The evidence in People v. Trump is officially closed after a turbulent few days in the courtroom.
Early this week, Michael Cohen finally ended his testimony after several days of aggressive and possibly crucial cross-examination by Donald Trump’s lead attorney, Todd Blanche. One witness for Trump concluded his testimony after a public confrontation with the judge.
Some crucial events remain outstanding. The judge has not yet finalized the instructions that jurors will receive — the so-called jury charge — which may be crucial to the case. More importantly, closing arguments will take place on Tuesday, which could turn out to be a make-or-break event for either side.
To get a sense of exactly where things stand as the trial enters its final phase as well as how it may be affecting Trump’s presidential campaign, we convened the third in a series of roundtables with POLITICO’s legal and political reporters.
We were joined for this session by Erica Orden, Ben Feuerherd and Josh Gerstein, who have been reporting from the courthouse and the courtroom, as well as Meridith McGraw, who has been covering the Trump 2024 bid as a potentially critical inflection point — the verdict — approaches.
This conversation has been edited for length and clarity.
Ben, we had the last witness get off the stand on Tuesday. It was a lawyer named Robert Costello testifying on behalf of Trump about his brief work representing Cohen.
Things ended up being much testier than I would have expected from a lawyer testifying in a criminal case, but on top of that, I thought it was a little unclear — if I were a juror — what I was supposed to take away. What did you see as the key points from Costello’s time on the stand?
Feuerherd: I think the substance of his testimony probably helped prosecutors make the point that they wanted to make — that Costello wanted to have this relationship with Cohen to create this backchannel to the Trump team and ultimately, to feed information to [Trump personal attorney] Rudy Giuliani and then on to Trump. Prosecutors might use that and say that the fact that Trump wanted to keep Cohen in the fold after the FBI raided him in 2018 is evidence that Trump knew that Cohen may have damaging information or that the investigation may come back to him, and that maybe he did something wrong with Cohen.
“Costello is this bombastic lawyer who played a character similar to Trump, where he rolled his eyes, literally, at the judge, and conveyed with his demeanor in court that this whole thing is just like a sham or a kangaroo court.”
—Ben Feuerherd
Separate to the substance of it, Costello is this bombastic lawyer who played a character similar to Trump, where he rolled his eyes, literally, at the judge, and conveyed with his demeanor in court that this whole thing is just like a sham or a kangaroo court.
And ultimately, there was a big blow-up by the judge. It wasn’t huge, but he cleared the courtroom to admonish Costello, so I think he spoke volumes with his demeanor in court.
Do you think Trump’s team was able to make any useful points with the jury through Costello’s testimony?
Feuerherd: Costello said Cohen told him that Cohen didn’t believe he had anything on Trump in these meetings and these phone calls that he had in 2018, but I feel like that’s going to be a hard pill to swallow for the jury.
Erica, Trump had been saying he wanted to testify in this case. He did, in fact, take the stand twice of his own volition in the last year. Were you surprised that he didn’t take the stand this time around?
Orden: I was not surprised. In addition to all of the downsides that many people have discussed regarding how he would be cross-examined and what he would be cross examined on, I think it’s instructive to look at these other two times that he testified.
The first time was in the civil fraud case, and there was no jury, and Judge [Arthur] Engoron gave him a long leash on that testimony, he let him insult him to his face and go off on all sorts of tangents in his testimony.
But the second time, there was a jury in the second E. Jean Carroll trial, and Judge [Lewis] Kaplan was extremely strict with — well, he was extremely strict with the entire trial, in terms of his handling of it, but he was also very narrow in terms of what he allowed Trump to do on the stand. I think he allowed him to answer three questions. He allowed his attorney to ask him three questions. I believe one of those questions was limited to a “yes” or “no” answer, and the other two, Judge Kaplan cut him off after a single sentence, maybe two sentences. He was on the stand for a total of three or four minutes.
In this trial, there is again a jury and I think that even though Justice [Juan] Merchan has not run quite as tight of a ship as Judge Kaplan — I just think that’s his style — I think Trump has seen him rein in witnesses. He saw what Merchan did with Costello.
I think Trump probably knew that Merchan would have very little tolerance for Trump doing what he did in the civil fraud trial. I have to imagine that he saw that he was going to run into a lot of trouble, given what happened in the E. Jean Carroll trial.
