Deep Dive
Shownotes Transcript
Hi, welcome back to Prosecuting Donald Trump. It's Wednesday, May 29th at 9.13 a.m. I am Andrew Weissman. I'm a little bleary for reasons that are different than...
Mary, who I think is also a little bleary. So it's going to be an interesting podcast. But hi, Mary. Hi, good morning. And we are both in the same time zone today. So welcome back. Yes, thank you. I would say it's lovely to be back. But actually, I wish I was still in Ireland. Yeah. Yes. I'm bleary from working super late last night on my day job and then getting up super early to make sure I'd read transcripts and things like that. You're blurry from being on TV all day yesterday. So I was in the
overflow courtroom. I got to the courthouse at 6 a.m. It was the longest lines I heard, right? Longest lines? Yeah, very, very long lines. Okay, Mary, what are we going to talk about? I mean, obviously, we're going to talk about closings, but we also want to give listeners a little bit of an understanding, particularly those who've never been on a jury, a little bit of an understanding of what happens during jury deliberations.
how jurors communicate with the judge, get their questions answered, things like that. And then we will turn very critically. I know we've spent a lot of our time these last couple of weeks almost entirely on the Manhattan trial, but there were very significant developments in the Mar-a-Lago case that we will talk about that have to do with the flat out lies that Trump told last week about the search warrant that was executed at Mar-a-Lago.
and how Jack Smith has responded to that, how Trump's lawyers have responded to Jack Smith, and how Judge Cannon has responded to all of that. So we will talk about that as well. By the way, Mary, I love that. Gee, I wonder what your views are. I like this, the flat-out lies. Flat-out lies. You know, it's so funny. Remember, I can't talk about Judge Cannon because it's triggering. I think you're in the fold of...
Well, I'll tell you, and we'll get to this, but for you and me who spent decades working with the FBI and know the procedures for executing a search warrant and know what it means to have rules that limit the use of force.
to see that distorted the way that Mr. Trump did, and I'm getting ahead of myself here, just really... I'm triggering you. It makes me very angry. Yes, that's right. Okay, so Andrew, you were again in the courtroom. We just talked about the long lines, at least for part of it. Barry, speaking of being in the courtroom...
I'm going to do a shameless promotion because this Sunday on MSNBC at 9 p.m., there is a special, which is really going to be unusual because it is getting together anchors and legal analysts who've been in the courtroom. And I moderate a number of panels and we have clips of people giving us their impressions. And we really focus on things that you get from being there.
So we really wanted to try and convey that to the audience. So again, Sunday, nine o'clock, MSNBC. Sounds great.
So, Andrew, you were again in the courtroom. Extraordinary day. I think it made good sense to go ahead and have these closing arguments go straight through. They probably were too long. It's a long time for a jury to remain seated. I have a thought on that. Yeah. So on the length of them, one of the things that the judge did is he both was looking at them and would comment to the parties during breaks. I think they're still with us. So I'm going to be OK going forward.
But he very much left it to the jurors. He was very agnostic, saying, jurors, you'll let us know. Do you want to continue? If you want to continue, we'll continue. If you want to start again tomorrow morning, we'll do that. I mean, he wasn't pushing them one way or the other. So they elected to go to the end. So it was about a little less than three hours for the defense summation and, you know, about four and a half to five minutes.
for the state summation. Let's just start with the defense summation. And I unfortunately am going to start with something I thought was a gift to the state summation.
in the way that it was argued by Todd Blanch. And understanding that the defense has a different position, a lot of times they do make inconsistent arguments because they're trying to figure out, they don't know what will appeal to a juror. And so they want to make sure they've given them a lot of things to work with. And so there were inconsistent arguments. And the trick is to sort of hide that.
And to make sure you're making a number of different points because you just don't know what they're going to grab onto. And you're trying to bring up every little point that might seed reasonable doubt, right? That's why I think oftentimes he'll get into little nitpicky things. It's like, hey, anything can to a certain juror be like, oh, that's reasonable doubt.
Right. And you also want to sort of, in some ways, have a scattershot approach because you want the state to have to deal with a lot and to get a little bit thrown off of their game plan. So it's just a very different mission. And I thought maybe I'll say the best thing is I'm not sure I would have done it as a top 10 list, but I just think he ended with a sort of a top 10 reasons.
That meant that certainly those had to be addressed in some way by the state. That's right. There was obviously the attack on Michael Cohen. Totally fair to do that. But this is what I thought was a problem and why I can't if I were grading it. And obviously, these are lawyers under intense pressure. So it's very unfair to be sitting back going, well, this is what I would do.
