Trump trial live updates: In arguments over jury instructions, judge rejects defense request related to ‘intent’

(NEW YORK) — Former President Donald Trump is on trial in New York City, where he is facing felony charges related to a 2016 hush money payment to adult film actress Stormy Daniels. It marks the first time in history that a former U.S. president has been tried on criminal charges.

Trump last April pleaded not guilty to a 34-count indictment charging him with falsifying business records in connection with a hush money payment his then-attorney Michael Cohen made to Daniels in order to boost his electoral prospects in the 2016 presidential election.

Here’s how the news is developing:

May 21, 4:25 PM
Judge will keep original instructions on Cohen’s guilty plea

The defense returned to the question of Michael Cohen’s 2018 guilty plea and AMI’s non-prosecution agreement with the federal government.

Defense attorney Emil Bove called it a “critical issue” the jury could infer Trump’s guilt based on his association with Cohen and AMI executive David Pecker.

Prosecutor Josh Steinglass called the curative language the defense suggested “outrageous,” and Judge Merchan said he would stick to what he told the jury during the evidentiary phase of the trial: That the guilty plea of Cohen and the non-prosecution agreement of AMI could be used to judge witness credibility — but could not be used as an inference of the defendant’s guilt.
 

May 21, 4:18 PM
Defense seeks clarification on effect of ‘Access Hollywood’ tape

Defense lawyers asked Judge Merchan to include an instruction for jurors that clarifies how prominent Republicans and members of the public reacted to the release of the infamous “Access Hollywood” tape.

Witnesses like Trump aides Hope Hicks and Madeleine Westerhout testified about the effect of the video, which led prominent Republicans like John McCain withdrawing their endorsement of Trump and the Republican National Committee considering finding a new candidate.

Prosecutors pushed back on the defense request, describing it as “confusing” and “unnecessary.”

“The nature of the reaction by the Republican Party by other prominent Republican senators by other members of the public — the fact that was the reaction — had an impact on the listener being the defendant,” prosecutor Josh Steinglass argued.

Prosecutors have argued that the immense public backlash to the Access Hollywood motivated Trump to kill the Stormy Daniels story in the days before the election.

Judge Merchan said he would review the relevant portions of the transcript before making a decision, but said he was inclined to agree with the state, suggesting the proposed instruction would be denied.
 

May 21, 4:09 PM
Attorneys hash out additional jury instructions

Following a break, Judge Merchan told the parties that he had worked through his own notes and asked the lawyers for each side to weigh in on what he might have missed.

The defense sought an instruction about former President Trump regarding bias.

“We don’t think that this is necessary, this charge,” prosecutor Josh Steinglass said in response. “I don’t think instructing the jury that they shouldn’t hold bias against the defendant is necessary — voir dire has satisfied this problem, I think.”

The defense also sought an instruction that hush money payments are not inherently illegal. Prosecutors opposed it, arguing the request amounts to the judge making the defense argument for them.

Defense attorney Emil Bove also asked for an instruction that “hush money is not illegal.”

“What the defense is asking,” Colangelo responded, “is for you to make their argument for them.”

The judge agreed with Colangelo, saying that including that language would be “taking it too far.”

“I don’t think it’s necessary,” Merchan said.

May 21, 3:56 PM
Defense argues Cohen’s tax crime isn’t relevant

Defense attorney Emil Bove argued that the jury should not consider Michael Cohen’s tax crimes as one of the crimes Trump advanced by allegedly falsifying business records when he repaid Cohen for the Stormy Daniels hush payment.

Bove argued that Cohen was unaware of the alleged tax crimes when then-Trump Organization CFO Allen Weisselberg “grossed up” his reimbursement to accommodate for taxes on the payment.

Cohen testified he did not think of the tax law at the time, telling jurors, “I just wanted to get my money back.”

May 21, 3:51 PM
I won’t ‘change the law,’ judge tells defense regarding jury charge

Defense attorney Emil Bove tried to make the argument that this particular case is unusual because Trump is not a typical defendant.

Prosecutor Matthew Colangelo responded that’s precisely why the standard language should be used.

“No one is above the law,” he said.

Judge Merchan settled the matter and ruled against the defense.

“I understand what you mean when you say it’s an important case,” he said. “But what you’re asking me to do is to change the law, and I’m not going to do that.”
 

