Testimony ends as defense rests without calling Trump to stand
NEW YORK - Donald Trump's hush money trial moved into a new phase Tuesday, drawing closer to the moment when the jury will begin deciding the former president's fate after testimony ended without Trump taking the stand in his own defense.
The jury was sent home for a week, until May 28, when closing arguments are expected, but the attorneys returned to the courtroom to debate how the judge will instruct jurors on deliberations, a sort of road map meant to help them apply the law to the evidence and testimony.
Former U.S. President Donald Trump arrives to Trump Tower on May 20, 2024, in New York City. (Photo by James Devaney/GC Images)
Trump, the first former American president to be tried criminally, did not answer questions about why he did not testify.
He previously said he wanted to take the witness stand in his own defense, but there was no requirement or even expectation that he do so. Defendants routinely decline to testify.
The Republican presidential candidate's attorneys, instead of mounting an effort to demonstrate Trump’s innocence to jurors, focused on attacking the credibility of the prosecution witnesses, the Associated Press noted. That’s a routine defense strategy; the burden of proof in a criminal case lies with the prosecution. The defense doesn’t have to prove a thing.
Prosecutors rested their case Monday after star witness Michael Cohen concluded his testimony. Cohen spent nearly four full days on the witness stand, placing the former president directly at the center of the alleged scheme to stifle negative stories to fend off damage to his White House bid.
The defense's calling of attorney Robert Costello to the stand was a source of discord for lawyers on both sides, with the prosecution arguing that he shouldn't be allowed to testify at all. The judge ultimately permitted the defense to question him about two allegedly inconsistent statements in Cohen’s testimony and to "offer some rebuttal" to his testimony.
Here's a recap of Tuesday's testimony:
5 p.m. ET: What happens next?
The jury is scheduled to be off until next Tuesday — the day after Memorial Day. That’s when Judge Juan M. Merchan said the defense and prosecution will present their closing arguments, the Associated Press reported.
Merchan said he expects closings to take a full day, maybe longer. After that, he said, he’ll instruct jurors in the law for about an hour before sending them to deliberate. He said that could happen as early as next Wednesday.
Closings, also known as summations, are the last opportunity for each side to go over the case and attempt to persuade the jury to acquit or convict.
Assistant District Attorney Joshua Steinglass is slated to give the prosecution’s closing and is likely to highlight portions of the evidence and testimony that it sees as supporting its case. The defense is likely to remind jurors of the inconsistencies and credibility issues it sees in many of the prosecution’s key witnesses, while also underscoring Trump’s insistence that he is innocent.
Since the prosecution has the burden of proof, it will deliver its summation last — the reverse order from opening statements where the prosecution went first.
4:50 p.m. ET: Court is adjourned for the day
Before court adjourned, the judge got stern over what he described as a "disingenuous" defense effort to raise an argument that had been foreclosed months ago, according to the Associated Press.
Bove was asking for a jury instruction that would get at, as he put it, "the fact that this entire trial was based on the word of an attorney who worked for President Trump, and he was entitled to draw some inferences from that" about the legality of various things.
The problem, as Judge Merchan saw it? The defense said months ago that it wasn’t going to use what’s known as an advice-of-counsel defense — that a defendant’s conduct was guided by a lawyer’s OK.
By deciding against it, the defense didn’t have to waive Trump’s attorney-client privilege or turn over various documents, the judge noted.
But, he complained, the defense has since tried to invoke the advice-of-counsel concept under different names, such as "presence of counsel" or "involvement of counsel."
"My answer hasn’t changed, and honestly, I find it disingenuous for you to make the argument at this point," he told Bove, who started to rise to respond.
The judge cut him off: "Please don’t get up. I let you speak," he said, then added that he wouldn’t give the jury instruction, nor let the defense make such an argument in summations.
"I’m not being disingenuous, your honor," Bove said after the judge concluded those remarks.
The discussion went back and forth a few more times before Merchan wrapped it up: "It’s not going to happen. And please don’t raise it again."
3:30 p.m. ET: Discussion continues on how to instruct jurors
Another point of contention is what jurors will be told about how to view situations in which political candidates pay for things that aid their campaigns but also have other upsides, the Associated Press reported.
Prosecutors want an instruction that someone’s status as a candidate doesn’t need to be the sole motivation for making a payment that benefits the campaign. Defense lawyers, meanwhile, want jurors to be told that if a payment would have been made even if the person wasn’t running, it shouldn’t be treated as a campaign contribution.
Judge Juan M. Merchan said he’ll decide later but is inclined to include both.
3 p.m. ET: The discussion of jury instructions has begun
"Charging conferences" about jury instructions are often highly detailed, word-by-word discussions, and this one is shaping up to be so. It’s beginning with the defense asking to insert the word "willfully" at two points in a section of the instruction having to do with federal election law, and prosecutors saying that’s unnecessary.