Having said that, this is what I think the problem was with the defense summation. They did not have any cogent argument or almost any argument with what
What Mary, you and I have a whole episode on was his Exhibits 35 and 36. And listeners to this podcast, I don't even think we need to tell them what that is because they know those are the handwritten notes from Allen Weisselberg and Jeff McConaughey and the Allen Weisselberg notes in Exhibit 35 are written on the $130,000 wire transfer from Michael Cohen to Keith Davidson, Stormy Daniels' lawyer. But more than those exhibits, they also didn't address Hope Hicks'
damaging testimony. David Pecker's damaging testimony. They talked about David Pecker, but not about the things that he said that hurt them. You didn't make an argument about why Michael Cohen or Allen Weisberg would have kept this to themselves and not told Donald Trump about it. So you knew that was going to be an argument. You didn't come up with a counter. And then finally, while they did say something about the Access Hollywood tape, it was so preposterous that
That's one where I thought, as much as you need to put things out there that may not fly, you don't want to lose credibility. And while they did address it, that falls into the category I thought it was addressed so poorly that it hurt the defense's credibility. And that was to say Access Hollywood wasn't a big deal.
was not a doomsday event, were I think Blanche's exact words. That was not a doomsday event. Yes, he said that. But then he says, you know, there are crises all the time. It was just another thing. Typical campaign crises, yeah. And that's just not plausible. And that's one where we've all lived through it. So we all knew what it was like on the outside. But even if he's talking about what it felt like inside the campaign, I mean, Hope Hicks said it took off the news that
The Category 4 hurricane, which as Josh Steinglass said, makes this at least a Category 5. Yeah, that was a good response. That was my big picture. So that's funny because your big picture feels very in the details to me. I have like much higher level, 35,000 foot big picture. Interesting.
Although I do want to respond to what you said about exhibits 35 and 36. I mean, basically what Todd Blanch argued was exhibit 35 is a bunch of lies. In fact, that was a major theme of his entire closing. I should have counted up the number of times he said the word lie or lies because it was just sort of
repeated throughout his closing. And I thought in some ways, I mean, I wasn't in the courtroom in black and white. It didn't seem that effective to me because this is one of my big pictures, because a lot of times he just said those words without explaining why the jury should think things are lies. And that's not just about Michael Cohen that, oh, everything that man says is a lie. It's about things like
Exhibit 35, a document with not only Michael Cohen's handwriting on it, but also Allen Weisselberg's handwriting on it, identified not only by Michael Cohen, but by Jeff McConaughey, who worked for Allen Weisselberg. Right. Just to say those are lies, that does not prove that they're lies. And there was not a good reason for the jury to think that those were lies. It reminds me of one of his statements was retainer is just a word.
Well, that's the bigger picture that I wanted to get at. To me, his theme, which is not a terrible theme, and he's got to work with what he has. What I thought he was trying to drive home was...
essentially, that this is a case about invoices, which drove vouchers, which drove checks. All of the invoices were by Michael Cohen. They were all sent to Allen Weisselberg, not to Trump personally. There was a retainer agreement. It could be oral. It didn't have to be written. All of
the legal services that Michael Cohen provided in 2017. He did pursuant to this retainer. Therefore, essentially everything, the invoices, the vouchers, the checks, none of these were fraudulent because he was providing legal services throughout this retainer, throughout 2017, by virtue of this retainer. So there are no fraudulent liabilities.
And the only person in his view, Todd Blanch, as he's explained to the jury, the only person to tell you anything different is Michael Cohen, who can't be believed. And there is some support for that theory in the sense that Michael Cohen did say he did do some legal work for Donald Trump in his personal capacity as an attorney for Donald Trump during 2017. And he said he just didn't get paid for it and didn't expect to get paid for it.
And he also, Todd Blanch pointed out, and Michael Cohen had admitted to this during his cross-examination, that he was very proud of being called the personal attorney to Donald Trump. He signed his emails and his correspondence with Michael Cohen, personal attorney to Donald Trump. So Blanch used that to corroborate that that's exactly what was happening here in 2017.
Right. And Donald Trump could have thought that. In other words, even if it wasn't in fact what was happening, he could have thought this was just a retainer and he never asked any questions because you know what? Being president of the United States, you're busy. He's busy running the country. So he didn't really look at the details. Just a quick Josh Stonglass response to that because it was pretty funny. He said, with respect to Michael Cohen's work for Trump,
and his family in 2017, the sort of basis for the retainer, he said he spent more time on the stand in this case than he did doing legal work. That was clever. It was just a very funny line. And it was true because basically Michael Cohen had monetized the fact that he was a personal attorney and was making millions of dollars through other clients.
So it wasn't like he was working for Trump for free in the sense that he was getting reimbursed. By the way, Donald Trump is on record saying he reimbursed him. And it just doesn't respond to those notes, make no sense. In answer to the notes, which is their lies,
doesn't explain why they're in existence and what the details are and why they're on $130,000 payment. I just think you have to have a better argument than that. I agree with you that that was definitely the thing that he was going with. But I also thought Josh Stanglis did such a good job with saying this whole idea of like, like,
what Donald Trump, while he was president, could be thinking about. And he didn't really pay attention to this. He was very good, I thought, saying, you know what, this guy's like a micromanager. And don't buy that just because he became president, he still wasn't a micromanager. He didn't have to sign any of these checks. He could have had his wife sign it. He could have had an auto pay. He could have had his staff or his sons do all of it.
But instead, he had this convoluted way to get the checks to the White House disregarding White House security. And he did a sort of Rube Goldberg scenario of all the different people who had to be involved to get him these checks so he could personally sign them when anybody else could have. And it was just, I thought, such a logical way of explaining this guy wanted to, as he said in his books,
He needed to have personal control over the money that's going out. And even Todd Blanch at times was arguing inconsistently that this guy is detail-oriented because he wanted to say, what do you think the chances are that he would spend $420,000 needlessly, which was frankly, that was the state's point. These are the inconsistencies that you're pointing out. Yeah.
