Both sides rest cases without Trump testifying in hush money trial

The court will be dark for a week, a scheduling decision Judge Juan Merchan chose so the final stages of the trial weren’t broken up by a four-day Memorial Day weekend.

Merchan told jurors they will return next Tuesday for closing arguments, which are expected to take the whole day. Once the jury gets its instructions, Trump’s fate will be in its hands.

Here's a look at what happens next in the trial:

Closing arguments: Attorneys for the prosecution and defense each give a closing argument appealing to the jury that will soon consider the case. Because they have the burden of proof, prosecutors address the jury first but they also get the last word, so the prosecution will give a rebuttal argument after the defense closing argument.

Jury instruction or jury charge: The judge instructs the jury as to the charges they must consider against the defendant and the laws governing their deliberations.

Jury deliberation: A panel of 12 jurors considers the evidence presented at trial and charges against the defendant. The jury must be unanimous in its decision. The jury can communicate with the court and ask questions about the case with the court through handwritten notes.

Verdict: The jury will notify the court that they’ve reached a verdict. The verdict will then be read in court and jurors will be polled to confirm the verdict read in court reflects their own vote.

Sentencing: If the jury reaches a guilty verdict, the judge sentences the defendant, typically after a sentencing hearing at a later date.

CNN's Jeremy Herb and Kara Scannell contributed reporting to this post.

When CNN asked for your questions about former President Donald Trump’s first criminal trial for his role in hush money payments made before the 2016 election to women who said they had affairs with him, we got a flood of input.

Here are the answers to some of the questions:

Could Trump actually go to jail? I went to CNN’s chief legal analyst Laura Coates for the single, most-asked question.

Coates: If Trump were to be found guilty of all of the counts, he could theoretically be facing more than a decade in prison. The 34 felony counts are classified as Class E felonies in New York, the lowest level felony in the state.
The maximum penalty for each of those counts is four years. However, New York caps sentencing for this type of felony at 20 years. It is within the judge’s discretion to decide whether those sentences would run concurrently or consecutively. Because the crimes involve nonviolent offenses and Trump does not have a criminal record, the judge could also consider jailing him for a period that is but a fraction of the maximum penalty. Another possibility is that the judge could forego prison entirely and place him on probation.

If Trump were sent to prison, would he still have his presidential Secret Service protecting him in jail?

I reached out to the Secret Service to ask if they had planned for the potential that Trump could be imprisoned. Not surprisingly, I was told by a spokesman that this is “something we can not comment on at this time.” But note that as a matter of US law, former presidents and their spouses are afforded lifetime Secret Service protection unless they decline it.

Is a unanimous guilty verdict required for Trump to be convicted in this case, or could he be convicted by a majority of seven jurors voting "guilty"?

A unanimous vote is required for either conviction or acquittal. Anything short of a unanimous verdict would be a hung jury. The judge will try very hard to get the jury to reach a unanimous verdict. A hung jury might be perceived as a net win for Trump since prosecutors would have to ponder whether to try him again on the same charges and there’s little chance it would happen before Election Day.

Get answers to other frequently asked questions as the trial nears a close.

Robert Costello, an attorney connected with Michael Cohen, finished his testimony on Tuesday before the defense rested its case, teeing up the jury to start deliberations soon in the criminal hush money trial of Donald Trump.

Costello was called to the stand by the defense on Monday where he got into a contentious exchange with the judge.

Trump is charged with 34 counts of falsifying business records to cover up a payment to adult film actress Stormy Daniels shortly before the 2016 election. Closing arguments are expected next Tuesday, the day after Memorial Day weekend.

In the morning:

• Prosecutor Susan Hoffinger resumed her cross-examination of Costello. He testified that he did not discuss with Cohen how he was connected to Rudy Giuliani at their first meeting at the Regency Hotel. 
• The jury saw a later email in which Costello told Cohen that Giuliani joined Trump’s team at the White House and that it could be “very very useful” to Cohen. Hoffinger pressed Costello if he was pushing Cohen to retain him because he could provide a backchannel to Trump. Costello denied that.
• On redirect, Costello told Trump attorney Emil Bove that Giuliani first brought up the word “backchannel” in response to Costello telling him they "couldn’t make this public.” He denied that he pressured Cohen to do anything.
• Costello said he didn’t have “any control” when Cohen pled guilty in federal court in 2018. Prosecutors showed an email suggesting that Costello was complaining that Cohen was not working with him. Hoffinger also pressed Costello on whether he was encouraging Cohen not to cooperate.
• Costello denied that he was trying to intimidate Cohen when he was asked about his testimony before a House committee last week where he said Cohen was lying about things he said on the stand earlier in the trial

In the afternoon:

• The defense and prosecution worked out jury instructions, discussing the language around intent, an alleged conspiracy and more with the judge.
• Election law: The judge reserved his decision on whether or not to include the word "willful" while discussing federal election law. The defense wants it included while the prosecution argues it is not necessary. Prosecutors allege that Trump falsified business records with the intent to commit an election law violation.
• More on intent: Merchan ruled to keep the standard, criminal jury instructions around the issue of intent. The defense proposed a second line, which would have meant the jury would have had to determine intent in two separate incidents — intent to defraud and intent to conceal another crime.
• Legitimate press function: Merchan elected to include a line that says the National Enquirer did publish articles and do things for Karen McDougal, pursuant to the agreement within normal legitimate press function.

Closing arguments next: Attorneys for the prosecution and defense will each give a closing argument on Tuesday. Because they have the burden of proof, prosecutors address the jury first but they also get to give a rebuttal argument after the defense. The judge will then instruct the jury on the charges and the laws governing their deliberations. The jury is expected to start deliberating on Wednesday next week, according to the judge.