2:45 p.m. ET: Judge denies a defense request
The judge has denied the defense’s request that he tell the jury that there was no limit on federal candidates’ contributions to their own 2016 campaigns.
Trump lawyer Emil Bove suggested the language would help the jury "have a full picture of what constitutes contributions and expenditures" and understand that Trump could have paid such sums as the Stormy Daniels payout — if it were deemed a campaign contribution — from his own funds.
Prosecutor Matthew Colangelo countered that campaign self-funding rules were "extraneous and totally irrelevant" to the case.
Judge Juan M. Merchan concluded it was unnecessary but told defense lawyers they could argue in their summation that Trump could have paid Daniels himself, instead of Michael Cohen doing so.
1:30 p.m. ET: A reminder of the charges and what must be proved for a conviction
Trump is charged with 34 counts of falsifying business records. The charge is a Class E felony in New York, the lowest tier of felony charges in the state. It’s punishable by up to four years in prison, though there’s no guarantee a conviction would result in prison time, the Associated Press reported.
To convict Trump, prosecutors must convince jurors beyond a reasonable doubt that he not only falsified or caused business records to be entered falsely, which would be a misdemeanor, but that he did so to conceal another crime, making the charges felonies. Prosecutors allege the other crimes included violations of campaign finance and election law.
Any verdict must be unanimous.
New York court records and newspaper archives show defendants convicted of felony falsifying business records are seldom sentenced to prison for that offense alone. Often, the charge is coupled with more serious felonies like grand larceny. Trump’s case involves only charges of falsifying business records.
Trump has pleaded not guilty and denies any wrongdoing.
1 p.m. ET: A recap of the testimony jurors heard in the case
Over more than four weeks of testimony, prosecutors called 20 witnesses. The defense called just two.
Among the prosecution’s key witnesses: Trump’s former attorney and fixer Michael Cohen, porn actor Stormy Daniels, tabloid publisher David Pecker and lawyer Keith Davidson, who negotiated hush money deals for Daniels and former Playboy model Karen McDougal.
Cohen testified that he paid $130,000 in hush money to Daniels at Trump’s behest weeks before the 2016 election to keep her quiet about her claims of a sexual encounter with him a decade earlier. Trump denies the encounter took place. Cohen also said Trump was involved in an arrangement to repay him and log the payments as legal expenses.
Daniels gave an at-times graphic account of the alleged encounter.
Pecker testified about agreeing to be the "eyes and ears" of Trump’s campaign by tipping Cohen off to negative stories, including Daniels’ claim.
Davidson talked about negotiating the deals and what he said was Cohen’s frustration after the Daniels deal that Trump still hadn’t repaid him.
The defense’s big witness was attorney Robert Costello, who testified Monday and Tuesday about negotiating to represent Cohen after the FBI raided Cohen’s properties in 2018.
12:15 p.m. ET: What is a charging conference?
The charging conference is an opportunity for prosecutors and the defense to weigh in on how they want the jury to be instructed in the law and what the verdict sheet will look like, the Associated Press reported.
At the conference, the parties may discuss how the charges are organized and the elements of a crime — spelled out in the law — that the prosecution needs to prove beyond a reasonable doubt to achieve a conviction.
They’ll provide the judge with their versions of instructions and the verdict sheet — a form the jury fills out listing each charge and the possible verdicts — but it’ll ultimately be up to Judge Merchan to decide how to instruct the jury.
Jury instructions are a roadmap to the sometimes complex legalities involved in the case. They aren’t designed to sway the jury one way or another, but rather to ensure jurors have a good understanding of the charges they’re weighing and the laws involved.
11:30 a.m. ET: Where things stand now
After more than four weeks of testimony, jurors could begin deliberating as soon as next week to decide whether the former president is guilty of 34 felony counts of falsifying business records.
Trump’s lawyers rested their defense Tuesday morning without him taking the witness stand, moving the case closer to the moment the jury would begin deciding his fate.
After the defense rested, Judge Juan M. Merchan told jurors the court session could run late next Tuesday to accommodate both prosecution and defense summations — the last time the jury will hear from either side.
10:20 a.m. ET: Defense rests
Donald Trump’s lawyers have rested their defense without the former president taking the witness stand in his New York hush money trial.
Closing arguments are scheduled for Tuesday, May 28 after the Memorial Day holiday.
9:45 a.m. ET: Witness testimony resuming
Attorney Robert Costello has returned to the witness stand in Donald Trump's hush money trial to resume his testimony. The defense witness turned to Judge Juan M. Merchan and spoke to him briefly as they waited for the jury to file in.
Costello's words were inaudible to reporters. The judge acknowledged him, however, and nodded. The vibe in the courtroom was more cordial than it was during the drama that disrupted proceedings on Monday.
While waiting for the jury, Assistant District Attorney Joshua Steinglass asked the judge to poll jurors on their availability to work next Wednesday, a typical off day for the trial.
According to the judge, closing arguments will be held next Tuesday, the day after Memorial Day, so he may want jurors to work Wednesday to receive instructions on the law or start deliberating.
