Judge Bickers With Trump’s Lawyers Over Efforts To Instruct Jury On An “Advice Of Counsel” Defense In Hush Money Trial — Update

UPDATE: The testimony is done in Donald Trump’s hush money trial, and the jurors are off until next Tuesday, but Judge Juan Merchan still found cause this afternoon to call out one of Trump’s lawyers.

Merchan scolded lawyer Emil Bove during a conference on jury instructions for trying to resurrect a defense that the judge rejected during pre-trial motions. Merchan said it was “disingenuous” of Bove to bring the matter up again. It was a moment reminiscent of the judge warning defense lawyer Todd Blanche that he was “losing all credibility” during a gag order hearing in April.

More from Deadline

The subject today was “advice of counsel,” in which defendants can lessen or eliminate their guilt by providing evidence that they relied on what their lawyers told them. More than two hours into the negotiation, Bove raised the subject — but apparently under a different name, “involvement of counsel.” The language appeared in the defense team’s proposed draft for written instructions that jurors will receive from the judge next week to guide their deliberations.

Reporters covering the trial couldn’t see the drafts submitted by defense lawyers and prosecutors. Merchan could, and appeared unhappy with an item on page 12 of the defense’s document.

“Mr. Bove,” Merchan said wearily, “this is an issue that has been going on for a very long time.”

Moments earlier, Mr. Bove said the Manhattan District Attorney had opened the door to this previously disallowed line of defense because of testimony from two prosecution witnesses, Michael Cohen and David Pecker. Cohen is Trump’s former lawyer and Pecker is the former CEO of tabloid publisher American Media, respectively.

Bove referred back to testimony by Cohen about a legally “bulletproof,” vetted-by-counsel agreement that Pecker said he had signed with former Playboy model Karen McDougal in 2016 to buy and bury her story about a yearlong affair with Trump. Cohen testified that he relayed Pecker’s “bulletproof” assurances to Trump, and that his boss was very pleased.

The so-called “catch and kill” operation with McDougal was, in prosecutors’ telling, a kind of dry run for the deal at the heart of their case against Trump: $130,000 that Cohen paid to porn star Stormy Daniels to quash a similar story of infidelity that was threatening to surface in the weeks before Trump won the White House. Trump is on trial for allegedly directing a scheme to disguise Cohen’s reimbursement as taxable income for routine legal work.

Bove said an instruction to jurors arising from Cohen’s testimony would be “extremely probative of President Trump’s intent.” Assistant Manhattan District Attorney Matthew Colangelo disagreed, telling Merchan, “You rejected this, judge, back in March.” Colangelo said that testimony also showed Pecker had hidden the true purpose of the agreement from the lawyer he consulted.

Colangelo added that because Trump chose not to testify in the trial, “he can’t then seek to introduce to a jury a discussion of intent.”

Bove replied that Trump is “entitled to draw an inference” from what Cohen told him. As Bove sat down next to his client, Merchan recounted a brief history of the defense team’s previous efforts to invoke advice of counsel. The judge said it later morphed into “presence of counsel” — a term he said he had never heard before, and which he interpreted as “just a way to get around turning over documents” required by an advice of counsel defense.

“Now this concept has morphed yet again into something called ‘involvement of counsel,’” Merchan said.

“My answer hasn’t changed,” the judge continued, adding that he found it “disingenuous” that Bove was going back to the well.

As Bove rose from his chair to reply, Merchan said, “Please don’t get up.” Bove sat, and Merchan said he will not give jurors an instruction about advice of counsel, by that or any other name, and won’t allow Bove to discuss it in closing arguments.

Bove protested that he wasn’t trying to be disingenuous. “But then you called me disingenuous and I’m trying to explain,” he said.

“This is an argument that you’ve been advancing for many, many months,” Merchan said. “Denied. It’s not going to happen. Please don’t raise it again.”

Merchan gave wins to both sides on language they want to see in the jury instructions and said he would rule on other requests later. “We may have to have a follow-up,” he said, but promised to make “every effort” to get a judge-approved draft to the lawyers by the end of the day on Thursday.

