Day 20: Hoffinger Slices Up Costello on Cross

The prosecution ends on a high note as we head to closing arguments.

For a week and a half, the MAGA world had been clamoring for Bob Costello to testify, and last Monday, he finally did. I sensed from the start that his arrogance left a poor impression on jurors, even if the judge sent them out of the courtroom before tongue-lashing him. But if Costello was hardly a net plus on Monday, he wasn’t yet a serious liability to Trump as the trial moved toward its conclusion.

That would change on Tuesday with Trump’s disastrous decision to call Costello as his only real witness. It blew up in his face like a mob hit gone bad.

Costello planned to continue testifying that Cohen had “played us” by not signing a retainer agreement to be represented by Costello and his law partner, Jeff Citron. This wasn’t especially relevant beyond suggesting that maybe Cohen cheated him, but I guess one could argue it was another brick in the Cohen-can’t-be-trusted edifice that is the foundation of Trump’s defense.

Unfortunately for Costello and Trump, it didn’t play out that way. Prosecutor Susan Hoffinger — who was responsible for the 14-year-old prankster setback — will be widely criticized as the goat if there’s an acquittal or hung jury. But if the D.A.’s Office wins a conviction, her brisk and deadly cross-examination of Costello will be taught in law schools as one of the G.O.A.T. To change species for a moment, Hoffinger has evolved from the awkward duckling into the graceful swan of this trial. 

Prosecutor Susan Hoffinger

I realized that until now, I have mostly viewed her from the back, where her curly black hair obscured her. Reporters are very familiar with the defense team’s appearance and demeanor because the Orange Menace’s lawyers and sycophants walk dutifully behind him every time he saunters up or down the center aisle — usually eight times a day. 

The prosecutors, by contrast, linger by the defense tables and exit by a side door far to the front. So beyond distant shots on the grainy monitors and a few glances when she returned from sidebar conferences, I had to look Hoffinger up online for a closer view of the face the jury sees nearly every day. She is fifty-something and looks like your poised and business-like friend from the office.

On Monday afternoon, Hoffinger’s cross had seemed standard. She established that Costello was dodgy when he said he wasn’t anxious for Cohen to hire him. And she proved that Cohen had gone with a different lawyer, Guy Petrillo, much earlier than Costello indicated on direct — undercutting the white-haired attorney’s claim that Cohen was a bad guy for stringing him along. 

Costello claimed in an email that he didn’t want “to pester” Cohen about signing a retainer agreement, but that’s exactly what he was doing. “Please cease contacting me as you do not and have not represented me in this or any other matter,” Cohen finally wrote him after ignoring many of his attempts to be in touch.

The most intriguing moment had come when Hoffinger asked Costello about what he had described as Cohen’s “manic” and “suicidal” behavior at the April 17, 2018, meeting at the Regency, the only time they ever met. 

Suddenly, Costello barked at Hoffinger as if he was addressing an intern:

“Talk into the microphone, please.”

Had Costello learned nothing from the judge’s smackdown earlier that day? As Costello knew perfectly well, it’s for the judge, not the witness, to say, “Strike it” or “Talk into the microphone, please.” 

The jurors knew that, too. During Costello’s mic comment, I was clacking away on my laptop and didn’t peer at the jury box, but several reporters saw two jurors turn in their seats and look at each other in surprise as if to say, What the hell was that?

The rest of us didn’t have any difficulty comprehending what it was: Costello was still a political witness whose motive was impressing Trump by trashing Cohen and at least trying to intimidate prosecutors. Trump’s folly is to assume such behavior might let him beat the rap. MAGA surrogates may or may not help him outside the courthouse, but they indisputably hurt him here.

As Hoffinger coolly said, “I’m sorry,” and resumed her questioning, she turned slightly to her right, and I could see a small wry smile directed at the jury. 

It had been a long, tumultuous day, and Hoffinger’s cross was cut short to let the jury go home at 5:00 p.m. She told the judge she would resume for just a half hour more on Tuesday morning.

So here she was again, bright and early, and suddenly, her cross was working beautifully. Cohen had testified that in mid-2018, it gradually became clear that he needed a different lawyer because Trump had assigned Giuliani and Costello to ensure he didn’t spill his guts to the feds. Now Hoffinger got Costello to say again that no, of course, he had nothing like that in mind. He claimed over and over that he didn’t even want Cohen as a client.

Like a pleasant executioner, Hoffinger produced email after email showing Costello to be a liar, and his lies were more menacing than Cohen’s.

Costello had repeatedly testified that he didn’t play up his connection to Giuliani when he and his law partner met Cohen at the Regency. Hoffinger produced an email in which Costello wrote to Cohen two days after that Regency meeting, “I told you [of] my relationship with Rudy, which could be very, very useful for you.” Then he emailed Citron, his law partner, that Cohen would be smart to hire him “because of my connection to Rudy Giuliani, which I mentioned to him in our meeting.” 

In another email, Costello wrote to Citron, “Our issue is to get Cohen on the right page without giving him the appearance that we are following instructions from Giuliani or the president.” 

