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The Defense And Prosecution Rest In The Hush Money Trial; Crucial Jury Instructions; Donald Trump Does Not Take The Stand; Prosecution's Burden; Importance Of Jury's Last Impressions; ICC Issues Warrant For Netanyahu's Arrest; Iranian President's Helicopter Crash. Aired 2-2:30p ET

Aired May 21, 2024 - 14:00   ET

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

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JESSICA DEAN, CNN HOST: The defense rests and now we're just minutes away from another pivotal moment in the criminal hush money trial of former President Donald Trump. Prosecutors and Trump's defense attorneys will soon return to the Manhattan courtroom where Judge Juan Merchan will discuss the jury charging instructions with both the defense and the prosecution. These are instructions that will play a decisive role in how the jury is able to reach its verdict in the trial that has played out over the last five weeks. Earlier today the defense wrapped up its case with the final of just two witnesses they called to the stand. Attorney Robert Costello testifying for just over an hour today discussing his connections with former Trump lawyer Rudy Giuliani and his efforts in 2018 to represent the prosecutor's star witness Michael Cohen.

BORIS SANCHEZ, CNN HOST: Notably the former president did not take the witness stand in his own defense. As a reminder he faces 34 counts of false charges. The defense is now looking at the trial's records related to a hush money payment to adult film actress Stormy Daniels during the final stages of the 2016 presidential campaign. He's pleaded not guilty and he's denied any affair with Daniels. So jurors have been dismissed for the week. Closing arguments are expected to begin on Tuesday. CNN's Brynn Gingras is live outside of the courtroom for us. Brynn before we get to closing arguments a week from today another major moment of the trial is set to begin in just moments. Walk us through what's happening there.

BRYNN GINGRAS, CNN NATIONAL CORRESPONDENT: Yeah well Boris you just mentioned that Donald Trump didn't take the stand so that will be part of jury instructions jurors cannot use that against Donald Trump when they learn that from the judge. But jury instructions are an extremely important part of this process though they are very dense and defined in legalities and essentially what it is, is the lawyers negotiating with the judge about what he will say to the jurors when they are given the case after closing arguments next week. This will serve as a road map for the jurors as they basically figure out how to interpret the law and apply the law when it comes to these charges with all the witnesses and all the testimony that they have heard in the last four and a half five weeks or so. So it's a very important part although it is a very dense part so it's

going to take some time though it is expected to wrap up and this is done without the presence of the jurors. They actually went home earlier this morning. They were able to get home in time for lunch and like you said they will not be back here until next week when those closing arguments begin and the judge picking next week so that there will be basically a clear runway for these jurors to deliberate and decide the verdict in this historic case.

DEAN: All right, Brynn Gingras for us outside the courtroom there in New York. Thanks so much. And let's bring in CNN legal analyst and former federal prosecutors Ellie Honig and Elliott Williams. Great to have both of you. Ellie, we're about to go into this part of the trial that seems like it's going to get pretty in the weeds, legally speaking.

ELLIE HONIG, CNN SENIOR LEGAL ANALYST: Yes.

DEAN: But I guess my question to you is, is how much control or influence will the attorneys actually have in shaping these instructions?

HONIG: It'll be the old push and pull. There will be certain things on which the parties agree. And the judge said, I want your briefs by today. So they submitted them this morning. Usually you can get to 80, 90% consensus, things that you agree on. But there definitely will be certain areas of contention. I think one of the areas where I'm watching, it's really important, too, is what is going to be the other crime, right? One of the things that prosecutors have to show is that Donald Trump falsified business records or had them falsified to commit another crime. And this is a really unusual feature of this case, because ordinarily in the federal system, you have to lay it all out in the indictment. That's what an indictment is. You're notifying the defense with the charge here. Here they've just left it. Here we are. The evidence is closed. And all that the prosecution has said is some other crime TBD. Well, today they're going to have to get pinned down on what that is. And then just how much detail does the judge give the jury about that other crime?

SANCHEZ: Elliot, in a sense what Ellie laid out there, is the biggest weakness in the prosecution's case, right, relying on this other crime, this allegation of election fraud that Trump wasn't actually charged with. How can they try to influence the jury instructions to help them bridge that gap in the jury?