And there's a lot I think we can say about Josh Stenglass' response when we get back to that beyond what you just said, which was super helpful. But just a couple more points I'd say on the closing. You know, that theme was out there and what Todd Blanch tried to make the jurors understand, he wanted the jury to believe that
all of these invoices are accurate. They're for legal expenses, that the checks were auto-generated by a dropdown menu for legal expenses, that the 1099 for legal expenses were accurate because these were legal expenses, that the government ethics form was accurate, right? All these things. And that the only way the jury would think anything else is if they believed Michael Cohen. And then he goes on and on about how Michael Cohen's the MVP of all liars. He's also with
thief. He lied to you. He's the gloat, the greatest liar of all time. He's the embodiment of reasonable doubt, you know, on and on and on with these little quips that I think he hoped the jury would understand. But as you've just pointed out, it's not just Michael Cohen who puts the lie to this theory that these were all payments for legal expenses pursuant to retainer. And that's where I think he put too much weight
on Michael Cohen as being the only link that shows, no, these were actually falsified records to disguise this reimbursement for the hush money payment, which was done in order to promote the campaign. Because remember, this is a case about falsifying business records for the purposes of concealing another offense. That offense, as Josh Stanglis explained to the jurors, was to promote the candidacy of Donald Trump through unlawful means.
So I think he rested things too much on the jury disbelieving Michael Cohen. But I agree with you. I thought probably the most effective part of his closing was giving the jury 10 reasons to have reasonable doubt. And some were small reasons and some were big reasons. But all it takes is for one juror to think, I've got a reasonable doubt here and refuse to convict. And then you have a hung jury, which means you don't have an acquittal.
but you don't have a conviction either. I think it's highly unlikely this case would result in an acquittal. I can't imagine 12 jurors agreeing that the evidence was insufficient to prove beyond a reasonable doubt. But any one of 34 offenses
But nevertheless, he definitely tried to sow doubt for at least one juror, which is his job. And I think that's probably what they're hoping for. Last thing I think we should say, though, is he did something that he shouldn't have done in that closing argument. And it came at the end. And it's something I've seen occasionally before. And I think it was not an accident. And that is that he was wrapping up his closing and said to the jury, you cannot send somebody to
prison, kind of stopped himself. You cannot convict someone. There's a Druin objection, which was sustained rightfully, and it caused a curative instruction. And the reason, we should probably explain, the reason this is sustained is sentence is not something that jurors are supposed to consider when they are determining whether the government has proved the
the facts beyond a reasonable doubt and proved that those facts support all of the elements of the charged crimes for a conviction. And they are instructed in closing instructions not to consider punishment. And so when a defense counsel, you know, makes a reference to punishment, particularly in a case like this, to prison, that is
always going to be sustained. Right. And just to be clear, the guilt phase, that is where the jury has a role. The sentencing phase, that is for the judge. Why is the defense raising it? Because they want the jury to be thinking, am I really going to be responsible for sending this person to jail? And of course, that's sort of trying to up the ante in terms of the level of proof that you would require.
And particularly where you're dealing with somebody who is a former president or potentially a future president, that's already something that is probably subconsciously is in the minds of the jurors as to whether there is a higher burden. And so Todd Blanche was correctly chastised by the judge. The judge said he couldn't imagine that this wasn't.
intentional that he knew that Todd Blanche, as a former prosecutor and defense lawyer, would have to know that. He gave an instruction that was a little unusual because in addition to saying you cannot consider this, don't consider it, he also said, just to be clear, these crimes do not carry with them mandatory jail. That will be for me to decide. So he really, I think the judge tried very hard to
to unring that bell. The curative instruction he gave was an instruction prepared by the prosecution. The defense did not object to it, which was a real sign of they knew they crossed a line. So just to give listeners a flavor, this is the instruction that Judge Breshawn gave.
During the defense summation, you heard Mr. Blanch asking, in substance, that you not send the defendant to prison. That comment was improper and you must disregard it. In your deliberations, you may not discuss, consider, or even speculate about matters relating to sentence or punishment.
If there is a verdict of guilty, it will be my responsibility to impose an appropriate sentence. And then this is the part, Andrew, you were getting at that was a bit unusual. A prison sentence is not required for the charges in this case in the event of a guilty verdict. And so the judge gave that just before the state's closing summation. That's right. Should we take a break and then come back and talk about that closing summation? Yes, let's do.
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Welcome back. So we've talked about the defense closing. We've talked a little bit about Josh Stanglass' response. But let's talk a little bit more of that. I mean, his approach, I think, was very different. And that's because he has a different role. And I will say, Andrew, this is my first experience of reading transcripts of a closing under New York procedure where defense goes first and prosecution comes second. And I found that very strange. Wait.
But Mary, describe what you're used to just so people remember. So in federal system and in D.C. and every other court I've ever practiced in. So this is why it was so unusual to me. But I don't practice in New York state court, partly because it is the government's burden to prove guilt beyond a reasonable doubt. There is usually the prosecution has the initial closing argument. The defense then gets to respond with its closing argument. And then the government gets a rebuttal period to rebut what the defense said.
