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good morning. it is 10:00 eastern. i'm ana cabrera alongside my colleague jose diaz-balart with special coverage of donald trump's criminal hush money trial. and right now, court is back in session with the witness who has already clashed with the judge, returning to the stand. the prosecution just completed its cross examination of veteran new york lawyer robert costello and so now he's facing questions on redirect from the defense attorney. >> and all this after the judge cleared the courtroom yesterday to admonish costello for making comments under his breath, rolling his eyes and staring down the judge. it is already tense in that courtroom today. let's bring in yasmin vossoughian who is outside the courthouse. also with us, defense attorney misty maris. and so, yasmin, so far today, this has been another intense

day. what has been going on? >> reporter: in the last 30 minutes, a lot of intensity to say the least as ana mentioned. we're now in redirect from the defense here on their own witness. i got to say, just kind of reading the tea leaves here and what we're hearing from inside the courtroom, this testimony so far from robert costello is fairly damning for the defense. they wanted to bring robert costello on the stand to refute michael cohen's testimony to say as we heard from him yesterday that michael cohen never said that donald trump had a relationship with stormy daniels, they never had sex, he never said this was for reimbursement of donald trump, that donald trump never knew about the payment made to stormy daniels. but instead what they're doing, especially during cross examination by susan hoffinger is kind of ticking away at robert costello's credibility. we have talked a lot about how the defense was going to chip away at the credibility of michael cohen and witnesses like stormy daniels as well. in fact, the prosecution is doing that exact same thing as they did during cross examination of robert costello and i want to read you through some of what we heard from

robert costello's testimony so far this morning because it is fascinating stuff. so hoffinger asks this, your first meeting with cohen at the regency, you discussed how connected you were to rudy giuliani, costello, not true, you're quoting from an email that was much later. hoffinger, you were very close to rudy giuliani and you have known him for 50 years. yes, known him for years and we went to a wedding. hoffinger, you sent this email two days later. i'm going to read it for the jury. i am sure you saw the news that rudy is joining the trump legal team. i told you that my relationship with rudy could be very, very useful to you. so, refuting what robert costello said on the stand a moment ago. again, they do it between, hoffinger, you continue to tell him you can provide a back channel to giuliani. no, that's not correct. hoffinger, do you remember sending this email to cohen? yes, i do. here's the email, guys. michael, i just spoke to rudy giuliani and told him i was on your team. rudy was thrilled and said this could be -- could not be a better situation for the

president or you. again, refuting costello's testimony. and this one, guys, which is incredibly damning, i would say, kind of finishing up cross examination from susan hoffinger, and it starts with this, in june of 2018, hoffinger, you were upset that you were playing you. costello, no, that's the wrong word. i was informed. hoffinger, didn't you believe he was also playing president trump? costello, i don't think that's correct. hoffinger, yesterday you were asked a question by defense counsel whose interests did you have in mind. hoffinger, you said your obligation was to michael cohen. do you remember saying that? costello, yes. here's the email, guys. hoffinger writes, jeff, this is the response i received from michael after sending him a detailed text followed by a voice mail one hour later. he is playing us and the president. what should i say to this a-hole? he's playing with the most powerful man on the planet. that email certainly speaks for itself, does it not, mr.

costello? that is hoffinger saying it to robert costello. damning testimony, guys, to say the least, from robert costello for the defense and their choice to choose to bring him to the witness stand here. wondering if they're regretting that today. >> thank you, yasmin, so much to discuss. i want to welcome charles coleman also joining our legal panel, former new york prosecutor, just another thing i want to highlight from this cross examination, the prosecutor asking costello about email communications he had with michael cohen. hoffinger reads an email from costello sent to cohen that says michael, i just spoke to rudy giuliani and told him i was on your team. rudy was thrilled and said this could not be a better situation for the president or you. hoffinger, that was your email to michael cohen? costello, yes. hoffinger, email speaks for itself? costello, no, not quite. there were surrounding circumstances, but i would be delighted to tell you. hoffinger, sarcastically, no,

that's all right, let's move on to the next one. so, here she is presenting him with his own communication, something that he said spoke for themselves yesterday, when the defense was asking the question, what do you make of how this is unfolding? >> ana, the defense team is held bent on snatching a mistrial from the jaws of a conviction. and what i mean by that is they're doing everything wrong at this point. there was no need to put costello on the stand. ultimately, i would not have elected to put on a case at all with any witnesses because i'm going to sort of bank on the notion of i can convince at least one juror that they have not met the highest burden of proving their case beyond a reasonable doubt. when you're talking about costello, witnesses sometimes who are attorneys can sometimes be too smart for themselves, and this is a perfect example of that. she is not -- hoffinger is not going to give him an opportunity after she's gotten the answer she wants to allow him to

