How do you Solve a Problem like Michael Cohen?
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Hi, and welcome back to Prosecuting Donald Trump. It's Friday, May 17th. I'm actually not going to give the time because you know what? There's neither a trial going on today because it's Friday. And thank God it's Friday for so many reasons. Yes. But also, I'm in one time zone. And if I gave the time, Mary, you'd be going, uh, not exactly. That's right. I'm five hours ahead of you. And also, I do want to

thank listeners. When I said on Tuesday I was headed to Ireland Tuesday night, I have gotten multiple nice messages from people in Ireland with suggestions about things that I should do or not do. Are you kidding? Isn't that lovely? Yes. That's

So that is so great. And by the way, by doing this, you're going to get a whole lot more. Yes, that's true. But that's great. I love it. And it's beautiful. And I've had two days of sun. Yesterday was sunny and beautiful. Today, the sun is now coming out in the afternoon. So it's lovely and we're enjoying ourselves. When I lived in England, a good day was considered bright intervals, was considered like the most gorgeous day. So Mary, there's a lot to talk about. We're going to focus on the

the trial. But the first thing we're going to do is talk about the second day of his being on the stand, which was the conclusion of his direct examination and the beginning of his cross-examination, and then turn to the third day he was on the stand, which was yesterday, where I know everyone's going to want to hear us talk about

the cross-examination about one of the phone calls. But let's talk about what he had to say at the end of the sort of the concluding hours of direct examination. And then after we do all that, we're going to just briefly talk about sort of what to expect next week. And it's pretty clear what's going to happen in Judge Marchand. By the way, he is such a great judge. I mean, I just, I agree. So great. So organized. So calm. Just judicious. Yes.

Wonderful judicial temperament. And sure of himself, right? And as a trial judge, that's what you need if you're going to keep things moving. I think, frankly, that's in contrast to what we're seeing with Judge Cannon in the Mar-a-Lago case. Now, granted, she's not in trial yet. We don't even have a trial date. I'm not sure this case will ever go to trial. But she never seems sure of herself. I think that's why she has hearings about things she doesn't need to have hearings on, etc. And Judge Marchand, who's, of course, been a judge for a much longer time,

seems to have things very well under control. It's been impressive, I think. Mary, I know you had a lot of takeaways from nuances of what Michael Cohen had to say. This is sort of the end of his direct examination. And I would say there were sort of two big picture before I turn it over to you for what struck you. Is it

But there was both what I'll call substantive evidence where the prosecutor had to sort of complete the story because she was going in a chronological order. And so it sort of took you through the election to the inauguration. And then the second component was essentially the pulling the teeth part. That is the anticipating the crosswalk.

cross trying to make sure that the jury wasn't surprised to learn all of the terrible things he has done, all of the things he has pleaded to, and get his understanding of that. So those were sort of the two big buckets that needed to be accomplished on the second day of direct examination.

That's right, because we didn't hear any of that sort of taking that sting out about the guilty pleas and various lies. We didn't hear that the first day. But the day started off with something that I thought was interesting and I thought was very corroborative of Cohen's credibility, at least the way it came off in black and white. And this is when there were questions about his meeting with Mr. Trump at the White House in February of 2017. So this is after, of course, Trump is president. He's been inaugurated in the White House.

And as listeners will recall from other parts of the testimony, it's not until February that the payments start getting made to Mr. Cohen, reimbursing him for the hush money payment to Stormy Daniels. And

Listeners will recall that this all came to be when, you know, in conversations with Alan Weisselberg, the chief financial officer, it was agreed that they would take that amount of hush money, $130,000, add the $50,000 they owed as a reimbursement for something else, double that or gross it up to $360,000 to take into account taxes, and then add on a bonus of $60,000 for $420,000. That was all written on exhibit.

35 by Allen Weisselberg divided by 12.

equals $35,000 a month if they're going to call it legal expenses. Okay, that's our math for the morning. Mary, what I love is that certain exhibits, certain evidence, prosecutors, when you're a trial lawyer, you sort of keep going back to because they're anchors of your case. And that's why our episode from like two times ago is Exhibit 35 and Exhibit 36. But I can't get that out of my head either because it's such an anchoring fact for what happened here. Yeah.

Absolutely. And it's in black and white. You can't lie. That's right. So what we get in direct examination on Tuesday was interesting with respect to that. One part was just about Cohen meeting with Trump and Trump, at least according to Cohen, saying, look, you're going to get a check for January and February. It's coming. They take a photo, right? There's a photo at the White House, something cool. They put this into evidence. But

But then there's questions of Mr. Cohen about these invoices, because at first he didn't send an invoice and he's asked about the invoice and he says and he couldn't remember the amount. He had to check back in to find out with I can't remember now if it was Jeff McConaughey or Allen Weisselberg to get the amount. Thirty five thousand dollars. The controller and CFO.

Chief finance officer. He had to check back in because he couldn't remember the exact amount because as he said, and as he testified, and this is where I think it sort of helped his credibility, he said, I didn't have that copy of the notes that Allen Weisselberg wrote because he wrote that down on the bank statement and then he kept it. He didn't give me a copy of it.

