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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. In our spring membership drive, trying to reach our goal of 10,000 donors, as the two-for-one match that Michael and Kai were just telling you about remains in effect for this 10:00 o'clock hour. Thank you for being one of our listener supporters, if you can. Andrea Bernstein, who's covering the Trump criminal trial in lower Manhattan for NPR, is with us on this day off from the proceedings.

They've been taking Wednesdays off, and Andrea has been taking Wednesdays on to join us on the show. The drama this week has revolved around the one main witness called by the defense, Attorney Rob Costello. A lot of the reporting that I've seen suggests Costello inadvertently did a lot more to convict Donald Trump than to acquit him, but we'll see what Andrea thought from inside the courtroom. Again, a basic reminder.

People usually call this the Stormy Daniels hush-money case, but the felony charges are actually for falsifying business records to cover up a hush-money payment to help him get elected president. That's the alleged crime. Andrea Bernstein was cohost of WNYC's Trump Inc. Podcast, about the intersection of Trump's business interests and the public interest. Also, the podcast will be wild about the events leading up to January 6th, and as author of the book American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power.

Hi, Andrea. Thanks for doing another Wednesday off from the trial, on with us. Welcome back to the show.

Andrea Bernstein: Hey, Brian. Great to speak to you again.

Brian Lehrer: Listeners, we'll give you a shot at Andrea today. If you have a good, focused question about the trial, only about the trial, for someone who's been in the courtroom, we can take a few calls or texts for Andrea Bernstein. 212-433-WNYC. 212-433-9692. Andrea, who's Rob Costello? He's not a household name.

Andrea Bernstein: It's funny, Brian. A bit of WNYC trivia. You may remember that there was a segment many years ago, where a number of us read pieces of the Mueller report, and the piece that I read from the Mueller report was all about Robert Costello. He is an attorney who wanted to represent Michael Cohen at a very sensitive moment, in all of the investigations that were going on during the Trump administration.

This was April of 2018, and it was right after Michael Cohen's home, office, and hotel room where he was staying, or hotel suite where his family was staying while his home was being renovated, were raided by the FBI. It was a period of great uncertainty. The country, in a way, was collectively holding its breath. What was going to happen? Michael Cohen was obviously under a great deal of pressure.

Enter Robert Costello, who meets with Cohen shortly after and says, basically, "I'd like to represent you." There begins this dance, which lasts for many months, in which Cohen testifies he didn't really trust Robert Costello. He felt like everything he told Robert Costello was going to go to Rudy Giuliani, who was, at that time, just within days of that Michael Cohen meeting, going to sign up as then President Trump's lawyer. Rudy Giuliani was going to.

Why the defense brought him on seems to be-- Well, there's a couple of things. First of all, it seems pretty apparent that Trump wanted him there. The day that he testified on direct examination, Trump came out in the hallway and said, "Rob Costello, look what they did to him. He's a highly respected lawyer." An indication that he had the Trump personal imprimatur for his testimony.

Brian Lehrer: Yes. Trump wanted him to refute Michael Cohen's testimony that Trump himself directed the hush money payments, right?

Andrea Bernstein: Exactly. It goes to this question of intent to cover up, because there was an email that Cohen had discussed receiving from Robert Costello, in his own direct testimony, where Robert Costello says, "You have friends in high places. Sleep well tonight." I think that the meaning of that is pretty apparent. Michael Cohen testified that he understood that to mean he was going to be protected if he stayed on the team. That is, he would have the President of the United States behind him. That's what Cohen said.

Brian Lehrer: I've heard this in other analyses, compared, maybe you wouldn't put it this indelicately, to a mob boss, right?

Andrea Bernstein: Yes.

Brian Lehrer: If Costello's job is to say to Michael Cohen so Cohen doesn't flip, yes, "You have friends in high places, you'll sleep well tonight." Implying that Trump, as president, because it was back in that time, would pardon him for the crime that Michael Cohen allegedly committed. If he did flip and implicate Trump, then you could get your knees bashed in.

Andrea Bernstein: It's really not clear what was on offer, so I wouldn't want to say it was a pardon or anything else, but, obviously, as Cohen said in his own testimony, he's the most powerful man on earth. You want him in your corner. That was the implication. What's interesting is there's been a little sub-theme for this whole trial. Every time a Trump employee witness comes on, the prosecution would say, "Who is paying for your lawyer?" They would say, "Mr. Trump, or President Trump."

This went on for all the witnesses that were on the Trump team. The idea was, I think, meant to be clear, to convey to the jury that these are not necessarily friendly witnesses. Their lawyer is from the generosity of the former president, but what this Costello did is bring this all out into this open, this very transactional nature, that Trump would hire the lawyer, and that lawyer, as we saw in these emails, in this particular case, would exert pressure on their client.