explain in that context and potentially weasel his way out of an answer that she likes. when he says, for example, i would be delighted to add further context, this is not a deposition, you're not going to ask why. she is on cross examination. so she is very clear about the fact that she may not know what the answer is to those questions, and so she's not going to answer -- ask them because that's what you do when you're on cross examination. you do not -- it is literally the number one rule of cross examinations if you're doing a trial, you don't ask a question that you don't know the answer to. and so, when he suggests, i have an explanation for that, if she doesn't know what that explanation is, she's not going to give him that chance. this is all falling apart. and it is really the fault of the defense here. >> as we continue in the hoffinger/costello exchange, one of the back and forths that hoffinger kind of insists on is that essentially costello lost control of cohen and directly

asked hoffinger, you lost control of michael cohen for president trump, didn't you? costello, absolutely not. hoffinger, when you hired guy pa trillo instead of you, yo could no longer control him. no. is your answer no? i answered no over and over again. the prosecution, you simply are upset because you lost this client and you lost control of that narrative. >> yes, and that's actually fitting into what michael cohen had testified to. he said costello was really just this conduit in order for donald trump to control him, keep him in line, keep him from flipping. now, there is always this risk versus reward as you were just saying so perfectly. when you're a defense attorney, do i put on a case, and you do that analysis. in this case, there really was no reward. i understand the rational. the rational is costello. he's in a communication that would be privileged with michael cohen when they're consulting about whether or not to take the case. so, he's either lying then or lying now. well, your candid with your

attorney, right? that was the defense rational that this would be the time when he's communicating with costello back then when he's truthful. but it is completely being undercut by documents, by emails, which to use his words, speak for themselves, which he said on his direct examination, so, to me, this just really lost its credibility, and it was just a waste for the defense to even go there. and that's why it was just too big of a risk. ending the day with what they had would have been a better play. >> and so the tone, too, is notable. temidayo, after what happened yesterday, when he got into it with the judge and now he seems to be real combative or described as caustic with hoffinger, the prosecution here, does that help the defense at all with the jury? >> i think it helps with perhaps a defendant and that audience of one, but i don't think it helps the jury at all. trials are about style and substance. we talk about how the failure of

substance happened here. style can matter just as much and sometimes even more. and generally speaking, juries and judges are hand and hand. juries tend to like judges and almost can be protective of judges, i think here picking a fight with the judge like costello did is terrible, especially for the defense. because frankly, this cross examination and direct went a lot more like what we thought michael cohen would look like, someone who would come in there, be combative and drown the case he was there to defend. instead, the defense is going to end their case on this terrible note and the jury is going to go and i think at the end of the day, the shadow of costello is going to be over trump and not over cohen. >> as we go back into that courthouse, vaughn hillyard now on redirect, both tone and the substance has changed. >> reporter: right. this is now for emil bove, he's trying to get at with robert costello that in april shortly after michael cohen first began

communicating with robert costello, just after that raid of his hotel room and his office and his phones were seized that robert costello was under the impression that he was formally working as legal counsel for michael cohen and had been all but effectively retained as his lawyer during these -- the back and forth with federal investigators here. and he brought up an email to his son, robert costello to his son saying he had officially joined the team here. and so what they're trying to do is paint for the jury here that robert costello was only working from the advantage point he was working as michael cohen's lawyer during all of this, and then two months later bringing another email forward by suggesting that the comments that he had made to his law partner about them thinking they had been played by michael cohen was directly in reference to him believing that he was working as a lawyer, but michael cohen had

never signed a legal retainer agreement that they had handed him and that he had put in his bag and that he was potentially not even going to get paid by michael cohen for his services. so, again, they're trying on behalf of donald trump and robert costello, trying to make robert costello less of a spy figure back channel figure for rudiy giuliani and donald trump but more so an individual who felt like he was being played by michael cohen, who was never going to end up paying him for the services he says he was providing him. >> and it was very quick redirect, because that's already over and now there is the recross that's just getting under way. noting there were a number of objections that were sustained during that redirect, and apparently during the redirect at some point costello was, again, rolling his eyes. now, that was something that got him into trouble with this judge yesterday, prior to the judge having the jury leave, so that

he could admonish this particular witness, robert costello, before he cleared the courtroom to have more frank words with robert costello. >> just the -- now that aspect was also just concluded. costello's done. >> so costello just stepped off. important to note. but now the defense has just rested its case, guys. so, wow, that happened fast. where did we end up? >> wow. so, one of the things that i think you are going to, that i want to talk about very quickly, is the notion that jurors aren't perceptive. they're very perceptive. when you have a witness on the stand who seems indignant, entitled, who seems as though they have other things better to do than to sit here and answer questions, they pick up on that. and a lot of jurors are not going to look kindly upon that, and so there is the risk that the defense ends up being punished because the notion of one of their witnesses being

