Stormy Weather: TFG Convicted on 34 Counts of Election Fraud

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Adam Klasfeld
@KlasfeldReports
Good morning from New York.

After clearing the courtroom, the judge threatened to oust Trump’s first (and maybe only) substantive witness for his “contemptuous” conduct—and strike his testimony.

Will Bob Costello avoid that fate now?

Follow my live coverage from the room.

Trump and his entourage are now in the courtroom.

For the first time all trial, Don Jr. is here. Proceedings kick off after the judge enters the courtroom, and the attorneys register their appearances.

Robert Costello returns to the witness stand, and Justice Merchan cordially reminds him that he's still under oath.

"Let's get the jury, please," the judge says.

Assistant DA Josh Steinglass requests that the judge ask the jury about their availability next Wednesday.

"I will," Merchan says.

"All rise."

The jury enters, and the judge wishes them good morning.

Prosecutor Susan Hoffinger continues her cross.

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Adam Klasfeld
@KlasfeldReports
·
8h
Hoffinger begins by noting that Cohen ultimately retained another attorney.

"That's correct," Costello says.

She shows him another email offered into evidence. It's accepted.

Email from Cohen to Costello and partners, dated Aug. 8, 2018.

"Please cease contacting me as you do not and have never represented me in this or any matter."

Costello acknowledges that Rudy Giuliani went to his wedding—and he acknowledged that he told Cohen the ex-NYC mayor "could be very very useful for you."

An email shows Costello saying just that to Cohen.

An email shows Costello telling his partner Jeff Citron:

"All the more reason for Cohen to hire me because of my connection to Giuliani, which I mentioned to him in our meeting."





Hoffinger asks Costello about his testimony that he only had Cohen's interests in mind, not Trump's.

Costello stands by his testimony.

The prosecutor enters another email into evidence.

Email from Costello to his partner on June 22, 2018, subject line "Michael Cohen."

"Cohen has to know this yet he continues to slow play us and the President-is he totally nuts???

[...] What should I say to this asshole? He is playing with the most powerful man on the planet."

Asked whether this email speaks for himself, Costello agrees that it does.

The prosecutor asks whether Costello lost control of Michael Cohen, Costello disputes the premise.

Costello keeps denying that he had any animosity toward Cohen or didn't have his best interests at heart, even after being confronted with that email, as cross draws to a close.

Trump's attorney Emil Bove is back up to try to rehabilitate the witness.

Costello provides his narration of why he wrote that Cohen may have "played" him.

He says Cohen wasn't signing the retainer agreement.

Q: Were you concerned that you were representing Michael Cohen but he wouldn't sign the retainer agreement?
A: Yeah, sure.



Q: Did you ever pressure Michael Cohen to do anything?
A: I did not.

Q: Did you ever have control over Michael Cohen?

Costello says he did not.

Prosecutor Hoffinger has a brief recross, confirming Cohen never signed the retainer agreement.

Costello's testimony wraps and the witness leaves the courtroom.

Blanche: "Your honor, the defense rests."

Justice Merchan excused the jury until Tuesday — and the rest of us are in recess until 2:15 p.m. today, for the pre-charge conference.

That's where they hash out the law for jury instructions.

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Adam Klasfeld
@KlasfeldReports
·
7h
From the Trump trial press pool:

“He did not respond to a shouted question about f he wants to create a unified Reich.”

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Adam Klasfeld
@KlasfeldReports
·
4h
Good afternoon.

The pre-charge conference has begun, and the parties are arguing election law, the set of instructions most likely to be hotly disputed by Trump's legal team.

Trump's attorney Emil Bove is arguing for the defense.

Assistant District Attorney Matthew Colangelo is arguing for the prosecution.

Justice Merchan says he'll reserve decision on the issue of "willfulness."

Trump's legal team wanted an instruction that there is no limit on a candidate's own contribution to his campaign, but the judge rejects the proposal, saying the defense can argue it during summations.

Justice Merchan moves on to another disputed instruction: the press exemption to federal election laws.

One of the phrases under dispute: "normal and legitimate press function," in a case deeply tied to tabloid empire AMI.

The defense wants a broader definition.

"There's evidence in the record that AMI wanted to resolve these things and move on," Bove says, noting that AMI published articles by Karen McDougal pursuant to their agreement.

Justice Merchan says he's inclined to hew to the usual Criminal Jury Instructions (CJI) for New York State:

"Where there's standard [issue] jury instructions, I don't deviate."

Trump's attorney seeks to deviate from those standard instructions for "intent to defraud," the judge says.



Colangelo says that the prosecution's language for "intent to defraud" and "intent to commit another crime" are on solid footing.

"This is not argument. Every sentence we cite here is anchored in the court's rulings."

The defense wants language distancing Trump from others who admitted to campaign-related crimes: "Evidence that President Trump was present when others agreed to a crime does not mean that President Trump engaged in that conspiracy."