PREVIOUSLY: With Donald Trump opting not to testify in his hush-money trial in New York, the last word on his behalf in court today, before Trump’s lawyers rested their case, fell to an ally: high-profile, politically connected white-collar defense lawyer Robert Costello.

Outside the courthouse in downtown Manhattan, a band of Trump supporters including Donald Trump Jr., denounced the unprecedented case against the former and possibly future Republican president as an election interference operation being run by Democrats.

An ex-federal prosecutor who went on to represent rich and famous criminal defendants such as Leona Helmsley and George Steinbrenner, Costello returned to the stand today in a bid to impeach the credibility of Michael Cohen, the Manhattan District Attorney’s most important witness in the Trump trial.

Cohen, in his testimony, said that Trump directed him to buy porn star Stormy Daniels’ silence about an extramarital sexual liaison with Trump years earlier, and that Trump repaid him the $130,000 in hush money using falsified business records to conceal the transaction and keep the story from influencing the outcome of the 2016 presidential election.

Across four weeks of testimony, Trump’s defense team painted Cohen as a spurned Trump acolyte and serial liar who perjured himself on the stand this month and lies whenever it helps him profit from his association with Trump while seeking revenge against his former boss.

It was a message repeated afterward by Trump Jr., and others who sat in the courtroom this morning. “What’s going on here is an absolute farce,” Trump Jr., told reporters outside, “and anyone in America should be embarrassed by the absolute miscarriage of justice that we’re seeing here.”

Trump Jr. led a dozen speakers, among them a handful of Republican members of Congress, who bashed the judge for limiting Costello’s testimony and compared the proceedings to sham prosecutions of political enemies in dictatorships. Sen. Eric Schmitt (R-MO), also the state’s former attorney general, called it a “Soviet-style show trial.”

With Trump’s senior 2024 campaign adviser Jason Miller hovering in the background, several speakers also railed at press coverage of the trial as biased in favor of a conviction. “You should be ashamed,” U.S. Rep. Maria Salazar of Miami told reporters.

None of the speakers answered reporters’ repeated questions as to why Trump himself did not testify. “How do you justify this insanity?” Trump Jr. replied to the same query as he was escorted away through a crush of journalists and heckled by a few nearby demonstrators. About two dozen picketers — pro and anti-Trump — stood side by side in the park behind a row of waist-high metal barricades, shouting slogans and holding up placards and flags.

Members of one group, Blacks for Trump, unfurled a banner reading “Black Lives MAGA.”

In court, Costello was questioned about who he was truly representing, Cohen or Trump, when he gave unpaid legal advice to Cohen in 2018. Cohen was under federal investigation, and was introduced to Costello by a mutual lawyer acquaintance, Jeffrey Citron.

The scene outside the Manhattan courthouse today.
The scene outside the Manhattan courthouse today.

Costello testified on Monday that although he didn’t like Cohen as a client after their first meeting, his sole interest over the next four months — before Cohen cut off contact and began cooperating with federal prosecutors — was in helping Trump’s embattled personal lawyer and self-described “fixer.” The FBI had raided Cohen’s home, office, safety deposit box and a New York hotel room where Cohen staying at the time.

Manhattan Assistant District Attorney Susan Hoffinger challenged that assertion today by reading back snippets of Costello’s emails. In one email to his law-firm  partner Citron, Costello wrote that Cohen “continues to slow play us and the president,” adding, “What should I say to this asshole? He’s playing with the most powerful man on the planet.”

“You still have a lot of animosity toward Michael Cohen,” Hoffinger said. Costello denied it. Hoffinger also raised Costello’s testimony about Cohen last week before House Republicans on Capitol Hill, saying, “[Y]ou went there to publicly vilify Michael Cohen.”

Hoffinger also asked whether Costello had tried — as Cohen claimed — to control and intimidate Cohen into not turning evidence against Trump once Cohen faced legal peril.

“Intimidate Michael Cohen?” Costello said. “Ridiculous.”