unlikable becomes awe problem for them. i don't know if costello was prepped. it doesn't seem like he was. if he was, this was a terrible prep. either way, he ended up doing a very bad job on the witness stand and it makes me really question what the utility to missy's point was at all for putting him on the stand. >> what normally, says the judge, would be my summations. in a case like this, which was rather long, summations will not be quick and my instructions will take at least an hour. my belief is, merchan continues to say, that it is always ideal or best not to break up the summations and the jury should hear both summations at the same time. so, that is as the judge is explaining what comes next. misty what comes next is something that traditional is

pretty much almost like a set in stone paper work time, but this is different. >> this is very different. what comes next is both sides go and there is a charging conference, the charging conference is where each side argues about what the jury instructions are actually going to say. and the judge ultimately makes the determination. so, a lot of times in new york and in every state there is what is called pattern jury instructions. and there might be disputes here or there, but it is relatively well known by both sides what those jury instructions are ultimately going to say, with a few tweaks. this is a bit different. because we have several issues that are of first impression. we have the falsified documents for the purpose of covering up another crime, the other crime being the election law, new york state election law, conspiracy to promote or prevent an election through unlawful means, what are the unlawful means? possibly a federal election violation. so, this is different. and both sides are going to have strong and totally diametric

opinions about what these jury instructions should say. >> we're going to talk more about the jury instructions in a moment. we're joined by lani davis, michael cohen's friend and his former attorney. i just, first of all, lani, thank you for joining us. i want to get your reaction to the robert costello testimony that has just ended this morning. and how he tried to be, i guess, a real sword by the defense team against michael cohen's credibility. >> let me say three things very quickly. i know a lot about this costello situation when i first started to represent michael. fact one, he asked to testify to the grand jury after michael was finished, very unusual. the prosecution said yes. he came in to testify to the grand jury after he testified the grand jury told the prosecutors and i guess i'm going to just tell you what the prosecutors reaction was rather

than disclosing what they said. the prosecutors were not interested in hearing from michael to rebut. that's how little weight was given to mr. costello, by the grand jury. so that's number one. number two, he sent a bill for services without an engagement letter. let me repeat that. he sent a bill with lots of time recorded without having been hired. he said he was hired, but michael never hired him. that's number two. and number three, why is he a defense witness? because the defense have nothing to counter the facts that the jury will be looking at in the record, in the evidence, that has nothing to do with michael cohen. the facts are undisputed that donald trump had political motive to pay off stormy daniels, that came from other witnesses, pecker and hope hicks. the facts show that donald trump knew these were reimbursements for advances including stormy daniels. not legal fees.

so trump lied about legal fees and the weisselberg document that does the math, 420 divided by 12 equals $35,000 checks proved that michael cohen was reimbursed, not paid for legal fees. that's the fraud. the case has been made without michael cohen being believed. >> but, lanny, the key part of trump being tied into this is michael cohen, and if michael cohen is, well, has credibility issues -- >> let me repeat one more time what i just said. you can disagree and i respect you so much, of course, disagree with me. the facts speak without michael cohen. he confirms, but he doesn't need to be believed because he's corroborated. fact one. both mr. pecker and hope hicks say the money paid to stormy daniels was politically motivated. that is a fact from their testimony.

not michael cohen. fact two, the weisselberg document lists all the money that michael cohen was reimbursed, times two divided by 12, checks mr. trump wrote for $35,000. those are facts without michael cohen's testimony. i just gave you facts and you're interpreting, well, we need michael cohen. of course, michael cohen confirms those facts but everything he said, even if he has no credibility, has been corroborated. >> you keep talking about the weisselberg document, which i think is an important piece of evidence. certainly we have seen from the prosecution in this case, laying out the trump/cohen reimbursement plan. you called it the smoking gun. so what is the jury supposed to make of the fact that weisselberg didn't testify? >> well, that is up to the defense to explain, and i can't understand every tv show, i love your show, and i respect both of you so much, how come nobody has mentioned so far other than costello that donald trump said

he would testify? i know he doesn't have to. i believe in the presumption of innocence -- >> but hold on, because forgive me for interrupting, i don't want to get past the weisselberg testimony because that's a keyhole right now for people who are looking at the evidence and they're saying if it is his word against somebody else's, he and weisselberg and trump according to cohen were the only ones in the room, it is weisselberg's handwriting on the documents that you're pointing to, is the prosecution's case hurt at all by not having weisselberg testify? do you agree with that decision? >> no, i don't. let me explain to you one more time, if you look at the document carefully, i urge you to do so, off the air, as i did when i first saw it behind closed doors, i almost fell off my chair. the document speaks for itself. believe your lying eyes. there has been authentication, it is his handwriting. he lists the amount of money that michael cohen advanced to mr. trump. and was repaid, he multiplies that by two to make him whole on