9:15 a.m. ET: Robert Costello to return to the stand
Attorney Robert Costello will return to the witness stand on Tuesday as Donald Trump's hush money trial enters its 20th day.
Costello's testimony was a source of discord on Monday between attorneys on both sides, with prosecutors arguing that he should not be allowed to testify at all.
Before the attorney took the stand, Judge Juan M. Merchan ruled that he would allow the defense to question him about two allegedly inconsistent statements in Michael Cohen’s testimony and to "offer some rebuttal" to his testimony.
Costello, a former federal prosecutor in New York, is relevant to Donald Trump’s hush money case due to his role as a Michael Cohen antagonist and critic in the years since their professional relationship splintered.
The attorney had offered to represent Cohen soon after the lawyer’s hotel room, office and home were raided by the FBI in 2018 and as he faced a decision about whether to remain defiant in the face of a criminal investigation or to cooperate with investigators in hopes of securing more lenient treatment.
Costello was invited last year to appear before the grand jury that indicted Trump after asserting that he had information that undermined Cohen’s credibility.
Trump's hush money case
The indictment against Trump centers on payoffs allegedly made to two women, porn star Stormy Daniels and Playboy model Karen McDougal.
Trump’s former lawyer and "fixer," Michael Cohen, paid Daniels $130,000 and arranged for the publisher of the National Enquirer supermarket tabloid to pay McDougal $150,000.
Trump's company, the Trump Organization, then reimbursed Cohen and paid him bonuses and extra payments – all of which, prosecutors say, were falsely logged as legal expenses in company records. Over several months, Cohen said the company paid him $420,000.
Payments were also allegedly made to a Trump Tower doorman who claimed to have a story about a child he alleged Trump had out of wedlock.
The indictment, brought by Manhattan District Attorney Alvin Bragg, made Trump the first ex-president ever to face criminal charges.
Trump has denied the accusations.
Who are the jurors?
After being forced to release a seated juror, the judge ordered the media not to report on where potential jurors have worked – even when stated in open court – and to be careful about revealing information about those who would sit in judgment of the former president. Here's what we can report.
Juror 1 and foreperson: A man who lives in New York City and has no children. Loves the outdoors and gets his news from The New York Times, Daily Mail, Fox News and MSNBC.
When asked by Trump defense attorney Todd Blanche if he was aware Trump is charged in other cases and jurisdictions, and how that affects him, the man said, "I don’t have an opinion."
Juror 2: A man who said he follows Trump’s former lawyer, Cohen, on "X," formerly known as Twitter. He also revealed he follows other right-wing accounts including Trump’s former adviser, Kellyanne Conway.
He has said he would unfollow Cohen as he may be a witness in the trial.
Juror 3: A middle-aged man who lives in Manhattan. He grew up in Oregon. He gets his news from The New York Times and Google.
Juror 4: A man who lived in New York City for 15 years. He is originally from California. He is married with three children and a wife who is a teacher. He has served on a jury before – both on a grand jury and a jury in a criminal trial.
The juror said he gets his news from "a smattering" of sources and does not use social media.
Juror 5: A young woman who is a New York native.
She gets most of her news from Google and Tiktok.
Juror 6: A young woman who lives in Manhattan and likes to dance.
Juror 7: A man who is married with two children.
He gets most of his news from The New York Times, The Wall Street Journal, the New York Post and The Washington Post. The man has said he is aware there are other lawsuits but said, "I’m not sure that I know anyone’s character."
Juror 8: No information has been released about this juror.
Juror 9: A woman who lives in Manhattan. She is not married and has no children.
She has never served on a jury before and does not watch the news. However, she said she does have email subscriptions to CNN and The New York Times. She follows social media accounts and listens to podcasts. She also enjoys watching reality TV.
Juror 10: A man who lives in Manhattan. He is not married and has no children. He does have a roommate who works in accounting. He rarely follows the news but he does listen to podcasts on behavioral psychology.
Juror 11: No information has been released about this juror.
Juror 12: No information has been released about this juror.
How can I watch the Trump trial?
The trial is not being televised. Instead, news reporters and producers will have the ability to sit inside the courtroom and deliver information to the public.
How many court cases is Trump involved in?
As of this report, Trump is currently involved in four criminal cases, which includes the hush money case.
A second case out of Fulton County, Georgia, has charged Trump, as well as 18 others, with participating in a scheme to illegally attempt to overturn the former president’s loss to President Joe Biden in the 2020 presidential election.
Trump is also involved in a third criminal case in Washington, D.C., which charged him with allegedly conspiring to overturn the results of the 2020 presidential election in the run-up to the Jan. 6, 2021, riot at the U.S. Capitol.
And his fourth case involves classified documents that Trump illegally retained at his Mar-a-Lago estate after he left the White House.
RELATED: A guide to Trump’s court cases
The Associated Press, FOX News, FOX 5 NY and Catherine Stoddard contributed to this report.