ELLIOT WILLIAMS, CNN LEGAL ANALYST: A few different ways. Well, you're focusing on just one of three potential crimes that could be the underlying crime. Sure. There's also potentially federal campaign law, but also tax law. And the-a big question is, how does the judge define to the jury, number one, what these crimes are, and number two, what the prosecution needs to have established in order to convict here? Now, again, the prosecution does not have to, I believe, prove beyond a reasonable doubt that this crime was committed, merely that the actions taken by the former president were done to cover up a crime, whatever that crime is. And that's tricky, and that's the kind of thing that is very legally sensitive and in the weeds that they're fighting about right now.

[14:05:09]

But I think clarity on that point, clarity on reasonable doubt and what even the definition is, varies from jurisdiction to jurisdiction and probably even within different New York courtrooms. And that's the kinds of stuff that certainly prosecutors are keenly trying to make sure that the judge shapes in a way that helps them.

DEAN: And in the meantime, these jurors are going to go home for about six days and have this to think on. And this last defense witness, Robert Costello, repeatedly denied that he was pushing Michael Cohen to provide a bet that he would provide this back channel to Trump, even as the prosecutor shared emails that seemed to indicate otherwise. How do you think that kind of marinates in the jurors' head?

WILLIAMS: Because it's the last thing they saw. And more than anything else, those emails undermine such a key part of why he was called as a witness. Had he been able to come forth, and unquestioned or unchallenged, make the point that Michael Cohen has credibility issues or some of these points about the pardon issue, that would have been great for the defense, because it would have undermined a key part of Michael Cohen's testimony. The problem is that the star defense witness had huge holes blown in his testimony with his own emails that undermine them. And unfortunately, for the defense, it's the last thing that the jury saw. They will have these five days rather than an embarrassing moment for the defense, being the last thing they saw, to be thinking about this Costello testimony. Now, is the case going to rise and fall on any one witness or testimony? Probably not. But you really want to leave people with a final point that they can latch onto.

SANCHEZ: Ellie, I spoke with Tim Parlatore, a former Trump attorney, in the last hour, and he was making the case that Bob Costello, his testimony didn't completely hurt the defense. He made the argument that his first approach to Michael Cohen was telling Cohen to comply, with investigators, to work with investigators. Do you buy that?

HONIG: Well, when you're saying it as a sort of celebratory fact that it didn't completely tank the defense and it's your witness, not a great sign. I disagree with Tim on this. I think Costello's testimony was useless on the one hand, and if anything, undermined the defense. I mean, all the good stuff that he might have given to the defense. Well, there was this moment in time when Michael Cohen said, I don't really have anything on Donald Trump. I did this on my own. That's in there. That's in there from emails. That's in there from other witness testimony. Cohen himself essentially admitted that there was a point in time when he was saying that. On the other hand, I just feel like Costello was such a distasteful witness that had his own credibility undermined. I would not-look, this is a long gap to go a week, essentially, between the end of evidence and closing arguments. I think it was the right move by the judge to push it all off till after Memorial Day. That's a long time. And we all remember from Psych 101, primacy and recency, right? I mean, the first and last things you hear tend to resonate the greatest. And I think it was a real misstep. SANCHEZ: Deep cut though.

DEAN: Yeah, it was. It was.

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HONING: --to 30 years ago.

DEAN: What about Trump not taking the stand? Is that the right thing?

WILLIAMS: It's absolutely positively mathematical certainty without question the right thing. It is. I think it's incredibly rare that a defendant ever takes the stand. You have to have a really good reason and a really tight scope of testimony for a defendant to ever want to take the stand because, number one, his whole all of his words can be used against him. Prior statements can be used to impeach him. The gag order could potentially come in. That was there was some question about that all. And then he can be cross examined. It would have been disastrous in most cases and cataclysmic mushroom cloud level bad had he taken the stand in this case, given who he is and given what his history is in this case. Totally that idea.

SANCHEZ: Not to mention he could be asked about any of the other cases, the civil fraud trial, the E.G. and Carol case, et cetera.

WILLIAMS: They would spend more time debating beforehand what could come in because there's so many cases, so many so much prior testimony, so much bad behavior.

SANCHEZ: He did not appear on the witness stand, but he is appearing outside the courtroom right now. Here's the former president just moments ago.

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DONALD TRUMP (R), FORMER U.S. PRESIDENT, 2024 REPUBLICAN CANDIDATE: I feel very good. I think A great case was put on. There is no crime. In fact, I just got almost every review that's been done of the case so far. As they say, there is no crime. This has never been brought. It should be dismissed before you even have a verdict. We have a judge that's extremely, let's say, complicated, but let's also say conflicted. He's complicated and conflicted. And it's a very strange situation. Nobody's ever seen a big one like it. But we have a situation where we have no crime.