taxes and divides by 12. as james carville would say, it is the math, stupid. there is no reference to legal fees. the document proves that donald trump lied when he called in legal fees when he wrote $35,000 checks per month. $35,000 is math. $420,000 according to what -- document divided by 12. case over. it shows that donald trump lied about the legal fees, that's the fraud. you don't need weisselberg. >> let me ask you, as far as just in general, is it normal for a lawyer to front money for their client and then the client pays them back as part of legal fees? >> this is not a normal legal attorney/client relationship. michael cohen was putting his own money out there so donald trump can be distanced from the hush money that we know is hush money for political reasons because that came from david pecker, donald trump's friend.

we don't need michael cohen to know it was hush money paid for political purposes, which makes it illegal. check that box. the second is the document speaks for itself. weisselberg simply does math, never mentions legal fees, he divides 420 by 12, gets to $35,000 and that's the checks that donald trump signed each month. the jury can conclude that trump lied when he called them legal fees, but in fact he was reimbursing michael cohen for hush money. >> help me understand then, if michael cohen's testimony doesn't need to be believed, why would the prosecution feel like they needed to call him in this case and did his testimony potentially harm the prosecution's case? in fact, he at one point act knowledged he has a stake in the outcome of the trial. he would benefit more financially if trump is acquitted. isn't that problematic for the star witness to say he has a stake in the outcome? >> ana, that's a very good question if michael cohen were on trial and he's under

indictment, which is what most of the programs seem to be leaving viewers with the impression. michael cohen's indicted and his credibility is at stake, and, boy, that's going to hurt because he had motive to make money. excuse me, it is donald trump who is indicted, but the defense tried to make michael cohen the accused. the answer to your question, it just doesn't matter whether michael cohen wanted to make money or whether he's believable. the document speaks for itself, and hope hicks, a loyalist to donald trump, said it was politically motivated. so did david pecker. the case has been made. your question is an excellent one. why have michael testify at all? i sat for months and months behind closed doors and all they did with michael is to go through documents that speak for themselves, the tape speaks for itself where donald trump says you mean $150,000 cash? that's donald trump saying cash. so that was what michael cohen did. he authenticated, you don't need

to believe him when he's confirming that that's weisselberg making notes during the meeting because the document speaks for itself. you probably could have done without michael cohen, but you needed him to thread everything together by confirming what is already in front of your eyes, but you don't have to believe him. >> thank you very much for being with us this morning. very much appreciate your time. >> thank you. >> this is the first time i was allowed to explain that without interruption, so i appreciate it. >> we appreciate your voice. >> back to yasmin vossoughian with where things stand, this happened quickly where the witness left, the defense rested its case, and the judge has now dismissed the jury for the day? >> reporter: 45 minutes in court and we're done for the day up until 2:15. let's talk scheduling for a moment. by the way, the big headline, donald trump is not testifying,

right? donald trump will not take the stand despite saying repeatedly he wanted to take the stand. the jury has now been let go. 2:15, court is back in session to go over charging instructions. remember, part of the reason why the defense was looking to call bradley smith, former fec commissioner, was to talk through, i'm painting this with a broad brush, election law. part of the charging instructions from the defense's side will be how in fact the judge will inform the jury on election law. so they're both going to kind of go to their corners for the next four hours or so, talk through the options as to what they want to include in charging instructions submit them to the judge and the decision is up to the judge when it comes to those charging instructions, and subsequently the jury instructions given to the jury after summations are over. judge juan merchan has said those jury instructions will likely last at least an hour if not more. so 2:15, they come back for the charging instructions to go through that. seems like court is not in session on thursday of this week. they do not come back until next

tuesday. judge juan merchan informed the jury, i don't want the summations to happen and then have distance between summations and they come back for closing arguments next tuesday. there are jury instructions given by judge juan merchan which will last up to or more than an hour. closing arguments could last all day. so they're asking the judge to be prepared to work late on tuesday afternoon. and then possibly to work wednesday if we're looking at then they'll go into deliberations wednesday and thursday. so that at this moment is the schedule we're looking at as the defense has rested its case and donald trump, the former president of the united states will not, in fact, be testifying, guys. >> yasmin vossoughian, so many questions to still ask. look ahead when we come back to the final phase of this trial,

we'll explore trump's decision not to take the stand. >> that is all after a quick break and much more. stay with us. after a quick break and much more. stay with us (♪♪) i'm getting vaccinated with pfizer's pneumococcal pneumonia vaccine. so am i. because i'm at risk for pneumococcal pneumonia. come on. i already got a pneumonia vaccine, but i'm asking about the added protection of prevnar 20®. if you're 19 or older with certain chronic conditions like asthma, diabetes, copd, or heart disease, or are 65 or older, you are at increased risk for pneumococcal pneumonia. prevnar 20® is approved in adults to help prevent infections from 20 strains of the bacteria that cause pneumococcal pneumonia. in just one dose. don't get prevnar 20® if you've had a severe allergic reaction to the vaccine or its ingredients. adults with weakened immune systems may have a lower response to the vaccine. the most common side effects were pain