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Adam Klasfeld
@KlasfeldReports
·
2h

After the break, Justice Merchan says he's done with his topics, and he invites the parties to bring up others.

Bove says: "We don't have controversial arguments about too many of them."

He has a request for a Trump-specific instruction on bias.

Assistant DA Steinglass says it's covered by the standard Criminal Jury Instructions charge, but he doesn't think a bias charge is necessary.

Justice Merchan agrees, without yet ruling, "that's not an instruction that's normally given."

The judge says he will include the People's version of the bias instruction, as a concession to the defense, "even though that's something I don't normally do."

Justice Merchan dresses down Bove about the advice of counsel defense, calling it "disingenuous" of him to keep raising the issue after he rejected it.

"The jury will not hear that instruction from the bench, nor are you allowed to make that argument."

Bove responds to the "disingenuous" remark, trying to "explain" himself, but the judge shuts it down."

"This is an argument that you've been advancing for many, many months," Merchan points out, adding later: "It's denied. Please don't raise it."

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Adam Klasfeld
@KlasfeldReports
·
2h
Next topic:

Team Trump wants a spoliation instruction about the evidence gleaned from Michael Cohen's devices, in order to suggest info may be lost or deleted.

The prosecution suggests such an instruction would be based on an "imaginary" record spun by the defense.

Bove cross-examined the forensic expert who authenticated the electronic evidence at issue, and the judge praises his work.

"You did a very effective job of cross examining that witness," Merchan says, but he denies the spoliation instruction.

That's for defense summations.

The pre-charge conference is no over, and we await the transcript (and hopefully, the release of the written briefings) for more details.

Merchan signaled he would try to release the jury instructions on Thursday, without committing to that date.

For now, the court appears to be in recess through the Memorial Day weekend.

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I found a more detailed report than Klasfeld's. I wanted to use someone else and found this.

Anna Bower
@AnnaBower
·
4h
At the hearing, known as a “pre-charge” conference, Justice Merchan will hear argument on the parties’ proposed “jury charges,” meaning the instructions provided to the jury before they deliberate on the verdict in Trump’s case.

The jurors are the finder of fact. It’s up to them to look at the evidence presented and determine the facts.

But it’s up to the judge to explain the law—to provide instructions on what the law means and what the jury must find in order to convict.

All of which is why the pre-charge conference is so important.

And, while both the prosecution and defense have submitted proposed jury instructions, those proposals aren’t yet publicly docketed.

Still, there’s a few things that we...will be watching for during the hearing.

(1) Will the jurors consider only the felony counts for falsification of business records, or will they have an option to consider the "lesser included" misdemeanor charge?

2) The felony charges require that Trump caused the falsification of business records with intent to commit, aid, or conceal another crime.

But do the jurors have to unanimously agree on *which* crime Trump intended to commit, aid, or conceal?

https://lawfaremedia.org/article/what-m ... %2520doubt.

3) Prosecutors must prove that Trump made or caused the entry of false records.

But what does “made or caused” mean? Is it sufficient if the jury finds that the entry of false records was a “reasonably foreseeable” result of Trump’s conduct?

There are other issues that will likely be raised -- involving, for example, how Justice Merchan will instruct the jurors on FECA, accomplice liability, and so on

Things are now getting started in courtroom 1530.

We start with argument on the proposed instructions regarding the Federal Election Campaign Act.

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Anna Bower
@AnnaBower
·
4h

The parties are arguing about whether one of the prosecution's "step up" crime theories -- a New York election law statute that prohibits conspiracies to promote a candidate to office by unlawful means -- requires that the "unlawful" means be a criminal or a civil violation.

Now we're talking about campaign contribution limits, and whether at the time of the relevant events in this case (2015-2016) there was a limit on what a candidate could contribute to their own campaign using their own personal funds.

Judge Merchan says he doesn't think that instruction needs to come from him, but the parties can argue something to that effect in summation. So he's striking the proposed instruction on a candidate's personal campaign contribution.

More FECA instructions: The "irrespective" rule, which holds that a payment should not be treated as a campaign contribution if the payment would have been made if not for the candidacy.

Unfortunately it's a bit difficult to follow the nuances between the language of the instructions proposed by the defense and the prosecution because we don't have access to the parties' proposals.

The parties and the court keep citing page numbers on their proposed instructions and particular paragraphs and sentences. But without the documents, we don't really know what they're talking about.

For example, on the irrespective rule, Justice Merchan rules: "I'm going to insert the People's sentence and their last sentences..and I'm going to remove the examples."

Ok?!

This is why it's important for the press/public to have access to court filings *before* a hearing.

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Anna Bower
@AnnaBower
We turn to the instructions on "accomplice as a matter of law."