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This next couple of hours is very important because the judge can try and manufacture one where he goes from a misdemeanor which doesn't exist because of the statute of limitations, doesn't exist, absolutely, and they try to bring it into a felony, but you can't do it because, and you see what's happened there with the border.

But remember, I'm gagged. I'm not allowed to say what I'd like to really say because you'd be very depressed, but I'm gagged, so why would I take the chance? We do want to defend our Constitution, so at some point maybe I will take the chance. It's a very serious situation when a Republican nominee for president, the Republican nominee, somebody that won easily and quickly in record time, gets number one gagged and number two is before a Democrat appointed judge. And you're playing with fire like this. It's very sad, but the good news is they've not proven a case. There is no crime. Now, you're going to meet all of these experts, and you know the ones that have to go over their names again, but all experts, legal scholars, talented people, very smart people, and there is no crime. So maybe they'll try and devise one right now. The judge will help them out because the judge has been very helpful to the other side. And that should never be. That should never be in our country. Now, on another note, Biden is releasing one million barrels of oil from the Northeast Reserve in a bid to lower prices at the park just before the election.

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DEAN: Okay, you're listening to former President Donald Trump outside the courtroom there. Ellie, let's just start first. He's saying we know they're going in to hash out jury instructions. He's saying they're going to create a crime there. They're going to make something up. That's not what's going on.

HONIG: Yeah, it's not accurate. It was a little echoey, a little hard to hear--

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DEAN: It's hard to hear yes.

HONIG--what he was saying. But he definitely did say no crime several times.

DEAN: No crime yeah.

HONIG: This is a crime, if proved. That's up to the jury. What I think he's talking about in an inartful way, not to explain on his behalf, is the way this case is charged is unusual. The DA started with a misdemeanor charge of falsification of business records, which, if charged alone, would be out the door because it's the statute of limitations. Too much time has passed. But there's a longer statute of limitations if you can make it a felony. And the way they make it a felony here is what we were just talking about. That other crime. What is the other crime that they falsified records to promote or to commit? So it's not your most straightforward charge. It's not like, well, I charge you, jury, on the elements of robbery here. The elements of even fraud can be straightforward. It's complicated, but it's been tested thus far in this court. And I think it's-I don't think an appeals court is going to say this is an illegal way to charge a crime. But there is a bit of uncertainty in this. And it is an unusual way to construct an indictment.

WILLIAMS: I would just clarify one point that on the statute of limitations question with respect to the misdemeanor, there might be an open question there because of the fact that he the statute of limitations is seen to be told or paused if the defendant is not in the jurisdiction during the statute of limitations period because he's lived in Florida and Washington, D.C the whole time, prosecutors could make the argument maybe that you could still charge him with a misdemeanor. Because the fact that he wasn't continuously in in the state of New York during the period of the statute of limitations. Now, that's an open legal question or at least one that they'd fight about. I'm not saying it's a winner one way or the other, but it's just not, you know, it's something prosecutors might want to do. Now, to be clear, I don't prosecutors do not want to charge a misdemeanor here. This may come up in the jury instructions that perhaps they could also convict on a misdemeanor. Like, I would think prosecutors don't want that at all.

Honig: Yeah mis--there is an interesting strategic decision--

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WILLIAMS: Yes.

HONIG: --coming up for the defense here, which is this. If the defense wants it, they can ask the judge, OK, I want you to instruct the jury on the felony. Falsifying business records for some other crime. But also the lesser included, the misdemeanor, just falsifying business records. That's it. So if you're the defense, do you want to give the jury this sort of middle ground fallback? If I had to guess, I would think Trump's team is not going to ask for that. They're going to say, give them the all or nothing. I don't think they want to give them a safe space to land. But look, a misdemeanor conviction, I think at least let me try to be political for a second, would probably be a win for Trump--

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WILLIAMS: Yes.

HONIG: --to only get convicted of a fairly petty misdemeanor.

WILLIAMS: And prosecutors could request it, too. Now, the calculus on their end is, well. If we're less likely to get the felony that involves this campaign question or maybe a tax question, we could just get him on the misdemeanor. And it would be a conviction, not the one we want. Prosecutors, they do not want that.

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SANCHEZ: Much ado for a misdemeanor.

WILLIAMS: Oh, no, no, no, no.

DEAN: That's rough. All right, Elliot Honig and Elliot Williams, we will see you all again soon. Thank you so much. I want to bring in jury consultant and attorney Robert Hirshhorn on all of this. Robert, nice to see you. Thanks for joining us. Let's start first with what they're about to do.