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29 past the hour. we're back with breaking news coverage of donald trump's hush money trial where the defense has wrapped its case. trump lawyers and prosecutors due back in court this afternoon. >> we now know donald trump will not testify. let's bring in nbc's vaughn hillyard outside court. vaughn, do we know more about this decision for trump not to testify? >> reporter: i think it is a really good question that we're going to be prodding with the allies of donald trump about here in the hours ahead. because alina habba, trump attorney who is not working directly on this case, but she said less than 24 hours ago that donald trump should listen to his legal counsel, but she also in the same breath said donald trump wanted to testify. so, clearly, if that statement is accurate and alina habba has

been here at the courthouse with donald trump every day and remained close to the family, it would suggest that donald trump, in fact, listened to the legal team that is defending him in front of this jury. and for donald trump, there is a lot on the line. and clearly he was convinced to not take the stand because it was his decision, not the legal counsel, to determine whether you go on the stand or not here. and i can tell you from the e. jean carroll trials that donald trump regretted not taking the stand and testifying in his own defense in the first trial he took the stand in the second trial but was limited on what he could respond to and so, you know, i think there was some hedging of bets there on whether he would do it or not. there is a lot on the line and donald trump, the former president, has made the explicit decision despite all of his public comments in the hallways here at the courthouse and on the campaign trail, denying, denying, denying the underlying allegations, he made the concerted decision as the defendant in this case to not

directly tell the jury that he is, in fact, innocent of all of these charges outside of his declaration he's not guilty. >> vaughn hillyard, thank you so much, and joining our panel here in our studio, former federal prosecutor and former special counsel to robert mueller michael zeldin. michael, what a day today. how would you put it into perspective? >> well, every day is incrementally valuable toward the endgame, which is the closing argument. and each defense and prosecutor puts together their case from the beginning starting with their closing. and they each ask witnesses and obtain documents for the purposes of their closing. i think each got what they wanted from all of the witnesses and the prosecutors are going to say use your common sense, doesn't make any sense that donald trump wouldn't know about this given what we know about him. the defense is going to argue, reasonable doubt. we do not have direct evidence except for michael cohen who is

a convicted liar and all the circumstantial evidence is just that, and doesn't add up to guilty beyond a reasonable doubt. they got everything they need and now it will be up to the closing arguments and then importantly in my perspective how -- what is the dynamics in the jury room? when i was on juries, twice, shockingly, a criminal and civil jury, the jury foreman controlled the debate. and it made a huge difference in how the jury analyzed the evidence in the case. someone, when you take your initial vote, let's say it was 6-6 or 7-4, any number. the jury foreman would say, you who don't believe in guilt, tell us what it is that causes you pause and then would say, let's look at the evidence on that point. and they directed the jury toward consensus. i think the jury foreman and you got two lawyers, right, on this jury. >> yes. >> that's going to be so

critical in how they -- what the dynamic is in that jury room. way more important almost than anything else that we have had so far. >> so, before they get to those deliberations, of course, we'll have closing arguments, but just before then, you know, there is still this space of not hearing from a key witness, and that was donald trump, right, and he had talked about how he absolutely would testify and then if necessary would testify, and vaughn reporting out, you know, he certainly seemed like he would want to testify. was it the right move, temidayo, for his team to say, no, and for him ultimately to relent? >> i think it was 100% the right move. i think it would have been a complete disaster if he received. i don't think you can imagine a witness with more credibility issues than the former president. he is a well determined liar. and i think the fact that judge

merchan limited some of the topics regarding credibility still left him open. i think you would have seen prosecution spend extensive time walking the jury through why the former president was not telling the truth, and i think the more difficult part about that is that i don't know that he would have had the proper demeanor and presentation to handle that kind of vigorous cross examination and do so well. >> and we saw in cross examination, for example, the defense's witness costello didn't handle it exactly precisely probably best for the defense. but what do you think the message is that the jury is getting from this major defense. handful, right? wasn't a long defense presentation. so, this person is being confrontational to the prosecution. what is the message that the jury gets? >> from donald trump not testifying? they cannot -- >> and from the costello -- >> how they left it, right?

