This is Bloomberg Law with June Brusso from Bloomberg Radio.
Donald Trump once vowed to take the witness stand in his hush money criminal trial in Manhattan, but his defense case wrapped up this morning without jurors hearing from the former president, although he did speak to reporters outside the courtroom.
Case won the case by any standard.
Any other judge you want to throw the case out, any other judgy were to.
Throw the station out.
Judge Wanmerschan sent the jury home for a week, setting closing arguments for next Tuesday, but the attorneys returned to the courtroom in the afternoon to discuss jury instructions, a sort of roadmap meant to help jurors apply the law to the evidence and testimony. It's a standard part of the process that's taken on greater importance because of the unusual nature of the thirty four false records charges against Trump.
To make each crime a felony rather than a misdemeanor, jurors must find that Trump intended to commit another crime. Much of the debate centered on how the judge will explain those other alleged crimes, including election law violations and tax crimes. Joining me is Bloomberg Legal reporter David Voriakis, who's covering the trial. David. The second and final defense witness, Robert Costello, was back on the stand. What did the defense hope to get from his testimony?
The defense called Robert Costello because they wanted to undermine Michael Cohen as a witness. This has been a big theme of the defense, that Michael Cohen is a liar and can't be trusted, and that he had also lied on the witness stand in this trial as well as in previous testimony under oath, in Congress and in court.
What the defense wanted to show was that Cohen could not we trusted when he said that Costello came to him in April of twenty eighteen after the FBI had raided Cohen's house, office, and hotel suite, and that Costello
offered a back channel to President Trump. Cohen testified at some length about how Costello tried to offer comfort to Cohen that Trump had his back, and Cohen testified that he believed that that was just so that he would stay in the fold and not cooperate against Trump in the criminal investigation that federal prosecutors were conducting at the time and.
What happened on the stand, there was a kerfuffle. I don't know how to describe it.
There was a major kerfuffle in court at the end of the day. On Monday, Costello came to this inand late in the day and he began to refute several of the points that Michael Cohen had made in his testimony. He essentially started giving long soliloquies in his answers, which is not proper behavior for a witness. They're supposed to listen to the question and answer the question that's asked and not go off on a long tirade or rancher soliloquy,
which is what Costello was doing yesterday. And so the judge disdained a number of objections, and then at some point Costello said, gees when the judge sustained an objection, and the judge said, I'm sorry, and then Costello said stricken, referring to his own remark. And after a couple more questions, Merchants stopped the proceedings and he asked the jury to leave, and he said to Costello, mister Costello, I want to
discuss proper decorum in my courtroom. If you don't like my ruling, you don't say ges, and then you don't say strike it, because I'm the only one who can strike testimony in my corporal He also threatened to hold Costello in contempt, and the judge cleared the courtroom, basically removing dozens of journalists for several minutes. They then came back in and saw more subdued Costello finish his testimony.
So it was a dramatic moment. It's not entirely clear how it might affect the case, if at all, but it certainly did not help the defense case because they saw Costello as someone who was going to further aroad the credibility of Michael Cohen in the eyes of the jury.
So, David, do you know what made the judge clear the courtroom. I've never seen a courtroom cleared.
It's not entirely clear. I was in the overflow room and watching by video hookup, and people in the courtroom didn't really understand. Reporters objected, and I believe there was a lawyer who tried to speak up on behalf of
the media, but the judge just didn't allow it. It was clear that the judge was quite visibly angry, and he felt that Costello was openly defying him, and so I think he wanted a moment to really let his anger out with Costello not entirely clear why he felt the need to clear the courtroom, but at least it didn't happen for very long.
Do you have a transcript of what happened, Well, he cleared the courtroom.
I do, and that's when the judge threatened to cite him for contempt. That only went on for brief exchange. A lot of the transcript reflects sort of the chaos of people objecting in the galleries to being ejected in the courtroom's staff trying to clear the gallery.
Did the prosecution do a good job of crossing Costello.
