Donald Trump hush money trial recap: Trump doesn't testify; defense rests its case

NEW YORK − Donald Trump's defense rested its case after calling just two witnesses − neither of them named Donald Trump − in the former president's historic criminal hush money trial on Tuesday.

Trump had initially said he would testify in his defense, but subsequently backed out. The Republican presidential candidate said he could not testify because of a gag order restricting his potentially intimidating attacks on witnesses and jurors, but Judge Juan Merchan made clear that this did not preclude Trump taking the stand.

After the jury was dismissed until next Tuesday, lawyers for both sides wrangled with Merchan over a vital part of the case: the judge's instructions to the jury.

Earlier Tuesday, defense witness Robert Costello, a Republican lawyer close to Trump, was back on the witness stand after Merchan threatened Monday to throw out his testimony for "contemptuous" conduct.

Merchan set closing arguments for May 28, with jury deliberations to follow.

These were the top developments inside and outside the courtroom:

Trump declines to testify but says press ‘has to cover me’

Former President Donald Trump decided against testifying in his own defense at his New York hush money trial, but he noted during a 12-minute hallway statement to reporters that he is still able to promote his political views and observations about the case.

“At least I have a voice, where I can talk to you, the press,” Trump said as two cable networks broadcast his comments live. “In many cases, it’s the fake news, but even the fake news has to cover me.”

--Bart Jansen

More: Republican allies are declaring things that judge's gag order prevents Donald Trump from saying

Tuesday proceedings wrap

Judge Juan Merchan called an end to Tuesday's proceedings. He said he will make "every effort" to get the jury instructions to the two legal teams by the end of Thursday, giving them four days to prepare their May 28 closing arguments.

– Aysha Bagchi

More: 'This is not a conversation': Read heated exchange between Judge Merchan, Robert Costello

'Please don't get up,' Merchan tells peeved Trump lawyer

Judge Merchan and Trump lawyer Emil Bove have gotten into a somewhat heated exchange after Merchan essentially accused Bove of spinning new versions of an argument the judge already rejected.

The earlier argument has to do with whether Trump can shield himself from the criminal charges by saying he relied on a lawyer's advice. Specifically, Trump would be saying a tabloid publisher told Michael Cohen – Trump's former lawyer – that a hush money deal related to Trump was "bulletproof," so Trump shouldn't be on the hook if it turns out that's not true.

Before the trial started, Trump chose not to make the argument, which is formally known as an "advice of counsel" defense. If he had made it, he would have been required to turn over certain documents and communications.

But according to Merchan, Trump basically tried to have his cake and eat it, too: Before trial, Trump made a new version of the same argument – labeling it a "presence of counsel" defense – without agreeing to turning over the documents. Merchan rejected that attempt. And now, Merchan said, Trump is making a third attempt – trying to get an instruction to the jury on an "involvement of counsel" defense.

"Honestly, I find it disingenuous for you to make the argument at this point," Merchan told Trump lawyer Emil Bove. "Please don't get up, I let you speak," Merchan added.

Merchan indicated the jury won't get an instruction based on Pecker's alleged statement to Cohen, and Trump's lawyers also can't raise it with the jury during closing arguments.

More: Read the transcript: Trump hush money trial judge's heated exchange with witness

Bove rose after that, saying he understood and didn't mean to be disingenuous, but his argument was based on testimony that came after the judge's prior rulings.

"You said that already, Mr. Bove," Merchan responded.

"But then you called me disingenuous," Bove replied.

– Aysha Bagchi

Trump alert again as lawyer's exchange with judge turns hotter

Within the past 10 minutes, it looked like Trump might be nodding off in the courtroom. However, his eyes are now open and he appears engaged as his defense lawyer Emil Bove has gotten into a more heated exchange with Judge Juan Merchan about a potential jury instruction.

– Aysha Bagchi

Trump struggling to stay awake?

Trump appeared alert and was reading or scanning documents earlier during the charging conference. However, now at 4:22 p.m. EDT, he has had his eyes closed for an extended period. I counted to 83, with a "Mississippi" between each number, while he had his eyes closed. At the number 83, Trump's face fell down and that motion appeared to make him perk up, at which point he lifted his head and opened his eyes.

