Donald Trump’s legal last-ditch effort to derail Manhattan district attorney Alvin Bragg’s potential indictment of the former president over his hush-money payment to adult film actress Stormy Daniels appears to be not only a dud but a misfire.
With the grand jury reportedly nearing the conclusion of its investigation and Bragg’s decision on indictment seemingly imminent, Trump lawyers made an 11th-hour request. As is required in New York, prosecutors had extended an invitation to Trump to testify, signaling that prosecutors likely planned to ask the grand jury to return an indictment against Trump. But rather than making the risky choice of putting Trump before a grand jury to testify under oath—as well as waiving his Fifth Amendment right against compelled self-incrimination—Trump’s lawyers asked that attorney Robert Costello be allowed to testify instead.
According to Costello, his mission before the grand jury was to assault the credibility of key prosecution witness Michael Cohen, who was Trump’s “fixer” attorney. Cohen pleaded guilty and was convicted of tax evasion, false statements to a bank, and campaign finance violations.
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It was Cohen who facilitated the payments to Daniels and model Karen McDougal in order to keep them from going public with their accounts of extramarital affairs with Trump at a particularly vulnerable time for Trump’s presidential campaign. McDougal was paid off through an arrangement with the National Enquirer in which David Pecker—chairman and CEO of the American Media Inc., which owns the tabloid—agreed to purchase the rights to the women’s stories. McDougal’s rights were bought in June 2016, as Trump was closing on securing the Republican nomination. Daniels surfaced at an even more precarious time in October 2016, only days after the publication of the Access Hollywood video in which Trump bragged about sexually assaulting women.
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.
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.
Trump’s legal team apparently reasoned the best way to attack Cohen’s credibility would be to use the very lawyer who had advised him and presumably learned confidences about him while giving that advice.
But judging from Costello’s statements to the media after his testimony, the strategy seems to have been a dud. Costello complained that prosecutors had tried to limit his testimony and accused them of “cherry-picking” evidence and using it out of context before the grand jury.
That is unsurprising, as 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,” coined by legendary New York jurist Sol Wachtler, who himself was later indicted for extortion and other crimes.
Such influence would include recommending which witnesses the grand jury might wish to hear from and preparing them for the testimony by telling them what they might expect to hear from the witness. Further evidence of the ineffectiveness of Costello’s testimony is the fact that prosecutors did not feel the need to call Cohen—who was on call to testify after Costello—to rebut anything Costello had said.
Costello’s efforts may end up being more than being just a frustrating dud of a strategy. Misfire is more like it: Costello’s testimony may end up hurting Trump’s legal defense because it gave prosecutors a free preview of how Trump’s team hopes to attack Cohen’s testimony.
One can also assume that Costello’s testimony was fashioned to be the strongest attack possible on Cohen’s credibility, as it was Trump’s last chance to try to persuade the grand jury not to indict him. 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.
The strategy may also have imperiled Costello himself criminally because his original interaction with Cohen may have involved trying to convince Cohen to stay loyal to Trump and possibly imply that such loyalty might be rewarded with a presidential pardon by Trump. Indeed in 2019 federal prosecutors probed this issue, and by testifying now Costello may have waived his own Fifth Amendment privileges against any further probe of his actions. Some legal experts even suggest that Costello may have further endangered Trump if his testimony renews interest in what efforts Trump made to dissuade Cohen from cooperating with criminal probes, which could constitute obstruction of justice and witness tampering.
Costello also may have opened himself up to accusations of violating legal ethics rules, including attorney-client privilege. Although Cohen says he never retained Costello as his lawyer, that does not mean their communications were not protected by attorney-client privilege. Indeed, Costello reportedly sent a letter to the Manhattan DA’s office asserting that Cohen had waived attorney-client privilege, which is unusual in that it normally would be the client—Cohen—not the attorney who would make such an assertion and such waivers would normally be in writing.
Even if Cohen had waived attorney-client privilege at some point, such waivers are nearly always narrowly construed by courts and it would be open to dispute whether Cohen could have made some kind of blanket waiver where any attorney who ever advised him was now free to speak about their communications. Aside from attorney-client privilege, the American Bar Association Model Rules of Professional Conduct and most states, among them New York, have rules that prohibit lawyers from using information gained in confidence from a client to disadvantage the client even if they are a former client. Costello’s self-proclaimed goal of giving testimony to disparage Cohen’s credibility would seem to fall within the prohibitions of such rules.
Of course it may come as no surprise nowadays when lawyers working for Trump run afoul of legal ethics rules. 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.
The latest addition to this group may be the lawyer who currently represents Trump in the Stormy Daniels inquiry, Joseph Tacopina. Tacopina by his own admission formerly had an attorney-client relationship with Daniels, who like Cohen is likely to be a critical witness in the Manhattan DA’s case. Under such circumstances, DA Alvin Bragg’s office could move to disqualify Tacopina from the case if he does not voluntarily withdraw.
