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Opinion: Trump’s defense got one last shot at Michael Cohen. Did they make their case?

Opinion by Norman Eisen

(CNN) — The biggest drama in the trial of former President Donald Trump on Monday came not, as expected, in the cross-examination of former Trump attorney Michael Cohen. His testimony wrapped without any moments approaching the significance of last week’s defense hits on the star witness.

Instead, the most dramatic moments of the day in Trump’s Manhattan criminal trial came in a showdown with an ancillary witness — Robert Costello, a lawyer who once advised Cohen — who visibly and audibly confronted Judge Juan Merchan, leading to a dressing down in open court and then to the clearing of the courtroom for an even sterner reprimand.

The drama began when Costello replied sarcastically to one of the judge’s rulings, “Jeez.” Merchan released the jury, then warned the witness to maintain decorum, cautioning him, “You don’t say ‘jeez’ and then you don’t say ‘strike it’ … and then if you don’t like my ruling, you don’t give me side eye and you don’t roll your eyes. Do you understand that?”

Costello responded by staring the judge down. The judge called him out, angrily asking, “Are you staring me down right now?” He then cleared the courtroom of even those of us in the media. A transcript released Monday night shows Merchan told Costello in the emptied courtroom that “your conduct is contemptuous right now.” He warned Costello, “If you try to stare me down one more time, I will remove you from the stand.”

But the Costello testimony and his back-and-forth with the judge was a sideshow. Cohen had already admitted that he lied to Costello, and indeed lied more broadly to protect Trump before cooperating with the government. And the judge chastising Costello was a sideshow within a sideshow because Costello’s rudeness to the judge had nothing to do with the substance of his testimony or this case; it was simply ill manners of a kind that we have not seen from any witness yet across the 19 days of trial, even on the most contentious cross-examinations.

The afternoon was punctuated by this moment of drama, but it had little to do with the central issues in the case. The defense had put Costello on the stand in the first place because he had multiple conversations with Cohen, and Trump’s lawyers wanted to show that Cohen had told Costello that Trump didn’t know about the $130,000 hush money payment crucial to the case.

The payment was made to Stormy Daniels, an adult film actress who alleges that she had a sexual encounter with Trump (which Trump denies). This payment is at the center of the 34 felony counts of falsifying business documents faced by Trump, and key to proving Trump’s guilt is evidence that he knew what the payment was for.

But Cohen has already testified that he lied about Trump’s knowledge of the payment to Daniels before cooperating with prosecutors.

Most of the rest of the day was filled with Cohen’s cross-examination and redirect testimony. Those who were hoping for another major confrontation on cross of the kind that triggered so much debate Thursday were disappointed.

Defense counsel Todd Blanche started off in his usual meandering way, asking about Cohen’s calls with reporters regarding his testimony here (a fishing expedition that caught no fish, since there were no calls of substance), meetings with prosecutors (resulting in inconsequential sparring about which questions from prosecutors on direct examination were also asked during Cohen’s preparation to testify) and Cohen’s taxi medallion business (causing several jurors to look at Blanche in obvious puzzlement).

Blanche eventually worked his way around to a potentially consequential line of attack — but it fell far short of the moment he achieved Thursday, when he confronted Cohen with evidence that the witness had not included in his testimony a key aspect of a phone call with Trump bodyguard Keith Schiller on October 24, 2016. Blanche was attempting to cast doubt on the veracity of Cohen’s statement that Schiller ultimately handed the phone to Trump so Cohen could talk to him about Stormy Daniels, establishing that Trump knew about the payment.

On Monday, the defense counsel attempted to challenge Cohen’s recollections of two additional calls, which were direct calls Cohen says he made to Trump on October 26, 2016, to agree again on the $130,000 hush money payment to Daniels.

These calls are actually more important than the challenged October 24 call because they were made directly to Trump, at least one of them was longer, and they both occurred at the most critical moment in the alleged scheme — before Cohen paid Daniels on October 27, 2016.

Blanche led with a line of questions about other things that had been going on at the time: Cohen helping Trump’s youngest daughter respond to an extortion threat, Trump’s real estate matters and a big Trump family press interview that day. He tried to get Cohen to say that those topics were discussed on those two October 26 calls, asking, “With all that going on, why focus on Stormy Daniels?”

But Cohen refused to budge on the content of those calls, answering, “I spoke to Trump about Stormy Daniels because that was what he tasked me to take care of, and that’s what I had been working on.”

There were other glancing blows from Blanche: getting Cohen to acknowledge again that he stole from the Trump Organization; that he did some work for Trump in 2017, and therefore the payments to him, which the prosecution alleges were covered up in the falsified business documents at the heart of the charges, were not just for repaying the hush money; and that he initially lied to everyone about Trump not being involved in the hush money payment.

But the sting had been drawn on all three, with Cohen admitting during his previous direct testimony that he stole, that the legal work had been minimal and that he had initially lied about Trump’s involvement (including to Costello, who testified later in the day about this very point and got into the fiery clash with the judge).

Assistant District Attorney Susan Hoffinger made those admissions and more clear on redirect, which was crisp. It culminated before the lunch break with a bit of razzle- dazzle to bolster Cohen’s testimony about what happened on that phone call with Schiller and Trump. The prosecution presented an image taken from C-SPAN video that showed Trump and Schiller had been together at 7:57 p.m. at the end of a rally in Tampa, Florida, just before that call. Merchan sent the jury to an early lunch break while he heard arguments on both sides about whether that latest evidence showing Trump was indeed with Schiller right before the contested phone call should be admitted.

When we returned from the lunch break, the C-SPAN evidence was ultimately admitted, and Cohen was corroborated yet again, as he so often has been throughout this trial. It did not completely erase the points that were scored by the defense at this critical moment of the cross on Thursday, but it did take a few of them off the board.

Yes, the defense had scored points, making this a closer case. But the prosecution was still leading even without the mini-Perry Mason moment with the C-SPAN video evidence. This case is theirs to lose — though it’s possible (if unlikely) that the defense has sold themselves to one or two of the jurors sufficiently to get a hung jury.

We will find out soon — just not as soon as we hoped, with closing arguments set for Tuesday, May 28, with a pre-scheduled day off on Friday (due to a juror conflict) and Memorial Day an off day as well.

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