May 21, 3:44 PM
Parties argue about Trump’s presence at 2015 meeting

Discussing the August 2015 meeting in Trump Tower where prosecutors say Trump, Michael Cohen and then-National Enquirer publisher David Pecker agreed to the criminal conspiracy, defense attorney Emil Bove argued Trump’s “mere presence” at a 2015 meeting at Trump Tower with David Pecker and Michael Cohen where the alleged conspiracy was hatched “could very much be part of the defense here.”

Bove said “there’s nothing criminal about that at all,” despite prosecutors arguing it’s where the catch-and-kill scheme originated.

Prosecutor Matthew Colangelo argued there is no way the jury could interpret the meeting as a “high minded conversation about democracy.”

May 21, 3:28 PM
Merchan rules state doesn’t have to prove 2 separate intents

The defense failed to convince Judge Merchan to add a layer of intent that prosecutors have to prove.

Merchan told the parties he was “concerned about” a proposed addition by defense attorneys related to Trump’s intent to defraud.

The defense proposed including an instruction that the state “must establish beyond a reasonable doubt two separate intents” for Trump to commit crimes — for both falsifying records and the other crime Trump furthered with the falsification.

“This proposed language is just inconsistent with the text of the statute,” defense attorney Matthew Colangelo argued.

Merchan said he was inclined to use the standard instruction, excluding the proposed defense addition.

“That second level of intent … is incorporated by reference to the first,” Merchan said.

May 21, 3:15 PM
Judge reserves decision on ‘accomplice liability’

The debate over jury instructions turned to the definition of “accomplice liability.”

Prosecutors argued that jury should be told that Trump can be convicted because he caused false leger entries to be created by Trump Organization employees Jeff McConney and Deb Tarasoff.

Prosecutors said it’s a necessary instruction because the defense argued in opening statements that Trump himself did not enter accounting records.

Merchan reserved his decision about “accessorial liability” but said he was inclined to strike the proposed language related to the issue from the final charge.

As the lawyers continue their debate, Trump is flipping through a three-inch stack of papers, some of which appear to be press clippings.

May 21, 3:05 PM
Judge rejects defense request related to ‘intent’

Judge Merchan turned to what he called “the most challenging issue facing us all”: how to pronounce “eleemosynary,” which he said means “relating to charity.” The quip got a laugh from both sides.

Merchan moved to delete the word from the jury instructions, and neither side objected.

The judge moved on to discussing the definition of “intent” as it relates to Trump’s conduct.

Defense attorney Emil Bove requested that the jury instruction place “more emphasis” on the elements needed to prove Trump had an intent to defraud when he allegedly falsified documents.

“I am going to stick with the standard language,” Merchan replied, shooting down the request.

May 21, 3:00 PM
Judge mulls how Cohen’s guilty plea should be described

Judge Merchan heard arguments over how former Trump lawyer Michael Cohen’s 2018 guilty plea on charges related to the Stormy Daniels payment should be described to the jury — whether Cohen “participated” in crimes or was “convicted” of crimes.

The judge said echoed a defense concern that Cohen’s convictions could be used to infer that Trump, by proxy, should also be found guilty.

“It seems like to me right now we are really playing with fire and getting close to that,” Merchan said.

In general, Merchan reminded the parties, “Where there are standard pattern jury instructions, I don’t deviate”

May 21, 2:50 PM
Judge considers whether Daniels payment was campaign expense

The defense is arguing a candidate’s expenses arising from controversies are not necessarily campaign expenses.

Merchan suggests the language should be as follows: “If the payment would have been made, even in the absence of the candidacy, the payment should not be treated as a contribution.”

Prosecutors have argued the payment to Stormy Daniels should have been labeled a campaign expenditure because it was meant to protect Trump’s electoral prospects in 2016

Merchan reserves his decision on the issue but suggests he would include both proposed sentences from the parties.

May 21, 2:43 PM
Judge says he wants jury instructions ‘as easy as possible’

Defense attorney Emil Bove argued that Judge Merchan should tell the jury it must find Trump acted willfully in order to convict.

The district attorney’s office argued the jury must find Trump acted unlawfully, not necessarily criminally.

Trump was alert and attentive at the start of this afternoon’s session, whispering to his attorney Todd Blanche. Now his eyes are closed.

Judge Merchan, ticking through each of the proposed edits to the jury instructions, appears to be focused on making sure the instructions are clear and understandable for the jury.

“We want to make it as easy as possible for the jury,” he said.

May 21, 2:37 PM
Judge declines to tell jury about lack of contribution limits

Judge Merchan declined to add a sentence to the jury charge that there was no limit on Trump’s personal contributions to his political campaign in 2015 and 2016.