And so I tend to think of that because that's the same way the case tracks, right? I'm not saying it's unfair because, again, the government has the burden of proof. So the government should have the last word one way or the other. It just felt strange to me. And regardless of the different format,
I think we still would have seen what we saw from Todd Blanche. Unlike the defense, which is just trying to poke holes and trying to seed any nugget of reasonable doubt, the government needs to take the jury all the way through the timeline, point up all of the evidence.
that it is elicited to prove the elements of the offenses charged, the 34 offenses charged. And here, of course, with Michael Cohen, it needs to corroborate all of Michael Cohen's testimony with emails and text messages and other witnesses' testimony, et cetera. And that's what the government did. So this is such an interesting thing. I actually think it can, this system of the defense going first, the prostitution going second, carry
can be viewed as helping the defense more than the systems we're used to, the sandwich, where the prosecution goes first and last. And that's because when the prosecution goes first and last, especially because in the main summation that the government gives, they get to not just address their affirmative case, but they can address in their main summation key defenses that have been brought up during the trial. That's true. And so I think that what that means is that the defense,
defense when they go forward is kind of already at an uphill battle. And they sort of have to, in some ways, respond. And jurors may not be so quick to listen to them. Whereas here, the defense goes and there's been no argument and there hasn't been something to sort of rebut it yet. And so I think you're more open to the defense and what they're saying. And then you hear the response to it.
And that's an interesting human nature point, right? That people, if they start to accept the first thing they hear, it's going to be harder for the other side to sort of overcome that, at least conceptually. Of course, I'm not a sociologist or whoever it was that studies human behavior. I bet there are studies about that, but I get your point.
So let me also now address, a lot of people have said that Josh Steinglass's summation was too long. They weren't really criticizing anything he said. I mean, his word choices and his arguments were pretty close to spectacular. I mean, he had so many really, really good, thoughtful points. But, you know, the issue is sort of jury attention and do they get buried in a morass? And, you know, do you really need to go on that long? And one thing that I think people need to remember is
I'm not saying one way or the other is whether it's too long or not. I actually am fine with it. But I just think before one criticizes either side, it's really important to remember they're dealing with somebody who is the former president of the United States and potentially the future president. And I don't know, but I know. Like in my heart, I know that Josh Seinglass has to be concerned about whether the state is going to be held.
to an even higher standard of proof here and that they're going to be expecting even more proof. Somebody yesterday analogized it to trying to prosecute somebody in law enforcement where
That can be very, very hard. I have seen acquittals when there really should have been a conviction. And so I think Josh Stanglis thought this is not a normal case where the normal rules apply in terms of what would be expected and wanted to make sure that he really addressed everything. And also, by the way, there's so many layers. There's a lot, right? He wanted to make sure it was gone over, especially because there are a lot of documents here that really help that
helped the case. Let me just tell you one quick thing, getting to substance that I just thought was great because I'm very much an argument guy. That was how I was trained, which is like, of course, you want to recite the facts, but you really want to be thinking about what arguments are you going to be making about those facts. So to me, as we've talked about in terms of exhibits 35 and 36, it's why would Michael Cohen and Alan Weisberg be keeping this from
Donald Trump. And as we said, that was not addressed at all by Todd Blanch. And it was addressed in detail by Josh Steinglass in so many ways. And let me just give you an example. He was saying in the October 2016 timeframe, there was this effort to see if the Stormy Daniels payment could be put off until after the election, because after the election, you wouldn't have to pay.
And one of the things that Josh Stiglash said is, do you really think Michael Cohen would have the audacity, that was his word, the audacity to make that decision on his own, to risk that the story would come out and to decide whether payments would be put off without that being orchestrated and told to do that by Donald Trump, who was the candidate, who was the person who had the personal interest, who was going to be paying it?
That was, I thought, a great point. The point of why would Michael Cohen keep
from Donald Trump, the Stormy Daniels piece, when everyone agrees he already knew about the AMI National Enquirer piece because it was independently proved and he's on tape and David Pecker said it and it wasn't challenged that David Pecker had said it. And so what would be the reason? Yeah, tell them about one but not the other. Yeah, exactly. It doesn't make sense. He talked about Michael Cohen as a self-promoter that
why would he not want to get credit from this when there would only be a downside? And the defendant, Donald Trump, was the beneficiary and there was no other beneficiary. So he just had a litany of arguments and wonderful words, but I just thought those were so strong and there was no counter. Yeah. And I think it's important too, with respect to everything you put out and
And this is tough for folks who weren't in the courtroom, but he went through more than 400 exhibits that would be on slides up on the screen. So that as he was going through his closing, the jury's able to be looking up at the corroborating evidence supporting what he's saying, whether it's emails or text messages or playing clips of recordings online.
and even reading pieces of the transcript into evidence. So, you know, putting that whole package together that then, you know, everything you just elucidated there that he was able to focus on as a matter of proof, he's doing that while he's got things up on the slides that sort of show that timeline and corroborate all that. And also, I agree with you, seemed to be very effective. A couple of points I wanted to point out are ways that he dealt with the defense arguments.
One of the things we didn't mention about Todd Blanche's argument is he really did try very hard to set up this idea that Stormy Daniels, Keith Davidson, Gina Rodriguez were all just
really trying to extort Donald Trump. This was just extortion. They just wanted to get money at Donald Trump's expense, and they had a perfect opportunity to do so. And as we did mention, also, Taj Blanche argued not only that Cohen was a liar, but that he's a thief as well. And one of the things that Steinckless came back with is that
You know, this is extortion defense. He rebutted it, why that's not true, why the evidence supports something else. But then he said, you know what? It doesn't even really matter because you don't get to commit election fraud or falsify business records because you believe you've been victimized. Extortion is not a defense.
doesn't matter that Michael Cohen stole that $30,000, right, from part of the Red Finch payment from Donald Trump, because it's not a defense to falsification of business records that your co-conspirators stole from you. These things are just not defenses. Can I just address that for a second? Sure. Because one of the points he made, and I think he could have taken a little bit more time on this, but it was such a great point. He goes, the Michael Cohen is a thief argument. He said, just to be clear,
Their theory is that the $420,000 is legal fees. You can't steal legal fees. So he's like, it's totally inconsistent. If you're saying it's theft, that's because...