One of the things that was so extraordinary yesterday about the cross-examination-- It's a defense witness. The person doing the cross-examination is the prosecutor, and it was a very tight-cutting cross-examination in which he introduces a piece of evidence where Costello discusses explicitly the fact that then President Trump was paying for the lawyer who would be reviewing the Cohen documents that were seized by the FBI, for attorney-client privilege.

In this email, which the prosecution wouldn't have been able to introduce had he not gone on the stand and testified the way he did on direct-- When I say he, here, I'm meaning Robert Costello. In this email, he says President Trump is paying the lawyer who was doing the review, but he doesn't like that lawyer. He thinks he's charging too much and he wants a more aggressive lawyer going forward, namely our team.

Then he says in the same email, but without giving the appearance, that Rudy Giuliani or President Trump is calling the shots. Not only is he saying the president is involved in the financial decisions and who the lawyer is, but also in trying to keep all of that secret. This is information that the jury-- The jury's been excused for a week because of the holiday. There's only going to be another day of court this week. The judge didn't feel they could get in summations, charging, and deliberation in that time,-

Brian Lehrer: [crosstalk] Right. Before Memorial Day, yes.

Andrea Bernstein: -so he sent them home for a week. They're going home for the week with this email, just about the last thing that they heard, as they leave. That's what they're going to marinate with for, basically, the whole week.

Brian Lehrer: The last thing the jury is being left with, you're saying, is Costello's testimony fail, as many people are describing it, if it was really perceived by them as a fail, as inadvertently implicating Trump more than--

Andrea Bernstein: Yes, I don't think the jury is rating it that way, as if it's a success or failure. They're just going away with this new information about the mechanism of how all of this worked behind the scene. Obviously, one of the big things in the charge is that the records were falsified with the intent to conceal the hush money payment. Showing them all of these emails that pretty clearly seem to spell out a related or affiliated attempt to conceal, is pretty strong evidence.

I don't think it's win, lose, like a tennis match. I think it's more-- This is the information that sinks in. I would also add, Cohen, he's lied a lot. He has lied, really, a lot.

Brian Lehrer: Really? I'm shocked to hear that.

Andrea Bernstein: The defense, their cross-examination hit on a lot of points. It jumped around, there's been a lot of debate about whether that was strategic, not strategic, but they did get to talk about all of the times that Michael Cohen lied. Yesterday, when Robert Costello got on the stand as the only emissary from Trump's side, basically, other than a paralegal who certified some phone records, Robert Costello was asked, "Well, didn't you pitch Michael Cohen in your first meeting with him, that you wanted to be his lawyer?"

He said, "No." Then the DA, the prosecutor, Susan Hoffinger, who's doing the cross-examination, puts up an email where he says just that. "Weren't you angry at Michael Cohen?" "No." She puts up an email where he's calling Michael Cohen an expletive, [laughs] to his law partner. He's left looking not like he's on the up and up, and it's a corrective in a way, or a balancing to all of the lying that Michael Cohen had in his own past. It's an evening out that happens there.

Brian Lehrer: Yes. It was basically only Rob Costello as the only defense witness. Trump did not testify in his own defense, which he kept saying publicly that he wanted to do, but nobody thought that he really would, because the prosecution could pick him apart on so many inconsistencies. The prosecution and the defense have now rested, and then the judge conferred with the lawyers on instructions to the jury.

One maybe important thing I've seen about that, the coverup of the payments doesn't have to be only to help the campaign. If it was to help the campaign, that's what makes it a crime. It can be for both the campaign and hiding Stormy Daniel's story of sex from Melania, which is the excuse or the alternative explanation that the defense is trying to use, to some degree. It can be for both, and legally, it's still a crime, according to the judge. Right?

Andrea Bernstein: Yes. I do want to say that we will not be getting the final instructions until tomorrow. Judge Juan Merchan said by end of day tomorrow. There was a balancing act that was going on all afternoon yesterday, when they were arguing about the jury charges. It is incredibly important in this case because it's not like you're talking about somebody going into somebody's apartment, stealing their television, and leaving.

That's the crime that [laughs] normally gets tried at 100 Center Street. Talking about this complex white-collar crime, where you have to not only establish that the records were falsified, in furtherance of covering up the crime of essentially interfering with the election. That's why it was complicated. That's why they were going through it. The defense won some yesterday. The prosecution won some, and I feel like until we see the totality of all the instructions together, we won't understand exactly how it all fell out.

My impression yesterday was largely-- [unintelligible 00:12:49] talking to some other legal observers who've been in the courtroom, that the prosecution was largely able to create a narrative, create a theory of the case for the jury to accept or reject.

Brian Lehrer: A few more minutes with Andrea Bernstein covering the Trump trial for NPR. Listener asks, "I've heard it reported that a leader of the Hell's Angels was in the courtroom this week, along with many other Trump supporters. Was it your impression that there was a concerted effort to intimidate the jury?"