Defense attorney Emil Bove argued that the line would have told the jury that Trump “could have paid this out of his personal expenses without issue.”

But prosecutors argued that the line was “extraneous” because Trump made the Stormy Daniels payment reimbursement from the Trump Organization, not out of his personal funds.

“It has nothing to do with the case,” Colangelo said.

May 21, 2:30 PM
Defense argues prosecutors have failed to show criminality

Defense attorney Emil Bove began the conference by arguing for a jury instruction describing the alleged conspiracy as civil, not criminal.

According to Bove, prosecutors have failed to show that the alleged conspiracy had a criminal object.

“It’s only a crime if it has a criminal object,” Bove said. “To be a criminal conspiracy, there must be a criminal object.”

May 21, 2:24 PM
Parties are back in court for pre-charge conference

Judge Merchan is back on the bench, and the parties — including Trump — are seated at the counsel tables for the pre-charge conference that will help determine the jury instructions.

Trump, seated next to attorney Susan Necheles, has a pile of papers in front of him.

May 21, 2:17 PM
‘This next couple hours is very important,’ Trump says

Donald Trump, addressing the media ahead of this afternoon’s pre-charge conference, told reporters, “This next couple of hours is very important.”

Judge Juan Merchan is preparing to hear arguments from attorneys regarding the instructions the judge will provide jurors about the law and evidence in the case when the jury begins deliberating next week.

Trump declined to answer questions from the reporters about why he decided not to testify in the case, and whether he is nervous about a possible conviction.

May 21, 10:35 AM
Judge will hold pre-charge conference this afternoon

Judge Merchan asked the parties to return to the courtroom at 2:15 p.m. ET. for the previously scheduled pre-charge conference.

It will provide an opportunity for the parties to weigh in on the instructions Merchan will provide the jury about the law and evidence in the case.

Trump and his entourage then filed out of the courtroom.

May 21, 10:23 AM
Judge adjourns proceedings until next Tuesday

Following the defense resting its case, Judge Juan Merchan told the parties that “summations will not be quick” and that they “will take at least a day.” Jury instructions will then take at least an hour, he said.

“At the end of the day, I think the best thing we can do is to adjourn now until next Tuesday. At that time you will hear summations from the attorneys,” Merchan said.

Merchan says that deliberations could begin as early as next Wednesday.

Merchan told the jury he opted to delay the summations because of this week’s abbreviated schedule and his belief that “it’s always ideal or best not to break up summations.”

Trump’s eyes were closed, his head titled back, as Merchan instructed the jury to return on Tuesday.

The jury then left the courtroom.

May 21, 10:15 AM
Defense rests its case following Costello testimony

“You still have a lot of animosity against Michael Cohen,” prosecutor Susan Cohen Hoffinger asked Michael Cohen’s then-legal adviser Robert Costello after displaying emails from 2018.

“I don’t have animosity but –,” Costello replied before being cut off.

“Yes or no,” Hoffinger said.

Hoffinger then asked Costello bluntly if he was trying to “intimidate” Cohen regarding his 2018 congressional testimony.

“Intimidate Michael Cohen?” Costello asked incredulously.

“Yes, that’s my question,” Hoffinger repeated firmly.

“Ridiculous, no,” Costello responded.

Hoffinger then concluded her cross-examination, which was followed by a brief redirect.

“Your honor, the defense rests,” the defense team told Judge Merchan.

Former President Trump did not end up taking the stand in his own defense.

May 21, 10:06 AM
Jurors see Costello emails critical of Cohen

Seeking to painting a picture of the machinations behind what Michael Cohen called a “pressure campaign” to keep him in the Trump fold as investigators closed in on him, prosecutor Susan Hoffinger displayed an email from Michael Cohen’s then-legal adviser Robert Costello to Costello’s law partner in which Costello wrote that Cohen “continues to slow play us and the president — is he totally nuts???”

“I am in a golf tournament tomorrow early and again on Sunday. What should I say to this a—— ? He is playing with the most powerful man on the planet,” Costello wrote.

“That email certainly speaks for itself, does it not, Mr. Costello?” Hoffiner asked.

“Yes it does,” Costello said.

Costello insisted that he was not working to advance Trump’s interests and denied the suggestion that he “lost control” of Cohen.

