Trump chooses not to take the stand, and the defense rests

NEW YORK — The jury heard his voice, saw his tweets and watched footage of him campaigning for the presidency. But in the end, the 12 New Yorkers weighing the fate of Donald Trump did not see him testify.

On Tuesday, the defense rested its case after Trump declined to take the stand at his own criminal trial, forfeiting his only opportunity to defend himself but also avoiding what could have been a calamitous unforced error. His decision concluded the testimony phase of the trial, and next week, the jury is expected to begin the momentous task of determining whether the former — and perhaps future — president is a felon.

Defendants rarely testify, but Trump stands apart as the only U.S. president to ever face a criminal trial, a serial litigant who thinks of himself as his own best advocate. Trump, who is once again the presumptive Republican nominee, had flirted publicly with the possibility of testifying.

But Tuesday morning, Trump said in front of television cameras in the courthouse hallway that his lawyers would rest without his testimony. The defense would offer only one significant witness, Robert Costello, a pugnacious lawyer whose sole task was to attack the credibility of the prosecution’s star witness, Michael Cohen.

“We’ll be resting pretty quickly, resting meaning ‘resting the case,’” said Trump. “I won’t be resting. I don’t rest.” The former president, who spent much of the trial with his eyes closed, added: “I’d like to rest sometimes, but I don’t get to rest.”

Prosecutors accused Trump of covering up sex scandals to pave his way to the presidency. He faces 34 felony counts of falsifying business records stemming from an effort to suppress one of those scandals through a hush-money payment to an adult film actor, Stormy Daniels.

Cohen, Trump’s longtime personal lawyer and fixer, made the $130,000 payment to Daniels in the final days of the 2016 campaign, silencing her story of an encounter with Trump. Once the deal came to light in 2018, Cohen became ensnared in a federal investigation, straining his relationship with Trump, who ultimately turned his back on his fixer.

Cohen flipped, becoming the star witness against his former mentor, offering the only direct evidence linking Trump to the conduct at the center of the prosecution’s case: the falsifying of the business records.

Trump, Cohen testified, approved a plan to disguise the true purpose of reimbursements he received after he paid the hush money. The records — Cohen’s invoices, Trump’s checks to Cohen and entries in Trump’s ledger — all referred to a legal retainer, implying that Cohen received the money for ordinary expenses.

When a prosecutor, Susan Hoffinger, asked Cohen whether those records were true or false, he replied, “false.”

Cohen was the prosecution’s 20th and final witness of the past four weeks. When he left the stand after four gripping days, the prosecution rested.

Although jurors did not hear the former president’s testimony, they saw video of him speaking and were presented with his words throughout the case. The prosecution introduced clips of Trump campaigning in 2016, tweets he sent during his presidency and even a selection of quotes from books he was credited with writing.

In one of his on-camera remarks played for the jury, Trump praised Cohen as “a good lawyer at my firm.”

Once the case was in the defense’s hands, they called two witnesses: their own paralegal and one of Cohen’s antagonists, Costello.

A prosecutor-turned-defense-lawyer, Costello was once an informal adviser to Cohen. When not drowned out by a chorus of prosecution objections, Costello managed to cast doubt on Cohen’s credibility. Cohen, he said, had once claimed he had nothing incriminating to offer prosecutors.

“I swear to God, Bob, I don’t have anything on Donald Trump,” he recalled Cohen saying.

But on cross-examination, it was Costello’s credibility that came under attack, as he sparred with the prosecution for a second straight day.

Hoffinger suggested that Costello had been trying to ensure that Cohen would not cooperate with prosecutors, casting him as an agent of Trump and the then-president’s lawyer at the time, Rudy Giuliani.

She produced a litany of emails underscoring her point, including one in which Costello wrote to his law partner, saying, “Our issue is to get Cohen on the right page without giving him the appearance that we are following instructions from Giuliani or the president.”

And once Cohen turned on Trump and pleaded guilty to federal crimes for his role in the hush-money deal, Hoffinger told Costello that “you lost control of Michael Cohen for the president.”

Costello, defiant, declared: “Absolutely not.”

During her questioning, Hoffinger aimed at Costello’s credibility, seeking to turn the tables on the defense, which had called Costello to do the same to Cohen.

She began by citing Costello’s first meeting with Cohen in April 2018, and asked him to confirm that he played up his connection to Trump’s then lawyer, Giuliani.

“Not true,” Costello replied, prompting Hoffinger to show a pair of emails that appeared to contradict his denial.

Costello’s session Tuesday was more placid than his combustible performance the day before.

Shortly after Costello took the stand Monday, prosecutors objected to a series of questions. When the judge sided with them, Costello muttered “jeez,” registering his dismay and irking the judge, Juan M. Merchan. Costello tried to retract his remark, mumbling under his breath that he wanted to “strike” it from the record.

The testimony continued, but after more objections, Merchan again grew frustrated. He dismissed the jury, and excoriated the witness: “If you don’t like my ruling, you don’t say, ‘jeez,’ and you don’t say, ‘strike it,’ because I’m the only one who can strike testimony in court,” he said, adding: “Are you staring me down?”

He then cleared the courtroom, dismissing reporters while allowing a group of Trump’s supporters to remain.

Then, according to a transcript, the judge told Costello that his conduct was “contemptuous” and said, “If you try to stare me down one more time I will remove you from the stand,” adding, to the defense lawyers, “I will strike his testimony, do you hear me?”

Costello asked, “Can I say something, please?” And Merchan replied: “No. No. This is not a conversation.”