The prosecution did a very effective job of showing that Costelloose interests seemed to be aligned more with Trump than they were with Michael Cohen. In the spring of twenty eighteen, Cohen's lawyers had argued and Costello had testified that Costello was looking out for Michael Cohen when Michael Cohen was very concerned that he would be prosecuted and he was exploring the possibility of whether he should cooperate or not against Trump. Trump and his supporters were obviously very concerned
about that. And Cohen had testified, and the prosecution has argued essentially that Costello was not looking out for Cohen. What he was really looking out for was trying to get information about Cohen and his intentions that would help Trump in his defense. And the prosecution today on cross examination showed a number of emails from Robert Costello that it suggested indeed his interests were Donald Trump.
Now, who was the first witness that the defense called.
The first witness was a paralegal who works with Todd blanch who's the lead defense lawyer, and he put up a summary chart of phone calls and communications between Michael Cohen and Todd Blant in his law firm. They were trying to show that there were a great many communications. And Costello had also testified that he believed they had an attorney client relationship, which Michael Cohen said they did not. But he never hired Bob Costello and he didn't trust him.
I thought they were going to call an expert witness on campaign finance laws.
They had talked to the judge at some length yesterday about the ground rules for how they might question an expert witness on campaign finance law, and the judge essentially listened closely to the objections with prosecutors who felt it would be unfair or a defense campaigns finance experts to go into too much detail on the law, and the judge agreed, saying essentially that he's the only one who can tell the jury what the law is when it comes to campaign finance and how it relates to this case.
And the judge said he didn't want this to become a so called battle of the experts where the prosecution had to also call their own experts to refute whatever the defense experts said, and so he set some very strict guidelines on what a expert could say. And after considering those strict guidelines, the defense elected not to call their experts.
Did the judge instruct Trump about the waiver of his right to testify?
Surprisingly, the judge did not do that, and it was very muted and almost anti climactic. Todd Glintch just that your honor, the defense prests. There was no discussion with Trump and that was it. Then the judge shortly after that told the jury that he was dismissing them until next Tuesday, May twenty eight, because there had already been pre arranged days off on Wednesday and Friday of this week,
and of course Monday is Memorial Day. So the judge also wanted to have continuity in the closing argument, so I guess he was concerned that they wouldn't be able to get both closing arguments in one day. So he said that it's possible that the closing argument may still over next Tuesday into Wednesday, when he expects that deliberations will beget in the case.
Has he set any time limits for the closing arguments?
He has not set limits yet. He expressed that he knew that there was a lot to go over and that they would take some time, but he has not set a specific length just yet. I assume that as we get close to the day he will do that.
Instructions are critical tell us about the charging conference on Tuesday afternoon.
The judge is expecting to work out how they will instruct the jury about applying the law in this case. And what's complicated is how the election law applies to this case. Because the thirty four pulcification of business record counts that Donald Trump's bases are misdemeanors unless they're in furtherance of another crime. And the other crime, prosecutors say is trying to influence the election illegally in twenty sixteen.
And so there's a lot of complicated case law on this question, and both sides need to make their best case to the judge, who will then make a decision on how to instruct the jury on the law when it relates to the election in twenty sixteen. I'd also say that I'd imagine if Trump work victed, the jury instruction on election law could be an area of appeal for him.
Has the prosecution said whether it's federal election law or state election law that's concerned here.
In the filings and in arguments, they've discussed both. That's why I'm going to be watching closely to see what they end up at. I believe in some combination of state and federal law.
So there could be a verdict in this case next week. Thanks so much, David. That's Bloomberg Legal reporter David Voriakis coming up next on the Bloomberg Law Show. What an arrest warrant from the International Criminal Court would mean for net and Yahoo. I'm June Grosso and you're listening to Bloomberg.
The chief prosecutor for the International Criminal Court is seeking arrest warrants for Israeli Prime Minister Benjamin Netton Yahoo and TAMAS leader Haya Sinwar for war crimes related to the Israeli military response in God and the Hamas militant group's October seventh attack on Israel. Prosecutor Karim Khan said the charges against dat Yahoo included crimes against humanity.
The crimes include starvation of civilians as a method of warfare, wilfully causing great suffering, serious injury to body or health, or cruel treatment, wilfel killing or murder, and intentionally directing attacks against a civilian population.