Cohen later pleaded guilty to federal charges including making an undeclared campaign contribution — the $130,000 payment to Stormy Daniels — and spent more than a year in prison.

In their case, prosecutors presented 20 witnesses — from tabloid publishing executives to Trump Organization accounting employees to a former White House spokesperson — and hundreds of pieces of documentation to support their case of a criminal conspiracy to deceive voters in 2016. The defense put on two witnesses and a smaller cache of emails, texts, phone logs and other documents, and focused much of their energy on trying to undermine the prosecution’s witnesses.

Although Trump didn’t testify, his voice was a daily constant outside the courtroom in free-ranging remarks that sometimes tested the boundaries of a gag order Merchan placed on him against making public statements about jurors, witnesses and other trial participants. On Monday he called Merchan a “tyrant” for dressing down “respected lawyer” Costello in court.

With jurors set to hear closing arguments next Tuesday and then begin deliberating, it remains to be seen how much weight Costello’s testimony will carry. Jurors saw the same belligerence on the stand from Costello on Monday that drew the attention of Merchan. Costello talked over sustained objections, glared at the judge and muttered “Jeez” at one exchange. The judge excused jurors, castigated Costello, and then emptied the courtroom of most spectators — press included — to issue a warning to the former New York federal prosecutor.

“I’m putting you on notice that your conduct is contemptuous,” Merchan said, according to a transcript. “If you try to stare me down one more time, I will remove you from the stand.”

Costello was more subdued today, but still sparred with Hoffinger and again had one of his replies stricken by the judge.

Merchan called an early lunch break today to let lawyers work on their submissions for instructions that the judge will deliver to the jury before they begin deliberating. Merchan also has yet to rule on a defense motion to throw out the trial for lack of evidence. Trump’s lawyers also claim that Cohen lied repeatedly on the stand.

Defense lawyer Todd Blanche said on Monday that prosecutors have failed to prove the criminal conspiracy at the heart of their case, and that it’s unjust to let jurors reach a verdict based on the shifting claims of Cohen.

An assistant Manhattan district attorney, Matthew Colangelo, countered there were “weeks and weeks” of testimony and documents showing Trump directed Cohen to buy Daniels’ silence about a sexual encounter days before the 2016 election and repaid Cohen using falsified business records to conceal the arrangement. Colangelo said that Cohen’s testimony hasn’t changed since he began cooperating with New York prosecutors.

The judge sounded skeptical on Monday of Blanche’s argument. “So you want me to take this out of the jury’s hands?” he asked.

Trump, on his way into court this morning, said that’s exactly what Merchan should do. “We’ve won the case by any standard,” Trump said, according to a pool report. “Any other judge, he would have thrown this case out.”

PREVIOUSLY: The defense has rested its case in Donald Trump’s hush money trial, meaning that the former president will not take the stand.

The prosecution rested its case on Monday.

Bob Costello, a Trump-friendly criminal defense lawyer, completed his testimony this morning.

It’s not a surprise that Trump will not take the stand, as his attorneys had signaled as such, but he has been known for making last-minute decisions that ignore the advice of advisers.

Judge Juan Merchan excused jurors until next Tuesday, when they will hear closing arguments. Deliberations could start as soon as next Wednesday.

In his testimony, Costello showed flashes of the combativeness that got him in trouble with Merchan on Monday, but nothing that drew another rebuke from the bench. Then, Merchan briefly cleared the courtroom and then threatened Costello with contempt of court. The judge had been irate as he tried to instruct Costello on his decorum. The judge then accused Costello of “staring me down,” leading to the order to vacate the courtroom.

As has recently been the case, Trump was joined at the courthouse by an entourage that included some of his longtime supporters, including Sebastian Gorka and Rep. Ronny Jackson (R-TX). The campaign also said that comedian Joe Piscopo and actor Chuck Zito also would be there.

Ted Johnson contributed to this report.

Best of Deadline

Sign up for Deadline's Newsletter. For the latest news, follow us on Facebook, Twitter, and Instagram.