– Aysha Bagchi

Testimony in Trump’s trial ends with a bang − but not with jury hearing from him

Testimony from witnesses in former President Donald Trump’s New York hush money trial came to an explosive end before lawyers began negotiating jury instructions.

Judge Juan Merchan reprimanded one of just two defense witnesses, former federal prosecutor Robert Costello, as "contemptuous" for deriding his rulings from the witness stand.

And a key prosecution witness, former Trump lawyer Michael Cohen acknowledged stealing $30,000 from the Trump Organization.

Cohen had testified Trump knew he was reimbursing Cohen for paying hush money to porn actress Stormy Daniels. Trump lawyer Todd Blanche had accused Cohen last week of lying on the stand when he said he discussed the payment with Trump on a phone call.

Trump decided not to testify, after initially saying he “absolutely” would.

Merchan set closing arguments for May 28, with jury deliberations to follow.

– Bart Jansen

Judge agrees to Trump-specific bias instruction for jurors

Trump lawyer Emil Bove said his team has proposed an instruction to jurors about bias that is specific to Trump. The proposal appears to have been made in a written submission to Judge Merchan that isn't publicly available, at least at this point.

Prosecutor Joshua Steinglass said there is already a standard instruction that addresses bias and the prosecution doesn't believe a special instruction is necessary. However, he added that if the judge disagrees, the prosecution would prefer "the more neutral" language it counter-proposed in a written submission that also isn't publicly available.

Merchan told Bove he doesn't normally give the special instruction, and that he already refers to bias, fairness, and implicit bias several times in his normal instructions. He also noted bias-related issues were addressed in the questionnaire that was used in picking the jury, and that attorneys got to question potential jurors pretty extensively.

Still, Merchan wrapped by saying he'll include the prosecution's counter-proposal instruction.

– Aysha Bagchi

'What you're asking me to do is change the law': Judge refuses to give Trump special treatment

Judge Merchan sided with the prosecution just now on how to instruct the jury about the definition of "unlawful means."

This may refer to one of the theories the prosecution is advancing for charging Trump with felonies: that Trump falsified business records in order to violate a New York election law that criminalizes using "unlawful means" to conspire to promote someone's election to public office.

Prosecutor Matthew Colangelo said that it's "well established" the jury doesn't have to be unanimous about which unlawful means was used, as long as they all agree that some unlawful means was used.

"This is obviously an extraordinarily important case," Trump lawyer Emil Bove responded. As a result, the jury should be required to make "specific findings" about the means, Bove said.

Merchan asked in response whether Bove agreed juries aren't normally required make those specific findings. Bove said "certainly." However, he maintained that it's appropriate here because of the importance of this case.

"There's no reason to rewrite the law for this case," Merchan said. "What you're asking me to do is change the law, and I'm not going to do that."

– Aysha Bagchi

Trump appears alert, reading papers with images

Trump is fully alert right now at 3:15 p.m. EDT, although he doesn't appear to be zeroed in on the lawyers' debate over jury instructions. That debate is focused on the legal propriety of various words or phrases in the jury instructions, so it may not be the most engaging discussion for a lay person who is a criminal defendant.

Trump has a stack of papers in front of him that appear to often be stapled in smaller groups and, at least on many pages, contain large images. He is often scanning a page or packet before moving the reading material to the side and looking at new material.

Trump's lawyers, by contrast, aren't looking at any papers. Emil Bove is standing as he argues right now about how to define "intent to defraud." It's an important issue because prosecutors must show Trump falsified business records with an intent to defraud.

Trump lawyers Todd Blanche and Susan Necheles are seated at the same table as Trump and are watching the arguments.

– Aysha Bagchi

Why is a charging conference so important?

Charging conferences can be filled with legalese. The jury isn't present for them, so lawyers know they are only speaking to the judge and don't need to try to be understood by a lay audience. And lawyers are generally just speaking about the law, with reference to sources such as statutes, legal guidance, and past court decisions.