Net Yahoo call the move a moral outrage of historic proportions.
He is attacking the one and only Jewish state and trying to handcuff us, preventing us from exercising responsibly through the laws of war. As we obey them and we are subordinate to them. He's saying we're not. He's creating false symmetry, false facts.
Joining me is Kate Macintosh, UCLA law professor and director of the Promised Institute for human rights explain the charge thanks for us.
The accupations fall into two different categories obviously, so as far as the must leaders are concerned, the focus is of course on the hostage taking and the extermination and murder that was committed on October the seventh, and the treatment of the hostages a rather than mistreatment of the hostages since then, and the prosecutor has characterized those acts as both war crimes and crimes against humanity, which means to say, after the widespread or systematic attack on the
civilian population, So those are two different crimes under their own statute. There's war crimes violations of the laws of war, and then crimes against humanity which don't have to be committed in an armed conflict, but which can be. Looking at the charges against Netanyahu and Galants, these fall mainly
into two categories. One is crimes around the placing of Gaza, effectively Understegd, so the denial of access to humanitarians distance what he characterizes is starvation of civilians as a method of warfare for the besieging of Gaza. And then the other main crime that they're charged with is intentionally directing attacks against the civilian population, which is a war crime
under laws of war. Of course, it's only committed to target military objectives, not to target civilians, and Kareem Kan't is charging Mettagnohu and Gallant with having intentionally attacked civilians.
The panel was unanimous. What's the standard? Is the standard reasonable grounds to believe?
Yeah, it's a relatively low standard at this point. There are actually three different points during the process of a case where the evidence is tested against an acue. So this is just the first one in order to issue the arrest warrant, and the judges who look at this application have to be satisfied that there are reasonable grounds to believe that the crimes are being committed. Don't test any evidence, and even some of the evidence can be
provided in summary. What it really means is that the judges will look at each element of the crime and they'll see whether there is evidentially support of each of those elements. So the finding they're really making is if all of this evidence stands up, then the crime has
been committed. So it's a relatively low threshold. I'd be very surprised if the prosecutor fails in this request because I can't imagine that he would have presented an inadequate admission for something so high profile, and he's also asked this panel of experts to kind of confirm that he's on solid ground here. So that, combined with the fact that the test is a fairly low bar, I think, means that we're likely to see the trial chamber granted his request for the arrest warrant.
So, just to be clear, the prosecutor at this point is requesting a warrant and then it will go to a court panel to decide whether or not to issue the warrant.
Yeah, exactly, it goes to what the iccquells a pre trial chamber. It will be three judges who are put together who consider a range of requests that come up before the trial actually starts, and they will be the ones who will be looking to see if all the elements of the crimes have been substantiated by the material that he's put before them. Just you know, by way of explaining what then goes on to happen with the
evidence before the trial happens. There's another procedure, which is the confirmation of the charges, and that is of course still what the trial, but it's a higher standard. At that point, the judges will have to consider again, a pre trial chamber of judges will have to consider whether there are substantial grounds for believing that the crimes have been committed. So we've gone from reasonable grounds up to
substantial grounds. And at that point the accused can object, can challenge the evidence, and can present is or her own evidence as well. So it's not a trial, but it is a kind of higher threshold where the evidence is tested to some certain accounts, and if the prosecutor manages to cross that threshold, then the trial can go ahead.
Israel is not a member of the ICC. Let's say the rest warrant is issued, what does it really mean for net Yahoo?
I mean the site that Israel is not a member of the icy seed, so it's not relevant to the jurisdiction over Netanyahu, just because the crimes were committed on the territory, well, a territory which is subject to the jurisdiction. So the ICC, as you know, has accepted Palestine as
a member state of the ICC. They were very careful to say that they were just deciding in terms of ICC membership and not making any bigger statements about whether there's a state of Palestine, but that means that any acts committed on the territory of a state's party, because the statute is subject to the jurisdiction of course, so any state can delegate its jurisdiction to a court. So
that's what Palestine has done. So that's how they are permitted to charge Netanyahu and Land, even though of course their nationality as Israelis would normally place them outside the jurisdiction of the court because Israel isn't part of the system practically though, and I think that's more what you're getting.