Former President Donald Trump accused Judge Juan Merchan, who is overseeing the hush money trial, of being "corrupt" and "conflicted."

"The judge is so biased, so corrupt," Trump said outside the courtroom after today's proceedings. "And he is so conflicted."

"When you have a corrupt judge, lots of bad things happen," he added.

Merchan's gag order does not prohibit Trump from talking about the judge.

Trump also repeated his false claim that President Joe Biden's administration has played a role in this trial. There is no basis for this claim. There is no evidence that Biden has had any role in launching or running Manhattan District Attorney Alvin Bragg’s prosecution — and Bragg is a locally elected official who does not report to the federal government. The indictment in the case was approved by a grand jury of ordinary citizens.

The defense and prosecution finished debating jury instructions during the charge conference on Tuesday, discussing the language around intent, an alleged conspiracy and more.

Here are the key points:

Alleged conspiracy: The parties debated language about the jury's requirement to find the prosecutors proved that Donald Trump participated in an alleged conspiracy to undermine the 2016 election. The prosecution argued that Trump’s meeting with former National Enquirer publisher David Pecker at Trump Tower in 2015 went toward Trump’s participation in the conspiracy, while the defense called the meeting a “series of pretty standard campaign activities that were not criminal.”   

Remember: Trump was first indicted in March 2023 by the Manhattan district attorney on state charges related to a hush-money payment to an adult film star in 2016. Prosecutors allege Trump was a part of an illegal conspiracy to undermine the integrity of the 2016 election. Further, they allege he was part of an unlawful plan to suppress negative information, including the $130,000 payment. Trump has pleaded not guilty.

Intent: Originally, the defense proposed a second line about intent, which meant people must establish beyond a reasonable doubt two separate intents, the intent to defraud and the intent to commit or conceal the aid of another crime. Due to concerns with this section, Judge Juan Merchan opted to keep the standard, criminal jury instructions language around the issue of intent.

Here are some other topics discussed around jury instructions:

• Both sides debated instructions around tax crimes relating to Cohen testifying that former Trump Organization Chief Financial Officer Allen Weisselberg was “grossing up” the money Cohen was paid.
• The defense asked the judge to instruct the jury that hush money is not illegal. Merchan said he doesn't think it's necessary, as that came out in testimony.
• Merchan said he thought his limiting instructions on Cohen’s guilty plea, American Media Inc.'s non-prosecution agreement and others “were appropriate” and that he would give the same instruction he did during the trial.
• There was a debate around New York legal precedent on if retainer agreements are required between an attorney and a client. The judge said he would look into this and get back to them.

Asking for another deviation: Defense attorney Emil Bove requested another deviation from the standard criminal jury instructions language when he asked the judge to be as specific as possible when describing the statutes as they are applied in this case, noting there wasn’t much of a precedent.

How the jury will hear its instructions before going to deliberate is very important in this case, CNN commentators and former prosecutors say.

Donald Trump is facing 34 counts of falsifying business records related to the payment to Stormy Daniels. Prosecutors need to prove beyond a reasonable doubt that Trump falsified business records with the intent to commit or conceal another crime — but they don’t have to prove that Trump committed that crime.

“I’ve always thought the most difficult part of this case for the prosecution to prove is that connection to any underlying crime that they have to show that Donald Trump was intending to violate by falsifying records,” said Carrie Cordero, the former counsel to the Assistant Attorney General for National Security.

The presence of an underlying crime is what makes these charges felonies, instead of misdemeanors, she said. 

Shan Wu, a former federal prosecutor, also emphasized the importance of jury instruction in this trial.

“The more broad that jury instruction is, which is the way that the judge is going, the easier it is for them to make that connection evidentiary,” Wu told CNN, referring to the connection between falsifying the business records and a second underlying crime.

Democratic Rep. Jasmine Crockett of Texas attended the criminal trial of former President Donald Trump in New York on Tuesday on the heels of her viral rebuke of GOP Rep. Marjorie Taylor Greene last week.

Crockett’s decision to attend the trial marks a rare appearance by a Democratic lawmaker at the proceedings — and comes as a multitude of GOP lawmakers have made the trek to the courtroom in an effort to defend the former president. 

"I was in New York to raise some money and I decided I must see what’s going on," Crockett, a former criminal defense attorney and public defender, told CNN.

"I was curious as a lawyer and just wanted to get my own firsthand take on what was going on" Crockett said, adding she wanted to have information to push back against her Republican colleagues who have tirelessly defended the former president and have even delayed doing their jobs in order to appear at Trump’s side throughout the trial. 

Court is adjourned for the day, but first Judge Juan Merchan said he'll try to get the final instructions to the attorneys by the end of the day Thursday so they have the long weekend to prepare for summations.

Prosecutor Joshua Steinglass citing New York legal precedent asks that Judge Juan Merchan clarify for the jury in a curative instruction to combat the defense's notion that there's "nothing improper about not having a retainer agreement."

Steinglass said, "It is in fact the law."

"We don’t think that’s right, judge," Bove says in response, pointing to different New York case law.

Bove says he appreciates that Steinglass didn't suggest there was bad intention on the defense's part, but said the prosecutors are trying to place weight on their argument that a written retainer agreement is required between an attorney and a client.

Bove cited law, saying that a retainer might be required to collect fees from a client when there's a dispute over the fees but a retainer is not ethically required to provide services.

"I’ll read the rules, I’ll read the decisions and I’ll get back to you on that," Merchan says.

If he determines there is a requirement for a curative instruction, he adds there will have to be a follow-up.

"This is the government seeking to put weight on their argument," Bove argues with regards to the proposed curative instruction.