>> for my perspective as a defense attorney, i would not want to have left this on costello. i would have much preferred to let this on the cross examination of michael cohen, specifically when he admits to stealing money from the trump organization. that would have been my moment, i put my pens down and say let's take this to the jury. costello's testimony, i don't think it added a lot of value. as far as donald trump not testifying, that is something and, again, as a defense attorney, the jury cannot take that into consideration. the prosecution has the burden. the defendant never has to take the stand. that is their right. and so, they're not -- they're going to be instructed they can't make any or draw any conclusions from that. now what that means for him on the outside as far as public perception of his statements versus what ended up happening, that's a different story. from the perspective of the courtroom, it really shouldn't have any impact on the jury's deliberations but i want to say i did win a few bets. i said no way from the very beginning. >> you and me both.

i think also when you talk about the public perception, donald trump the candidate versus donald trump the defendant, it is important to understand these proceedings are not televised. so even for donald trump to sort of maximize what it would be for people to see him on the stand, that's not an option here. so there is very little to be gained from him taking the stand, not to mention he's someone who tends to ramble on and go into areas that he does not need to go into and say things that he probably shouldn't say on the stand that is an absolute death wish. i agree with misty. i would probably wouldn't have put on a case after michael cohen's cross examination, especially if the prosecution gifted me that as their last witness, but they did what they did and we are where we are. >> michael, do you expect the prosecution to call any rebuttal witnesses? >> i think everybody is done. to misty's point, the thing about trump not taking the stand, he was never going to take the stand, was that the

specificity of stormy daniels' testimony and the specificity of michael cohen's testimony, where they essentially said donald trump is a liar and he's sitting there, and he has his constitutional right to remain silent, i think juries find that puzzling. why is it when accused so directly of this behavior are you sitting there quietly. yes, the defense attorney will say he has the constitutional right, it is human nature to think if you're attacked that way, you're going to defend yourself, especially from the public persona of donald trump who paints himself against imagined slights, no less actual ones. i think that will fact near the psychology of the jury even though it is not legally permissible. >> talk about the psychology of the jury, it is not being televised, but that jury has been seeing everything from a direct perspective. and yet now we have got days going forward, they're outside,

but with this world, where it is almost 24/7 opinion, facts, thoughts, on what is going on in that jury room, how does that not play a part in these jury members? >> i think, you know, i have a lot of faith in the jury system. i think jurors take their oath incredibly seriously. i think it relies on us having belief in that. i suspect they're not going to seek out other information or what not. what does matter is what they have last season is going to marinate. they're going to sit in that. they haven't spoken to each other about that yet. all they can do is think about this by themselves. if they're left with the last image of costello and the former president sitting there and not getting up, big old bad donald trump decides he doesn't want to say anything, that's what they're left with. they sit with that over the long weekend and when they come back, i think it might be the defense is starting at a necessary

disadvantage as opposed to coming back with michael cohen the liar as the last thought, they're coming back with the empty chair of no defendant. you talk about constitutional rights, i believe strongly the defendant, the burden never shifts, but jurors are human and i think what they expect, especially with a former president, they expect that you will defend yourself, whether it is by putting on a case, which they barely did here, a flimsy one, or you testify in your defense. that is going to be kind of a missing point here hard for the defense to counter. >> i want to bring in katie phang who was in court today, joining us outside the courtroom now, by the courthouse. seemed like quite contentious in there today when robert costello was back on the stand. what was that like? >> reporter: yeah, you would have thought that maybe overnight robert costello would have figured out that antagonizing anybody in the courtroom is a bad idea. now, given he did get into it with judge merchan today like he

did yesterday afternoon. but the problem is the judge is not going to decide the outcome of this case. it is the jury. and the jury witnessed robert costello once again taking the stand today, and being difficult. acting difficult. creating problems in terms of the way he was responding to straightforward questions. but what was really the problem for costello is with all of the quibbling he's doing with the prosecutor susan hoffinger, the emails spoke for themselves. susan hoffinger, very quickly using his own words against him. yesterday, robert costello saying from the witness stand, the email speaks for itself. today, susan hoffinger delivering it on the continued cross examination showing robert costello the emails where he admits he said something which was very important for the jury to hear. sleep well, you have friends in high places, robert costello testifying under oath that the friends in high places was president trump. and so the jury has left the impression, accordingly that

what michael cohen said was the case, that costello was not actually the lawyer for michael cohen, costello was the lawyer for president trump and that is definitely an image that is going to be seared in the minds of the jury after they saw that email, and they had costello have to admit to it. >> katie, what was the judge, you said the there was no direct, i guess, exchange between the judge and costello, there certainly was yesterday a very direct exchange between the judge and costello. what was that like today? >> reporter: so, there was definitely a calmer kind of direct exchange between the judge and costello, but nothing happened between the two of them. it was costello getting into it with the prosecutor, susan hoffinger and the audience is the jury. the jury needs to assess the credibility of costello. the defense making a huge mistake by putting costello on the stand. you have to weigh the value and the benefit. sao the cost benefit analysis, whoever made this decision, a