May 21, 9:55 AM
Costello email discussed getting ‘Cohen on the right page’

Prosecutors displayed an email from Michael Cohen’s then-legal adviser Robert Costello to Costello’s law partner Jeffrey Citron from Aug. 8, 2018, in which Costello shared a link to a Fox News story about Rudy Giuliani joining Trump’s legal team.

“All the more reason for Cohen to hire me because of my connection to Giuliani, which I mentioned to him in our meeting,” he wrote.

In another email, Costello said, “Our issue is to get Cohen on the right page without giving him the appearance that we are following instructions from Giuliani or the President. In my opinion this is the clear correct strategy.”

Questioned on the witness stand about that email, Costello told prosecutor Susan Hoffinger that he wanted “to get everybody on the same page because Michael Cohen had been complaining incessantly that Rudy Giuliani, was making statements in the press that Michael Cohen didn’t approve of.”

Costello told Hoffinger he has other emails clarifying that, “which I’d be delighted to tell you.”

“That’s all right,” Hoffinger replied snarkily.

The gallery laughed, prompting a court officer to yell “Quiet!”

May 21, 9:43 AM
Costello’s cross-examination already appearing tense

Only a few minutes into prosecutor Susan Hoffinger’s cross-examination of Michael Cohen’s former legal adviser Robert Costello, their exchanges are already sounding tense.

Hoffinger attempted to confirm that Costello boasted about his relationship with Rudy Giuliani, but Costello denied he did so during his first meeting with Cohen.

“You are quoting from an email that is much later,” Costello said.

“I am not quoting from an email,” Hoffinger replied.

Hoffinger then asked Costello about his relationship with Giuliani.

“He’s been to your wedding?” Hoffinger asked.

“Yes he was,” Costello said.

May 21, 9:35 AM
Costello retakes the stand

“Let’s get the witness please,” Judge Juan Merchan said after taking the bench.

Michael Cohen’s one-time legal adviser Robert Costello entered the courtroom and took the witness stand to continue his cross-examination.

“Good Morning, Mr. Costello. Welcome back,” Judge Merchan said.

May 21, 9:28 AM
Trump, Don Jr. are in the courtroom

Former President Trump has arrived in the courtroom.

His son Don Jr., accompanying him to this trial for the first time, is seated in the front row of the gallery.

May 21, 9:21 AM
Trump, prosecutors arrive for proceedings

The prosecution team has entered the courtroom for today’s proceedings.

Former President Trump has arrived at the courthouse.

May 21, 8:28 AM
Trump not expected to testify, sources say

Former President Trump is not expected to take the stand in his criminal hush money trial, sources familiar with the matter tell ABC News.

It’s possible that Trump could make a last-minute decision to testify, so sources caution that nothing is final until the defense rests its case.

Trump’s lawyers have indicated publicly that Robert Costello, Michael Cohen’s one-time legal adviser, is expected to be their last witness before they rest their case today.

May 21, 8:14 AM
Trump’s son Don Jr. expected to attend trial

Former President Donald Trump is expected to be joined by his son Don Jr. in court today.

It would mark the first time Don Jr. has attended the trial.

As has been the case over the last several days in court, a number of Republican lawmakers are expected to attend today’s proceedings in support of Trump.

May 21, 7:29 AM
Costello to resume testimony, defense expected to rest its case

A day after Judge Judge Juan Merchan threatened to remove him from the witness stand, former federal prosecutor Robert Costello will resume his testimony this morning as the second witness in Donald Trump’s defense case.

Costello is expected to be the final defense witness before Trump’s lawyers rest their case today.

Yesterday, Costello told jurors about his meetings and phone calls with Michael Cohen in 2018 after FBI agents raided his office and hotel room. Costello advised Cohen and helped pass messages to the Trump, according to Cohen, but never formally represented him as his lawyer.

“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 testified about the hush money payment to adult film actress Stormy Daniels that sits at the center of the case.

Cohen told the jury that he lied to Costello about Trump’s involvement in the scheme to use hush-money payments to hide information from voters.

Costello’s reactions to Judge Merchan after taking the stand yesterday afternoon — responding “jeez” to a sustained objection, rolling his eyes at the judge, and appearing to staring him down — prompted Merchan to clear the courtroom before threatening to remove Costello from the witness stand.

While defense lawyers suggested yesterday that they would not call Trump to the witness stand, they will likely have to confirm a final decision about the defendant’s testimony — or lack thereof — before they rest their case.

Judge Merchan has scheduled a charge conference at 2:15 p.m. ET to hear arguments over how to instruct the jury about the law in the case.