Meridith, Trump has been saying for months he wanted to testify in this case, he was going to testify in this case.
I never saw it as a very serious legal proposition, just given the practicalities, but politically, he appears to have thought that was a very important position to take with the general public as part of his brand — this bravado, confrontational thing. One way of looking at what happened is that he backed down. Do his supporters care?
McGraw: I think it sort of speaks even more broadly to this trial in general. I don’t think we’re going to see this move the needle much on public opinion, or public polling, at least among Republicans and Trump supporters themselves.
In a lot of the recent polls, it’s said that among Trump supporters if he is convicted, that they might reconsider voting for him, but the key word being “reconsider.” The other option is Joe Biden, and they’re already identifying as a Republican or Trump supporter in those polls.
When I’ve talked to the Trump campaign about it — I was talking to one of his pollsters yesterday, and I asked, “Do you think he’s convicted? Are you guys concerned that this is going to make any difference?”
“Him saying he’s going to testify, he would go to jail — that’s just a big part of the public bravado.”
—Meridith McGraw
And they really don’t feel that way at all. I think there’s just this general sentiment that at least in terms of public opinion, the cake is baked. If you don’t like Trump, you’ve viewed him as guilty from the get-go. And even if he is convicted, it won’t make much of a difference, and him saying he’s going to testify, he would go to jail — that’s just a big part of the public bravado.
I’m sure you’ve seen the fundraising emails that he has sent out saying basically, “They’re gonna put me in jail.” It’s just all sort of part of his political package at this point.
Josh, let’s talk about the jury instructions, which are still up in the air as we are speaking. A lot of people have said that this is a simple case. Maybe it is, on some level, factually. But at the legal level, it’s actually quite intricate and tricky.
What do you make of the fact that we’re talking days after the close of the testimony, and we don’t really know what the jury’s instructions will be on some very important legal issues?
Gerstein: We had a couple hours of argument on this on Tuesday afternoon, and there are a lot of issues to wade through there as you point out, Ankush, and some of them are complicated. Some of them appear to be unprecedented.
Some of the things Trump and his supporters are saying about this case, I think are accurate. People have had trouble coming up with analogous cases where prosecutors in New York State have tried to do some of the things that District Attorney Alvin Bragg and his team are trying to do in this case. That doesn’t mean that they’re illegal, or that the top-most court in New York or the U.S. Supreme Court might not eventually uphold them as valid.
And some of this stuff is very, very critical.
I think the main category that is most critical is around the question of what kind of intent the prosecutors need to prove, on Trump’s part. Having sat through a good chunk of that trial, I think, at the end of the day — despite a lot of questions about Michael Cohen’s credibility, and other things that aren’t clear in the trial — that the basic facts of what happened are going to be pretty well established in terms of who has paid what amounts and when. It seems pretty clear that Trump signed most of these $35,000 reimbursement checks to Cohen.
We have this almost amazing document where the Trump financial people are sketching out what this $420,000 to Michael Cohen represents. It’s sort of a dream piece of evidence for prosecutors.
I think that that part of the case is going to be pretty well nailed down. Some things that aren’t maybe 100 percent clear, or not actually legally central to the case — the most famous part of it probably being whether he actually had sex with Stormy Daniels or not, I actually think it doesn’t really matter for the legalities of the case.
It didn’t need to matter, but my view on that is that it mattered the moment that Trump attorney Todd Blanche denied Daniels’ account in his opening statement.
Gerstein: It matters to the credibility of both sides at this point, but there’s not going to be a box on the verdict form that says, “Did Trump have sex with Stormy Daniels?” The truth will be part of the public assessment and the ultimate verdict in the court of public opinion, but for the jury, it’s not that critical.
The biggest issue that’s hanging out there is on the intent question: Did Trump, or really anybody who was involved in these payments, have anything in mind at the time that they were trying to prevent these from being recorded as campaign donations? Because that’s the central allegation of the case, or at least the one that escalates this from a misdemeanor to a felony.
There was precious little testimony about that. You have the David Pecker non-prosecution deal where he basically admitted that they did something illegal, and you have Michael Cohen pleading guilty to doing something illegal, but the judge is going to give the juries some cautions about the fact that they can’t assume another person is guilty just because one of the witnesses admitted that he was guilty of something.