It is actually reimbursement, but he's not using all of the money to reimburse because he's not passing on the $50,000 all to Redfin. She's keeping $30,000. That works if it's a reimbursement scheme, and that's fine. Then, in fact, Michael Cohen said, yes, I did steal $30,000. It is a reimbursement scheme. So he's buying into Michael Cohen's testimony. You have to believe. In fact, that gets to my last point, which is where I thought that
So effectively dealt with this whole Michael Cohen is a liar. And he did lots and lots of things to corroborate Michael Cohen. But I thought this was really well done.
We didn't choose Michael Cohen to be our witness. We didn't pick him up at the witness store. The defendant chose Michael Cohen to be his fixer because he was willing to lie and cheat on Mr. Trump's behalf. Mr. Trump chose Mr. Cohen for the same qualities that his attorneys now urge you to reject his testimony because of. And then he goes straight from there into a passage of one of Trump's books called Think Big, where he reads,
And this is Trump's own words from his book. As a matter of fact, I value loyalty above everything else, more than brains, more than drive, and more than energy. Cohen is a quote-unquote bad witness because Cohen was chosen by Mr. Trump
to do all the things, the lying, the cheating, whatever, that allowed the dirty work, right? He was the fixer. Mary, have you ever used the witness store line? I mean, I've used similar arguments, but I've never... I never used witness store. I loved it, though. I've heard that line. And when you're in the courtroom, it's like, it just was great. It hits. We didn't pick them up at the witness store. It's just a wonderful line. And just to be clear, Josh Zangos had so many of those great lines.
We should probably address the one point during the trial that was really the only sort of point where Todd Blanch sort of scored a point on cross of Michael Cohen, which was this October 24th call where the prosecution clearly messed up, had not reviewed the text messages. And it's clear on that call that...
that at the very least, the subject matter was this harassment call. And Michael Cohen says, well, you know what? I forgot about that call, but I think both things happened. And so, of course, Todd Blanch correctly can say, well, no, no, no, he's lying. He's lying about the call. And Josh Steinglass said, you know, lots of times people make mistakes and it's not a lie, it's a mistake.
I mean, I understand they want to jump to it's a lie, but sometimes people just make mistakes. He used one of my favorite techniques as he said, you know, Todd Blanche, when he was doing his summation, he said that the defense offered this certain exhibit into evidence. He actually is wrong. We offered it. Do I think he's lying? No, of course not. He just made a mistake.
So he's just said there's lots of times that happens. So I thought that's a good big picture. But then he said, and let's just talk about whether something could happen in 96 seconds. And we all knew he was going to do something about this. And was he going to count out the time? Was he going to make an argument and say, by the way, that took 96 seconds? And he did this wonderful reenactment.
Where he said, let me just tell you. A little experiment, he said. Let's do a little experiment. And he just said, let's just see how long it would take. And in a very calm and not rushed manner, he calls. He says, I'm calling Keith Schiller. He said, I've got this problem. I'm not going to do the whole thing. Yeah, yeah. He says it very calmly.
Problem with the harassing calls from the 14-year-old, because remember, that was the whole argument here, that that's all that this was about. And so he goes through that. And the thing is, when he did it, he was really good about pausing, responding to something Schiller said. Uh-huh. Yeah, I'll send you the number. Oh, is the boss there?
Can you hand it over? Pause to wait for the handing over. He says, let me pause. Yes, yes. And then he says, and then he does that. And then he ends and he says, 49 seconds. Yeah. It was so, it was, the part of that that was surprising was how short it was. I was like, 49 seconds. Not even 96, right? I was waiting for it to be, it was 90 or, I was like, oh. And it was just, it just helped underscore everything.
What I actually thought, which is in many ways, I actually viewed, I mean, it's not ideal, but I sort of viewed Michael Cohen's reaction to what happened on Cross as kind of an integrity test of his sort of recollection was refreshed with respect to one part of the call, but he still was like,
This is what I think happened. And it didn't also make a lot of sense. If you're going to lie about a call, you know, pick one where the phone records are directly with Donald Trump. You know, the one argument he didn't make this has this for like second guessing is, you know, when they show the photo of the two of them together, you know, it's not just that they're together. It's like that Donald Trump is actually like, for instance, not on the stage. I mean,
Like he was, he didn't pick a date where at a time where it's like, oh, this photo shows he actually not only was with Schiller, but they were both available for the call. His recollection was it would have been so much smarter if he was lying to just pick a time when he was actually on a call with him. Because for all he knows, he could have been, I mean, he's a candidate for office. He could have easily been completely unavailable at that point and it could have been completely disproved.
So it didn't make any sense for that to be the kind of lie you would tell. Okay. So we take a break. We haven't even gotten to how the jury will communicate yet with the judge during deliberations. But after the break, we'll talk about that briefly, and then we'll talk about what happened in the Mar-a-Lago case.