ROBERT HIRSCHHORN, JURY CONSULTANT & ATTORNEY: Thanks Jessica.

DEAN: These jury instructors. Why are these so important? HIRSHHORN: Well, they're the recipe for the jury, right? It's the law that's going to guide them on this very monumental, historic decision they're about to make.

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And you know, this isn't a normal criminal case where you have some idea what the elements of the offense are. This one is really a lot more complicated. Now, here's what's different about this one, Jessica. There's two lawyers on the jury. They have like two law professor types. They're not law professors, they're lawyers. But the point is there's two legal experts in the jury room with them that are gonna be able to explain to the jurors the nuances of some of the more complicated parts of this jury charge. And I wanted to say one other thing. We may need to check with your pundits. I don't know what the law is in state court in New York, but a lot of courts only give one copy of the jury charge to the entire jury. One, there's only one copy--

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DEAN: You're saying that's right. No, no, that's wrong

HIRSCHHORN: --that goes back to those.

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HONIG: No, sorry. This isn't- sorry, Robert, let me just answer your question. Because I happen to be sitting here. A lot of courts, a lot of judges in the federal system will send a written copy of the charge back. In New York state, they don't send a written copy back with the jury at all. So the jury may take notes, but they're gonna basically be left with their own recollection.

DEAN: Okay, wow, we're just doing this in real time. All right, back to you, Robert. Continue your thought, please.

HIRSCHHORN: This is even worse. Jessica, this is even worse. Because now the jurors, all they have is their recollection of what the judge said, the elements of the crime were, and it's so hard. Wait, do you see how long this jury charge is? There's no way the jurors can be able to keep all that information in their head. It's gonna be a mess. If the defense were smart, they would ask that each member of the jury be given a written copy of this charge.

DEAN: And we talked a little bit in the last segment about Bob Costello as that last witness and how it would sit in the jury's minds, just as they have these many days, five, six days, until they're going to be back together. As somebody who is an expert in juries, talk about that last thing that they hear, and now this time, how does that all go together and fit together?

HIRSCHHORN: Yeah, normally it would be a really big problem for the defense because Costello was a disaster, okay? I am convinced that it was Trump that insisted he be a witness, and I am now convinced that Trump was looking out for number one by calling him as a witness and he ended up stepping in number two, all right? So it would normally be a real big problem for the defense, but here's the difference. This one week is gonna work as a reset. It's gonna let everybody to calm down, right? Everybody to maintain their aplomb, everybody to kind of think about other things other than this trial. And when they come back next week, that's when they're gonna get fired back up about the case. I think it's actually gonna help the defense more than the the prosecution this one week off, believe it or not.

DEAN: As a reset. All right, Robert Hirshhorn, always good to see you. Thanks so much for your insight. We appreciate it.

HIRSCHHORN: Thank you.

DEAN: Still to come, the body of Iran's president arrives in the country's capital as funeral ceremonies get underway. This as investigators take a closer look at what caused the president's helicopter to crash.

SANCHEZ: Plus, President Biden expressing outrage over the International Criminal Court's decision to seek an arrest warrant for Israeli Prime Minister Benjamin Netanyahu. Netanyahu, for his part, says, is that he rejects the move with disgust. We'll discuss in just moments.

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SANCHEZ: We have a quick update for you out of New York where that meeting on jury instructions in Donald Trump's hush money trial is underway. Lawyers are discussing what those instructions should say with the judge right now. Our reporters are in the courtroom and we're following every update as you can see on your screen. Turning to other news, though, right now crowds of mourners have gathered in Tehran as funeral ceremonies are observed for Irans President, Ibrahim Raisi. He, along with the country's foreign minister and seven other people were killed when their helicopter crashed on Sunday.

DEAN: It is still unclear what caused that crash and why so many senior Iranian government officials were traveling on one single helicopter. CNN's Ben Wedeman joins us now. Ben, any more new information about this?

BEN WEDEMAN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Not new information, but the basic facts certainly would hint at why perhaps this helicopter went down. First of all, let's keep in mind it's a Bell 212 helicopter. That is a helicopter that went into production in 1968, basically a Vietnam-era helicopter. And keep in mind that Iran has been under U.S. sanctions going back decades, and therefore the country has been suffering from a lack of spare parts. And in addition to that, this helicopter, actually three helicopters. But on the one that crashed, there was the foreign minister, the president and other senior officials. They were flying over a mountainous area in very bad weather. There was a late spring storm coming through. It was very foggy. And we have heard, for instance, from the Turkish transport minister suggesting that they were monitoring the flight because it wasn't far from the Turkish border, and that it appears that perhaps the signal, the transponder perhaps, wasn't working in this case.

