The defense rested in Donald Trump’s criminal trial on Tuesday, without the former president himself testifying.
Trump had previously railed about being silenced and falsely claimed he was not allowed to testify, but ultimately elected of his own volition not to take the stand in his own defense.
Trump’s decision came without fanfare. The move was not surprising – defendants in criminal cases rarely testify, because they would be subject to cross-examination, during which they could easily say something that harms their defense – but followed several instances of Trump claiming he was not allowed to do so.
The judge, Juan Merchan, had gone so far as to address Trump’s claims, saying: “I want to stress, Mr Trump, that you have an absolute right to testify at trial”, and adding that the gag order preventing Trump from verbally attacking witnesses did not affect his right to take the stand.
After the defense rested Merchan, told jurors to return on Tuesday 28 May for closing arguments. Merchan said he would also announce his instructions to jurors the next day and expected that they would then start deliberating.
The trial had resumed earlier Monday with continued cross-examination of Robert Costello, whom the defense has used to try to discredit the former president’s one-time fixer, Michael Cohen.
Trump entered the courtroom just before 9.30am. The former president, who is all but guaranteed to be the Republican presidential nominee, is charged with falsifying business records related to paying the adult film star Stormy Daniels $130,000 for her silence about an alleged sexual liaison.
Manhattan prosecutors allege that Trump plotted in summer 2015 with Cohen, then Trump’s consigliere, and the former tabloid head David Pecker to keep any damaging information under wraps in an effort to protect his candidacy in the 2016 election.
Cohen told jurors he coordinated the payment to Daniels weeks before election day, and footed the bill himself. The campaign was gravely concerned that Daniels’s account could deal a deadly blow to Trump’s presidential run, he said, as an embarrassing hot mic recording – in which he bragged about grabbing women “by the pussy” without their consent – had emerged weeks prior.
Cohen, who testified for four days, claimed at one point that an angry Trump instructed him to bury Daniels’s account, telling him to “just take care of it”.
“This was a disaster, a fucking disaster,” Cohen said he remembered Trump saying. “Women will hate me.”
Cohen told the jury he had kept Daniels’s account off the radar in 2011, coordinating with her then lawyer to remove a story about their alleged encounter from a gossip website.
“He was really angry with me,” Cohen said of Trump’s reaction after he informed him about Daniels’s potentially coming forward before election day. Trump allegedly said: “I thought you had this under control? I thought you took care of this.”
The prosecution maintains Trump’s repayment of Cohen in 2017 constituted illegal behavior because he described disbursements as legal expenses in financial documents. Cohen’s testimony is integral to prosecutors’ argument that Trump was well aware that these repayments would be described in an illicit way.
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On cross-examination, Trump’s legal team failed to land hard blows. The closest Blanche got was getting Cohen to in effect admit over-billing the Trump Organization for reimbursement for a payment to a tech company called Red Finch to help make a poll about famous business figures more favorable to Donald Trump.
Cohen said he had paid the tech company $50,000, but in reality he had paid $20,000. Blanche asked Cohen whether he pocketed the $30,000. “So you stole from the Trump Organization?” Blanche said. “Yes, sir,” Cohen replied.
On Monday, the prosecution rested its case and Trump’s defense started theirs, with the day ending on Costello, a lawyer Cohen had discussed during his four days on the stand. Cohen said he met with Costello after officers raided his hotel room and home in April 2018, but was wary of having him as legal representation, given his relationship with Rudy Giuliani.
Cohen said he worried that Costello would tell Giuliani about their conversations, and that the former New York City mayor would then disclose this information to Trump. Costello claimed that during their first meeting, Cohen said he did not know about Trump doing anything illegal; the raid came in the wake of Cohen admitting that he had paid Daniels.
“I explained to Michael Cohen that this entire legal problem he was facing would be resolved by the end of the week if he had truthful information about Donald Trump and cooperated with the southern district of New York,” Costello testified. Costello claimed that Cohen allegedly said: “I swear to God, Bob, I don’t have anything on Donald Trump.”
Costello’s behavior on the stand, including commentary, almost spun the courtroom into chaos, and prompted a rebuke from the judge. Costello blurted out “jeez” at one point during his testimony, and instructed someone to strike a question, which is something only judges – not witnesses – have the power to do.
Following this episode, Merchan told the jurors that there would be a brief break and after they were gone, warned Costello against acting in such a way. Merchan then asked: “Are you staring me down right now?” and ordered court officers to “clear the courtroom”.
Members of the press were asked to leave for several minutes. Under the US constitution, New York state, and common law, there is a presumption of access, meaning court proceedings are supposed to be open to the press and public except in extremely rare circumstances. Merchan did not permit a media attorney to address the court about the access issue.