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Welcome back. All right. Where we left off was we are now, this morning, as we are recording, the jury, in fact, I think they were asked to come back at 10, and the clock just struck 10 a.m. So they will be right now seated in the courtroom, and the judge will give his instructions, which will take about an hour. Interesting little rule about instructions, and this, I saw Judge Mershon said this yesterday, and this happens every day.
every time I've ever been in a trial is the judge doesn't let people come and go during jury instructions. They don't want jurors to be distracted by like movement in the courtroom and things like that because these instructions are the instructions that they will use to, you know, determine guilt or innocence here or whether they're even able to reach a verdict.
So that is happening now. Once that is happening, they will be directed to retire to the jury room to deliberate and they will begin to discuss it. And they don't get rules about how they discuss things. That is up to the jurors to decide. My experience when I was on a jury and just by talking to jurors, oftentimes they'll just go ahead and start by all taking a vote just to see where they're at. Like, are we in vast disagreement, you know, half believing one and half something else?
or are we kind of close and we can then figure out what we need to talk about? That may or may not happen. And then the jurors will start going through the evidence and talking about the charges and determining whether they think the evidence has been proven beyond a reasonable doubt. But sometimes during this, they have questions. And as we've been told, the jury instructions will not go back with the jurors. Yes, that's right.
So they won't have them there in front of themselves to look at. And I think that's in large part because they don't want any people sort of being their own lawyers and saying, this is how I interpret it. The judge wants them, if you have a question about instructions, you send a note and then you ask me. The judge will also tell them if you have parts of the transcript that you want to be read to you again, ask for that, the trial transcript. So if they're trying to recollect particular testimony.
And so, you know, we may see various notes and that all comes before even any kind of note sent about whether they have a verdict or unable to reach a verdict, which is also done by notes.
So, yeah, there's this process where they can ask questions on the law. Right. And then a note comes out. The parties confer about the note. They may have a joint proposal. They may have different proposals. The judge will hear from both sides on the law point. And then the judge usually says, well, this is what I'm planning on doing. And then the jury all comes out. And then the judge will answer the question in open court and it's all transcribed.
Sometimes the jurors will ask for a readback or they'll say, you know, we'd like to hear Hope Hicks' testimony on topic A or we'd like all of the testimony from whatever source on topic A. And then the parties scramble to get all of that together. There usually is a little bit of a dispute about what is or is not. Topic A. Right, exactly. And, you know, each side's trying to sort of make sure it's as complete as possible and
The judge rules on that as well. We're going to read back certain things. And then usually the court reporter will read it back. Sometimes I've actually heard the judge read it back, which is always kind of interesting. But usually it's the court reporter. It can take a while to answer a note. And then we're not at this stage yet, but sometimes there's a note that just says...
you know, we've deliberated, let's say after three days, they say, you know what, we've deliberated and we can't come. We can't reach a verdict. We're at an impasse. And when that happens, there's something that we call, we feds, Mary and me, we call it an Allen charge based on a case. Guess what the case is called? Allen. We're very creative as lawyers. Right, right, exactly. So an Allen charge is,
if we get to it, we can sort of talk about it more, but it basically just says, give it all a college try. I mean, there's more to it, but it's basically, there's no reason to think that another juror would do any better. It's going to be better equipped than you. That's right. You obviously have to hold on to your firmly held views, but be open to reconsidering and thinking about it. So that can happen. And then just a reminder that when you have 34 counts, that means 34 verdicts. That's right. And
And so for each one, and they could be independent. In other words, obviously there's some logical consistency there.
you might think to, let's say, all of the counts that relate to things that Donald Trump himself signed versus ones that his sons signed. But you might think they should all, like, within those two buckets, they should all be decided the same way. Consistently, yeah. But for each verdict, it could be acquittal, it could be conviction, it could be hung jury. And so you have a whole mix and match problem. You could have the jury saying, we have a
a partial verdict, meaning that we've reached a verdict on some, but we're hung on others. So they could say, let's just take a negative result for the state. We've reached a verdict, meaning we're going to acquit. They don't tell you in advance, but we're going to acquit on certain ones and then we're hung on the other, which would mean they'd be able to retry the ones they're hung on, but not on the acquittals. On the other hand, they could have a partial verdict, which is we're convicting on some and we're hung on the others. Right.
In which case they could retry those, but probably wouldn't if they have some convictions. Yep.
I just want to say one thing about the Allen charge before we move away from the Trump case, which is that in my experience, if the jury comes back too early saying they're hung, you don't go straight to that Allen charge, because at least the rule where I've practiced is once you've given that, you can't really give it again. And so judges don't want to give that until they think the jury is really hung. And so if they come, a lot of times jurors are like,
this isn't fun because it can be very stressful. We don't agree. And so we're going to just send a note that we're hung. And they might do that on the first day, right? And a judge, no way is the judge giving Alan charge at that point. They'll say, go back, keep working. The judge might say, go back, keep working two or three times before he would agree again, hearing from the parties,
to give what we call the Allen charge because that is usually sort of a one and done. You get one more try and then it's over. And the reason it's one and done is,
is that it's considered, if you do it more than one, it's considered coercive. Remember, I said this part about if you do have close, like strongly held views, you should not give those up, but you should be open to reconsidering. The idea is that if you do that more than once to a jury, the message is give up, give up you. And so that's why it's one and done. That's right. But we're not at that point yet. So Mary,
Since I've been triggered already and I sense that I brought you into the fold, what are your thoughts on I'm going to do this in the most neutral, dispassionate way because I'm going to be the sort of calm person for this discussion, or at least for a New York minute until you trigger me. But what do you think of what's happening with Judge Cannon and the application by Jack Smith where he wanted to have the bail conditions changed to account for...
certain statements that Donald Trump was making. How's that for a neutral way to describe it? Yes. Very dispassionate. Okay, let's back up just to let listeners know what happened. So last week, a motion that had been sealed since its filing, I think a year ago, was unsealed. This was a motion to suppress evidence filed by Trump's attorneys.