However, the instructions given to the jury are crucial to the ultimate outcome. For example, even if the jury in Trump's case makes factual conclusions about the evidence that paint Trump in a bad light, if the jury concludes those facts don't constitute a violation of the law the judge instructs them on, that would be grounds to acquit the former president.

– Aysha Bagchi

'Charging conference' on jury instructions underway

The charging conference in former President Donald Trump's criminal trial is underway. A charging conference is basically a hearing to go over the instructions the judge will give to the jury on the law.

Matthew Colangelo is currently handling arguments for the prosecution. Emil Bove is handling arguments for the defense.

– Aysha Bagchi

Lawyers to argue over crucial jury instructions later today

Although jurors have been excused for the rest of the day, Judge Merchan said proceedings will resume at 2:15 p.m. EDT today for the lawyers. The two sides are set to make arguments to Merchan about the instructions he will give to the jury, before jurors begin deliberating next week.

Those instructions could be crucial to the outcome of the case. Merchan will tell the jury what the applicable law in the case is. He will then task them with not just deciding what happened factually in the case – for example, whether former President Donald Trump authorized Michael Cohen to pay porn star Stormy Daniels hush money – but also determining whether Trump's actions violated the law.

To convict or acquit Trump, 12 jurors must come to a unanimous decision.

– Aysha Bagchi

Judge excuses jurors until Tuesday after defense rests

Judge Juan Merchan excused jurors not just for the rest of today, but also for several coming days. He said they don't have to come back until Tuesday, when the prosecution and defense will present closing arguments in the case.

– Aysha Bagchi

Costello says Rudy Giuliani was first to talk of 'back channel'

Before the defense rested, Trump witness Robert Costello testified that Rudy Giuliani was the first person to use the term "back channel" to describe communications from Michael Cohen to Costello to Giuliani, and back the other way.

Cohen previously testified that Costello proposed creating a back channel of communication to Trump through Giuliani, at a time when Cohen's office had been raided by the FBI. Cohen described Costello as "sketchy."

Trump lawyer Emil Bove showed jurors an email from Costello to Cohen, speaking about having had a conversation with Giuliani. "He said thank you for opening this back channel of communication," Costello wrote, adding that Giuliani asked Costello to keep in touch.

– Aysha Bagchi

Costello says communication to Cohen was privileged in email

Before the Trump defense rested, Trump lawyer Emil Bove showed jurors another email from Costello to Cohen that was dated April 21, 2018.

Bove emphasized to jurors that Costello labeled the email as protected by attorney-client privilege, perhaps seeking to suggest to jurors that Costello was acting in an attorney-like capacity to further Cohen's interests, rather than pressuring Cohen to help Trump.

Costello wrote to Cohen, appearing to reference Rudy Giuliani: "I spoke with Rudy. Very Very Positive. You are 'loved'." Costello added that, if Cohen wanted to have a call, Costello would give him more details.

Costello confirmed to Bove that Cohen didn't respond to the email by disputing that Costello was his lawyer.

– Aysha Bagchi

Costello email expresses fear Cohen 'played' him

Trump lawyer Emil Bove asked Robert Costello more questions on "redirect," which is an opportunity for lawyers to rehabilitate their own witnesses when it comes to any issues raised on cross-examination.

Bove displayed an email from Costello to Michael Cohen, in which Costello expressed a fear that Cohen had "played" him.

"Please remember if you want or need to communicate something, please let me know and I will see that it gets done. I hope I am wrong but it seems to both Jeff and I that perhaps we have been played here," Costello said, possibly referencing his law partner, Jeffrey Citron.

– Aysha Bagchi

Hoffinger kept Costello in control with tight questions

In prosecutor Susan Hoffinger's cross-examination of Costello Tuesday morning, she kept the Trump witness under tight control with a series of questions that only invited "yes" or "no" answers. On Monday, Costello showed a strong inclination to expound on his answers beyond what a question actually asked for.

Hoffinger repeatedly asked Costello simply to verify he wrote what was displayed in emails shown to the jury, or either confirm or deny a certain meaning to the emails.

At one point, Costello said he would be "delighted" to explain something about an email Hoffinger showed to the jury.

