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The trial of former President Donald Trump is now in its sixth week in Manhattan. Even though it doesn't meet every day, the court sessions are intense and can wear on all the participants. It is particularly unfortunate when they wear on the judge who is in control of all the proceedings. That is what appears to have happened late Monday, at the end of a very odd day, when Judge Juan Merchan abruptly ordered the courtroom cleared — of everyone, including press, even though the trial is public — when Merchan apparently lost his temper over a witness called by the Trump defense.
The witness was Robert Costello, a well-known lawyer in New York. Costello had once been the lawyer for Michael Cohen, who was once Trump's lawyer and who, according to testimony in the trial, has spent the last several years lying about Trump, stealing money from him, evading taxes, and defrauding banks, among other activities. Manhattan prosecutors have based key parts of their case against Trump on Cohen's word.
Having Costello testify was a last-minute decision by the Trump defense. He had knowledge of Cohen's credibility, having been Cohen's lawyer, and by an unusual series of events, Cohen had waived attorney-client privilege concerning Costello, meaning that Costello could testify about their communications. Costello testified that Cohen told him that Trump did not know about the nondisclosure agreement payments to porn star Stormy Daniels. "Michael Cohen said numerous times that President Trump knew nothing about those payments, that he did this on his own, and he repeated that numerous times," Costello said.
That is important information, given that it goes to the heart of the case — that Trump allegedly, with intent to defraud, falsified records of the payments because he was also intending to commit some other crime that prosecutors have not yet specified. If Trump "knew nothing about those payments," as Cohen said, according to Costello's testimony, that would throw a big wrench in the prosecution's theory of what happened.
Perhaps you have not heard about Costello's testimony. If not, that was likely because everyone, including the press, got very excited about what happened later, when Costello was apparently not deferential enough to the prosecutors and, more importantly, to Merchan. According to the transcript, Costello muttered "jeez" when a prosecutor made an objection that Merchan sustained. At other times, Costello reportedly rolled his eyes and sighed and communicated in other ways that he was irritated by the experience.
When the prosecutor objected to something else, and Merchan said, "Sustained," Costello said, "Yes. Strike it." That was apparently it for Merchan, who ordered the jury out of the room. When the jurors were gone, Merchan let Costello have it.
"When there is a witness on the stand, if you don't like my ruling, you don't say 'Jeez,' OK?" Merchan said. "And then you don't say 'strike it,' because I'm the only one that can strike testimony in the courtroom. Do you understand that?" Costello said, "I understand." Merchan continued: "OK. 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?"
"I understand that," Costello said. "I understand what you're saying." At that point, Merchan said, "OK. Thank you. Let's get the jury back," but then, Merchan said to Costello, "Are you staring me down right now?" Costello answered, "No. I'm just wondering how — " And then Merchan said, "Clear the courtroom, please. Clear the courtroom." Court officers got up to hustle everybody out of the room.
Some general confusion reportedly set in. Some members of the press objected to being forced out, arguing that the court is public, which it is. Merchan then began to lecture Costello. "Let the record reflect that the court officers had great difficulty clearing the courtroom because the courtroom is made up primarily of the press," he said. "And I can appreciate that the press wants to be present for every part of these proceedings. Therefore, this record is not sealed. The press will have access to this record. The fact that I had to clear the courtroom and that the court officers … had great difficulty clearing the courtroom, and that there was argument back and forth between the press and including counsel for the press, goes to why I had to clear the courtroom in the first place. And that is, sir, your conduct is contemptuous right now. I'm putting you on notice that your conduct is contemptuous. If you try to stare me down one more time, I will remove you from the stand."
"Can I say something please?" Costello asked. "No," Merchan said. "This is not a conversation."
After that, Merchan allowed the press and public to reenter and then the jury. But what was that about? Yes, it appears Costello was somewhat disrespectful of the judge. At the same time, Merchan seemed to be channeling, to make two old movie references, Travis Bickle — "You talkin' to me?" — and Captain Queeg — "I tried to run the ship properly, by the book, but they fought me at every turn."
By Tuesday morning, many commentators were pronouncing the moment a disaster for the Trump defense, but the bottom line was that it was a moment of supreme weirdness in the trial. And it overshadowed not only Costello's testimony but something far more important that happened earlier in the day, when Cohen admitted that he had stolen $60,000 from Trump during all the Daniels transactions. Cohen was angry that Trump had cut his bonus, and he responded by stealing the money. "I was angry because of the reduction in the bonus, and I just felt like it was almost like self-help," Cohen said.
Remember that Cohen is a key part, perhaps the key part, of the prosecution's case against Trump. "Mr. Cohen is the only witness offering testimony linking Mr. Trump to the records that prosecutors say were falsified," reported the New York Times. Cohen is "the only witness who directly ties Trump to an alleged scheme to falsify business records," reported the Washington Post.
Cohen's word is absolutely critical to the prosecution's case, and it took some very big hits last week, regardless of what other weirdness took hold of the trial.
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