Justice Merchan worries aloud about including certain language referring to evidence that an accomplice was "convicted of" crimes bc he doesn't want the jury to think that Cohen's convictions can themselves be used to establish Trump's guilt as to these charges. (The jurors already received a limiting instruction about that, he reminds the parties.)

Now we're onto intent to defraud. The defense definition (which we haven't been able to review yet!) relies on practice commentary, while the prosecution wants the standard language. Merchan says he's going to stick with the standard language.

Now we're onto causation and how it relates to accessorial liability.

"I don't like the reasonably foreseeable language," Justice Merchan says.

Colangelo: We think that "made or cause" is a critical concept...the reasonable foreseeable language is drawn directly from the case law we cited.

We think it's a critical instruction to the jury.

Merchan: Isn't this already covered in the definition of accomplice liability? Why is the "reasonably foreseeable" instruction not duplicative of that?

I'll reserve decision, Merchan says, but right now my language is to strike the "reasonably foreseeable" language from the jury charges.

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Anna Bower
@AnnaBower
·
3h
Moving on to intent to commit or conceal another crime. Bove takes issue with language in the instructions about what the government does *not* have to prove...he's concerned about burden shifting.

More on intent. The defense proposes adding language suggesting that the People have to prove two separate intents: intent to defraud, and intent to commit, aid, or conceal another crime.

Colangelo, for the prosecution, points out that the statue doesn't suggest there are two separate intents. The statute simply says the intent to defraud must "include" an intent to commit, aid, or conceal another crime.

Justice Merchan agrees w/ the prosecution. He thinks that it would be a material change to the statute to instruct the jury that there are two separate mens rea requirements. There's one intent -- intent to defraud -- but that must "include" the intent to commit, aid, or conceal another crime.

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Anna Bower
@AnnaBower
Now onto instructions on the conspiracy/election law step up crime. The defense wants a "mere presence" instruction, stating that a defendant's mere presence when others agreed to engage in the performance of a crime is not sufficient to show that defendant personally agreed to conspiracy.

Colangelo makes the point that this might confuse the jurors, as the charges don't even require that Trump himself agreed to a criminal conspiracy. It's sufficient if others engaged in a conspiracy and he falsified records with intent to cover it up.

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Anna Bower
@AnnaBower
Next, we turn to "unlawful means," which is part of the NY election law object offence. Colangelo, for the prosecution, says that they want an instruction stating that the jury doesn't have to find unanimously which of the "unlawful" means are at issue under the People's 17-152 "step up" theory.



The defense is arguing that the prosecution should not be allowed to submit its tax theory to the jury for purposes of the felony step-up "object crime." Bove cites testimony from Cohen in which Cohen said he didn't know why Weisselberg grossed up the reimbursement payment.

Bove also says that there's no evidence of the Trump Org or Trump taking a tax deduction or anything for the payments. So there's just not enough evidence for this to go to the jury, he says.

Let's take 10 minutes, Merchan says.

And so we break.

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Anna Bower
@AnnaBower
·
2h
We're back.

Bove talks about the defense team's request for a limiting instruction that hush money payments are not inherently illegal.

Steinglass: What the defense is asking is for you to make their argument for them...It's totally inappropriate

Merchan: This has come up in the presentation of evidence. Witnesses were asked, and they said it's not illegal. You are probably going to argue it in closing...So I don't think it's necessary.

The defense also wants a limiting instruction about certain reactions to the Access Hollywood tape--things like the RNC's reaction to the Access Hollywood tape. The defense wants the judge to instruct the jurors that the evidence didn't come in for truth of the matter asserted.

Steinglass disagrees. The fact that there were reactions to the Access Hollywood tape are probative of the impact on the listener, meaning the defendant. (E.g., John McCain withdrawing endorsement).

Right now, I'm in agreement with the People, Merchan says. But he wants to go back and look at the transcripts to see how the evidence came in at the time it was introduced.

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Anna Bower
@AnnaBower
We're now talking about limiting instructions on the AMI non-prosecution agreement w/ fed prosecutors and its conciliation agreement with the FEC.



The jury already heard a limiting instruction on it, and Judge Merchan wants to provide the same instruction, which says that the agreement can be used by the jurors to assess Pecker's credibility and the surrounding context/circumstances. But it can't be used as substantive evidence of Trump's guilt/innocence.

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Anna Bower
@AnnaBower
·
2h
They're arguing about whether Trump can basically get an instruction on what's essentially an advice-of-counsel-lite defense. We've been here before -- Justice Merchan has rejected this kind of approach during pre-trial proceedings.

Justice Merchan to Emil Bove: We've been here before, my answer hasn't changed. And I understand the argument that you're making...My ruling is the jury will not hear that instruction from the bench and the jury will not hear that argument.

JUSTICE MERCHAN: It's denied. It's not going to happen.

Todd Blanche leans over, whispers in Trump's ear. Trump leans back, crosses his arms.