"That's alright. Let's move onto the next one," Hoffinger replied.

– Aysha Bagchi

'What should I say to this a--hole? He is playing with the most powerful man on the planet.': Costello to law partner

Before the Trump defense rested, prosecutor Susan Hoffinger displayed an email that Costello sent to his law partner, Jeffrey Citron, seeming to refer to Michael Cohen with an expletive term.

"What should I say to this a--hole? He is playing with the most powerful man on the planet," Costello wrote.

Costello has testified he was operating in a lawyer-like capacity for Cohen at the time. But Hoffinger likely wanted the jury to believe Costello was acting in the interests of then-President Donald Trump, not Cohen.

– Aysha Bagchi

Defense rests without calling Donald Trump to testify

Former President Donald Trump's defense team rested without calling their client to the witness stand. Judge Merchan is now giving the jury instructions on how the upcoming schedule will unfold.

– Aysha Bagchi

Hoffinger shows emails backing Cohen's testimony

Prosecutor Susan Hoffinger has displayed a series of emails that appear aimed at buttressing Michael Cohen's testimony that Costello pushed a back channel of communication with Trump through Rudy Giuliani, and pressured Cohen not to cooperate with federal investigators.

In one email to Cohen, Costello said Cohen thought Trump and Giuliani wanted to discredit him and throw him under the bus, and Costello thought Cohen was wrong. Costello told Cohen that if he really believed he was not being supported by his "former boss," he should make his position known.

"You have the ability to make that communication when you want to," Costello said.

– Aysha Bagchi

Costello denies discussing Rudy Giuliani closeness in first meeting with Cohen

Hoffinger has begun cross-examining Costello again this morning. She started by asking Costello if he discussed being closely connected to former New York City Mayor Rudy Giuliani in his first meeting with Michael Cohen. Costello denied that happened in the first meeting.

However, Costello confirmed to Hoffinger that he and Giuliani are close and have known each other for years, and that Giuliani was at Costello's wedding. Costello also agreed he did at some point tell Cohen his relationship with Giuliani could be very useful to Cohen.

Cohen testified that Costello proposed creating a back channel of communication with Trump through Giuliani after Cohen's office was raided by the FBI in 2018.

– Aysha Bagchi

Trump: Merchan should dismiss hush money case before jury considers evidence

Former President Donald Trump told reporters Tuesday that Judge Juan Merchan should throw out the case against him for lack of evidence before the jury considers it.

“I think it would be great for Judge Merchan to rule from the bench and determine that this is a witch hunt,” Trump said. “Any other judge would have thrown this case out.”

Trump said his defense would be resting soon. Bob Costello, who was scolded Monday for his reaction to Merchan’s rulings, is expected back on the stand to testify as a legal adviser to former Trump lawyer Michael Cohen.

Trump said he would talk to reporters again after what he expects will be a short day in the “ice box” courtroom.

“We’ll have another little scrum in a little while,” Trump said. “It should end a little bit early today.”

– Bart Jansen

Judge Merchan arrives for Day 20 of trial

Judge Juan Merchan entered the courtroom at 9:28 a.m. EDT. The lawyers didn't raise any issues they wanted to discuss before bringing in Trump witness Robert Costello and the jury. Merchan didn't address the heated developments in the courtroom on Monday, including a brief period when he forced reporters to leave and then further admonished Costello for "contemptuous" behavior.

– Aysha Bagchi

Trump and son Don Jr. arrive in courtroom

Former President Donald Trump and his legal team entered the courtroom at 9:23 a.m. EDT. The prosecution team has also arrived.

Trump is joined for the first time in this trial by his eldest son, Donald Trump Jr. The Trump middle son, Eric Trump, has joined on several previous days. The presumptive Republican presidential nominee's supporters sit in the first two rows of benches behind the defense table.

– Aysha Bagchi

Who has already testified in Trump's criminal trial?