There is an issue about how the court is going to get their hands on them, right, because I mean, for a start, they are sitting, you know, Prime Minister and Minister of Defense, so they're obviously not going to hand themselves over. Even if Dan was a state party, there'd be an interesting situation there. But most to the point, Israel is not under any obligation to comply with an
order of the court. So it's more an issue for travel for Netanyahu and Galant if the arrest warrant is granted, and as I said, I think we can be fairly confident that it will be. That's going to be very interesting because travel to member state of the ITC should mean that that state will arrest them, will execute the warrant. So that could be problematic because.
Last year, and I believe we talked at that time Russian President Vladimir Putin the quarter should have warrant for him for Doug short of children, and nothing. Nothing's happened there exactly.
So that would be exactly an analogous situation.
Yes, let's talk about this internally in Israel and internationally. So as far as Israel goes, has this backfired because it seems as if it's cemented support for net Yao at home, including two members of his cabinet who threatened to resign in recent days if he didn't have a clear post war vision for Gaza. So has it backfired in that sense, at least in Israel.
Possibly, It's hard to know, isn't it. I think, you know, it may have done. On the other hand, I suppose that you know, there may also be segments of Israeli society who feel, you know, that it's a stigma that they're very unhappy about, and it might encourage opposition to Netanyahu. I think it's important to remember that that is not a calculation that the ICC prosecutor is supposed to be making.
You know, the ICC prosecutor is not meant to be calculating what the political implications of his indictments or his requests for arrestaurant are. He's been given authorization to open an investigation, he's meant to conduct his investigation, and where he finds evidence of crimes committed in the statute, he's supposed to ask request in a restaarrant as he's done. So, the political ramifications are hard to say which way they're going. I mean, I wouldn't be surprised if it creates some
kind of solidarity, is well. I think we can all kind of imagine that that is a somewhat natural reaction. But that isn't really something that Kareem Khan should be thinking about internationally.
Netanyahu already has a troubled reputation internationally. Does this add a little more of a blemish to his name?
Oh for sure. I mean, apart from anything else to any sort of headed state meetings that are held in a state that's parties to the ICC, I mean, they wouldn't really be able to invite Menyah. And so we're talking about pretty much the whole of Europe, Latin America, Africa. You know, there are one hundred and twenty four states parties, so that ICC including some very powerful states on the
global stage. So he will already become somewhat of a pariah in those circumstances, because no state, frankly wants to be in the position of having to arrest him and hand him over to the court. So I think they would be very likely to just discourage him from traveling to their territory.
What are the powers of the International Criminal Court.
In terms of sort of outside its own walls. The powers are entirely dependent on other states. So it doesn't, of course have some kind of international police force so that it can send out to arrest people. It can't enforce its orders.
It is a.
Creation of states. So the states that have signed up to its statute, the states that run the court, I mean the members states that the International Criminal Court meet every year in December in either New York or the Hague to discuss how to run the court. There, of course don't interfere with the legal proceeds and the work of the judges and the prosecutor. But they decided you know, how much money to give it, they can amend the
statute and so on. So those are the states who are also responsible for enforcing the orders of the court. So that's why a state in whose territory any of that, you know, either the Hamas or the Israeli indicities arrived, would be bound to execute that order. I mean, if it's granted the arrestaurant and hand them over to the court, because the court itself doesn't have any enforcements independent of the states.
What was the last leader that they've prosecuted, actually, you know, held a trial for well.
The last sitting There is a precedence of having prosecuted a sitting head of state which did not go well, and that was the ken Yata in Kenya. I mean that prosecution ended essentially, you know, very poorly, and what became clear was that it was almost impossible. I mean, it was an unsuccessful prosecution. It became clear that it was almost impossible to prosecute or to effectively investigate a sitting head of state in the country. So there were
all sorts of allegations of witness intimidation. I believe some of those were established. If I'm not miss speaking, I think one witness died in very mysterious circumstances and the
case was eventually dropped. So I mean that was really a case of prosecuting a leader that came up against real politique and realizing that when somebody is still wielding the power of the state, it's extremely difficult for something like the International Criminal Court, which, as I said, relies on states for enforcement of its orders, than to work effectively to carry out its mandates.
