Trump’s 11th-hour attempt to thwart New York indictment blows up in his face: analysis

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22 March 2023

Faced with a likely indictment by Manhattan District Attorney Alvin Bragg over his $130,000 hush payment to adult film star Stormy Daniels, former President Donald Trump deployed a last-ditch weapon.

Trump tapped attorney Robert Costello to testify to the grand jury on his behalf, specifically to discredit Michael Cohen, the former Trump lawyer who facilitated the payment to Daniels — part of Bragg's evidence that Trump deliberately falsified business records to keep the payment secret.

But that doesn't appear to have helped the former president, wrote former federal prosecutor Shan Wu for The Daily Beast on Wednesday. In fact, it may have made his legal situation even worse.

"In testimony before Congress and in his guilty plea, Cohen stated that he acted at the direction of Trump. Cohen’s actions in 2016 were effective. Neither Daniels nor McDougal spoke up before the election," wrote Wu. "Now, faced with an imminent indictment years later arising from these actions and Cohen having met with Manhattan prosecutors multiple times, Trump’s legal team deployed Costello as their weapon of choice against Cohen. Costello seemed well-situated to attack the former fixer because he had at one point met with Cohen and advised him about what to do about the federal criminal probe into his actions."

However, wrote Wu, the fact that Costello raged to the press after his testimony that prosecutors had limited what he was allowed to say and "cherry-picked" evidence, is a clear sign the strategy didn't work.

This shouldn't be a surprise, he noted, since "most people and defense counsel know that the prosecutors exert a great deal of influence over grand juries — hence the adage about how prosecutors could get a grand jury to 'indict a ham sandwich.'"

Moreover, Wu argued, by having Costello attack Cohen in the grand jury, Trump may have actually hurt his case — because now Manhattan prosecutors have a preview of what his defense is going to be if Trump goes to trial.

"Having heard Costello testify for some two hours, prosecutors are now well versed in exactly how Trump’s defense counsel plan to attack Cohen and have ample time to prepare themselves as well as Cohen for his eventual testimony if Trump is indicted and the case goes to trial," wrote Wu.

Worse for Team Trump, Wu suggests, Costello may have just opened himself up to legal ethics complaints and criminal liability, since he advised Cohen to follow Trump's instructions on the hush payment, put more spotlight on Trump's efforts to stop Cohen from cooperating with criminal probes.

"Of course it may come as no surprise nowadays when lawyers working for Trump run afoul of legal ethics rules," added Wu. "By one count some 17 have faced potential legal sanctions for their conduct, including Rudy Giuliani, who faces potential disbarment in both New York and Washington, D.C."

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