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Now, in addition to that, we are hearing, for instance, comment from Bell Helicopters, who have put out a statement saying that Bell does not conduct any business in Iran or support their helicopter fleet, and we do not have knowledge about the active state of the helicopter involved in this accident. Now, the chief of staff of the Iranian army has formed a committee of technical and military experts to try to ascertain the precise cause of this crash. Until now, they're talking about a, quote-unquote, technical failure. And so if we put our faith in this investigation, we'll have to wait and see what comes out of it. Boris, Jessica.

SANCHEZ: Ben Wiedemann, thank you so much for the update.

DEAN: Israeli Prime Minister Benjamin Netanyahu is hitting back at the International Criminal Court for its decision to request arrest warrants over the Israel-Hamas war. The ICC's top prosecutor, Karim Khan, telling CNN's Christiane Amanpour in an exclusive interview this week, he's seeking arrest warrants against Netanyahu, Israel's defense minister, and three top Hamas leaders. Khan also claimed Israel is using starvation as a weapon of war. Here's how Netanyahu responded today.

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BENJAMIN NETANYAHU, ISRAELI PRIME MINISTER: Well, I think this is absurd. This is beyond outrageous. This guy is out to demonize Israel. He's doing a hijab. He's creating a false symmetry between the democratically elected leaders of Israel and the terrorist chieftains. That's like saying after 9-11, well, I'm issuing arrest warrants for George Bush, but also for Bin Laden. Or after in World War II? Well, I'm issuing arrest warrants for FDR, but also for Hitler. It's a hijab. It's not serious. He's out to defame Israel.

(END VIDEO CLIP)

SANCHEZ: President Biden is also blasting the ICC. Yesterday, he called the court's efforts, quote, outrageous, and said there is no equivalence between Israel and Hamas. Let's turn now to CNN's Jeremy Diamond, who's live for us in Jerusalem. Jeremy, what more can you tell us about Israel's reaction to the ICC?

JEREMY DIAMOND, CNN CORRESPONDENT: Well, you're hearing a lot of outrage and a lot of defiance from the Israeli prime minister, his allies, but even his rivals, all of whom across the Israeli political spectrum are slamming the ICC's decision to seek arrest warrants for the Israeli prime minister and the defense minister, and in particular because of the fact that they are doing so in the same breath as they are seeking arrest warrants for Hamas' leaders. A lot of criticism of what Israelis view as this moral equivalency that they think the ICC is drawing between Israel and Hamas. We've heard the Israeli prime minister, as you just played that soundbite of him, speaking there, talking about how outraged he is and what a problem he sees this move by the ICC as being. But he's also responding to some of the specific charges, notably on the use of starvation as a weapon of war. The Israeli prime minister is talking about the tons of humanitarian aid that Israel has allowed into Gaza. But, of course, what he isn't talking about is the specific amounts of aid versus what humanitarian aid officials say is required. And multiple humanitarian aid agencies over the course of several months now have been arguing that the Israeli government is restricting the flow of aid into Gaza, not allowing enough aid in to meet the needs of the Palestinian people, calling that collective punishment. And that is indeed what the ICC's top prosecutor is picking up on here. Netanyahu also said that Khan is arguing that Israel doesn't have a right to self-defense. In his statement, Khan said that Israel does have a right to self-defense. But in his view, according to the evidence that he is relying upon, he is seeking these arrest warrants because he believes that the means Israel has used to defend itself are criminal.

DEAN: I also want to ask you about the Associated Press, who's saying that the Israeli government has shut down its live camera feed and seized its equipment. What more do we know about this?

DIAMOND: Yeah, that's right. The Israeli government confirming that it did indeed not only shut down the Associated Press's live feed of northern Gaza. This is from a position that they have in southern Israel looking into the Gaza Strip, mostly showing smoke billowing above Gaza, some of the airstrikes that happen. They shut down that live feed. They also seized the camera equipment that the Associated Press was using. And the communications ministry in Israel says that they are relying on this new foreign broadcaster law that earlier this month empowered them to shut down Al Jazeera from broadcasting and operating inside of Israel. The Israeli communications ministry says that the Associated Press was providing this live broadcast to Al Jazeera, which is one of its clients. That's what the Associated Press does. They provide these feeds to other news outlets and agencies.