And because there was no actual retainer agreement to pay legal expenses, there was nothing he could refer to to refresh him on what the monthly retainer was because there was no retainer. So he had to figure out how much was it again? Oh, $35,000. And it's kind of funny because then they go through each one of these invoices. And at one point you could tell he had cut and pasted because I forget whether it was April or March, but the date was still the date from the previous month.

month that he had just put in another $35,000.

So I agree with you. I thought that was such a great detail. The other is it's such an interesting detail if you believe him, but because it's a weird thing to make up and it's obviously not how you bill. I mean, that's right. You don't ask your client, can you remind me how many hours I worked so I can figure out what I can bill is right. And you you also don't bill in a way like it would be a weird retainer, which is OK for a year. I'm just going to put you on retainer at thirty five thousand dollars.

That is something Donald Trump would certainly need to know. In other words, if you had a retainer with the client, which is, let's just assume you're going to be a retainer. You're going to have a flat fee. Yeah, like I want to know that you have set aside time for me, so I'm going to pay you this flat fee whether there are services or not. And Michael Cohen says, you know what? And so I'm going to do it at a flat rate. You're telling me that Donald Trump would be involved in a flat rate retainer? Yeah.

Also, given the penny pinching that he has admitted to, it would be hard for me to imagine he'd agree to pay anyone $35,000 a month just to keep them on retainer because it sounds like he doesn't like to do that kind of thing. So fast forward, just to anticipate, although Todd Blanch, the lead prosecutor, opened by saying that the money that was paid was not retained,

a reimbursement yesterday on CROSS. He basically conceded it was a reimbursement. And of course, I think he had to because Donald Trump is on record. Yes. Not just the California case, but the somewhat contemporaneous tweets where he said that he reimbursed. And so that has sort of flipped because they're kind of conceding that now. Yeah, right. So to fast forward ahead, I think, to some other interesting points from the finishing of the direct, because I know a lot of people do want to hear about the CROSS

As you already indicated, Andrew, like a lot of the concluding moments of the direct were to talk to really take the sting out of Mr. Cohen's lies, his lies to Congress, his lies to the FBI, his lies to the judge.

and to let him explain those and admit them and to take responsibility for them. And all that's important. And that doesn't stop Todd Blanche from going through every single one of those lies in much greater detail on Cross. And we'll come to that. But that comes out indirect so that it won't be new. And also, I thought that another interesting part is he talks about when he first gets a letter from the Federal Election Commission. As listeners will know, we've talked before, if you are going to make

payments on behalf of a campaign, a candidate in a campaign, which if these hush money payments, remember, at least according to theory, were to keep the story from coming out just days before the election in order to help Mr. Trump for the benefit of Mr. Trump. I think that's what we called our last episode. So.

He gets this letter from the FEC, and that does cause some consternation because he's got to respond to it. He admits that his response is misleading. Again, another thing he's saying, yeah, I wasn't always being forthright back then at that time. It was, you know, still he was very much of that mindset, protect Mr. Trump, protect Mr. Trump at all costs.

But then there's another interesting point in the transcript. At this point, they're talking about 2017. So Mr. Trump is the president. And at one point, Michael Cohen and David Pecker are talking about this FEC letter and how, you know, this might cause a problem. And Cohen says to Pecker, according to direct exams.

Basically, don't worry, Jeff Sessions will be able to take care of this FEC complaint. Jeff Sessions was, of course, the attorney general, Mr. Trump's first attorney general before Jeff Sessions resigned under pressure.

So don't worry, Jeff Sessions will take care of this FEC complaint. And Trump had told him that. It has nothing to do with these fraudulent business records, but I think it has a lot to do with sort of this, what the mentality within the White House and within, you know, Mr. Cohen's world at that time. And, you know, this leads into more as Mr. Cohen is getting into kind of more and more trouble. He gets some attorney advice or he gets an attorney who wants to help him, doesn't he, Andrew? Yeah. Yeah.

So there were lots of text messages or maybe their emails with Mr. Costello. And it was just very reminiscent of things that we documented in the Mueller report with respect to what it made me think of other lawyers who had reached out to Mike Flynn and left a voicemail.

reaches out to Rick Gates, the deputy campaign manager, in what appeared to be efforts, and certainly we described as efforts, to get them not to flip. And this was just so reminiscent of essentially, hey, your friends love you, in sort of quotes, and essentially, we have your back. Right. And I should have clarified, this comes after the raid of Cohen's, he calls it a raid, of

of his office and apartment in April of 2018, right? This is when there is a search warrant executed and this is when he knows he's in real trouble, potentially in real trouble criminally. And so Mr. Costello, this attorney, reaches out, as you've just been discussing, talks about his very close connections to Rudy Giuliani.

who, of course, is very close connections to Donald Trump. And there's a number of conversations that Costello and another attorney have with Michael Cohen about how he should be approaching his response to this

FBI investigation. And again, this investigation is into whether he lied to Congress as well as whether he committed tax fraud, federal election fraud, etc. Mary, can I just, this is like so in the weeds and it's probably because I'm so... Because you know this from Mueller. Yeah. Is that I just want to make sure people understand at this point there are two separate investigations going on.