Andrea Bernstein: Well, [laughs] Trump walks in on Monday, with a giant entourage. He's been bringing an increasingly large group of people with him. Members of congress, senators, and he walks in on Monday with this group of almost all men, assertive, large group of men behind him, including the former NYPD commissioner, turned convicted felon, Bernie Kerik, who Trump had pardoned, who was convicted, among other things, of obstruction of justice.

That was a sort of interesting move, and the leader of the Hell's Angels, who is a very imposing person, with jet-black hair styled high on his head. This was at the end of the cross-examination of Michael Cohen, where I think the defense strategy was, "Let's just get everything in we can." It was a little meandering, and I could see the jurors' eyes wandering over to this crowd, "Who is this crowd?" It is extraordinary because one of the things that they were trying to establish from Michael Cohen is, he wasn't really pressured by Trump.

They're trying to elicit this testimony while, also, there is this giant crowd of large men-- Not all of them, some of them were members of Congress and other people, but it was an imposing crowd that he brought into the courtroom. Also, just linking back to Rob Costello. Rob Costello testified before Congress last week, which the prosecutor was able to elicit, really, trashing Michael Cohen. She said, "Did you do that to intimidate him?"

She connected the line between this crowd in the courtroom, where it's not explicit, and this effort to keep Michael Cohen silent, which the whole final testimony was about that happening, from the beginning, trying to intimidate Michael Cohen to keep him from telling the story. The story, which, of course, has led to this entire trial and legal action, which is about to come to its final conclusion.

Brian Lehrer: One more listener question via text message, listener asks, "How has the judge been? Any basis for appeal if there is a conviction?" To that question, I'll add that, from what I saw, this witness, Rob Costello, for Trump, was flashing a lot of attitude toward the judge, staring at him, rolling his eyes at the judge, and the judge came down hard on him for giving him the side eye, is how I think the judge put it.

Honestly, I'm not sure I get this part. Why can't a witness in a case roll his eyes at the judge, or stare at him disapprovingly? Is there a ground for appeal there?

Andrea Bernstein: I'll leave that to the appeals lawyers, but let me say, being there, it was something, because there'd been a whole argument before Robert Costello had come on, where the prosecution was saying-- There are all kinds of legal thorny issues with bringing Costello on. The judge said, "You know what? I want you to keep his testimony confined. I'll give you some latitude, but you need to stay within these certain legal bounds." He lays it all out.

Costello is testifying, and he keeps straying into these areas, in which the judge had just said to the lawyers, he's not allowed to testify. The prosecutor stands up and she says, "Objection, objection, objection." Most of them are getting sustained, and after one such objection, Costello says, "Jeez," very loudly, everybody could hear it, and in the overflow room, in the back seats, everybody could hear it. Certainly, the jury could.

The judge looks at him. Judge Juan Merchan is the most placid and judicious of all the Trump judges. He does not lose his temper the way the other ones have, in the other trials that I've covered. I'll also say that one of the things that is remarkable-- Merchan is a judge from central casting. You can see him when he has all the parties, say everything they want to say, and then he thinks it through and he makes a ruling, and it's very considered.

Sometimes the defense wins, and sometimes the prosecution wins. There is no clear pattern. You can really see him absorbing the information. It's an extraordinary thing in this moment, where everybody has very well-formed opinions, to see someone listen to information and make an opinion. That's what Merchan is like. He is not quick to admonish, so when he says, "Excuse me," then Costello says, "Strike it. Strike it."

Well, a witness can't strike testimony, only a judge can. Then, the judge, a little bit later, I think, to not link all of this in the jury's mind says, "Let's take a break." The jury is excused. Then he turns to him and he says to him, "Mr. Costello, [chuckles] you cannot say jeez, you're here to just answer questions. You can't say strike it, only I can." Then Costello gives him this look, and the judge says, "Are you staring me down?"

Then, at which point, we, the press, are removed from the courtroom, we know from the transcript, because the judge kept the whole thing on the record, that he said, "Your behavior is contemptuous. You cannot second-guess my rulings. You cannot give me the side eye. You cannot say strike it. You just have to sit here and answer the questions, so you're on notice."

It seemed to me that that was a very logical outcome of the behavior that was going on. It didn't seem to me that there was anything out of order or unfair about that. Of course, I'm not an appeals lawyer, so we shall see.

Brian Lehrer: We'll see what happens.

Andrea Bernstein: Sorry, it's a long answer. The overall impression is there's not a lot there to appeal, but we don't know.

Brian Lehrer: Well, I wish New York allowed cameras and microphones in the courtroom, like some states do, so we could see all this for ourselves, but we have the next best thing, Andrea Bernstein, covering the trial in the courtroom for NPR, and coming on with us the last three Wednesdays, which are days off, each week, from the case. Andrea, thanks so much. We really appreciate your vivid descriptions of what's going on there.

Andrea Bernstein: Thanks, Brian. In all likelihood, it won't be next Wednesday, because the jury will have the case then.

Brian Lehrer: All right. Brian Lehrer, on WNYC. Much more to come.

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