lot of us believe that it was a donald trump decision to put costello on the stand, not a legal decision done by his lawyers, but putting costello on the stand and having that be the very last thing that the jury hears from the defense, remember, it was only two witnesses, it was a paralegal from todd blanche's law firm getting into the record, a summary of calls where the paralegal had to admit it wasn't the total 75 that the defense wanted it to seem like michael cohen and robert costello were talking back and forth about, and then you had robert costello, not a credible witness. what was powerful is susan hoffinger on recross gets up and has costello admit that last week, during michael cohen's time on the witness stand, costello went to congress and he testified and he was trying to do it in a way to intimidate michael cohen while he was testifying across the street in the courthouse. and so the jury is hearing this and they're crossing off their list in terms of credible witnesses robert costello because he clearly had an axe to grind against michael cohen.

>> katie, what do you think was the strategy that the defense was using here in calling costello? he wasn't on their original witness list, right? >> reporter: no, i mean, he was called to be able to rebut what michael cohen said on the stand, but you have to remember, it was a very narrow lane for which robert costello could have had any value or purpose for the defense. it was simply to have costello say that as he was in the process of basically being interviewed and vetted to be the lawyer for michael cohen, and, by the way, costello took the position he was the lawyer for michael cohen, that despite not signing a retainer agreement or getting paid by michael cohen, he was his lawyer, but costello was really for the purpose of the defense to say that michael cohen told costello, quote, i have nothing on donald trump. but that got drowned out by the extra information that came out that was bad for costello, good for the prosecution. and so, it is going to be up to the defense to have to figure out when they get up in closing arguments how much time will they spend on costello's

testimony because it really didn't have any worth for the defense. >> katie phang, thanks so much. appreciate it. >> now joining us, retired new york judge chera sendlin. thank you for taking time with us. before we hear closing arguments on tuesday, there is this hearing with the judge and these lawyers on both sides talking about the jury instructions this afternoon. just how important are those jury instructions? >> they're critical. they govern how the jury deliberates. the jury follows those instructions to the letter. so there is a lot to be done here. each of the lawyers will present to the judge what that lawyer thinks should be in the charge and then the judge has to craft the charge, taking into account what each side thinks should be in the charge. and they're going to have very different views of what belongs in that charge. so the way that i used to do the preparation of a charge is i

would prepare a draft charge, i would let the lawyers review it, i would let the lawyers comment on my draft, depending on what they commented, i might tweak it, change things, and then i produce a final charge. that i would read to the jury and i would actually give a copy to the jury for their use in the jury room and then the jurors always followed it to the letter. when i would go in the jury room after the trial and say, was this helpful to you, they loved it. they said absolutely. this was our guide as to how to decide the case. so there are a lot of big issues the judge has to decide in crafting this charge. >> aren't they normally the instructions pro forma, like this is what it is, these are the counts, this is what you have to deal with? why the difference and why is this, as you say, so important in a very real way unique and different? >> it is because this is not just the misdemeanor charge of

the new york penal law 175.05, which would be fairly straightforward. it has been charged many times. the d.a. uses falsification of business records to charge people all the time. and i think those charges are well known and the judge could do it easily. but, the bumping it up of that charge into a felony under 175.10 makes it very complicated for the jurors to understand why has this become a felony. and the answer is, it is a felony when the falsification of business record is done with the intent to commit another crime or conceal the commission of that other crime. so, what is the other crime? and that's been a big mystery throughout this trial. the d.a. had to not specify the other crime in the indictment, the day. has been a bit cagey as to what that other crime is, and a week or two ago it seemed like the

d.a. said the other crime was the violation of the new york election law. but that crime also has a complication because it says that when two or more people conspire to promote or prevent the election of any person to a public office by unlawful means, and then is acted upon it, that becomes the felony. what -- what are the unlawful means? that's another question to answer. it is a layer upon layer of questions that have to be answered in the charge. >> it is complicated, lots of layers and hopefully the judge can help with the clarity on all of that for jurors where they have to go and deliberate. while i have you, because you have been on the bench, i have to ask you about that remarkable moment yesterday when judge merchan cleared the courtroom to privately admonish robert costello, the witness, for his conduct on the stand, the transcript later revealing he

warned him, quote, stare me down one more time, i will remove you from the stand. he even told his lawyer, costello's lawyer, the defense team, that they would -- he would strike his testimony if he continued to act out. what did you make of that? >> well, the judge did the absolutely right thing. a judge has to control the courtroom. and when a witness is out of control, the judge can't sit back and let that witness take over his courtroom. and that's what that witness was trying to do. he was rude to the prosecutor, he told her to speak into the mic, he tried to sustain his own objection and said strike that, no judge can tolerate that. so the judge did the right thing of not taking him on in front of the jury, the jury probably knows anyway that the judge was fed up with this witness because the judge had sustained 15 straight objects, so the jury could tell from his actions and his face that he was not pleased with this witness. and that's going to affect the

