Defense attorney Emil Bove said they'll likely need an instruction for the jury about uncalled witnesses on both sides. It is unclear if Donald Trump will testify.
"Mr. (Allen) Weisselberg is in prison right now and not available to anyone," Bove said.
Bove also said the severance agreement is unduly prejudicial. He argued there would be "undue prejudice" to the jury to admit the severance agreement, saying it's "unduly confusing" because Weisselberg is in prison.
"If either side tried to call him he would likely invoke" his Fifth Amendment, Bove said.
"We don't think it's relevant that he entered into this agreement after the fact," Bove also said.
Prosecutor Chris Conroy weighed in, saying, "What we are looking to do is explain from our perspective why he’s not here."
"Mr. Weisselberg's interest are "aligned with the defendant's," Conroy said.
The agreement includes provisions for Weisselberg not to disparage the company or its officers and employees, Conroy said.
Conroy said he imagines the defense will make arguments about "whether he should've been here and what him not being here means."