Coming up next on the Bloomberg Launch Show, I'll continue this conversation with UCLA law professor Kate McIntosh, and we'll talk about President Joe Biden's response to the ICC seeking an arrest warrant for net and Yahoo.
True allegations against Israel made by the International Court of Justice.
What's happening is not genocide.
To reject that, President Joe Biden has defended Israel and railed against the International Criminal Courts prosecutor who's seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu on war crimes charges. Prosecutor Kareem Khan is also seeking an arrest warrant against the Hamas leader on war crimes charges and Biden said that whatever this prosecutor might imply, there's no equivalence none, between Israel and Hamas, and he refused to agree with
any notion that the war in Gaza is genocide. I've been talking to Kate McIntosh, a professor at UCLA Law School and director of the Promise Institute for Human Rights. Actually the objection from Biden, part of it was equating Israel's actions and Hamas's action, And I mean, is it wise It seems like, you know, it's Solomon's splitting the base.
I think it was his only option. Actually, I don't think he could possibly have proceeded against only one party here. I mean, in a way, the law that he's applying does parties to a conflict on as somewhat equal fitting. So the laws of war are not concerned with the
reason for fighting. So any of the justifications that either side has, whether it's the occupation and the impression of Palestinians or you know, the existential threat coming from her math and the hostage taking, those are completely irrelevant in assessing whether the laws of war have been followed. The international humanitarian law, the laws of war Geneva Conventions are about the rules once you're in a conflict, and at that point, a state or you know, the groups are
seen only as either state or non state actors. There's no characterization of good or bad or terrorist or whatever, and you know, rules applied to both. And what the prosecutor has done is he's applied those rules to the facts that he's found violating by side, which I think we could anticipate would have been the case for what
we've all covered in the news. So in a way, the framework he's working with it does apply to all sides, and it almost does put them not on an equal footing, but it makes irrelevant their motivations for fighting, the historical contexts, whether they see themselves as on taking part in a just war, whether they're a state actor or non state actor.
It just looks at these are the rules, and how have they been violated, And if he were to apply those onnly to one party, I think it would be you know, it would be totally unacceptable and look extremely biased.
Back in twenty twenty, when Trump was president, he authorized economic and travel sanctions on the ICC prosecutor and another senior prosecutor because they were looking into possible war crimes. In Afghanistan. Has it always been an uphill battle for the ICC?
Why where the US is concerned. I mean, yeah, that was We were also shocked when that happened. And then some of President Biden's rhetoric has seems to be almost going in the same direction, which is perhaps a bit disappointing. Listen, the ICC is never going to make people happy. There's less of a fust when the ICC is prosecuting somebody from the Democratic Republic of Congo because the individuals in the Democratic Republic of Congo do not have the powerful
friends that Benjamin Metignau does. But you know it's never going to be I mean, it's an enforcement activity. To arrest some of from an international crime is clearly going to make ripples, and I think that, you know, the prosecutor has to be prepared for that.
Nenyell, who has been compared to a phoenix rising from the ashes, nothing seems to affect him. He keeps on going and going. Will this be any different do you think? I mean, he's been doing interview after interview defending his actions and equating an attack on him as an attack on Israel.
Who knows It's very hard to say. I think it is going to affect his international standing. I don't know how it's going to play out domestically. I mean what we saw in the cases Slabodan Melosovitch for example, so another Leadia that was indicted for international crimes. It's time not by the international Criminal Court, but by the Yugoslavia War Crimes Tribunal. He was indicted. I think that probably facilitated his removal from power, and then he was handed
over eventually to the tribunal. So we have also that precedence. As I said, who knows how it's going to play out for Vanetan Yahoo, Yeah, I mean how's it going to play out for Putin? I think there's some similarities there, and they're both strong leaders, seem to be clinging to power. You know, it's hard to tell. Of course, in Israel it's a lot easier to understand the opposition because of the democratic nature of the country, and we've seen the
demonstrations and we could read the repress. That isn't the case in Russia. But I would say the situation for both of those leaders will become more tricky when they're no longer head.
