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Just when it seemed like the Manhattan grand jury was nearing an indictment against Donald Trump, we got word of a last-ditch witness from the Trump side. That witness, lawyer Robert Costello, reportedly wants to undercut key prosecution witness Michael Cohen’s testimony. But Costello's testimony shouldn't stop an indictment from coming if it was going to come already.
On Costello’s potential relevance, according to The New York Times on Sunday, Costello "was once a legal adviser" to Cohen. The two had a "falling out" and Costello "would appear solely to undermine Mr. Cohen’s credibility," as per the Times.
A dangerous aspect for Costello is that he doesn’t know exactly what the grand jury already knows.
Of course, it all depends on what Costello told the grand jury. But it’s hard to imagine his testimony deterring the grand jury from voting to indict if it was otherwise going to. Grand jurors have reportedly been considering potential charges against the former president in connection with Cohen's hush money payment on Trump's behalf in the run-up to the 2016 election. The payment was meant to silence porn actress Stormy Daniels about her alleged affair with Trump a decade earlier, Daniels and Cohen have said. (Trump has denied the affair occurred.)
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For one thing, as I noted previously regarding Cohen’s credibility, it’s unlikely that Manhattan District Attorney Alvin Bragg is solely relying on the former Trump fixer to secure an indictment. That is, while Cohen no doubt appears to be an important witness, the prosecution may also be using documentary evidence and other witnesses as well to back him up.
Plus, Cohen is available as a rebuttal witness if prosecutors want to put him back in the grand jury to clear anything up. And a dangerous aspect for Costello is that he doesn’t know exactly what the grand jury already knows.
Another reason that Costello's testimony is unlikely to tank the case at the indictment stage is the standard of proof. Far less is needed than the beyond a reasonable doubt standard that prosecutors would need to satisfy at trial. Rather, the grand jury decides whether to formally accuse a person of having committed a crime, based on whether there’s reasonable cause to believe that the person committed that crime.
And if last-minute testimony has the ability to throw the case in Trump’s favor, even under this relatively generous standard for prosecutors, then Bragg might not have had a case to begin with.