. You'd really have to look over to check it out.

The judge said, good morning, Mr. Costello, welcome back. I remind you that you're still under oath. It is a new day. We are going to see where the prosecution starts with their cross examination of Robert Costello. We also have joining us here this morning criminal defense attorney David Markus, who was approached to defend Donald Trump in his classified documents case, as we reported at the time.

And David, just looking at what happened yesterday, I wonder what you make of the entire Costello saga. And as a defense attorney, what you would have told your client if they were trying to put Bob Costello on the witness stand?

DAVID OSCAR MARKUS, CRIMINAL DEFENSE ATTORNEY: Yes. Good morning, Kaitlan. What a devastating day for the defense, right? It should have been a positive day for the defense, ending with this terrible witness, Michael Cohen. And now it was just an awful day for the defense. I look at cross examination like a boxing match, right? The jury doesn't know the two boxers. They have to figure out which one they're going to root for. And when a witness tells a prosecutor something like speak into the mic, all the jurors, and you saw two of them are going to side with the examiner, with the prosecution there, and not side with the witness.

So it's just terrible the way it went down. And the weird thing is Costello knows better, right? He's a lawyer. He's been in that courtroom, in that courthouse. He knows better. So just an awful, awful day. And, you know, the defense took a big risk here and struck out very badly.

COLLINS: And I should note, we are told Costello just had a conversation with the judge, but it was not audible. It was off microphone. So that means we couldn't hear it. It's not clear that was an apology or what that looked like. We'll see what our reporters who were in the room, if they could hear anything and discern anything, it will likely potentially be in the court transcript if we see what that looks like today, because those court reporters are seated right in front of the judge's benchmarking in the witness stand.

But it was remarkable because you never -- the judge has never lost it or gotten that furious inside the courtroom. He often is trying to be very diplomatic. You know, even when he scolded Trump for being audible during Stormy Daniels' testimony, he did so to the attorneys out of earshot of the jury and said that he was trying to be fair to the client. With Robert Costello, though, I mean, it happened. He had sent the jury out of the room, but were all there to witness just his pure frustration with how this witness was handling his time on the stand.

MARKUS: Right. I mean, as a judge, you never want the story to be about you, right? Just like a referee doesn't want the game decided by the ref, they want it by the players. And unfortunately, the story has become about Costello and the judge. I mean, the judge, too, you know, he has run a very smooth trial and courtroom. But, you know, from the defense point of view, he let lots of stuff in with Stormy Daniels that the defense complained about. And he's really limited, the defense limited, the expert witness limited, Costello to what he could talk to.

So, you know, I can see why the defense is frustrated. You can't show that to the judge or the jury, though, or it's going to be really bad. But I get why they're frustrated. They've been limited in what they can do. And really, the prosecution has been given a lot of rope here to call who they want and bring out testimony that they want.

COLLINS: Well, let me -- but on that point, OK, one, yesterday, Trump was claiming that they would not let their federal election expert testify. That's not true. I was inside the courtroom as they were talking about this. I've been in there twice now. I think when they've been talking about this one expert, that it now appears they're not planning to call. But they essentially, the judge was saying that the testimony could be limited in scope, because then the prosecution was going to feel the need to call their election expert witness. And it would be this battle of the experts where the jury was just kind of, you know, not led, who could be, who is the right expert? Who could they believe? And that it would be confusing. And then with Robert Costello, the judge was concerned it would become a trial within a trial that, you know, Michael Cohen is not the defendant here. And sure, drawing questions on his credibility was fine, but he said he didn't want to get into a huge back and forth on Michael Cohen because he's a witness. He's not the defendant.

[09:35:26]

MARKUS: Yes. I mean, I hear you, Kaitlan. But listen, we have battles of the experts in trials all the time. We let lawyers fight about credibility all the time. We had a trial within a trial when Stormy Daniels testified about what happened in that room, the judge expressed frustration after the fact. But the defense raised that issue before she testified. So, you know, this is the kind of thing where the defense is understandably upset.

Listen, the judges, the public, the media typically are always against the defense. The defense just can't show it. They have to stand strong, just like the prosecutor stood strong yesterday when the witness told her to speak into the mic. You cannot let it affect you in court. You cannot show any problems. And they're showing, and the jury sees that and you saw them look at each other. That is really, really bad. Anybody is going to tell you that, although you don't know what a jury's going to do when you see things like that, you cannot feel good as a defense lawyer. You're not feeling good about the jury right now.

