Legal analysts wonder if Trump's surprise witness could be asked about tampering or obstruction in Cohen case
Michael Cohen, Donald Trump (Both photos via Agence France-Presse)

Speaking to CNN, former federal prosecutor Shan Wu explained that lawyer Robert Costello presenting himself to the grand jury for Donald Trump could lead to under-cutting his credibility later.

New York Times reporter Maggie Haberman reported Sunday that Costello was the "secret witness" that Trump's lawyers were presenting to the grand jury to dispute the reliability of Cohen's testimony that happened last week. The problem with Costello as a witness, however, is that he is the one that dangled a pardon to Cohen if he agreed to take the fall for Trump on the hush money payments to Stormy Daniels and Karen McDougal.

Wu said that it was "odd for a number of reasons" that Trump would call in Cohen's former lawyer.

"It sounds like he's going to be a surrogate for Trump testifying," he continued. "In New York, they invite someone who is possibly or likely to be indicted to have a chance to make a pitch to the grand jury. Trump apparently is not going to do that, which is wise. I guess this is the substitute. What's particularly odd about it is he had at one point spoken with Cohen, and he said he was not formally retained by him. He also told The New York Times that Cohen had waived attorney/client privilege. It's a very dicey ethical situation if he gave Cohen any confidential legal advice. And as a lawyer, you can't use confidential information to do something adverse for your client. He is going to try to be adverse to him."

It was something other legal analysts saw as curious as well.

National security expert Marcy Wheeler noted that by appearing, "it would support a witness tampering charge, which Costello would be part of. This would explain both how this became a felony and the timing (the alleged tampering was in April 2018)."

Others have suggested not witness tampering but obstruction of justice for both Trump and Costello.

Legal analyst Allison Gill wondered if Costello managed to score help to protect himself for the testimony.

"Does he have immunity for his testimony disallowing him to plead the 5th, or is that reserved for targets only?" she asked. "In New York, if Trump decided to testify before the grand jury, he would have immunity and wouldn't be able to plead the 5th. This is a special NY thing. I'm asking if that applies only to Donald or if it applies to Costello, too."

Some folks claiming to be prosecutors said that Costello could apply his Fifth Amendment rights. However, pleading the Fifth before a grand jury means that his attempt not to incriminate himself could be revealed in the trial.

Wu also pointed out that it isn't normal practice to have someone like Cohen to be a rebuttable witness.

"I don't think the prosecutors should put him in by a rebuttal witness. For one thing, it looks like there's now a he-said-he-said situation," Wu explained. "Second of all, unless they produce an audio or transcript, Cohen would have to listen to that to try to rebut it. And there's a question of whether they should do that, having him hear another witness. So, while the prosecutor probably wants him on call if Costello says something that's really problematic, it's not the normal practice that you would have in the grand jury, this kind of witness versus witness scenario. It's not really a good strategic thing for them to do. Which brings me to my concern, it might be a little too quick in terms of [DA Alvin] Bragg having decided to move from zero to 60 on this case. The case has been worked up for years. But with his office now trying to suddenly push it forward, haste can make waste."

Los Angeles Times legal analyst Harry Litman also reminded folks to remember that it will likely take a year or more to go from indictment to trial in all cases, the Fulton County case, Manhattan district attorney and the Justice Department's Jan. 6 and documents case.

Wu closed by explaining how Trump will likely be charged if the grand jury decides to go that route.

See the video of Wu below or at the link here.

federal prosecutor on Trump's secret witness