To stick and tell us about the international Court of Justice where South Africa is making a genocide case against Israel.
The International Court of Justice, the World Court in the Ague, so the non criminal court. So South Africa brought the complaints against Israel under the Genocide Convention. So that's the International Court of Justice that operates. You can imagine it much more like a sort of civil proceedings in the domestic court. So it's more like a country suing in other countries. It's not an independent authority, you know, telling anybody that they've.
Broken the law.
It's about dispute between states. So it can be all sorts of things. It can be a border dispute or you know, you've damned my river and I haven't got the same water supplier it used to have. But it also has jurisdiction, you know, it can look at all international rules. And what South Africa said essentially to the court was, you know, we're all parties for the Genofide Convention.
Israel as a party. Of course, South Africa is a party, and Israel has broken its commitment under the Genofied Convention not to commit genericize and so as I'm party to the Genofie Convention, and as we all have an interest in genocide not being committed. I'm going to complain about it, and what I'm going to ask you to do International Court of Justice is to tell Israel to stop committing genocide. So the court, it was an emergency hearing, so it
happened very fast. Usually proceedings at that court are extremely slow to you, but this is a preliminary and what called the provisional measures hearing a bit like an injunction in a domestic court, so it went fast. South Africa presented its case to the court. What that meant was it gave it an opportunity to recite, you know, the horrific information that had been coming out, particularly UN bodies.
I think they only cited United Nations sources. They were very careful in their you know what information they used, but it gave them the opportunity to recite all this horrific evidence about the suffering of people in Gaza in this very hallowed, if demed international body in front of all the judges of the International crook Justice, which I think was already a very important symbolic set and then the judges basically said you know it again. It was
a provisional ruling. So They didn't say genocide as being committed. They were actually being asked to decide that that that stage the case is now ongoing. But they were asked to see whether there was a plausible case essentially that genociders being committed. It's a little bit more complicated. It's actually a plausible case that the rights of South Africa, you know, to have genocide not committed was being violated.
But anyway, it's been sort of translated slightly through easily into saying that it was plausible that genocide was being committed.
It wasn't quite that, but anyway, they said that that threshold had been met, and so they did make an order, you know, and they did note the evidence that had been put before them about humanitarian existence and targeting civilians and so on, and so they just they said to Israel, you know, please not only do not commit genericide, but stop any incitement to genocide, because some of the materials South Africa had put before the court were these statements
about human animals and you know, these sort of genocide sounding statements that different individuals in the government and military had made. So they said to Israel, you know, you're obliged under the Convention not to commit genocide, to make sure nobody under your control does so, and to stop incitement to genocide, and also you have to allow humanitarian assistance through the Palestinians. So they made that order. The International Court made that order to the State of Israel.
That wasn't singling out the individuals that the International Criminal Court has singled out. That was looking at the whole state apparatus and telling them to respect their obligations under the Genocide Convention.
Essentially, as far as the I see, they can't try and yahoo in abstantia, can they?
They can't. No, they can't.
Do you have any final thoughts as an international lawyer.
As an international lawyer and international criminal lawyer, this is quite unremarkable. I mean, it looks solid. It looks like he's obviously been doing the investigation. He even mentioned in the press release what kind of materials he submitted that he talks about interviews as witnesses, but he also talks about you know, photiographic evidence and satellite photos and expert
witnesses and so on. He seems to have taken the crimes that seemed most obvious there would be the easiest to establish, which makes sense because he wants to, you know, he wants a conviction. I think the denial of humanitaring assistance, the whole starvation issue, which were readly about boristorically, as well as the targeting civilians make sense. I think the crimes that her Mass has been charged with around the
hostage taking also makes sense. So it's caused a big political storm, but really from a purely legal point of view, it looks pretty reasonable.
Thanks so much for your time, Kate. That's Kate McIntosh, a professor at UCLA Law School and director of the Promise Institute for Human Rights. And that's it for this edition of Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso and this is Bloomberg