COLLINS: Well, the jury, I mean, they've never -- they've been ushered in and out of the courtroom as many times as they were yesterday afternoon, there were several moments where, you know, when they were arguing about the C-SPAN witness, when they were arguing about the scheduling. And then, of course, the Robert Costello moment, the jury was in and out and what typically is just a, you know, a two and a half hour period in the afternoon.

So even if they missed the Robert Costello moment where we were cleared out of the room and the press had to leave, where the judge really scolded him, do they pick up on that something is going on that there is. I mean, you could kind of cut the tension in the room with a knife. Does the jury notice that kind of stuff?

MARKUS: The jury knows these are smart New Yorkers. They know what's going on. And they pick up on all the little cues, not just from the lawyers, but from the judge as well. And so, you know, the judge has to really make sure that he's not sending those negative defense vibes to the jury because that really undercuts the defense. I will say one thing for the defense, you know, a lot -- they've been getting a lot of criticism, of course, for calling Costello. You have to take risks as a defense lawyer in a trial like this or you're going to lose.

Now this risk didn't pan out, but if you don't take risks as a defense lawyer in court, you will lose 100 out of 100 times. So, you know, they must have believed they were losing at the point that they called Costello because otherwise you wouldn't call him, right? If you believed you were winning the case, you rest at that point. But they must have believed or thought there was a chance they would lose the trial. And so why not take a chance and call Costello?

COLLINS: And right now the jury is seeing an email from Michael Cohen to Robert Costello and his partner saying, gentlemen, please cease contacting me as you do not and have never represented me in this or any other matter. I expect they'll see a lot more e-mails. There were certainly some negative vibes here yesterday, as you said. David Markus, great to have you. Thanks for joining us.

MARKUS: Thanks, Kaitlan.

[09:38:28]

COLLINS: And the jury is back inside the courtroom listening and seeing these e-mails with Bob Costello back on the witness stand just to their right by a few feet. This testimony is underway inside 100 Center Street. We are watching it all closely. This is CNN's special live coverage.

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[09:43:22]

JAKE TAPPER, CNN ANCHOR: Right now, the cross examination of Bob Costello is continuing inside court with the prosecutors showing e- mails between Mr. Costello and Michael Cohen. Welcome back to CNN special live coverage. I'm Jake Tapper. And just to get everybody up to speed on what's exactly going on, the prosecuting attorney, Attorney Susan Hoffinger, is trying to destroy the credibility of Bob Costello, who had been in turn trying to destroy the credibility of Michael Cohen.

She's showing right now, Costello an e-mail she's -- that he sent to a different attorney associated with Michael Cohen, Mr. Citron, on April 19th, 2018. All the more reason for Cohen to hire me because of my connection to Giuliani, which I mentioned to him in our meeting. That was your e-mail, correct? Hoffinger your asks. Correct, Costello says. Hoffinger asked Costello if he was pushing Cohen to retain him because he could provide a back channel to Trump, he meaning Costello, Costello again denies it.

That was your e-mail to Michael Cohen? She asks. Yes, Costello says. The e-mail speaks for itself, right, sir? Hoffinger says. Not quite, there are circumstances about that email which I would be delighted to tell you, Costello says. Hoffinger retorts, that's all right. Let's move on. This is about the original e-mail from April 19th, 2018, where Costello tells Cohen, I'm sure you saw the news that Rudy is joining the Trump legal team. I told you my relationship with Rudy, which could be very, very useful for you. So here, Laura Coates, Hoffinger is trying to portray Bob Costello as somebody who himself has sour grapes because Cohen didn't hire him.

LAURA COATES, CNN ANCHOR: Absolutely. And this is in many ways her attempt to try to buttress the credibility of Michael Cohen. The sheer and the sole focus of Robert Costello is to say Michael Cohen is a liar. The idea is a dangling apart and all these different things. He wanted to be a part of this team and beyond. He's under -- she's undermining to this and not allowing him, frankly, on this very tight leash to try to talk his way out of what the documents say.

[09:45:15]

Now, the idea, the clarity we had in the courtroom before about him telling her to speak up, to talk louder, not going over maybe well for the juror, his, you know, behavior yesterday, these things all have led. Now, we've seen that a juror or two are smiling when she says, no, we'll move on. He is now not able to explain away what the documents say. That's where you want your witness to be if you are trying to undermine them.