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There hasn’t been testimony that Trump said like, “This will be great, because we don’t have to put it on our campaign donation disclosures,” or that Michael Cohen told him that that would be one of the effects of arranging the payments the way they did.
That’s just sort of something the jury and I guess the rest of us are supposed to infer. And that’s one of the key questions we’re waiting to see from Justice Merchan: What is he going to say that the prosecution has to prove about that?
I think that could be legally critical. Whether it is what the jury verdict ultimately turns on? I don’t know.
Honestly, there has been less evidence on this point than I anticipated coming into trial.
There are several calls or meetings that Cohen testified to and elaborated on during the course of his testimony, but I kind of expected him to say something along the lines of what Josh just described in terms of, “We got to do this because the FEC will be on our back.”
Erica and Ben: Was I expecting too much?
Orden: I don’t know. I don’t think you were necessarily expecting too much.
You’re definitely correct that that didn’t happen. None of that evidence came in in terms of his intent and motivation.
What they got out of the Cohen testimony was largely about whether or not he took these steps in order to help the campaign, and frankly, on that front, they got really mixed testimony. There are some witnesses that definitely said — Cohen, Pecker, one or two others — who gave fairly strong testimony in support of the notion that this was strictly in service of the campaign, and that it probably wouldn’t have occurred if not for the existence of the campaign at that time.
But there were other people — Hope Hicks, I believe one or two others — who gave some testimony vaguely to that effect, but then also said pretty clearly that Trump either told them, or acted in a manner that suggested, he was striking this deal to save his family from the embarrassment of learning these allegations.
Feuerherd: I don’t know if this is totally circumstantial, but there was this notion that Cohen was withholding the payments after the deal was struck with Daniels’ lawyer.
He stalled them for a while until Daniels — whether accurately or not — said that the Daily Mail was going to pay her a lot of money, and then that spurred the actual payment. That’s evidence that they did this to get it done before the election. And then you had Cohen testifying that Trump wasn’t worried about being single.
He said something like, “I’ll be the most eligible bachelor,” so that’s evidence showing that the election was the motivating factor.
Orden: “No problem finding a fourth wife,” I believe was the gist of it.
Ben, we’re talking a few days after Cohen completed his testimony. Cross-examination can be very dramatic in the moment, but those reactions can dissipate over time.
You were in the courthouse for all of the days of his testimony. At this point, what are the one or two things that have stayed with you as an observer?
Feuerherd: It’s sort of like one of these classic things where one day you hear the direct examination, and you’re like, “Oh, wow, they really hit it out of the park.” And then the next day you hear the cross and you’re like, “Oh my gosh, they really hit it out of the park.”
The prosecutors laid out through Cohen’s testimony the story that there was this hush money payment that was directed by Trump. Trump was literally in the room with Allen Weisselberg [the former Trump Organization CFO] and Cohen, when they told Cohen they’d reimburse him and when Weisselberg said, “This is how you’re going to get reimbursed. And here’s the math.”
And then later, according to Cohen, he met with Trump in the Oval Office, and Trump acknowledged this reimbursement scheme again.
That seems to be crucial testimony to the case, but then you have, obviously, these legitimacy issues with Cohen that were beaten to death by Blanche in a cross that jumped all over the place constantly.
And then you had this dramatic moment with Blanche presenting Cohen with this Oct. 24 call in 2016 and saying, “You know, are you sure that you called Trump’s bodyguard, Keith Schiller, and then Schiller handed Trump the phone, and then you can confirm that this happened?” The defense argued that Cohen was getting harassed by someone who purported to be a 14-year-old and he was actually calling Schiller because he wanted to get that handled — not to undermine the 2016 election.
When that exchange happened, you were sitting in the courthouse in an overflow room with other journalists and some members of the public watching on television monitors. Was there any sort of detectable shift in people’s attention?
Feuerherd: There was definitely an audible gasp.
Orden: It was also hard not to. Todd Blanche was practically shrieking at that point, so even if you weren’t paying attention, you would have started because his delivery was noticeable.
What did you make of Cohen’s presentation and his demeanor on the stand?
Orden: He was extremely carefully prepped for this. Extremely. I would love to ask his lawyer what she did.
He really didn’t lose his cool or break character. And it was a character for anyone who has seen him outside of this courtroom.