There's from the Mueller investigation, it has to do with his testimony before Congress where the issue is whether he was lying and falsely distancing Mr. Trump from the Moscow project. Trump Tower project. Exactly. In terms of when the conversations were, when this all happened to sort of...

of make it as far away from the campaign dates as possible. That's ultimately what he pled to. And by the way, that came up on Cross. That's like one of the missteps that Todd Blanch made, which, you know, it happens on Cross. Like, not everything works. That was a misstep.

The second investigation was the sort of more personal one that was in the Southern District of New York federal office at the time. That was doing the hush money and then all sorts of other things, the personal taxes, the taxi medallions. And so there are these two investigations. The search that you referred to was the Southern District of New York search related to that case. The second part. That's right. Yeah.

Again, super, super nerdy. But you know what? In some ways, that's like what the podcast is for. It's like to make sure people understand the details. Can I just jump for a second to the Todd Blanch mistake just so that we have it all in one spot, which is Todd Blanch, when

When he was, as you said, went over its classic defense strategy, which is fine to sort of go over the lies and sort of gives it more color. It gives it more recency. It teases out the lies that the jury will remember. And I thought Todd did a fine job. It's what you're supposed to do. And he had tons to work with. But with respect to the perjury before Congress, I would have left that alone because there was no reason whatsoever for Michael Cohen to be lying for himself.

That had nothing to do with his own personal liability. There's only one possible motive there, which was to help the president. And Todd Blanch says, well, there were these three types of lies that were going on. Michael Cohen, by the way, is super dispassionate, very matter-of-fact on the stand. Like his demeanor, I was there yesterday, it was so clean. He was just like, yep, that's what we did. That's what I lied about. Yep.

And he says, and by the way, this isn't some spur of the moment back and forth with people in Congress, members of Congress asking you questions. This was part of your written statement. So you had a lot of time to think about it. And then you decided to work with your attorney on it. Yeah, well, that's what that's the problem. He says you had a lot of years like you had a lot of time to make this false statement. He goes, well.

Right, right. There's the misstep.

That was not a good moment for, as I said, that happens on Cross. I didn't really, I think it was not a great choice to go into that, but he made other good choices. So we'll get to that later. Yeah. Yeah. And before we take a break, I want to give one concluding comment about Direct, unless you have another, which is,

So again, to go back to Costello, right? Costello starts basically kind of pressuring Cohen to be his attorney. Costello wants to be his attorney. Costello, again, is somebody coming to him, offering services, very close connections with Rudy Giuliani. At one point...

And I think this refers to the sort of paraphrase quote you were indicating earlier. And this is so much the kind of thing we've seen before. Right. We've seen it with Manafort. We've seen it with Flynn. Costello says to Cohen in an email, and this is in evidence, sleep well tonight. You have friends in high places. Right. That sort of you do for President Trump and

and President Trump will do for you. Ultimately, though, Cohen says no to that. He is a little bit skeptical, it sounds like, through his testimony. He also, I think, thought that maybe they were going to get to talk about a pardon, a pre-pardon pardon before he ever has to plead guilty or is prosecuted. And that doesn't materialize. And even after all that pressure, Cohen testifies that

he decided his loyalty should be more to his family and to his country than to Mr. Trump. And the concluding, sort of pretty much concluding testimony of him before the break to go to cross-examination, he says that by keeping loyal, he violated his moral compass.

Yeah. And that last hour was very much his looking directly at the jury and the jurors looking directly at him and his sort of explaining all of that. And then we turn to Cross and let's take a break and we can talk about all of the Cross that's happened to date. As we are recording this, Cross is not over. Right. So, you know, the defense did what they should, expected, which is you drag it out a little bit so that

So that the jury has three days off to think about the cross and then you'll come back with some more. And then you have time to think about and regroup about what else, what other zingers can you try? And so you have the potential to do a little bit more. On the other hand, redirect also now is something that the prosecutors get a lot of time to think about how they want to do it. So there are pluses and minuses to both sides from the delay. But let's take a break and we'll come back and talk about the cross-examination. Sounds good.

MSNBC's Lawrence O'Donnell. I grew up in the front row of the spectator section in courtrooms. My father was a Boston cop who became a lawyer, and he had me in the courtrooms all the time. And I was learning literally the rules of evidence when I was in high school. My first book was about a case that went on for seven years. And so everything that happens in courtrooms makes perfect sense to me, and my job is to try to make it make sense to an audience. The Last Word with Lawrence O'Donnell.

Weeknights at 10 p.m. Eastern on MSNBC. Welcome back. So in the break, we came back to a point that we had kind of glossed over. I had sort of set up that the ending of direct exam was Michael Cohen said that by keeping loyal, I violated my moral compass.

And it seemed, reading it, and you were there, Andrew, it seemed reading it like a poignant moment. But then again, when I thought back on it, I thought, you just then lost your moral compass? I mean, you seem like a guy who kind of lost your moral compass a long time ago based on everything you've testified to doing, bullying people, lying to people, et cetera. But Andrew, you were in court. How did that actually hit? So that's such a great question on so many different levels because there is a

subjective and sort of theater component to a trial as opposed to sort of analytic, sort of dispassionate, let's think through linearly what's being said. And there's also, there's a difference about whether somebody's honest with themselves and thinking through why they're doing something and what they've done wrong, where I think the

I think I said this on our last episode, but I'm a big fan of Eugene O'Neill. And he talks about how we all live with pipe dreams and that we, you know, are not honest with ourselves. And the hard part about being a cooperating witness. And he's, I understand he's not a technical cooperating witness, but I mean, somebody who's got to take the stand and is expected to be completely honest.

