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Both Sides Rest, Trump Doesn't Testify; Later Today: Judge & Attorneys To Work On Jury Instruction. Aired 11:30a-12p ET

Aired May 21, 2024 - 11:30   ET

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

[11:30:00]

DANA BASH, CNN HOST: Documents that they are banking on. The jury coming away with and saying, a-ha, he's guilty of these two counts -- or these two issues that the prosecution is bringing their case on.

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: OK. As we keep saying it's up to the jury and let's see closing arguments whether they've connected the dots enough, but two things. One, there are other witnesses who are not hostile to Donald Trump who testified. Hope Hicks, who described Trump as someone micromanager and said Michael Cohen would not have gone rogue. That was not -- he wouldn't have done this without permission.

David Pecker, who called Trump his mentor, and said he wants him to be the eyes in the ears of the campaign to help him. So, you know, I'm sure the prosecution will bring those back. I just want to go back to the document. And I'm going to give this one to Laura because we've been texting about it. Bill, you keep pointing to the Weisselberg writing as --

BASH: Let's put -- let's put it up because -- as you talk about it, keep going.

GANGEL: As tainted by the fact that Michael Cohen apparently -- not apparently --

WILLIAM J. BRENNAN, FORMER TRUMP PAYROLL CORPORATION ATTORNEY: Admittedly.

GANGEL: Admitted that there was some money for a company called Red Finch. I think it was 50 or $50,000. And Red Finch got $20,000. And Michael Cohen admitted on the stand under oath that he kept the rest. It was stealing.

BRENNAN: Stole --

GANGEL: That said, as we like to say, two things can be true at the same time. So, Laura, does that take away from the rest of the document that does lay out this case of Donald Trump who never likes to pay any money, let alone double the amount? And here he does that to make Michael Cohen whole on taxes going further.

LAURA COATES, CNN ANCHOR: Yes.

GANGEL: And doubling up?

COATES: Well, let's show the numbers. I think it's really important because first of all, you're right. It can be true that Michael Cohen was stealing. And here's just an evidentiary part of it he has admitted, right? The reimbursement payment comes down, to make it green for a second.

Yes, you see here. He only paid the company $20,000. Simple math tells you, $30,000 he took home. Remember that they doubled this amount to $180,000.

And then we had the bonus of 60 -- $6,000. The fact that you could think of the entire document -- the entire Weisselberg note would be discredited because Michael Cohen himself patted the amount, it does not undermine fatally the prosecution's case that they are alleging that Donald Trump paid a -- through reimbursement to Michael Cohen a sum of money believing that he was going to reimburse him for a payment to Stormy Daniels, and further into trying to hide that from the public's eye, not reporting it and perhaps possibly in a conspiracy as an underlying crime. If you're quibbling over the padded amount that we're talking about, that can still go to the jury as to whether or not there was an intentional act committed without having to go into details and undercounting the entirety of this.

Again, it's very important to consider this. We're talking about -- and this is the credited prior, 20,000 or 3000 times two. But what about this?

The question for this jury is going to be whether the prosecution has made their particular case that in all of that, that they were doing, in all that they were endeavoring to do that they had to -- was there an intent to defraud. There has been testimony about the intentional act knowing that they were trying in some way to steal this from the public view. The intent to commit another crime. This is the part that's going to be the biggest issue here for the prosecution, and we're still waiting to figure out what this specific crime they're going to be talking about.

But also, again, look at this one. Did Donald Trump make or cause a false entry? This is the important part to prove about Michael Cohen. Was there a direct decision or an instruction by Trump to Cohen to do just that?

And remember, there can be a jury instruction on this very point where they talk about this issue of what he could say. And it could be the idea of saying to them that he had the intentional aiding. Did Donald Trump solicit or request or command improperly to importune or intentionally aid? That's one of the questions before this jury. That's what the argument that could be the Achilles heel, not whether Michael Cohen padded on top of what was already paid.

