After the prosecution put 20 witnesses on the stand, the defense called but two on its behalf in the business records trial of Donald Trump in New York City. The former president did not testify, but that did not take away from the fireworks.
The Trump team’s main witness was Robert Costello, a New York attorney and one-time advisor to former Trump ‘fixer’ Michael Cohen. He was sworn in on May 20 and things quickly got heated between him and Judge Juan Merchan. At one point, Merchan ordered the jury and gallery to exit the courtroom so he could admonish Costello.
Attorney Alan Dershowitz happened to be in attendance that day and managed to avoid leaving the room. On Thursday’s show, he joined Megyn and fellow legal expert Mark Geragos to share what he witnessed and what it says about Judge Merchan.
Merchan vs. Costello
The prosecution rested its case last Monday after spending weeks trying to prove that Trump – who is charged with 34 counts of falsifying business records – violated campaign finance law by disguising a reimbursement to Cohen for paying porn star Stormy Daniels $130,000 in 2016 as a legal expense.
The defense called Costello because of his stint as a liaison between Cohen and the Trump White House, but the lawyer seemingly grew frustrated on the stand as the judge sustained numerous objections from the prosecution.
At one point, he audibly said “jeez!” in response to an objection which led to the first testy exchange. “Sorry? I’m sorry,” Merchan asked the witness. Costello then said “strike it,” seemingly in reference to striking his own testimony from the court record.
But the drama didn’t end there. Following additional testimony, Costello let out a sigh after the judge sustained another objection. That set Merchan off. He excused jurors from the courtroom so he could “discuss proper decorum” with the witness.
A fiery back and forth ensued before Merchan then asked court officers to “clear the courtroom” of all press as well. He then threatened to hold Costello in contempt and strike his entire testimony.
Dersh Stays Put
Throughout the ordeal, which was preserved in the official court transcript, Dershowitz managed to never leave his seat. As Megyn explained, he was sitting in the front row of the gallery and it is entirely possible that Merchan failed to realize he was not part of the counsel.
As Dershowitz recalled, the judge’s behavior in that moment was not unlike Robert De Niro’s freakout outside the courthouse on Monday when hecklers interrupted his bizarre stump speech for Joe Biden. “I saw the Robert De Niro moment where this judge looked like the psycho in Taxi Driver and turned to Costello and said, ‘You talking to me? You raising your eyebrows at me? You staring at me? I’m gonna hold you in contempt. I’m gonna strike your testimony,'” he shared.
He said the episode was remarkable for several reasons. “First of all, a judge has no power to strike the testimony of a witness unless the defendant did something wrong,” he noted. “If the witness looked at him funny, you don’t get to strike the defendant’s key testimony. And then to have telegraphed it in front of the jury.”
But that’s not all. “The judge’s real self came out when he threw the media out,” Dershowitz added. “You know, he’s a malevolent despot when the media is there and when the jury is there. But when they are out and when only a few of us are back in the courtroom, the real Judge Merchan comes out and the bias seeps through, just reeks through everything he is doing.”
The Sixth Amendment
While Dershowitz was glad he got to see what goes on behind closed doors, he was prepared to respond had he been asked to leave. “Part of me wanted him to throw me out,” he said. “I would have refused to leave because I would have said, ‘Your honor, the Sixth Amendment not only protects the defendant’s right to a public trial, but it protects the public’s right to see the trial. I’m the public. I’m not leaving unless you absolutely physically remove me.'”
Megyn joked that such a scene would have been “amazing” but also would have likely led to Dershowitz needing to be bailed out. Geragos said he would have been first in line to defend him. “I would gladly defend him because Alan is absolutely right – the Sixth Amendment, you don’t get to pick and choose when you want to show who you really are,” he concluded. “I’ll say it again, I do not understand these rulings that he is making. I don’t understand the evidentiary basis upon all of this. And frankly, I don’t understand what’s been reported as the jury instructions.”
You can check out Megyn’s full interview with Dershowitz and Geragos by tuning in to episode 805 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.