I think sometimes people confuse whether you have self-awareness and self-knowledge about and are being completely candid with yourself with being able to recount accurately and truthfully what has happened in a meeting or in a conversation. And like everyone's the hero of their own novel, and it's very hard to say out loud.

I did something wrong and I'm morally bankrupt and to admit weakness. And I think it's particularly hard in so-called white collar cases. I think when I've done organized crime cases, one of the reasons organized crime cooperating witnesses can come off really well is, I may have told this anecdote, but Al Diarco, the acting boss of the Lucchese family was cross-examined and they said, so isn't it true, Mr. Diarco, that you were committing crimes every day of your adult life? And he

And he said, no, that's not true. I was committing crimes far earlier. Took the defense lawyer by surprise. And he's a great defense lawyer, Ben Brafman. And he said, so what, are you blaming your teachers? I mean, are you saying they're the ones? Because he's trying to figure out what to say to come back to that. And he goes, blaming my teachers. He said, those nuns, they tried everything with me. I mean, they tried so hard. I was incorrigible. And

You know, it was just so disarming because he owned it. And I think with organized crime figures, they're not falling from a paragon to the abyss. They sort of know who they are. They know they're crime figures. Yeah. Yeah. And in some ways, it was a badge of honor to do that. So that is why this sort of moral compass. I understand that. This is the part when you're a prosecutor, people don't understand you deal with cooperating witnesses.

And you kind of have to understand their psychology and their trajectory in coming to terms with what they did may never be complete. So anyway, it's just a complicated picture. I do think that that is something that I know you had to have done this too, Mary, which is it's really important to be an adult when you're summing up and talking about this with a jury. I mean, at the end of the day, how he feels about what he's done and whether he's really reformed

It's just not the issue. It's not the issue, right? They have to make zero decisions about how he feels now and whether he's reformed. They have to decide whether he's credible and they don't, you know, or corroborated enough that they can decide whether Mr. Trump is guilty of the 34 counts that he's been charged with. So with that,

I wanted to jump to the part of the cross-examination that everyone's talking about. But before that, just point out that there was so much to work with. Yes. A cargo container full or a whole cargo ship we've discussed before. Yeah. And I thought Todd Blanche did a perfectly good job of going through it. And I mean, there was just tons to go through. And there were some lies and things that Michael Cohen certainly didn't help himself with, which is, you know, his saying, which we've talked about before, that when

when I pled guilty before Judge Pauly. And this is to the tax crimes and the FEC violations and the taxi medallion stuff. Yeah. And he said some of it, I was guilty and that's why I pled. But he said there was, with respect to the tax stuff, he said, you know, I actually should not. He didn't think you should have been prosecuted. Yeah. He said on the stand now, I didn't think I should be prosecuted, but I never challenged the underlying facts. But that's not actually right. I mean, he did previously challenge the underlying facts and said I didn't do it. Yeah.

And so... Todd pushed him hard on that, Todd Blank. And he should have. And he should have. I mean, that was a different story. And that is like, I don't know why he's saying that. I don't know.

I don't know what his defense lawyers were thinking. I don't know what the prosecutors were thinking. But there was a lot to work with. And there were other pieces like, did you want to be the White House chief of staff? And he said, I wanted to be offered it. I knew I wasn't really qualified for it. It was more for my ego. But then he was confronted with various statements which he had said he really had wanted it. That

That was a small matter, but it sort of helped cast doubt. And there were a lot of things like that. These are what we call inconsistencies, right? So there are a couple of things that Todd Blinch was doing, which I think in terms of how lawyers are thinking about this, right? One is to just show the jury all the things he's pleaded guilty to lying. He's pleaded guilty to doing basically fraudulent conduct because tax fraud, you know, tax cases are basically fraudulent conduct.

He has lied during investigations. He's said things that were, he will quarrel with whether they're lies or not, but lies about what you were just talking about, about his guilty plea with Judge Polly. So one thing he's doing is he's trying to attack credibility by saying in each one of these cases,

Michael Cohen, you had raised your right hand and you had sworn an oath to tell the truth, just like that oath you swore to tell just three days ago on Monday. Right. The same thing. Exactly. So he's basically conveying to the jury, why should you believe him today when he has raised his hand before in multiple other circumstances before Congress? Right. Before a judge, etc.?