BRENNAN: But, Dana -- and I agree with Laura, and I agree with Jamie. I don't agree with Lanny with all due respect. It is ludicrous to say that Michael Cohen's credibility is not an issue. Every witness's credibility is an issue. And the man told this jury under oath, I stole 60,000 for my client. They will factor that in. And I don't think it eviscerates the alleged Weisselberg document, but it certainly takes it. And when you listen to Lanny when he goes on these filibusters, it's kind of like saying that Mrs. Abraham Lincoln after the unpleasantness at the Ford theater, I know there was some trouble last night but how was the play?

[11:35:10]

There -- it just totally lost that a lawyer stole money from a client in the -- in the world of attorney misdeeds, that's first-degree murder equivalent, and then he said, well, I got shorter on my bonus, it was self-help. Go down to your bank when they overcharge on a fee and rob them and say, I was unhappy with the fees.

This man's credibility -- he's not on trial. This man's credibility is at issue. And the prosecution, frankly -- and they're strong career prosecutors, they dropped the ball on this one because they let a lot of this come out on cross. They should have read Lanny's book that says, when you have a problem, tell it early, tell it all, and tell it yourself.

COATES: Can I just play -- show everyone for a second on this too? I think you're going to make this point. What Michael Cohen actually said about this issue when the prosecution asked him about the stolen money, look -- go to the tablet for a second, please because it happened on the redirect.

When the redirect happened, the prosecutor asked why did you take that extra 30,000. Why didn't you just put 20 down on the list instead of 50? Michael Cohen said I was angered because of the reduction in the bonus so, I just felt it was almost like self-help. You know, I wasn't going to let him have the benefit this way as well. And again, $130,000 to have my bonus cut by two-thirds was very upsetting, to say the least.

And so, they're going to have as a jury to figure out whether that is an efficient reason to say, look, OK, he stole from the Trump Organization. So, now he is a liar, a cheater, and now a thief. Is that going to be enough to rehabilitate him in the jury's eyes as an "Innocent explanation?" That's part of the discussion. But if that's the only thing the case is hinging on, the prosecution has a heart -- has a -- has a -- the uphill battle.

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: As Judge Grasso was saying yesterday, he was in the courtroom when this was happening. He's been a great retired judge who has been coming on our air and explaining it, he said that the moment about the stealing the money sort of fell flat with the jury. So -- I mean, we've been talking about it extensively.

If the jury is following the judge's directions and not watching news coverage, which we hope they're not, and over the next week, we hope they don't, we don't know how much that is going to play into it. Obviously, this will be front and center in closing arguments. But I still think that, as Jamie says -- we've all said, we don't know how the jury processes any of this.

But thinking back to all the witnesses. Madeleine Westerhout, the former aide to the president who cleared Michael Cohen in. So many other witnesses who are friendly to Donald Trump, who weren't hostile at all. So, at the end of the day, perhaps it's good that there's this pause here because it really I think, level sets all the witnesses.

And when the jury walks into the jury box, or the jury room rather after hearing the instructions next week, everything is equal. What just happened a few moments ago is perhaps the same as Hope Hicks. And I think that's what we have to keep in mind.

BASH: And that's also going to be up to the -- in this case, the prosecution when they make their closing statements.

ZELENY: Yes. the argument, sure.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Let me just try to get to the bottom line of this. I think Lanny Davis is correct that those handwritten notes are very important valuable pieces of prosecution evidence. And what they do is they corroborate-- boost up Michael Cohen. They narrow the gap that Michael Cohen needs to bridge with his testimony.

But that gap still exists. I think Lanny is suggesting the gap is zero, that you could extricate Michael Cohen, pull him entirely out of this case, and the jury can still convict. I disagree with that.

