Costello tries to undercut Michael Cohen’s credibility with Trump grand jury

The grand jury appearance of Robert Costello, a veteran New York City attorney who once served as a legal adviser to former Trump lawyer Michael Cohen, marked a long shot 11th-hour bid to prevent what would be the first-ever indictment of a former U.S. president.

Costello emphasized he was not representing Trump, but wanted to share what he said were fatal flaws in Cohen’s account of paying hush money in 2016 to Stormy Daniels, a porn star who claimed she had an affair with Trump.

In public statements, Cohen has said he arranged to make the payments himself to protect Trump’s reputation and to avoid the money being traced back to the campaign. He was later reimbursed by Trump’s business. Cohen’s testimony is believed to be a key part of Manhattan District Attorney Alvin Bragg’s investigation into whether to indict Trump on a false business records charge — one that would likely be predicated on the accusation that the false record was filed to cover up another crime, in this case, a campaign finance violation.

After leaving the grand jury Monday, Costello spoke at length to reporters about how he tried to paint Cohen’s testimony as problematic, noting that while federal prosecutors wrung a guilty plea from Cohen for multiple crimes and sent him to prison, they never used him as a witness in other criminal prosecutions.

“There’s a reason for that — he’s totally unreliable,” Costello added.

Cohen, in turn, issued a statement saying: “If Bob Costello’s comments were any more fantastical, he would be a bestselling fiction author. … I stated years ago and remain consistent that the payment was done at the direction of, in coordination with and for the benefit of Donald J. Trump.”

Costello said he gave the DA’s office copies of more than 300 emails that he claimed would show Cohen’s credibility problems, but the prosecutors who called him into the jury room only asked him about six emails and “took them out of context.” The emails were from 2018 and 2019, Costello said, when Cohen was under investigation by federal prosecutors and Costello was advising him.

Grand jury proceedings are not public, but Costello said that he urged the grand jury to ask for the complete package of material he had given to the prosecutors. “I said: ‘There’s 321 emails, you need to see each and every email, which follow in chronological fashion and give you the life history of Michael Cohen dealing with our firm,’” Costello told reporters.

It’s highly unusual for a lawyer to provide evidence against someone they consulted with on legal issues, but Costello said he did so previously because Cohen had waived his attorney-client privilege — which Costello on Monday called “a very stupid move” by Cohen.

In a separate written statement, Costello described why he thought Cohen’s account of the Trump hush money payments was contradicted by statements Cohen made to him in 2018, shortly after FBI agents raided his office searching for evidence.

Costello said in those conversations — in addition to saying he arranged the hush money payments to protect Trump’s reputation — Cohen claimed that he didn’t know of any crimes Trump had committed.

To defense lawyers and Trump’s advocates, that is a critical distinction, and one which could torpedo the prosecution’s premise.

The precise nature of the prosecutors’ theory has not been made public, but according to people familiar with the case, they have been gathering evidence to show that the hush money payments amounted to an undisclosed campaign donation for Donald Trump.

Years ago, federal prosecutors considered that and ultimately did not file charges against Trump — though they did accept a guilty plea from Cohen for arranging the payment.

Some lawyers have questioned whether it would be wise to charge Trump with a crime stemming from that conduct, particularly given the outcome of a past case against John Edwards, the 2008 Democratic presidential candidate who beat criminal charges that hush money used to hide an extramarital affair amounted to illegal campaign contributions.

The Edwards case ended in a 2012 jury verdict acquitting him on one count and deadlocking on five other charges. The Justice Department ultimately decided not to re-try the case. The Edwards prosecutors had argued that nearly $1 million paid by two wealthy Edwards benefactors to keep his affair quiet was, in effect, illegal — while Edwards’s lawyers argued the hush money was meant to spare Edwards’s ailing wife any more pain and embarrassment.

Some campaign finance lawyers have argued that the lesson of the Edwards case is that it is difficult to win a conviction on such a case if one can reasonably argue that the hush money was paid at least in part to prevent private pain or reputational harm.

They say Trump could reasonably argue that at the time the 2016 hush money payments were made to Daniels and another woman, he had to worry about damage to his image as a celebrity and reality TV star.

Trump has publicly predicted he will soon be arrested, though there is no indication law enforcement officials have conveyed that to his lawyers, and it would be unusual for someone indicted for a relatively modest financial crime to not be allowed to self-surrender once the indictment is filed. But the courthouse activity and Trump’s social media statements have led to a growing public expectation that the grand jury could vote in the coming days on whether to indict him.

Two law enforcement officials who have been briefed on security planning in the event of an indictment, said they have been told to expect additional grand jury activity on Wednesday. If Trump were to be indicted on Wednesday, he most likely would not appear in court in New York until next week, said the officials, both of whom spoke on the condition of anonymity to discuss the planning.

Barrett reported from Washington. Carol D. Leonnig contributed to this report.