That is not how Michael Cohen generally behaves. I’ve never seen him behave that way. Even during cross he was calm, collected, polite, respectful, very measured in his delivery.
“That is not how Michael Cohen generally behaves. I’ve never seen him behave that way. Even during cross he was calm, collected, polite, respectful, very measured in his delivery.”
—Erica Orden
And he even pretty effectively — you know, when Todd Blanche would get to a key moment in his questioning, Cohen always tended to not understand the question at that moment and not give an answer and force Todd Blanche to go back and break up the question and explain it. So he rarely got that sort of satisfying bullet point that he was looking for out of his line of questioning. We may never know whether that was on purpose or not, but Cohen seemed to do it quite a few times.
I thought one of the effective ways that Blanche sort of pierced this facade was introducing these clips from Cohen’s podcast, where — I don’t know if it was turned up to an extreme volume on purpose, but it was very loud in the room — you were presented with the audio of Cohen, you know, this foul-mouthed, angry, vindictive persona, in contrast to the guy who you’ve been watching for the last two days at that point on the stand.
If you were a juror who isn’t terribly familiar with Cohen, you might have been a bit taken aback by that and thought, “You know, this guy is not who he says he is. He’s not the person I’m seeing on the stand.”
I don’t know if anyone thought that way. But I wouldn’t be surprised.
I’ll be very curious to see what, if anything, Trump’s lawyers do with this in closing. I would be very tempted, if I were them, to basically say that the whole choirboy act was an entirely new fraud. This time, it was a fraud on the jurors.
I was a little surprised, honestly, that they didn’t play more video. Actually, did they play any video during his cross — like clips from his cable appearances?
Orden: I don’t think so.
They should have paid the money to pull some of that together for the jury.
Meridith, I want to talk about the politics of this because I sensed — among the very broad community of legal analysts, commentators and reporters — that the cross of Cohen may have destabilized some people’s confidence that this case is headed toward an easy conviction and that this could be a trickier battle for the prosecutors at the end of the day.
Did Cohen’s testimony break through on the campaign trail and in the political world in any serious way?
McGraw: Trump and his allies were always going to push the line that Michael Cohen is a liar and you can’t believe him.
I think a big moment was when there was a revelation that he had stolen from the Trump Organization. That’s obviously going to be something that they seize on.
It’s so interesting to me hearing everybody talk about what Michael Cohen was like in the courtroom as somebody who’s covered and followed Trump world. Cohen is such a big character in it. To hear what he was like in the courtroom versus how he’s obviously behaved for years — it’s been really fascinating. So I think that really is an interesting question — how much does that juxtaposition break through — that Erica was raising.
But just in terms of public opinion, and how Trump’s people have seen it, I think they really feel like they knew Michael Cohen was going to be a problematic witness.
We’re close to the end of this now, with closing statements in a matter of days. How do you think the prosecution and the defense see the state of things at this point now? Let’s start with Josh.
Gerstein: I think that the prosecution case came in pretty much as people expected it to, and the strengths were sort of the strengths and the weaknesses were the weaknesses that we’ve discussed earlier. So I think on their side, it is not really much different from expectations.
With the Costello testimony from the defense, I think part of the reason they called him was to have him, in my opinion, play the role of Donald Trump. I think another reason was, as you just alluded to, to the extent that this becomes a referendum on Michael Cohen, Trump stands a much better chance of acquittal or a hung jury.
To make Michael Cohen the centerpiece of the case — I don’t think prosecutors had a choice. They had to call Stormy Daniels and they had to call Michael Cohen. It just would have been too awkward not to.
I’m not sure that the prosecutors could have proven a case without calling Cohen. They at least seem to have thought that Cohen was necessary, because no sane prosecutor would call Michael Cohen unless they absolutely had to.
Orden: I agree with that.
Gerstein: My view is that it’s not the defense’s obligation, especially in a case like this, to present a coherent view of the world. The prosecutors have to do that, because they need to build a case that goes beyond a reasonable doubt and that meets all of the elements of the charges.
“My view is that it’s not the defense’s obligation, especially in a case like this, to present a coherent view of the world.”