Virtually, every lawyer I've run that question by including Norman Eisen, who, you know, has his leanings in this case, agrees you cannot pull Michael Cohen out of this case and still convict. So, the prosecution has done a very good job of narrowing the gap that they need Michael Cohen to bridge. But they still need to trust him to some extent.

BASH: OK. Today, act two in the Donald Trump hush money trial concludes. It does set up the final test at great closing arguments. That is going to happen a week from today. Much more of CNN's special live coverage is ahead.

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[11:43:40]

KAITLAN COLLINS, CNN ANCHOR: Welcome back to CNN's special live coverage. This morning, we saw the defense resting without notably calling Donald Trump to the stand despite what he said before this trial got started that he was going to be testifying. It is the end of the parade of witnesses, a trail that included Hope Hicks, Rhona Graff, Madeleine Westerhout, Keith Davidson, David Pecker, accountants, records, specialists, Michael Cohen, a C-Span executive even. And it all set us up for the closing arguments clash that is now slated for one week from today, next Tuesday when the jury is back in the room.

We have two legal experts here joining us. New York Criminal Defense Attorney Arthur Aidala, as well as Karen Friedman Agnifilo, who is the former chief assistant district attorney in Manhattan, and of course as our viewers know is of counsel for a firm that represents Michael Cohen, but she does not have contact with him and doesn't work on his case and can talk freely about this. So, K.F.A., let me start with you because we haven't heard from you today on just what you have made of the last wild ending of what was already a pretty wild trial.

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: Look, I think the calling Mr. Costello for -- on behalf of Mr. Trump as their only defense witness really backfired. I don't think he had the intended effect that the defense thought it would have. It really highlighted with e- mail corroboration on redirect especially -- I'm sorry, on cross, especially really highlighted the pressure that Michael Cohen was under at the time to not cooperate and to not flip.

[11:45:12]

And I think it actually corroborates Michael Cohen, and the jury's going to wonder, this is the person of everything you heard that you decided to call. Of course, the defense doesn't have to call any witnesses, but they could have called -- I think they're going to wonder where is the bodyguard, Mr. Schiller, right? Why didn't they call him?

Why didn't they call Allen Weisselberg? Two people who in their mind, I think they would think are favorable to Mr. Trump. Instead, he calls Mr. Costello, who really came across as a shady attorney, in my opinion. So, I think it backfired.

COLLINS: Arthur, you're standing outside the courthouse, what did you make of not just how Costello was on the stand today? Though, it seemed that Susan Hoffinger, you know, brought up some e-mails that were not flattering, and also kind of contradicted the idea that he testified to yesterday, which is that he didn't seek Michael Cohen as a client. But it was -- it was pretty clear that he was trying to get him as a client.

ARTHUR AIDALA, DEFENSE ATTORNEY: Look, if this is going to be a case of like, who do we believe Costello or Cohen, Costello is like a storied federal prosecutor working in the building a block away from us for years. Then he's been a criminal defense attorney. I mean, you know, I don't know what his demeanor was like on the stand. Obviously, it wasn't the best day that he ever had.

People get nervous on that witness stand. And we've spoken about that. But look, if you compare him, this qualified lawyer who's been around for a long time and has a great reputation as a lawyer, to Michael Cohen, who admitted to a C-level felony, Kaitlan, a C-level felony, which the district attorney's office failed to charge him with, or failed to address, why he wasn't charged for that. So, you have a guy who admitted to a C-level felony testifying against the former president of the United States on an E as an elephant-level felony? That's going to be an interesting topic for summations, I think.

COLLINS: And obviously, those rankings of felonies go from A to E. That's what you're pointing out that that was -- that would technically be potentially a C. But on what you just said about Robert Costello and his history, did -- the jury didn't hear any of that. I mean, Robert Costello took the stand. He talked about the firm where he works, that he's been there for about seven years.

The focus was not on his credentials or his background. I mean, what they saw was an irritated witness who was feuding with the judge and striking his own comments from the records and answering questions, even after the judge had sustained objections to those questions. So, does the jury -- I mean, did they don't -- they don't see what you just talked about there?