Prosecution wrapped questioning with its 11th witness on Monday afternoon. Here is a look back at who has already taken the stand:

• David Pecker, former CEO and president of AMI, the parent company of tabloid National Enquirer

• Rhona Graff, Trump's former executive assistant

• Gary Farro, Michael Cohen's former banker

• Robert Browning, an executive director at C-SPAN

• Phillip Thompson who works for a deposition company

• Keith Davidson, a lawyer who represented former Playboy model Karen McDougal and porn star Stormy Daniels

• Douglas Daus a computer forensic analyst for the Manhattan District Attorney's Office.

• Georgia Longstreet, a paralegal with Manhattan District Attorney Alvin Bragg's office

• Hope Hicks, a former Trump aide who was the campaign press secretary in 2016

• Jeffrey McConney, the former controller at the Trump Organization

• Deborah Tarasoff, an accounts payable supervisor at the Trump Organization

Trump expert witness says he won't testify after judge's ruling

An expert witness hired by Trump's defense team, Brad Smith, posted on X (formerly Twitter) Monday night that he won't be testifying. He cited a ruling from Judge Juan Merchan earlier in the day that limited what Smith could say on the witness stand.

Merchan said Smith may describe general definitions of terms related to federal campaign finance laws, but may not go further in interpreting federal law. Merchan said allowing that broader testimony would create a "battle of the experts" between the defense and prosecution that would confuse the jury. And he said it would be problematic for the jury to hear legal instructions from two experts plus the judge himself.

Smith is a former head of the Federal Election Commission, who indicated he had planned to testify about the "very complex" Federal Election Campaign Act (FECA).

"While judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen!" Smith complained.

The jury did hear that Cohen pleaded guilty to campaign finance violations, although Merchan also instructed them not to consider that when deciding whether Trump is guilty in his criminal case.

– Aysha Bagchi

Who is Robert Costello?

Robert Costello is a former federal prosecutor and Trump ally who has been called to challenge testimony from prosecution star witness Michael Cohen. According to Cohen, Costello tried to create a back channel of communication to Trump through former New York mayor Rudy Giuliani in 2018, after the FBI raided Cohen's office.

"I swear to God, Bob, I don't have anything on Donald Trump," Cohen told Costello at the time, according to Costello's Monday testimony. Cohen himself testified that he never told Costello about Trump's alleged involvement in hush money payments ahead of the 2016 presidential election.

Merchan's heated admonition against Costello came after the lawyer-turned-witness exclaimed "Geez!" following Merchan sustaining multiple objections to his testimony on Monday. Merchan first excused jurors to warn Costello about not exclaiming "Geez!," or rolling his eyes, or giving Merchan "side eye."

But during that warning away from jurors, Costello again drew the judge's ire. "Are you staring me down right now?" Merchan asked the lawyer, who was sitting in the witness box just next to the judge.

"No. I'm just wondering how –" Costello began to reply. "Clear the courtroom, please. Clear the courtroom," Merchan instructed. Several reporters protested but were still forced out.

– Aysha Bagchi

What is Trump on trial for?

Trump faces 34 felony counts of falsifying business records. Prosecutors allege the real estate mogul falsified records to cover up unlawfully interfering in the 2016 presidential election through a hush money payment to porn star Stormy Daniels.

– Aysha Bagchi

When will the trial end?

Judge Merchan said he anticipates holding closing arguments on Tuesday, May 28. That means the jury may have a verdict by the end of next week.

– Aysha Bagchi

Why does Trump's team say the case should be dismissed?

Trump lawyer Todd Blanche asked Judge Merchan to dismiss the entire case on Monday.

Blanche said the business records at issue weren't actually false. The records indicate Trump was paying Michael Cohen for ongoing legal services in 2017, which prosecutors say was cover for reimbursing Cohen for a hush money payment to porn star Stormy Daniels. Blanche said Cohen did provide Trump with 2017 legal services, in keeping with the characterization.

Blanche also argued the case should be tossed because Michael Cohen's testimony should be tossed, and the case can't stand without his testimony. "He not only lied repeatedly in the past under oath, but he lied in this courtroom," Blanche said.

Merchan could issue a ruling on Blanche's request sometime today.

– Aysha Bagchi

This article originally appeared on USA TODAY: Trump trial recap: Trump declines to testify; defense rests its case