If I was on the jury, I’d be thinking: Cohen should have run away from these witness-tampering thugs much sooner than he did. 

On direct, Costello had arrogantly denied that he sought to open a “backchannel” from Rudy to Cohen and attributed that to Cohen. The emails “speak for themselves,” Costello said.

Now Hoffinger, with an even tone that contrasted well with Blanche’s shouting when he thought he had nailed Cohen on the 14-year-old prank caller, produced an email in which Costello reported that Giuliani said, “Thank you for opening this back channel of communication and asked me to keep in touch.” In another, Costello wrote that Giuliani was “thrilled and said this could not be a better situation for the President or you.”

Hoffinger: “And the email speaks for itself, right, sir?” Ouch. But she wasn’t done yet.

Hoffinger offered into evidence an email in which Costello writes to his law partner, “He [Cohen] continues to slow play us and the President. Is he totally nuts??? I'm in a golf tournament early tomorrow and again on Sunday. What should I say to this asshole? He is playing with the most powerful man on the planet.”

Suddenly, Tom Hagen had become Luca Brasi. And the thug who wrote this email had become a perfect match for the man we were looking at on the stand.

Hoffinger moved in for the kill: “Now, that email certainly speaks for itself; does it not, Mr. Costello?”

“Yes, it does,” Costello replied, dead man sitting.

“You had lost control of Michael Cohen for President Trump,” Hoffinger concluded. “Absolutely not,” Costello replied, lying again. It was hard to imagine jurors believing him.

Hoffinger ended her eviscerating cross by pointing to Costello’s testimony five days earlier on Capitol Hill. 

“It was an effort by you, wasn't it, to try to intimidate Michael Cohen while he was testifying here. Isn’t that correct?”

“I was intimidating him?” Costello snapped as if he felt insulted for having been caught using the MAGA playbook. “That's ridiculous.”

Hoffinger: “Nothing further.”

On re-direct, Emil Bove tried and failed to paint Cohen as a sleazy client who was using Costello’s legal counsel without paying for it. Costello recalled again that he emailed his son two days after the April 18 Regency meeting to brag that a senior Trump aide — Cohen — had told him, “I am on the team.” He testified that a couple weeks later — on May 3 — Jeff Citron gave Cohen a draft retainer agreement that he put in his briefcase. 

On re-cross, Hoffinger, who like most good litigators believes less-is-more, took less than a minute to clarify that at the time Cohen was supposedly “on the team,” he was not. He had a retainer agreement dated April 22 that he never signed, and he never paid Costello a nickel. Costello’s story didn’t fly.

With that, Hoffinger sat down, and Costello left the stand.

Instead of discrediting Cohen, Costello had essentially become a witness against Trump by showing that Cohen lied to him for a good reason — to make sure the president of the United States and the former mayor of New York City didn’t fuck with him from the Oval Office. La Casa Blanca meets La Cosa Nostra. 

But it turned out Rudy and Bob botched the job of keeping Cohen in Trump’s Ravenite Social Club. I thought of our HBO documentary about Jimmy Breslin and Pete Hamill. We reference the bestseller Jimmy wrote in the 1960s: The Gang That Couldn’t Shoot Straight. 

After the defense rested, Trump went out into the hall and raged for 11 minutes. I’m not going to report much about it because it was the same old crap he’s slung a couple of times a day for five weeks from behind the now-familiar bicycle rack barriers. 

Those of us with golden tickets almost never see this live because we are in lockdown inside the courtroom until he leaves the hallway. But today, we were in line for the 15th-floor metal detectors after lunch, and he came out suddenly. So even though we were stopped by security 100 feet down the hall and around the corner, we could hear him whining. 

After he finished his diatribe against Biden, Trump started in on how the D.A., the judge, and the Democrats are turning the United States into a “banana republic” and a “fascist” state. This guy’s tiresome projection knows no bounds. But I also heard something I hadn’t heard before. He called the trial “a very serious situation.” Is he scared he might lose? Maybe so. As he turned to leave, he was asked by the press pool: “Are you nervous about conviction?” “Why didn't you take the stand?”

Trump didn’t answer either question. Leaving court for the afternoon break and at the end of the day, he still had that Alpha Male swagger, but he looked troubled as if the thought of some time in an ankle bracelet had crossed his mind.

***

At lunch, I spoke to some lucky people who entered the courtroom as spectators. An affordable housing advocate from Idaho flew in from Cancun, where she was vacationing, and got in line at the Courthouse at 6 p.m. Sunday night. She stayed up all night to snag one of the four-to-six seats for spectators in the courtroom. Another spectator, a student at Clark University, slept in a friend’s car.

News outlets will pay to cut in line to obtain the more plentiful seats in the overflow room, where it’s first come, first served each morning for the press passes. A business called “Same Ole Line Dudes,” which has a near-monopoly on line-sitting in New York, does a fair amount of business with the press. For the spectator line, where about 20 people altogether will get in, the “line dudes” charge $300-$500, depending on the appeal of the day’s testimony.

