"Are you staring me down right now?": Trump witness' fight with judge won't "play well" with jury

Robert Costello's performance appeared designed to impress Trump, but legal experts say it was a bad look

By Charles R. Davis

Deputy News Editor

Published May 21, 2024 10:24AM (EDT)

Attorney Robert J. Costello outside of the E. Barrett Prettyman U.S. Courthouse on June 15, 2022 in Washington, DC. (Win McNamee/Getty Images)
Attorney Robert J. Costello outside of the E. Barrett Prettyman U.S. Courthouse on June 15, 2022 in Washington, DC. (Win McNamee/Getty Images)

One reason Donald Trump’s lawyers probably are telling him not to testify in his own defense is because they — and everyone else in a certain Manhattan courtroom on Monday — have now seen what happens when a defiant witness takes the stand and has a tantrum in front of the jury.

Robert Costello, an attorney who briefly advised Michael Cohen after the FBI raided his home in 2018, is the first person the defense team has called to provide substantive testimony. Firmly on Team MAGA, Costello was asked to counter the former president’s ex-fixer, who had told the court that Trump called him after the raid and told him to “stay tough.”

According to Costello, Cohen was distraught after the raid — but adamant, at the time, that he had no dirt on his boss that he could share with law enforcement in hopes of softer treatment. “He said, ‘I swear to God, Bob, I don’t have anything on Donald Trump,’” Costello said, purportedly quoting his former client.

But that was far from the highlight. What drew the most attention from Costello’s brief time on the stand was the way he acted toward Judge Juan Merchan, who had sustained multiple prosecutions objections to the apparent annoyance of the defense witness. “Jeez,” Costello muttered in response to one such ruling, whose sarcasm extended to his body language – and prompted the judge to clear out the jury to remind the witness how to behave in a courtroom.

“I want to discuss proper decorum in my courtroom,” Merchan said. “You don’t give me a side eye and you don’t roll your eyes,” he continued. “If you don’t like my ruling, you don’t say, ‘jeez.’”

Costello responded with what CNN described as a “long glare,” further setting off the judge.

“Are you staring me down?” a visibly upset Merchan asked Costello. The scene ended with the judge threatening to strike Costello’s testimony altogether if he didn’t learn how to control himself. “Your conduct is contemptuous right now,” he said. “If you stare me down one more time, I will remove you from the stand.”

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CNN legal analyst Paula Reid said she was shocked by the performance, which she believes was intended to please one man – the defendant – but could “jeopardize” the entire Trump defense.

“This is unbelievable,” Reid said Monday night. “I know Bob Costello quite well. I talked to him for about a decade. The fact that he would allow this to happen on the stand, it suggests in many ways that he is probably posturing for the defendant. Remember, it’s the defendant that overrode his own defense attorneys – they said this is not a good idea, do not put Costello on the stand. He overrode them.”

As attorney and Brookings Institution senior fellow Norm Eisen commented, Costello’s performance was what might call an “own goal”: he added nothing that jurors would not have already gathered from Cohen himself — the former president’s ex-fixer told jurors he repeatedly lied to protect his boss — while needlessly antagonizing the judge. Even if the jury had left the room for the talking down, jurors could likely figure out the reason they had to get up and go: “ill manners of a kind we have not seen from any witness yet across the 19 days of trial, even on the most contentious cross-examinations.”

Whether the former president’s desire to testify is real or just public relations, defense lawyers Todd Blanche, Emil Bove and Susan Necheles are unlikely to be urging their client to do so after watching Costello’s best Trump impression.

The question, according to Rebecca Roiphe, a law professor at New York University, is whether Costello’s in-court petulance will be remembered when jurors begin to deliberate as soon as next week.

“I wonder how the jury is going to react to the part it saw,” Roiphe told The New Republic. “I can’t imagine that helps the defense … to have somebody treat the authority figure, who’s been pretty evenhanded, that way. I don’t think that’ll play well.”

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

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Donald Trump Robert Costello