TAPPER: Right. Although, of course, the defense could come back in and clear that up when they want to. We should note that Tom Foreman points out that twice in his statement a few minutes ago, President Trump noted that he expected the appellate court to take care of what happens. He said, quote, it should be a very easy decision in this case. It does seem, at least according to this reporting from Tom Foreman, that the appellate court is now a focus of Mr. Trump.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes. First of all, if Trump gets convicted, he will have the right to appeal. I actually don't see anything that's happened thus far in the case that strikes me as a particularly strong appeal issue but that's literally years down the line. In terms of what's happening right now, the D.A. is slowly, gradually but surely turning Bob Costello into a prosecution witness because what Costello is talking about is a crucial moment in time.

It's April or so of 2018. Michael Cohen has just had his house and office search rated by the FBI. And now Cohen is panicking and --

TAPPER: Trump is distancing himself right now. Yes.

HONIG: Trump is distancing. At the same time, they're trying to establish this back channel where Costello, we've seen e-mails to this effect, is essentially suggesting to Michael Cohen, hey, you know, you got friends in high places. My client, Rudy, knows the big guy upstairs. I'm paraphrasing what the e-mails were, but he's essentially trying to keep Michael Cohen in the fold, keep Michael Cohen from flipping. And now this shady effort to keep Michael Cohen from flipping is coming back to the fore. It's bad for the defense. It's good for the prosecution.

TAPPER: Bill, does that happen a lot that one side will try to turn a witness for the other side into one for their team?

WILLIAM J. BRENNAN, FORMER TRUMP PAYROLL CORP. ATTORNEY: Oh, if the door is open, they're going to barge in and, you know, I tried the case for several months against Susan Hoffinger and she's not going to miss anything. It's just really sad for the defense that this is what we're focused on now when you had a couple of days that don't happened often in a criminal trial, you know, Cohen was just, you know, a gift. And now they put this guy on, he's imploded, he fought with the judge, he's, you know, dancing with her. It's just not a great way to end.

COATES: There's a split screen as well. I mean the jurors remember how he was yesterday. They'll remember him now. So if he is contrite, if he is acting in a way that is now more in line with what you expected him to say. I mean, Hoffinger is walking through Costello's e-mails to Cohen, including a variety of things. One that says, confirms that he has friends in high places as opposed to the Garth Brooks friends in low places. It was a reference that definitely refers to President Trump as well. And of course, this is all part of their attempt to say, excuse me, you were trying to dangle something. You were trying to keep him very close to you.

Now, remember the behavior of this witness, if yesterday he was belligerent and he was disrespectful, the fact that there has been a change may alert the jurors that he was wrong or that somehow he has been scolded in a way that says he knows he needs to change to now make his credibility known. That does not really bode well for a juror evaluating his credibility.

DANA BASH, CNN ANCHOR AND CHIEF POLITICAL CORRESPONDENT: And I think that what you said, Jake, the question of whether or not, yes, right now, when the prosecution is questioning him and pulling out of him and presenting these e-mails, we have friends in high places trying to buttress the idea that they were trying to keep him in the fold, trying to keep Cohen from flipping, suggesting the potential of maybe without saying it, of a pardon. When Costello just said to the prosecutor, I can tell you more if you want. You can be sure that the defense is going to do that very thing until this is done.

TAPPER: Right. Yes, absolutely. But it is interesting, Jamie Gangel, that after this really rather stunning moment where Michael Cohen admits to larceny and admits to $60,000 in theft from the Trump Organization, and that seemingly not only further undercuts Michael Cohen as a witness, but also potentially undercuts the idea that despite the Weisselberg memo and the McConney memo that seemed to outline these corrupt, allegedly corrupt business records, that it definitely underlines the fact that Trump was not aware of everything in those because, you know, and after that, still they go forward with this attorney. So one of the things going on right now is after Costello's explanation of the e-mail, Hoffinger asked Costello, parroting what he said yesterday on the stand. The e-mails speak for themselves. Costello responded, sometimes. This was an e-mail from Costello to his partner. Our issue is to get Cohen on the right page without giving him the appearance that we're following instructions from Giuliani or the resident. In my opinion, this is the clear, correct strategy. We must reverse the Avenatti effect and restore this to a far more simple investigation of things that while they might not look good politically and nevertheless legal.

[09:50:19]

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: Look, if I'm a juror, I see this as they don't want him to flip, as Laura said. But just to go back, I believe the other day, one of you mentioned that Todd Blanche, who was a very successful prosecutor, has not done a lot of defense work, that this is his second or third case. And the number of defense lawyers said to me yesterday, you need to know when to quit while you're ahead. And their opinion was with someone like Costello, especially after what we saw yesterday, that his testimony may diminish to the jury what the defense case is. In other words, stop with Cohen. Take the win, as we say. Say we're not even going -- we're going to rest because we don't think the prosecutors have made their case. At least that would send a certain message to the jury.