And that he's lied. And he's now telling you he lied. He lied when he was under oath. You shouldn't believe him today. And you're going to hear that so hard in summation. But then the second point you've made is even putting that part, he's incredible because he is somebody who's willing to lie under oath. Todd Blanch also just pointed out inconsistencies, right, between what he's saying now and what he said some previous time. And this gets to these points you're making now. So then that will allow the defense to argue in closing, not just that he's a liar,

but that now he's either trying to make himself look better, that's why he's inconsistent, or his memory is bad and he's inconsistent. And if his memory is bad, that means why should you believe the things that he now claims to remember, which is kind of a perfect lead up to the biggest moment of the cross-examination, I think, in terms of... The other thing is he also hit

his motive. I mean, he just, and he was very, very good. He was like, I want to see him convicted. I mean, he was very much like he has destroyed my life. They played a segment from his podcast, which I thought was extremely effective, not because of what it said, because he had already said I

said, "I want to see him convicted." But he was a very different person. In the podcast, he's like, the contrast between what you heard on the podcast and what you saw in court was, I thought, kind of striking. And I think you're going to hear about that in closing, these sort of two Michael Cohens. So I actually thought that was very effective. That's one advantage of being there. Oh, yeah. You don't see that black and white. Yeah. Right. Exactly.

But OK, so we've been leading up for like, yeah, I know. I mean, this is like, I know everyone's just like, I know our producers are probably going to love it because it's like cliffhanger. Yeah, yeah, yeah. But let's get OK. Yeah, let's get to it. So let me just describe what happened on direct and then what happened on cross. And then we can talk about our takes on it. Michael Cohen testified about various calls in connection with the Stormy Daniels piece of this on direct.

in October and then moving forward. And there were various time periods. And there's a call sort of in earlier October about the Access Hollywood. There are later calls on the 24th of October. There's two more calls on October 26. How do I pick out these exact dates? It's not just that Michael Cohen testified those dates, but he did that because he was shown telephone records and

And then said, well, that's the date it happened. And just to interrupt there, this is something that we talked about in the last episode that I was commenting about how corroborative this was of Michael Cohen's testimony, because for everything he would say, boom, there's a cell phone record. Yeah. Yeah. Let me get back to that because we may have a difference on. So anyway. OK. And he said on the 24th.

He called Mr. Schiller, which is Donald Trump's bodyguard, body man, valet, and that

Mr. Schiller put Donald Trump on the call. By the way, there's definite corroboration for the fact that that happens because there's a text message where Schiller would call and say, are you there for Trump? And so not unusual. That pattern is something that definitely happens. And he says on direct that it was that day. He's asked, what was the purpose of calling? He said, I called Schiller yesterday.

to speak to Donald Trump. And that's the reason for the call. Like, it's very specific that that's the reason. About the Stormy Daniels payment. Yeah. And the substance of the call is actually not the most important call. I think that's important because it gets built up.

as it should on cross, as if it was the most important. It's just basically to say that we're working on the deal, but it's actually, this is my point, it's actually the 26th, two days later, that's a much more important set of calls. But on the 24th, it is sort of a update on things are progressing to try and get a deal going forward. But it's a very short piece, but it's very distinct and specified on that date. Fast forward. The cross-examination, the...

They use text messages between Michael Cohen and Keith Schiller on the 24th where it's very, very clear. I mean, there's no question that Cohen is calling Schiller because of a harassing call that multiple, I think, yeah, that Michael Cohen is getting from someone who then professes to be 14 years old. We don't know if that's true or not.

But it's harassing calls. And Michael Cohen basically saying, I'm going to get the Secret Service to look into this. And the person says, please don't, please don't. And then says, I'm 14. And Michael Cohen basically, I thought it was kind of nice. He says, look, can you please have your parent or guardian call me? Which anyway, but so he clearly is talking to Schiller about that. And one of the ways you know that is that after the call, there's a response from Michael Cohen where he gives the phone number that was used by the

alleged 14-year-old. So that clearly is part of the conversation. And says basically the dope forgot to block his phone number. So this is his phone number. Right, which is why he knows. Just to make sure, I want to make sure listeners who didn't follow the transcript or haven't been watching TV, which I have not, I don't even have a TV in this cottage in Ireland. The reason he's contacting Schiller is he does, like you mentioned, he wants to get the Secret Service on it. So he's like, here's the phone number.

- Can the Secret Service look into it? That's what he's, at least according to the text, appear to be why he wants to talk to Schiller.

So Cohen's asked, it's basically, this is where, again, this is where I think Todd Blanchett has the documents and he, I thought he did like what you're supposed to do. And so he does the classic defense lawyer thing, but he did it very well where he raises his voice and says, isn't this a lie? You know, just, you shouldn't be using your, not just acting ability, but I mean, like to stress to the jury, this is a different moment. And I thought,

Michael Cohen did a really good job of saying, look, he sort of remembers, but it took him a little while. You've refreshed my recollection with the text messages. Yeah, exactly. By the way, I just thought this is so classically something you would forget because that's not important, right? Right, that's right. He had said there were hundreds of harassing calls. So it just seems like exactly what you would forget. But he sort of goes, yeah, that sort of rings a bell. But he says, I still believe that this is what happened.

Meaning I talked to Trump about Stormy Daniels, yes. Yes, and he said, I think it could be both. And Todd Blanch says, but the call is a minute and 36 seconds. So one of our listeners wrote in a really good comment, which was if I were the prosecutor,

I would actually say in summation, you don't think that you could do both? You could both talk to Keith Schiller and talk to the president? Because the part about the president was really just saying, we're progressing. Yes. And it wasn't a long conversation about details. And...

