Manhattan District Attorney Alvin Bragg’s possible criminal case against former President Donald Trump may have derailed this week, according to Harvard Law professor emeritus Alan Dershowitz.
On Monday, former federal prosecutor Robert Costello testified in front of a Manhattan grand jury over matters related to a $130,000 hush money payment to a porn star in 2016. Costello told the jury that former Trump attorney Michael Cohen, expected to be Bragg’s main witness in any case against Trump, “couldn’t tell the truth if you put a gun to his head.”
Dershowitz appeared on Fox News on Tuesday night and told host Sean Hannity that “Bob Costello has changed this case dramatically.”
“I think that Bragg now only has two possible results from that. Number one, he can say, ‘alright, I’m going to try to make the case without Cohen.’ He cannot use Cohen as a witness anymore. That would be unethical because of the testimony that Costello gave,” Dershowitz said. “Or he could say, ‘look, I have to drop the case.’ He may not be able to make it without Cohen. But if he can’t make it without Cohen, he can’t make it, because no ethical prosecutor is allowed to put on as a witness somebody who has told the lies and has contradicted himself so much.”
Bragg is investigating Trump over an alleged hush money payment the former president made to the porn star known as Stormy Daniels in 2016. The payment was made through Cohen, a longtime fixer for Trump, to allegedly keep Daniels from spreading claims that she had sex with Trump in July 2006 after his wife, Melania, had just given birth to their son. The former president allegedly reimbursed Cohen for the payment in 2017.
Cohen was later investigated by federal agents over the hush money payments. He went to Costello for legal counsel and advice, and the two men spent hours meeting and talking over the phone. In August 2018, Cohen pleaded guilty to eight charges involving tax evasion, fraud, and campaign finance violations related to the payment to Daniels and another payment made to former Playboy model Karen McDougal, who also alleged an inappropriate relationship with Trump.
Cohen has said he made the payments at Trump’s direction. Trump has denied that claim and the allegations of the two women who accused him of infidelity.
Costello told the grand jury on Monday that Cohen had said that the hush money payments were his idea, not Trump’s. Costello also lambasted prosecutors for “cherry-picking” evidence to show the grand jury that gave a false view of what actually happened. “They seemed clearly one-sided and not after the truth,” Costello told The New York Times afterward.
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While it’s unclear what actual charges Bragg may pursue, the legal pathway toward getting to an indictment is complicated, according to POLITICO. Bragg’s case likely involves testing a novel legal theory that New York law classifies falsifying business records as a felony if the records were falsified to cover up a federal crime, which in this case would be a campaign finance crime similar to what Cohen pleaded guilty to.
Dershowitz says that Costello’s testimony has, at the very least, slowed Bragg’s movement toward any potential indictment, if not halted it altogether.
“I think that Bob Costello — it’s a game changer. I think maybe that’s a reason for the delay here. I think ethical experts are now telling Bragg, ‘wait a minute, you cannot use Cohen,’” said Dershowitz. “But if you can’t make it without Cohen, you cannot bring this charge.”