AIDALA: No, but they also didn't hear what they heard from Michael Cohen over what, three days or whatever of the testimony of, you know, how long did you spend time in jail for and is this a federal crime? Is it a state crime? You lied to Congress.

Oh, and by the way, you stole from your client. You recorded your client. I mean, you know, you can't compare Bob Costello's background and what the jury heard or didn't hear to what they heard about Michael Cohen's.

COLLINS: Yes. And of course, K.F.A., you know, neither Bob Costello nor Michael Cohen are the defendants in this case. And so, I think that's what people looked at today is Trump never said in court, you know, that he was going to testify. But he often said it outside before court started, and then very clearly, you know, and I think realistically, who's covered him expected him to actually get on the witness stand. But what does it say that he didn't feel the need to take the stand?

AGNIFILO: I think he thinks that enough reasonable doubt was established through like, you know, the cross-examination of Michael Cohen in particular and other witnesses to distance Trump from this crime. And of course, there's going to be a charge conference this afternoon at 2:15 with the judge where they're going to talk about what are the various charges the judge is going to give the jury. And one of them will be that you can't hold it against the defendant for not testifying. He -- that you absolutely cannot hold that against him. And so, they will be reminded of that fact.

COLLINS: Arthur, if you're the defense and you're going to that --

AIDALA: And, Kaitlan, if I --

COLLINS: Charge conference this afternoon, which may not be -- yes, go ahead, Arthur. Go ahead.

AIDALA: No. I know -- we're on this -- you're -- we're -- you and I are on exactly the same page. I'm going to say that may be for the defense the most important part of the trial. And I don't say that lightly because that's when the jury is given the rules of the game.

That's where they are told what they can consider, what they can't consider. That's when they are told that if they believe a witness is lying about one thing, they can disqualify all of their testimony. That language is huge. And then, Kaitlan, what they do is after they nail that down with the judge, hopefully, today if not, you know, tomorrow or the next day, you use that language as much as you could get away with in your summation.

[11:50:07]

You want the jurors to hear the law that's going to come out of the judge's mouth after both sides sum up. You want to -- the jurors to hear the defense using the law for their advantage. And that's why today is huge, especially what can they convict him of, what can't they.

They're talking about having beat -- the possibility of him being convicted of a misdemeanor. I don't know how that can happen because the misdemeanor is already out of the statute of limitations. Maybe Karen could enlighten us on that.

COLLINS: Well, K.F.A., what if --

AGNIFILO: Yes -- no. I agree --

COLLINS: One, you could respond to that. And two -- but two, as a prosecutor, what would be the one thing that you would want to get accomplished this afternoon in that pivotal meeting?

AGNIFILO: Yes. So, just I agree -- number one, I agree with Arthur that the misdemeanor is not on the table here. This is either a felony or nothing because the statute of limitations has run. So, I don't think that will be submitted to the jury as a lesser included offense.

And look, the charge conference is very important. I think if I -- if I were the prosecutor, what I would be focusing on is what is -- what is the judge going to tell the jury about what the prosecution had to prove in terms of that this was done to aid or conceal or cover up another crime because really, that's what's makes this a felony and that's a critical element here. And I'd want to make sure that the jury knew I didn't have to prove that other crime. I just had to prove there was an intention to commit a crime when falsifying these business records or when causing the falsification of business records.

That's the other thing I would want to make sure is in the judge's charge is that the jury doesn't have to find that Donald Trump actually made the false entry in the record, just that he caused the false entry to be made that that is enough. I would also want an aiding and abetting charge, which is, you know, under the law, that's criminal liability for the conduct of another. Meaning that it's like the getaway driver in a bank robbery, how -- even if they never entered the bank or demanded the money, if you had the same criminal intent which is to rob the bank, you would be equally guilty. So, those are the points as the prosecutor I would want to come out in my charge for the judge.