jury. the jury is not going to find costello credible. so, as your other guest said, this was a mistake, calling costello was a mistake. where i disagree is it is not the last thing the jury will remember. the very last thing the jury remembers is the summations and the jury charge. that -- they're going to take their duty seriously. there are two lawyers on the jury. that's important. they understand that costello was just a five-minute side show. the real issues are what was proved throughout the trial. >> quickly, if you will, i'm curious why the judge would hav would have cleared the courtroom of reporters and other members of the public but not the trump surrogates who were there in court with him. >> that's a great question. i am not sure anybody has that answers, and there was no reason to clear the reporters out because they were going to get the transcript and they did, and

why he chose to leave the trump supporters. i suppose he accepted the argument that these are surrogates of the defendant so the defendant has a right to be present at all stages of the proceeding, and well, then, so do his surrogates. i guess he didn't want to take on sending public officials outside of the courtroom. i can't explain it any better than that. >> shira scheindlin, thank you so much for joining us. joining us now is madeline somerville, and our legal panel is still in the studio. walk us through what exactly, and to collaborate more on what the judge was telling us, what a charge conference is and how that affects jury instructions? >> sure. thank you for having me on today. it's incredibly important to

choose your language so that the jurors can understand what you want them to decide. each side will present their version of a jury instruction, and they will have selected language most favorable to them so the jurors can conceive of the problem the way they want to, and it's important how the jury interprets it and applies the facts to the law. >> the whole dynamic that the judge was describing in terms of this particular case, and the various aspects of the alleged crime, right? how do you see that, and what does the journeyed to know? we clear terms in order to make an informed verdict? >> the judge will give them a

step by step map in terms of allowing them to make their decision, and it will be, if you believe blah, blah, blah, and explains the standard beyond a reasonable doubt, and they will explain to the jury that beyond a reasonable doubt does not mean beyond any doubt, and it's what a reasonable person believes to be doubt. now, with what respect to what

judge shira scheindlin was just talking about, we have a sense and we narrowed it down but it's still not clear, the issue that the judge pointed out in terms of in furtherance of another criminal act, hush-money is not a criminal act. that's the problem. that's what she was eluding to. the notion of hush-money in and of itself is not a criminal act, and depending on the statute the prosecution invokes, what illegal action are you talking about? it could be the falsification of business records and that's a misdemeanor -- >> that's what he is charged with. it's the first crime and it's the underlying crime so mysterious, right? >> yeah. >> and that bumps it up to a felony. >> yeah. >> and i want to bring in andrea

mitchell, and she was in the courtroom this morning. what was it like? >> reporter: it's very different than you would expect. it's a fairly small courtroom. you can see, of course, donald trump. he walks in and looked over and nodded to some in the press gallery, not sure exactly to whom. and the people with him, former acting attorney general whitaker who replaced jeff sessions, and also the doctor inside the white house, the doctor that said he was the strongest or healthiest ever to be president and there were no details in that exam, and he's a strong conservative republican in texas, and you heard from the people that came out before i was able to come out, and now there's a lot of shouding from the park across

from us because don junior has been talking to the press out here, and it's the first time donald trump jr. came to the courthouse, and eric has been here, but no other members of the family. it was a good cross-examination, and he was really chewed out for being so dismissive and disrespectful according to the judge, saying geez under his breath, and trying to even say that something should have been sustained, and the judge cleared the courtroom and chewed him out and he was in a different behavior today, but still, very arrogant and snippy to the

prosecutor, and the prosecutor was pinning him down, and i would say susan hoffinger scored a lot of points today, and i am picking up another microphone because they are being so noisy. he was really trying to get michael cohen to hire him as his attorney, and make it clear to him that there was a back channel from rudy giuliani, and michael cohen was concerned because shortly after they had their first meeting in 2018 about him hiring him, and this was as michael cohen was by the description yesterday, suicidal, he said, and he had the fbi

raids and needed a lawyer. he was questioned very closely by hoffinger, and email after email showed he was trying to pressure him and persuade him, do you want to get on the wrong side of the most powerful man on the planet, and it was email after email that described to the jury the pressure he was putting on, on behalf of donald trump and rudy giuliani, and so it really seemed to be a big mistake to put him on the stand. now the jury gets a whole week off while they discuss with the lawyers and the judge how the charge will go, very important, and the summations, the charge of the jury and deliberations will start a week from now. >> thank you for giving us your impressions and the reporting from inside the courtroom this morning, and you will have more when your show gets underway at

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