—Josh Gerstein
The defense just can throw spaghetti at the wall and hope that something sticks, and they can actually make arguments that contradict one another. Now, if you make 10 different arguments that are all contradictory, the jury may throw up its hands and think you guys are just giving us nonsense and wasting our time, but you can hope to pick off a juror here with this argument, and maybe a juror there with the other argument.
That’s how a lot of defenses work, especially in this kind of a case. If members of the jury are really hostile to Trump — it’s possible some of them are — the defense’s best hope may be to pick off a juror here or there and convince them of a particular argument and try to shut the case down that way, or at least push it back down to a misdemeanor instead of felonies.
I think someone has to ask the judge to instruct the jury on the lesser included misdemeanor offenses for that to happen. As far as we’re aware, that has not happened.
I’d like to talk a little about a notion that we have heard during the trial at times — the notion that documents can speak for themselves. As you know, the prosecutors admitted handwritten notes outlining and breaking down the reimbursement to Cohen. According to Cohen, those notes were prepared with Weisselberg before a meeting with Trump, which, if true, would provide further evidence of Trump’s involvement in the broad scheme.
Here’s a way in which the documents don’t speak for themselves. We have to believe Cohen that those notes were created before rather than after the meeting with Trump, and also that the calculations or something like them were actually discussed with Trump.
Orden: Correct. We have to believe Cohen about all of that.
And part of the reason is that prosecutors didn’t call Allen Weisselberg to testify. Who knows what he would have said, but the point is, Cohen is the only testimony they have regarding that note and the meeting.
Gerstein: Yeah, Cohen is the only direct testimony.
You could infer all these things happening from a lot of other things the prosecutors tried to point to, like the fact that Trump runs such a tight ship financially, that he’s so stingy. There were a lot of things that came in from testimony and from Trump’s books that were designed to show that the idea that Allen Weisselberg would pay $420,000 out of Trump’s personal funds to some random person with Trump not being apprised of the details of why that was necessary — I guess you could have the idea that Weisselberg and Cohen cooked up a scam to rip Trump off or something like that.
But the idea that this was totally freelanced by Weisselberg — the prosecution tried to make that sound basically insane, and that tends to diminish the significance of the actual alleged meeting with Cohen and Trump.
Yeah, framed that way, it is insane. But that’s a false choice — that either Trump is guilty or Weisselberg freelanced it all.
Feuerherd: There’s also a second set of notes with back-of-the-envelope math that Jeff McConney [the former Trump Organization controller] testified about. The figures were the same.
McConney didn’t testify that Trump ever saw those notes or that those notes were discussed with him, right?
Feuerherd: Yeah, I don’t think so.
Orden: Yeah, the only link to Trump is that meeting.
The even weirder thing about it is that, given the point that we discussed about how Cohen essentially conceded that he stole tens of thousands of dollars from Trump, that means that the jury is being asked by the prosecution to believe Cohen’s account of a meeting with Trump during which — by his own account now — he stole from his own client. It’s a very strange thing.
Orden: Even regarding the Costello stuff, we’re supposed to believe that Cohen is telling the truth now about the fact that he lied to Costello [about having incriminating information on Trump]. You’re supposed to believe that Cohen lied to him then for a specific reason, but now he’s saying the truth.
The same structure of that dilemma presents itself with respect to Cohen’s guilty plea on fraud charges.
Orden: Yes, correct.
He’s telling us now that he lied then.
Orden: That one is even more complicated because he also has said these things did happen but I shouldn’t have been prosecuted for them, but other times he says they didn’t happen. He has said both of those things.
He has said repeatedly that the case was bogus in the past. But he said on the stand that he hasn’t said that, but instead he just said that he shouldn’t have been prosecuted — that it should have been resolved civilly. But that is not what he has said in the past.
Ben, I’ll give you the last question. To wrap it all up, how do you think the defense sees the state of things headed into closing arguments?
Feuerherd: They’re probably hoping, like you said, that the jury sees the case as hinging on Cohen, and they probably are hopeful that they’ve dirtied Cohen enough, and that they’ve proven him to be this completely dishonest operator.
But I thought it was interesting — your discussion about the jury having to believe that Cohen was telling the truth about lying to Costello. It speaks to the sort of characters involved in all of this. I come across sort of believing Cohen about that, because if you were in Cohen’s shoes, you would lie to a guy like Bob Costello in that situation.
Those are the characters that are involved here.
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