NEW YORK — The judge in Donald Trump's hush money trial cleared the courtroom of reporters Monday and then threatened to remove the defense's witness from the trial altogether because of his behavior on the stand, which included making comments under his breath and rolling his eyes, a court transcript showed.
Judge Juan M. Merchan told Robert Costello, a former federal prosecutor, that his conduct during testimony was contemptuous. Costello aggravated Merchan repeatedly in part by continuing to speak after objections were sustained — a signal to witnesses to stop talking. At one point, Costello remarked “jeez” when he was cut off by an objection. He also called the whole exercise “ridiculous.”
The exchange came toward the end of a heated day that included the prosecution’s star witness admitting to stealing tens of thousands of dollars from Trump’s company. Trump’s lawyers also pressed Merchan to dismiss the case after prosecutors concluded their presentation of evidence. The judge didn’t immediately rule on that request.
But the most tense moments happened with Costello on the witness stand. Merchan first sent the jury out of the courtroom to discuss proper decorum. He chided Costello for remarking “jeez” when he was cut off by a sustained objection and, at another point, “strike it." Merchan told him: "I’m the only one that can strike testimony in the courtroom. Do you understand that?”
“And then if you don’t like my ruling, you don’t give me side eye and you don’t roll your eyes.”
Merchan was about to bring the jury back in when he asked Costello, “Are you staring me down right now?” and then kicked out the press to further admonish him.
“I’m putting you on notice that your conduct is contemptuous," Merchan said, according to the transcript of the conversation that occurred when the press was out of the room. ”If you try to stare me down one more time, I will remove you from the stand."
Costello didn’t return a message seeking comment Monday night.
When Merchan brought the press back in, Costello's testimony continued and it will resume Tuesday. The defense is using him in an effort to attack the credibility of Trump attorney-turned-adversary, Michael Cohen.
After jurors left for the day, defense attorney Todd Blanche told the judge that prosecutors failed to prove their case and that it should be thrown out immediately. Blanche beseeched the judge to “not let this case go to the jury relying on Mr. Cohen’s testimony.”
The judge appeared unmoved by the argument, asking the defense attorney whether he believed that “as a matter of law, this person’s so not worthy of belief that it shouldn’t even be considered by the jury?”
“You said his lies are irrefutable,” the judge replied. “But you think he’s going to fool 12 New Yorkers into believing this lie?”
Cohen was the last witness — at least for now — for prosecutors, who are trying to prove that Trump sought to bury unflattering stories about himself and then falsified internal business records to cover it up as part of a scheme to illegally influence the 2016 presidential election. The defense has painted Cohen as a media-obsessed liar who is on a revenge mission aimed at taking down Trump.
The defense called Costello because of his role as a Cohen antagonist and critic in the years since their professional relationship splintered in spectacular fashion.
Costello had offered to represent Cohen soon after the lawyer’s hotel room, office and home were raided and as Cohen faced a decision about whether to remain defiant in the face of a criminal investigation or to cooperate with authorities in hopes of securing more lenient treatment.
Costello testified that Cohen told him Trump “knew nothing” about the $130,000 hush money payment to porn actor Stormy Daniels that's at the center of the case.
“Michael Cohen said numerous times that President Trump knew nothing about those payments, that he did this on his own, and he repeated that numerous times,” Costello told jurors.
Trump lawyer Emil Bove told the judge that the defense does not plan to call any other witnesses after Costello, though they may still call campaign-finance expert Bradley A. Smith for limited testimony. They have not said definitively that Trump won’t testify, but that’s the clearest indication yet that he will waive his right to take the stand in his own defense.
Back on the witness stand for a fourth day, Cohen told jurors earlier Monday that he stole from the Trump Organization after his 2016 holiday bonus was slashed to $50,000 from the $150,000 he usually received.
Cohen claimed to have paid $50,000 to a technology firm for its work artificially boosting Trump's standing in a CNBC online poll about famous businessmen. Cohen said he gave the firm only $20,000 in cash in a brown paper bag, but he sought reimbursement from Trump for the full amount, pocketing the difference.
Cohen said he never paid the Trump Organization back. Cohen has never been charged with stealing from Trump’s company.
Cohen is a key witness but also a complicated one. He admitted on the witness stand to a number of past lies, many of which he claims were meant to protect Trump. Cohen also served prison time after pleading guilty to various federal charges, including lying to Congress and a bank and engaging in campaign-finance violations related to the hush money scheme.
But when pushed by Blanche, Cohen stood by his recollection of conversations with Trump about the hush money payment to Daniels. Cohen testified that he spoke with Trump more than 20 times about the matter in October 2016.
“No doubt in your mind?” Blanche asked about whether Cohen specifically recalled having conversations with Trump about the Daniels matter. No doubt, Cohen said.
After more than four weeks of testimony, jurors could begin deliberating as soon as next week to decide whether Trump is guilty of 34 felony counts of falsifying business records in the first criminal trial of a former U.S. president.
The charges stem from internal Trump Organization records where payments to Cohen were marked as legal expenses. Prosecutors say they were really reimbursements for the payment to Daniels to keep her from going public before the 2016 election with claims of a sexual encounter with Trump. Trump says nothing sexual happened between them.
Trump has pleaded not guilty. His lawyers say there was nothing criminal about the Daniels deal or the way Cohen was paid.
"There’s no crime," Trump told reporters after arriving at the courthouse Monday. “We paid a legal expense. You know what it’s marked down as? A legal expense."
Prosecutors will have have an opportunity to call rebuttal witnesses once Trump's witnesses are done. The judge, citing scheduling issues, said he expects closing arguments to happen May 28, the Tuesday after Memorial Day.