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: But of course, that's leaving out one equation, the defendant, who, given his druthers, would like to testify if it was not all going to be held against him. So the next best thing, perhaps, is telling his lawyers to have Robert Costello on the stand. I mean, we all know that the former president watches a lot of television. We all know that he is very familiar with the bombastic Bob Costello on "Fox" and the House committee last week. So clearly, that is what happened here. So this isn't just happening in a legal textbook. This is a lawyer who has to please his defendant, I'm guessing, because we know that we talk about the audience of one a lot. I mean, he was thrilled with the appearance yesterday.

TAPPER: So Costello says he was encouraging Michael Cohen to, quote, express any of his complaints so that I could bring them to Giuliani and get them worked out, meaning he could bring them to Giuliani and Giuliani would bring him to Trump. And this is another reference, by the way, to another e-mail in June 2018, which we have seen previously. Since you jumped off the phone rather abruptly, I did not get a chance to tell you that my friend has communicated to me that he is meeting with his client this evening. This means Rudy Giuliani has told me that he's meeting with Donald Trump. And he added that if there's anything you wanted to convey, you should tell me and my friend will bring it up for discussion this evening.

So, I mean, here we have Michael Cohen being, in a way, wooed by Bob Costello, at least according to these e-mails. Costello wants Michael Cohen as a client and he is trying to entice him. At least that's the impression I'm getting from these e-mails by saying, like, look, I have this hookup with Rudy and Rudy's talking to the big guy, Mr. Trump, and this is the way that we can take care of you.

HONIG: That's exactly how I read it. These e-mails came out as part of the prosecution's case because they're good for the prosecution case because they suggest that people around Donald Trump were afraid of Michael Cohen and trying to keep him in the fold. To me, the implication of these e-mails is exactly as you said, Jake. It's quite clear. Hey, I, Bob Costello, I know Rudy. Rudy knows the big guy. We can take all your problems. You just stay quiet, you do the right thing. We'll take care of you. That's my read on these e-mails. And I think that's how the jury's going to take them. And the prosecution is driving that home. Now, again, the defense walked into this, they called this guy. It's inexplicable.

COATES: You know, I don't want to lose this point that was made. And just think about, remember, the essence of this case. And the big issue we all had coming into this entire trial was how is Michael Cohen, who is congressional testimony explaining that Donald Trump gives intimations, not direct orders, that he is, you know, acting as sort of the quintessential mob boss in ways where, you know, he's suggesting by either, you know, eye contact or otherwise, what to do. There is an e-mail from Costello to his partner saying, our issue is to get Cohen on the right page without giving him the appearance that we're following instructions from Giuliani or looks to be the president.

I mean, this is helping the prosecution's case to suggest, oh, you mean it's not just Michael Cohen who has the impression that, you know, you're not supposed to actually be actually explicit about following his instructions. This is someone that you're calling after Michael Cohen has been undermined repeatedly about his credibility, attacking to suggest that he's not actually following orders, he's going rogue. You have someone else saying, here's what we need to do.

TAPPER: So --

BRENNAN: This is really, Jake, I agree with Laura, Elie, this is in the limited context of Rudy and Cohen or Costello, this is snatching defeat from the jaws of victory. I mean, this is painful to listen to if you're looking at the defense perspective.

TAPPER: Well, Bob Costello was certainly portraying himself quite differently than these e-mails suggest he was operating right now. And just to remind everybody, at this point in time, in 2018, the question is, Michael Cohen's office has been raided. His personal home has been raided. And the question is he going to flip? Is he going to cooperate with prosecutors and give them information about Donald Trump? And all of a sudden comes this lawyer, Bob Costello, trying to get, according to these e-mails, trying to get Michael Cohen as a client, suggesting that he has a hookup with Rudy Giuliani, whose client is Donald Trump, and he can convey things to Donald Trump that way.

[09:55:18]

Now Costello explains it. I was encouraging Michael Cohen to express any of his complaints, and he had several so that I could bring them to Giuliani and get them worked out, whatever they were. Hoffinger, the prosecutor, saying to Bob Costello to look at an e-mail, she says, in this e-mail, aren't you encouraging Cohen not to cooperate? Yes or no? Costello says, no.

Hoffinger is now introducing a new e-mail, and we're going to bring that to you as soon as we get it. In the meantime, we're going to squeeze in a quick break. Prosecutors on cross examination are going through e-mail by e-mail of Bob Costello's communications with Michael Cohen. Much more CNN special live coverage in minutes.

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