And in that motion, Trump attorneys explained a particular document that had been part of the search warrant. And actually, their motion to suppress evidence wasn't based on this document or what it said or any suggestion that it was improper. It was just part of them recounting what happened when the search was executed. And it was a little inaccurate. And that document said,
purported to quote from a operations form that contains a policy statement that goes along with every search warrant that the federal government executes, which is a policy statement on the use of force. And what the motion said was that law enforcement officers of the Department of Justice may use deadly force when necessary. It left out
the word only, only when necessary. Mary, just to be clear, because it was purporting to be a full quote. So in the quotation, that's right. It's a quote where in the quote, they have left out the word only, just so everyone understands. That's right.
It's not like they put ellipses. No, that's right. In any way did it. They purport to give a full quote and leave out a word that is important. Yes. And also then did not include the language that explains what that means, which is explains that deadly force is necessary only. And this is a quote from the actual policy statement on the limitations on the use of force by federal agents when executing a search warrant.
Deadly force is necessary only, quote, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person. That is a quote from the policy statement that was not included in the motion. So, and just as background,
Again, every search warrant. This is a limitation on the use of force. Of course, officers are authorized by, you know, principles of our Constitution, self-defense, that when they are attacked with deadly force, they can respond. It is not an authorization to just use force when it is not necessary. But what Trump did is he took this
you know, newly unsealed motion. And the next day publicly claimed that he was, quote, just shown reports that crooked Joe Biden's DOJ in their illegal and unconstitutional raid of Mar-a-Lago authorized the FBI to use deadly lethal force.
He also sent an email stating that the government was authorized to shoot me and was just itching to do the unthinkable and was locked and loaded, ready to take me out and put my family in danger. And he did this several times. And then, of course, followers like Marjorie Taylor Greene and Steve Bannon took it to the next level with Steve Bannon even calling this an assassination attempt. I'm so shocked. Just lies. Just complete lies.
I love it. You are just, it's like, wait, Mary, what do you really think? Yeah, yeah. I'm very, very angry about this because you know why I'm angry about this? First of all, there are lies that seep into the public's consciousness. And unfortunately, there are people here who do not believe.
test out the things that Trump or Bannon or Marjorie Taylor Greene are saying, and they will believe this. They will believe that the Department of Justice did some sort of assassination attempt on President Trump, which not only is not what the policy statement says, but also, as Jack Smith points out in his motion, and which we're going to get to,
Jack Smith had coordinated with Trump's attorneys to do the search warrant when Trump and his family would not be at Mar-a-Lago. This came up at a press conference where Merrick Garland was asked about it. He said that this was dangerous. And it was clear he had exactly your concern of the danger to his people, in terms of danger to the FBI. Right. And this then...
Right.
actual issues with law, for instance. Incidents of threats. Yes. And the shooting in Cincinnati of the FBI field office just after the Mar-a-Lago search was executed. Yes. And the record in other cases. Right. So that's all sort of very aware. They don't submit an affidavit, but they are referencing all these other things. Right. And what they asked for specifically, just to be clear, is that the court should exercise its authority to impose a condition that misconduct
Mr. Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case. Right. And so do you want to just briefly mention what happened on the meet and confer requirement? Yes.
Yes. So there is a rule, a local rule in the Southern District of Florida, and it's also something that Judge Cannon has emphasized, that before any party files a motion, they have an obligation to confer with the other side, get the other side's position. Are they opposed to the motion? Do they consent to the motion? Do they want to brief it? And they see if they can work things out. The party making the motion has to make a representation in the motion about that conferral.
That occurred on Friday at 5.30 when the government sent an email to Mr. Trump's attorneys explaining that they were going to be filing this motion that night because they were particularly concerned about the danger to FBI agents.
who had been involved in the search and because of the escalation of all these statements and then other people escalating them and seeking Trump's attorney's position. Trump's attorney said, our position is we need to have an actual meeting to confer and we can do that on Monday. And
And there was a back and forth in emails where the government said, we don't think that's going to be fruitful. And I should also say Trump's attorney said, we oppose this, but we also want to have a conferral. We want to do that Monday. The government said, we don't think that'll be fruitful. We're going to file the motion tonight. Trump's attorneys asked for the motion to include a very specific statement of their opposition.
And the government said, we'll include your opposition. We'll include a fair recitation of your position, but we're not going to use your statement verbatim. So the government files this motion on Friday night. Mr. Trump comes in, I think not until Monday, with an opposition, not on the merits. They flag, we want to brief the merits and we don't think there's any merits to this. But they said this should be denied because...