COLLINS: Karen Friedman Agnifilo, and Arthur Aidala, thank you both for that. John Berman and Kristen Holmes are back here with me. And that is going to be a pivotal moment this afternoon. It's not going to be the Robert Costello show that we got yesterday where reporters, we were cleared out of the room, the judge was giving him the scolding. But what happens is that could be highly consequential. I mean, it's like -- it's really could be the ballgame here of what the jury hears next Tuesday.

JOHN BERMAN, CNN ANCHOR: And I think Karen highlighted the two things that I think could be the sticking points. If not the sticking points, the center of this case. Number one, the documents. How will the judge explain to the jury what they have to rule on the documents?

Clearly, Donald Trump, he didn't alter them himself. He didn't literally falsify them with his own hands. So, what does it mean for him to have caused them to be falsified? How will they understand that instruction from the judge? That's one thing we'll be looking for.

And the other thing is the campaign finance violation. If this was done in the furtherance to cover up another crime, and that crime is a campaign finance violation, how will the judge explain to the jury, this aspect of campaign finance law? So, what will their understanding be about whether or not there was a campaign finance law violation?

A campaign finance law is tough to understand. It really can be. And how it is explained to them could be decisive.

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Yes. I mean, that's what any single legal analyst that we've talked to has said. That really it all comes down to what the jury instructions are. And so, I know that it's going to be very technical this afternoon, I know that it's going to take a lot of time, but I do think that that's going to give us a better understanding of what exactly the jury is going to hear and how they're going to process the case. Because I know that we keep saying this -- I know it's your favorite thing that we keep saying that it's all going to come down to what the jury decides. But truly, this is going to shape how they make that decision.

COLLINS: What you said earlier was interesting that Trump is -- does believe he'll be convicted at this point because what I had heard maybe we could go is they were still counting -- I mean, they -- since the beginning viewed a hung jury as a win. Not if they didn't expect an acquittal ever at any point, I don't think but they were viewing a hung jury as a win. But now it seems --

HOLMES: And they still view that as a win. I mean, the options here are conviction, acquittal, hung jury. They don't think he's going to get acquitted. The goal is that they hopefully get one juror, and this is a hung jury, and that's obviously the hope.

But I do think that Donald Trump himself has braced himself for the possibility of a conviction, particularly given the fact that everyone he has surrounded himself with, or at least most people are constantly telling him that it is an unfair jury pool. And that is something we often see with Donald Trump. When he hears something over and over again, he certainly thinks there is a possibility he can be convicted.

[11:55:06] COLLINS: And the judge -- I mean, he -- the language he has used about the judge. He repeatedly calls him corrupt and saying that he's conflicted, that he shouldn't -- that he should throw this out. When the judge -- I've watched it multiple times.

He bends over backwards to be fair to Donald Trump. He greets him every morning. Good morning, Mr. Trump. he has ruled in their favor on objections that they've raised with the prosecution. Trump yesterday call him a tyrant outside of court.

BERMAN: Yes. You know, that may not leave good feelings for the judge as he's figuring out how to draft these jury instructions. On the other hand, he has tried to play it down the middle from the beginning. And I would anticipate that he does that going forward.

Another thing I am wondering or thinking about as this jury processes this case is one of the things that had been proven really, really firmly as it were, right? Stormy Daniels got paid. I mean, I think the jury can leave this case knowing Stormy Daniels got paid.

There was a lot of evidence that she got paid for campaign reasons. I mean, David Pecker and others all testify to that. Hope Hicks testified to that. So, there are some things that maybe the jury can hang their hats on more surely than others.

COLLINS: Yes. And they've got a whole week to think about it. We have much more from the court about the legal drama and the political fallout of this. Dana Bash will pick up our special coverage with a special edition of "INSIDE POLITICS" after this quick break. Stay tuned.

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