A few street people want in on the action, and there has been friction. John McIntosh, a bushy-bearded entrepreneur from Angelica, New York, has slept on a bench in the line for days.  

John buys and sells tickets with a few homeless men and migrants who speak no English, and he thinks that after waiting in line for many hours, they’ve gotten the shaft from court police. They stayed out all night and got overflow tickets. But when they entered the vast courthouse in search of a bathroom instead of selling their passes outside, they were ejected, and the passes they had waited so long to obtain were confiscated. John is pro-Trump and hopes to raise enough money to run for the Senate from New York.

Standing in my privileged golden ticket line, where we are all guaranteed seats in the courtroom, I kept hearing rumors that Jimmy Carter might die before a verdict, which would be sad for me personally (I spent five years researching my bio of him) and pull me away from the trial to help cover his funeral for MSNBC. But my sources in Plains, Georgia, said he was basically fine. The indefatigable Andrea Mitchell, who was big-footing today, reminded me that Jerry Rafshoon, one of Carter’s top guys, said Carter was so competitive he would want to stay alive until October 1 (his birthday) so he could be the first president to live to 100. Makes sense to me.

The jury was gone from the courtroom after lunch, and its presence would not be required for a full week. The judge and the parties held what’s called a “charge conference” to determine what would be in the judge’s extremely important instructions to the jury. 

Reporters compared covering this conference to having your article edited without a copy of the story or taking a Bible studies class without the Bible. The submissions to the court from both sides were not available to the press, and we did not have the official definitions of various legal concepts handy.

Judge Merchan ruled on some of these questions at the moment and held back on others that we won’t learn about until he addresses the jury Wednesday morning. We do know that he has struck from the jury charge the word “eleemosynary” because he finds it unpronounceable. It will be replaced by “charitable.”

The judge showed his fairness by ruling at times for each side, though the prosecution won more often— in part because the defense made some claims (especially on advice-of-counsel elements) that tried Merchan’s patience. Merchan ruled that while unanimity was required for acquittal or conviction, it was not necessary for each element of the case. So it wouldn’t matter if, say, the jury was split on how the instructions on tax fraud applied to this case.

One still-unresolved dispute involves the use of the word “willfully.” The defense had earlier moved that the word “willfully” be used to instruct the jury on the level of intent the prosecution must show for Trump’s violations of campaign finance laws. As my new friends Norman Eisen and Adam Klasfeld, two of the smartest guys in the courtroom, point out in Just Security, establishing multiple levels of intent on Trump’s part is essential to proving the case: “A willful violation would require the potential violator to act with 'knowledge that [one’s] conduct was unlawful.'” 

On the tax offenses, there’s no remaining dispute over “willfulness”; prosecutors will have to prove it. But the Weisselberg “grossing up” document gives them a lot to work with. 

In sum, Eisen and Klasfeld write:

The intent elements are complex. The jury must determine not only that Trump had an intent to defraud, but also that this intent included an intent to commit another crime, or to aid or conceal the commission of another crime. The DA of course needs to meet the burden of proof beyond a reasonable doubt, so the defense will underscore that the jury need only find a morsel of doubt to acquit. The People will argue they have eliminated any such scintilla.

Eisen and Klasfeld expect the prosecution’s closing argument “to center on three main disputed issues in proving the crimes' elements:

(1) Were the records false?

(2) Did Trump make the false entries — or cause them to be made? And

(3) Did Trump have the required intent to defraud, including the intent to commit or conceal either a campaign finance or election violation or a tax one?”

There’s lots of evidence that the answer is “yes” to all three.

The defense will argue in closing that this all happened a long time ago, that there’s nothing illegal about NDAs or trying to influence an election, that Trump thought he was paying Cohen for legal service, and that Cohen has no credibility. Reasonable doubt everywhere, Trump’s team will say.

After court, Trump went to the pen in the hallway and said: “The judge hates Donald Trump.” Then he added something reminiscent of when he attacked Gonzalo Curiel, the judge in the Trump University fraud case, insisting in 2015 that his “Mexican heritage” posed “an inherent conflict of interest.” He was going after Merchan for emigrating from Colombia as a child: “Just take a look. Take a look at him. Take a look at where he comes from.”

Judge Aileen Cannon was also born in Colombia but Trump will try to put her on the Supreme Court if she can squelch the Mar-a-Lago documents case. Meanwhile, all the Republican politicians who attacked him after he slimed Judge Curiel because of his race are silent. That speaks even louder than Trump.

On Friday, in a small sideshow win for the prosecution, Merchan ruled after a probe that “there was no coordinated, joint investigation being conducted by the New York County District Attorney's Office and… SDNY.” In other words, he found no evidence to support Trump’s claim that Biden and his Justice Department were behind this case. After all of their time-consuming motions about needing hundreds of thousands of documents, Trump’s lawyers didn’t end up using a single one from the Southern District of New York.

Let the closing arguments begin!!