He said, if I were the prosecutor, I would just say, let's just take a break and I'm going to count out a minute and 36 seconds. We're not going to do this on the podcast. But people can do this at home. Set your phone to go off in a minute, 36 seconds. And this is something I've done in trials. And maybe you have too, Andrew, particularly if you've put on witnesses who are talking about

how long something took and the defense is going at it. That could have never happened. And like, OK, let's sit here and see what 96 seconds feels like. You can do a lot of things in 96 seconds. And that's what this is. So I agree that that could be a very effective tool. But ultimately, the reason I think that this was damaging to the prosecution was

Even though, as I mentioned, this is not the most important phone call. And so far, Todd Blanchesson said anything about the other phone calls. And on the 26th, two days later, those are the critical ones. That's the authorization, right? Exactly. And those are happening. Leave Michael Cohen out of it. Like he could disappear from the planet or they talk about he could get hit by a bus slash truck, which we talked about in the last episode.

On the 26th, there are two calls between Cohen and Trump that are lengthy, and then the payment is made. That is in black and white. We know that happened. And also, if you were going to make up a story, like, why not just pick one that is on a Trump call? I mean, there's just no reason to pick a Schiller call. So I think all those arguments will be made. But the reason I thought it was a hit is I think that

And when I've done trials, particularly organized crime cases, my credibility as a prosecutor was what was on trial. The defense tended to be that I had coached the witnesses. I mean, the proof was usually quite good, but it was like they had to figure out something. I think you're going exactly where I was going to go. Yes. Because we're trialers. By the way, I really think that with all of the baggage and all of the things that we can say Michael Cohen should have had more self-knowledge,

And why is he saying that? I have to tell you, his demeanor on the stand, the last hour of direct examination has been remarkable. You know, would I believe him without corroboration in terms of proof beyond a reasonable doubt? No, I'd want corroboration, of course. But he comes off well.

Here's the problem. Normally, in federal court, you would not use evidence like telephone records necessarily with the witness. You would usually just show evidence.

evidence that the witness has seen himself or herself. And then you put it in through a different witness and then you put it together in summation to say, look, you know, you can figure out the times, you can figure out the corroboration because, you know, he didn't know about X, Y, and Z. A different choice was made here. And I'm not faulting that because I think they decided, well, we're going to try and corroborate him sort of on the spot. As he goes, as we go along. Yep. And so...

they were decided to use the telephone records and other things, even though he had not seen them. So there is a sort of educating of the witness problem. And the problem is Susan Hoffinger was tethering him to this. And I remember at the time thinking, so this is dangerous. And also sometimes there are things you may remember, not just this, of course, as he said on cross, there's things you just remember the substance.

But you don't exactly remember the date. Sometimes, though, you will. Like you might say, oh, I remember whatever the date is that we sent the wire. I know I talked to... That's the date I did XYZ. Right. You can connect it to an event. But usually there are things where you're like, especially when it's not one event, but many events where you're like, you know, I remember towards the end of October X happened. Or I seem to recall. And you sort of...

sort of bring reality into what's going on. And instead, I think Susan Hovinger was sort of like trying to pin it to that time, but never had Michael Cohen actually say how it is that he recalled that it was that specific date and time. And you could tell that what happened is he was thinking, well, that's the record and that looks right. But that wasn't teased out by Susan Hovinger on direct. And that's why I think she took the hit

And then it also makes Michael Cohen look malleable so that he takes a hit. And I just want to make sure people know that on Cross, he eventually, in a different context, said, there are things I know I remember. Because Todd Blanch was trying to say you had many, many, many, many, many, many, many, many, many thousands of calls over 10 years. And how do you remember the dates and times and the substance of these particular ones?

And I actually thought Michael Cohen was great on that. And he said, well, first of all, these are with Donald Trump. These meetings are at the Oval Office. I'd never been there. And these things were important. But he said, but do I remember the date and time of a specific call? Of course not. But I saw a record. And so I know what that's the time. So can I...

Can I just give you an example of what you were just saying? At one point, Todd Blanche says, given that your testimony to this jury is still when you testified on Tuesday that you had a specific recollection of a phone call with President Trump on October 24th at 8.02 for one minute and 36 seconds.

Is it still your testimony that you were telling the truth? And Michael Cohen says, based upon what was going on and based upon the other message, text messages and so on regarding the Stormy Daniels manner, yes, I believe I was telling the truth. Question, so you were not basing your testimony on Tuesday based on your memory. You were basing it on documents the people showed you in prep.

Is that your testimony? That refreshed my memory. Yes, sir. So to your point, that decision to kind of like refresh him with text messages is now really coming back, at least as a basis for some legit cross. Although I do still think there was some effectiveness to it. The other point, though, beyond the point that you made about reliance, the prosecution sort of reliance on this trailblazer.

trail of text to kind of refresh his recollection and, you know, prompt him to say all the things they wanted to get out is I thought that Mr. Blanche brought out with some effectiveness. Again, it's not the prosecution on trial, but like you said, in a way they are just to the jury is that in their providing documents and materials to Mr. Cohen, they had provided a chart of various text messages and phone calls and things for refreshing his recollection.

They did not show him, at least according to this cross-examination, these texts.

about the harassing call from the alleged 14-year-old. Those were not part of those. Did the people include the text messages that I just showed you between you and Keith Schiller on October the 24th on this exhibit that they showed you? This is what Mr. Planch asks him. Do you see those text messages on that exhibit? I don't, says Mr. Cohen. The people did not bother to include those on this chart, did they?