The government violated the court's orders and the local rule that requires this conferral before you file a motion. And it went so much further. What Donald Trump's attorney said is that in light of the Office of the Special Counsel's blatant violation of Rule 88.9 and related warnings from the court,
The court should strike the motion, make civil contempt findings as to all government attorneys who participated in the decision to file the motion without meaningful conferral, and impose sanctions after holding an evidentiary hearing regarding the purpose and intent behind the office's decision to willfully disregard the required procedures.
So, Mary, if you want an exhibit to how Donald Trump's team is viewing the impartiality of Judge Cannon, meaning that they view her as not impartial, this is an exhibit. This is not, I don't know if you agree with me, but this is not a motion that you would make in front of any judge.
dispassionate judge. You might argue the merits of it, but the idea that you would say that you want sanctions, I would feel like I would be sanctioned and chastised for making for that. I agree. And in light of the fact that what's being raised is something important,
that is a serious matter involving security. And this is to a judge who used to be in AUSA. And it's so shocking. It reminds me, I was talking about this to a friend of mine, where I was in front of a judge and I was making a point. I was representing a defendant and I was making a point that the government should have raised this issue earlier.
about the security of a DEA agent to take a video deposition and that this was months and months too late. And the judge correctly said when she was addressing that, she said, you know what?
I understand what you're saying, Mr. Reussman. It is too late. They should have raised this before. But if there really were an issue of security, I would get to the merits. It's too serious to say I'm not going to do it. And that was so right. I mean, I love this judge, so I so respected her. But that was the right call because...
These procedural things, like you have to look at them. And that was one where it was really right. Here, it's not even right. I mean, the idea that there was a meet and confer, she just thought, I mean, she's giving unilateral authority to Trump's team to say, you know what, I'm going to meet and confer whenever I bloody well feel like it. And if it's a Friday before a long vacation, I don't care that this is an emergency or that this is safety is at issue. I'm going to do it when I want to. So it can wait till Tuesday.
And who cares whether someone gets hurt? I mean, it was shocking. Yeah. And I think you've jumped right ahead to what Cannon did. Cannon put out a paperless order, which is basically she dictates to her clerk what to put on the record. And she said the court finds that the special counsels pro forma conferral to be wholly lacking evidence.
in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to
and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. So what she does is she denies Jack Smith's motion without prejudice for him to now engage in some actual substantive conferral. Meaningless conferral. Meaningless, but yes, that's right. And then, if necessary, come back to her with motion. She then denied...
Mr. Trump's motion for sanctions and contempt without prejudice, given the fact. Right. The without prejudice part of denying his motion for sanctions was a sign of both her partiality, her lack of experience.
And kind of just being dumb. Like, I mean, of course. It should just be denied because she's already denied the other. Yeah, exactly. I mean, it's like it was I was just like, oh, my God. Again, this is her little I don't know if it's clever or what avoidance of creating an immediate appeal.
If she had just denied Jack Smith's motion, a motion to modify conditions of relief is immediately appealable. But she didn't outright deny it. She denied it on these procedural grounds without prejudice. Without prejudice means you can rebring your motion once you have gone through the
procedures. So for him to take that up, that's not something he can take up. So again, putting it off, not giving him a ruling he can appeal. Now we're going to have some period of delay for this conferral. Then Jack Smith's going to have to file a new motion. Then the other side is going to get the chance to file their opposition. Then she'll set a hearing, God knows when. And so here we are. So yes, I'm hot about this. And I'm hot about it because
Of the danger. The lies that Trump is saying about this search are very dangerous. And whatever people could say about Merrick Garland, and there's a lot to say, that he spoke on this is... Really telling. It is a sign of how concerned he is about his people at the Department of Justice and making sure they're protected. And he made a point of saying that this allegation is not true and it is a dangerous allegation.
And so, Mary, welcome to the club. Yes. This is bad, though. We might have to have a guest come on to be dispassionate when we talk about Judge Cannon. This one just really gets me. As you know, I've given up. But I do think just a final thing is we will get to the point where she has to make a decision on this one. That's right.
It will happen. And this is the kind of thing, for the same reason that I think Merrick Garland and Lisa Monaco okayed going forward with the search at Mar-a-Lago. This is one where...
depending on how she rules. But I think this is one where if she denies it, you could easily see an appeal to the 11th Circuit on this issue. And this whole course of conduct in terms of what she's been doing is not going to put her in good stead. I mean, Mary, I don't think people understand you're a pretty dispassionate person. And if your reaction to this is this is really outrageous because you're not thinking about safety first. My story about the judge saying I'm thinking about safety first. Yeah. You know what?
But responsible judges on the 11th Circuit, and I do not mean Democrats or Republicans. I just mean any responsible judge, exactly, are going to have the same reaction. This is just not acceptable. Okay, so there's going to be so much to cover as we go through. This is the nail-biting part of any case where both sides are sort of on tenterhooks.
We'll be tea leaf reading along with everyone else and going through the notes. And I look forward to it. And Mary, welcome back. Thank you. And we will be back when there is more news. Thanks so much for listening. We'll be back on Friday. We will certainly cover if there's news between now and then. And we also hope to answer listener questions, which have been building up. Speaking of which, we really do want to answer those questions. So
Please send us any questions. You can leave us a voicemail at 917-342-2934. Or, as you know, you can email us at prosecutingtrumpquestions at NBCUNI.com.
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