Yesterday, I ran a column in USA Today on the unpalatable prospect of Manhattan District Attorney Alvin Bragg putting disbarred attorney Michael Cohen on the stand as his star witness in the case against former president Donald Trump. Given Cohen’s past lies and conduct, it will be a target rich environment for cross examination. As if on cue, Cohen just added another potential item for a withering cross: he denied any memory of a waiver of attorney-client privilege in a public tiff with Robert Costello.
When I heard that Robert Costello had asked to speak before the grand jury to rebut Cohen’s testimony, I was highly critical. As a criminal defense attorney, a public confrontation with a former client (particularly in claiming possible perjury on his part) is anathema. It is rare for an attorney to contradict a former client in public, let alone launch such a full frontal attack on his veracity and character. Putting aside the propriety of such a move, the violation of confidentiality in such a case could result in bar charges. However, Costello then claimed to have a signed waiver of attorney-client privilege.
Cohen then took the signature step of going on television to blast Costello. While prosecutors would likely prefer that he avoid public interviews, Cohen has been maximizing his exposure on the legal matter — a signature throughout his career.
Cohen went on the Joy Reid Show to denounce Costello. With no sense of self-awareness, he accused Costello of lacking “any sense of veracity.” But then he added that “I didn’t know Bob Costello from a hole in the wall” and that Costello “was never my lawyer.” On the waiver, Cohen denied any recollection of waiving the privilege and said “I’d like to know when, how and where.”
Costello then went on Tucker Carlson’s Show on Fox News and held up a signed waiver that he said has Cohen’s signature on the second page.
I still find this dog fight between two lawyers to be unseemly. However, unless Costello is a forger, Cohen just added another alleged false statement on the eve of the Trump prosecution. If that is his signature, his denial can not only be used to show a spotty memory of important legal details or, equally damaging, his own lack of veracity.
For Cohen, it is nothing new, but how would you like to be a prosecutor with your star witness adding rebuttal points on national television for the defense? The confrontation only made it more likely that the defense will seek to call Costello as a rebuttal witness and Costello insists that he has hundreds of emails that contradict Cohen’s account.
The lawyer also claimed that Cohen told them that he was “suicidal” and looked like he had little sleep or self-control in the critical meeting. This was just before he effectively flipped against Trump. Costello also said that Cohen told the lawyers
“I swear to God, Bob, I don’t have anything on Donald Trump. I will do whatever the ‘f’ I have to do, I will never spend one day in jail. Now what he’s saying is, I’ll lie, cheat, steal, shoot somebody. I will not spend a day in jail.”
The account of his suicidal state could be used by Cohen to explain why he did not remember the waiver. In his interview, Cohen did admit that during the meeting with Costello he was “incredibly distraught.” However, it could also say something about his motivations.
In any case, it is a mess. This goes not solely to his state of mind in making the allegations against Trump, but his continued lack of memory or veracity on key points.
That does not negate him as a witness. Disreputable witnesses are often put on the stand by prosecutors. Moreover, the prosecutors could not have a better jury pool. Trump lost New York City by 43 points. Yet, Cohen is someone who has shown remarkable agility in shifting his facts and allegiances to fit his advantage. This latest tiff with Costello will not improve that image of this disbarred attorney before the jury.