Asked Mr. Blanch. Not on this chart. No, sir. So now we're getting into this. Didn't you, you know, this will support an argument in closing that the people, and by the people here, that's the DA's office.

purposefully refresh Mr. Cohen's recollection with certain things and not others to craft the story they wanted the jury to hear. That's going to be the argument. Now, they have a whole redirect to fix that, right, to rehabilitate that. And I do think the value of this, you know, point here is limited by the entire rest of the examination we've heard this week. But

But it's a serious point. It's a serious point that the defense made. And it is because this is what happens on the defense side. And this is not by way of criticism, is if you get a mistake and a flaw, you blow it up. And you say it exemplifies the problem in general, as opposed to, I mean, my two cents as to what I think happened here is I think the

The DA didn't do a particularly good direct on protecting the witness and in general about sort of dates and times and didn't really protect the witness and tried to sort of nail specific dates and times when it

it wasn't needed and it wasn't sort of realistic and got caught. I don't mean caught like she did it intentionally. But she could have prepped him on the Schiller text. Right. And so I think this is what's like, let's just get real. I mean, it obviously was a mistake. Yeah. Right. I mean, they obviously didn't know about them because it's just a classic mistake. I mean, and it's sort of bizarre that they

hadn't reviewed the material because it's not like this isn't material. I think they have to. I think somehow they just missed it when they prepared their draft. I don't know. Who knows? We'll see. We'll read the memoir in like five years. Yeah, yeah, yeah. I mean, no matter what, it's a mistake, right? Yes, it's a mistake. Whether they knew and didn't tell them about it or they just missed it, but they would have had all these records. So, okay. Should we

Should we take a break and come back and talk about a few other things, including what we are looking for next week? Yeah. Although I have a question for you that I'm going to pose to you and then maybe we can talk about it. And the question is, what would you do if you were the prosecutor on redirect on this issue? I'll tell you my answer. I was asked that question on air. I'm giving you notice. Yes, right. Lawrence O'Donnell asked me that on the spur of the moment. I'll give you that answer.

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Mary, we're back.

What's the answer? Tick tock. So, I mean, I don't have any brilliant sort of like fix it. I do think I would directly address it with questions about, you know, let him go ahead and explain what happened with the harassing calls and why he if to the extent he now recalls why he wanted to talk to Schiller about getting to the Secret Service on this.

And then ask, you know, can you talk about more than one things? You know, simple questions. Can you do you sometimes talk about multiple things during a phone call and et cetera? And do you have any other separate recollection of actually talking to Trump before the 26th about Stormy Daniels and kind of and get those explanations? I don't think, you know, I would save my let's tick off 96 seconds. I would save that for my summation because that's not a question to Mr. Cohen particularly.

But, you know, I also don't know what else that, you know, what all they have that they might be able to use to help and to ask him on redirect. What did you say to Lawrence O'Donnell? I had a really brilliant, you know, much more astute answer, Mary. I said, I don't know. Oh, yeah. I mean, part of it is, you know, you and I don't know what they've got that might be useful. And one thing that's interesting, too, is that

You do not always, as a prosecutor, get to talk to your witness during the recesses or overnight because you're not allowed to do that. Right. So you're in cross. And one of the things I think people might think, why didn't she say I would talk to Michael Cohen and figure out how can we make this better? No, you don't get to do that because the idea is you can prep, you can talk to your witness beforehand. But in the middle of cross-examination, you can't do something that would give him like better answers. That's, you know, the night when you're like, damn, I wish I could talk to Michael Cohen, but I can't.

Right. So next week, although the defense hasn't definitively said that they aren't going to call anyone, I mean, obviously the state said this is the last witness, they'll rest. The defense hasn't said that they are not calling anyone, but it was so clear that Judge Ruchon was like, uh-huh.

Okay. Anyway, so we're going to have summations on Tuesday. I mean, it was just like, he knows. I mean, like, yes, is it theoretically possible? They're talking about some expert. Yeah, that's not going to happen. But I don't think that's going to happen. And of course, Donald Trump, it's his decision. He can decide that he's going to testify. That's not going to happen. And obviously, one of the reasons you don't

say that as in terms of it's always good to have the state have to just in the back of their head still worry about it because they have to operate in two tracks. And, you know, to be fair to them, it's also like until you really see how the whole case goes, you don't really have to make your decision.

So, you know, that is technically right. But Judge Mushan has seen this a lot. So he has said he wants to have summations and the jury charge all in one day, both summations and the jury charge. Josh Stinglass is reported to be the person who's going to do the summation for the state.

Todd Blanche is going to do the summation for the defense, and then the judge gives the jury charge. That is the law that the jury must apply. But the jury is the decider of the facts and the sole decider of the facts. And then it goes to the jury. Next week, the court is sitting on Monday and Tuesday. It is not sitting on Wednesdays. The judge did ask yesterday whether...

