‘Mr Trump, why won’t you testify?’: hush-money trial nears end with a fizzle, not a bang

Donald Trump’s criminal hush-money trial inched toward its final stretch on Tuesday with a fizzle, not a bang.

The former president’s defense rested after calling two witnesses, and Trump – despite previously saying that he would take the stand – was not among them. After the defense announced its decision to rest, Judge Juan Merchan told jurors to return on Tuesday 28 May for closing arguments, and that they should expect to start deliberations the following day.

Trump did not comment on his decision not to testify as walked out of Merchan’s courtroom at 10.19am. He lifted his left hand, which was balled into a fist, and didn’t respond to the shouted query: “Mr Trump, why won’t you testify?” per a hallway pool report.

Trump’s quietude on the topic of testimony marked a stark departure from his prior statements – and others’ seeming concern about their aftermath. Several weeks ago, while railing about a gag order that bars him from talking about trial witnesses, Trump falsely stated: “I’m not allowed to testify. I’m under a gag order, I guess. I can’t testify.”

Related: Defense rests without Donald Trump testifying in criminal hush-money trial

Following this comment, Merchan, perhaps sensing the perils presented by such a false claim, sought to clarify the record. Trump, after all, is a wildly popular politician who has ranted about political prosecution and witch-hunts, and whose untrue comments about the 2020 election fomented the deadly January 6 insurrection.

“I want to stress, Mr Trump, that you have an absolute right to testify at trial,” Merchan said in open court.

But after the morning session ended, sans testimony from Trump, son Donald Trump Jr attacked a question about why his father wouldn’t testify.

“Why would you justify this insanity? You don’t subject yourself to that,” Trump Jr said. “You’re going in a kangaroo court, nothing more, nothing less. There’s absolutely no reason or justification to do that whatsoever. Everyone sees it for the sham that it is.”

The morning started with the continued cross-examination of Robert Costello, an attorney whom Trump’s defense called in an effort to discredit Michael Cohen, Trump’s former fixer turned top prosecution witness.

The conclusion of Costello’s testimony largely regurgitated discussion of his relationship with Cohen, who claimed that he was being pressured into playing ball as a criminal investigation loomed.

Prosecutor Susan Hoffinger asked Costello about his correspondence to Cohen after they had met in the wake of federal authorities raiding the former Trump lawyer’s residence, and temporary home at a hotel, in April 2018. Cohen had said on direct that Costello touted his coziness with Rudy Giuliani, a close Trump ally.

As a result that relationship, Cohen said he worried that Costello would disclose things to Giuliani who, in turn, would tell Trump. Costello, who has rejected that there was any pressure, was asked about an email he wrote to Cohen that read: “If you really believe you are not being supported by your former boss, then you should make your position known.”

“You wrote that to him, right?” Hoffinger questioned. Costello responded in the affirmative. Was he angry at Cohen? Upset? Costello said no.

“Did you believe that he was also playing President Trump, correct?” Hoffinger pressed.

“I don’t think that’s correct.”

Attorney Emil Bove questioned him shortly thereafter, referring to this email, and asked: “Was that you pressuring Michael Cohen to do anything?”

He said: “No, not at all.”

“Did you ever pressure Michael Cohen to do anything?” Bove asked later.

“I did not.”

“Did you ever have control over Michael Cohen?” Costello grinned and replied: “Absolutely not”.

Related: Trump’s hush-money trial: here’s what’s happened in the case so far

The second day of Costello’s testimony lacked the fireworks from his early testimony on Monday, which sent Merchan’s courtroom into near-chaos. At various points, Costello committed courtroom faux pas – quipping “jeez” at one point and telling the stenographer to “strike” something.

Merchan sent jurors out of the room and, after warning Costello not to do this, snapped: “Are you staring me down right now?” and ordered officers to clear the courtroom. An attorney for the press tried to address Merchan, who did not allow him to do so, even though it is common practice for judges to do this.

Under the law, courtrooms are presumed public and open; Merchan offered circular reasoning for limiting access in an incredibly high-profile criminal case. He said that difficulty in booting reporters from the proceeding was why he had to boot them in the first place, according to a court transcript.

“The fact that I had to clear the courtroom and that the court officers, including the captain, had great difficulty clearing the courtroom, and that there was argument back and forth between the press and including counsel for the press, goes to why I had to clear the courtroom in the first place,” Merchan said.

It remains possible that something else will happen to upset Merchan. While heading back into court this afternoon for a conference on jury instructions, Trump hinted that he might violate the gag order yet again.

“I’m not allowed to say what I’d like to really say. You’d be very impressed, but I’m gagged. So why would I take the chance?” Trump said, quickly shifting into pot-stirring territory.

“We do want to defend our constitution,” Trump said, according to a pooler, “so at some point, maybe I will take the chance.”