Any of the jurors would have a problem sitting on Wednesday, and it turns out at least one said yes. So he said, that's fine. If one juror has a problem, we're not going to sit, so we're not sitting next Wednesday. I guess somewhat surprisingly, you know, when we started this trial, it was like almost every day there were things that Trump was saying on social media or in rallies that prompted the government to come in and say, no.

and file a motion to hold him in contempt for violating the gag order, right? It was happening practically every day for the first few weeks of a couple of weeks of the trial. Which led to 10 findings of criminal contempt beyond a reasonable doubt. That's right. And we haven't seen any more of those motions. And we haven't seen quite the same level of statements by Mr. Trump. And one could ask,

Why is that? Did he actually decide that he was worried about going to jail? Because remember, Judge McShawn said, if these fines don't work, I'm going to have to consider incarceration as a penalty for contempt. There hasn't been a single motion since that warning was given. But what we have had is a whole lot of Trump surrogates going out there and doing Trump's work for him, one might say. Surrogates who are members of Congress. Yes. Yes.

Indeed. Now, the gag order did say that Mr. Trump can't direct anyone else, right, to make statements that would attack witnesses or jurors, etc. But of course, you know, there's no evidence that some of the statements that are being made by these surrogates were at Trump's direction. Wait, wait, wait. There was there were Andrew Rice, who was in court.

has now been on television saying when he was in court, he was sitting close to the front, he said this now repeatedly, he saw Donald Trump editing the statements. Oh my, okay. So are we going to see it in motion now? And one of the things that I actually was on air when I think Nicole Wallace asked him

And was that something that other people would have seen, like the prosecutors? And he said, I don't know how they couldn't see it. Statements that others have then gone on and posted on social media or made to the public or the press. All right. So you can tell I've been away from the news for two days. I don't know that he could do an exact one-to-one. But yeah, so you'd have to have a hearing and you'd have to have... And probably have to have witnesses, etc. Yeah, well, there's one witness. Yep, exactly. Okay. Okay.

So you have these surrogates, and it's also became an issue because the prosecution at a sidebar asked the judge to make sure that those people, the sort of very identifiable members of Congress. And by the way, one day, Mary, I don't know if you saw this, but a number of the men who were coming in all wore like...

the same uniform with a red tie and they looked, I hate to be pejorative, but they looked like mini-me's, like a mini version. They're the same red tie as the former president. And the thing that was disheartening is the statements they made

were all denigrating the criminal justice process. For a Supreme Court justice or a member of Congress to be denigrating a system that they're in charge of overseeing and building, and they, like, I don't think any of those people have looked at the proof. And I mean, let's just start with, are they, David Pecker, let's just take his testimony. I mean,

He's made it absolutely clear there was a secret scheme to denigrate Ted Cruz and Marco Rubio and Hillary Clinton and to catch and kill. I mean, that obviously happened. Whether it meets all the criminal standards is a separate issue. So it's just so surreal. And we are so in

in a bad place in this country, to state the obvious. I mean, and that's getting to the heart of the statements. Like you said, they're denigrating the prosecution. They're denigrating the entire criminal legal system. And there are definitely places where the criminal legal system can be reformed. But, you know, to have electorate members of Congress and others in sort of positions of power and influence to attack

you know, one of the three branches of government that is important and critical foundational to our constitutional system is troubling. But the other thing, I think this is what you were starting to get to when you mentioned the sidebar, but we didn't get through the thought is in addition to them being out there speaking in general, outside the courthouse, on social media, on TV, they've been coming and visiting court, which they of course can do like any member of public. It's a public courtroom and it's open to the public.

But they've been coming in with security entourages in ways that are very visible, right, to the jurors and to everyone in the courtroom. And that was the subject of the sidebar yesterday, which was, I think it was,

the assistant DA calling the judge's attention to, could you ask that when members of Congress come into the courtroom with their entourage that they don't do it in the middle of cross-examination, right? So that they do it like at a break so that they're already seated when the jury comes in, not so that the jury suddenly is distracted from the testimony by this member of Congress walking in with a security entourage.

And Judge Michon definitely thought that was something that was concerning. He asked, I think it was Mr. Blanche for the

defense to, you know, see if they could resolve that. And Mr. Blanchard said, I don't have control over these members who, you know, have a right to be here if they want to be here. And I mean, he's right. He doesn't have control. But just like the prosecutors didn't have control over Michael Cohen and what Michael Cohen could say, they could at least ask. And the judge could also ask. Yeah. Also, the idea that Donald Trump doesn't have control over them is really like, come on, far fetched.

I mean, they're only there because he has control over them. So, Mary, next week we will be doing this on Tuesday where it'll be really interesting. We'll be able to talk about something really interesting, which is obviously whatever else is brought out on cross-examination. But the issue that we've been speculating on is how would we deal with this? We will know the answer from the prosecutors and then we'll be on to summations unless, you know, the

truly unforeseen happens, which is there's a defense case that includes Donald Trump. So with that, Mary, I know I've taken you away from your vacation. So have a wonderful continued vacation. I'm going to get back to it and we will talk next week. Take care.

As the trial continues and winds down, Mary and I will bring you new episodes twice a week to keep you up to speed. And we want to continue to answer your questions as they come up. So send us questions. You can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll have another episode for you on Tuesday.

This show is produced by Vicki Virgulina. Our associate producer is Jamaris Perez. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

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