"The E-mail Speaks for Itself"
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I am welcome back to Prosecuting Donald Trump. It is Friday, May 24th, and I am not going to give the actual time because, thank goodness, it is a day off from trial and preparation for the long weekend. And then, you know, there'll be a very busy week next week. I am going to give the actual time because, thank goodness, it is a day off from trial and preparation for the long weekend.

I am Andrew Weissman here taking a deep breath with Mary McCord, who is actually on vacation, sort of. Sort of. Yes, that's right. Hi, Mary. And for listeners who are like, when is she going to get back? It really is only a 10-day trip. Today is the very last day. But when you're doing twice-weekly podcasts, that is three podcasts. So here we go. We should probably tell people right now, although we could say it again at the end, that next week, because

Closing arguments will be on Tuesday. We will be broadcasting on Wednesday so that we can talk about those summations. So, yeah, for the court, a very long break for us. Not so much of a break for certain of us. Yeah, that's right. So next Tuesday, actually, assuming I wake up at the crack of dawn, I'm hoping to actually be in court. Obviously, it'll be useful to be there.

This is one where, as we've talked about, sometimes it's really, really helpful to be in court so that you can get a sense of the demeanor and tone and cadence, all of the credibility determinations that you just can't get from a cold page. Right, of the witnesses. Yeah, like how they're handling things. This is one where it's a little bit less important just because, you know, it's argument. It's lawyers making argument, right. Yeah, I think that one thing that I think will probably come up is

charts will probably be used. But you know what? I'm jumping ahead because we should probably talk. Yes. We're going to talk a little bit about that. But yeah, but what? Yes, exactly. What are we going to talk about today? What are we going to talk about today other than my rambling? Well, you know, we got started in the last episode on Robert Costello's testimony. I think that we will probably be in violent agreement that the redirect examination by Susan Hoffinger was quite explosive and explosive, not the right word, quite impactful.

At least that's what it looked like from the cold record. So we'll talk a little bit about that. We will talk about the charge conference. So the charge conference is...

is a conference just with the attorneys and the judge and the defendant, Mr. Trump, but not in front of the jurors where they talk about jury instructions. And so it's interesting because sometimes instructions, I come from a background where we always called them jury instructions, but oftentimes they're called jury charges because it is the charges given to the jury, not charges like criminal charges, but like

the charging instructions, for lack of a better term. And so that conference will talk a little bit about what that's all about, why is it important, and then look ahead for what we're expecting when you go into court next Tuesday to listen to closing arguments, also sometimes called summations. Right, and I actually think that's going to be a fun part because both of us are trial lawyers and both of us now are fully cognizant of everything in the record. In other words, the record is closed, what the evidence is, the documents, the testimony,

So it'll be kind of fun to go over big picture how we would approach it from both sides. So with that. Yeah, let's dig in. So I just thought for people, before we get to the substance, I just want to talk for a moment about technically substance.

how this cross-examination was done. We started talking about it last episode, but we saw the end of it on Tuesday. And I just thought as a technical matter for people who want to see how cross should be done, Susan Hoffinger, you know, did just an incredibly good job. I thought one of the things we talked about

Last time it was about less is more and that sometimes cross-examination can go on too long. She was in and out. And she also wasn't afraid of the so-called bad answer. She wasn't afraid of Costello going, no, it's not true. Because she had so many great emails and she just tethered everything to it.

I just thought it was great to see a lawyer at her best. Really, really good. I agree with that. She did have very, very powerful exhibits to work with, though, that were very helpful. And again, I'll come back to something we said last episode, which is this choice to call Robert Costello is perplexing to me because in terms of value add,

Even if there weren't these emails, to be honest with you, I'm not sure the value add is very relevant at all to the facts that need to be found by the jury in terms of this trial and what will prove or not prove whether Mr. Trump committed the crimes that he's charged with. I mean, this is really about evidence.

you know, someone who reached out to Michael Cohen wanting to represent him. And as we now know from the cross-examination, we'll get into some of these emails, there's a lot of evidence it was really part of the bigger pressure scheme to bring Michael Cohen into the fold of

the former president and his allies and keeping him in line. But even if you didn't have those emails, like, again, we keep teasing it that we'll get into, you know, it's so only marginally relevant. Tangential. Yeah. And instead, I think it blew up because I think it makes, you know, when we talked about this a little bit last

episode, it sort of feels very thuggish. And that was just really brought home with the cross-exam. Okay, so those exhibits, Andrew. So Mary, just on that point, just remember Michael Cohen already had said he lied to Costello because he didn't trust him. Yes. So in other words, Costello taking the stand and saying, this is what he said to me. Well, Michael Cohen had already said, I lied to him because I didn't trust him. Better to just go to the jury saying, well,

Michael Cohen's just a liar and he says he lies to all these people. This actually was an exhibit to prove that Michael Cohen was right not to trust him. And let me now go to one of the exhibits, which is an email that is from Mr. Costello to his law partner dated May 15th, 2018 at 1156 a.m.

And there are all sorts of parts to it, but he is talking about his conversations with Rudy Giuliani, with Jay Sekulow, the lawyer for Donald Trump, then President Trump, because this is May 15th, 2018, how they're all communicating with each other, that the president is paying for Michael Cohen's then-counsel, McDermott, Will, and Emery, but that the president wants to switch counsel

from McDermott, Will, and Emery to more aggressive counsel, and it ends with this, quote, our issue is to get Cohen on the right page without giving him the appearance that we are following instructions from Giuliani or the president. In my opinion, that is the clear, correct strategy.

And then Susan Hoffinger would read that and say, so as you said yesterday, Mr. Costello, emails speak for themselves because he had used that. Immediately after what you just read, she read it into the record. She says, now you sent this email to your partner about your goal of getting Cohen to follow instructions from Rudy Giuliani and the president without it appearing so, correct? Basically, she's restating what she just read directly from the email, right? And what is his answer?

no, not to follow instructions. Which is so perfect, right? Yeah. And she just sort of kept on doing that, right? Yes. And then he's trying to say, no, we're not pressuring him. No, we're not doing that. And it's like, really? I mean, the email speaks for itself and the jury's going to see it. They get to read it again. If they don't remember it, I feel like it was really, really powerful. So I'm going to just go in the weeds for a moment and relate it to two things. One, if you remember from

Last episode, one of the things that Costello said on direct examination is that in that first meeting with Michael Cohen, he said, essentially, you know, Michael, you're not the subject of the investigation. And this whole investigation could go away in a week. Right. If essentially you give up Trump. Yeah. And he said, oh, my God. Oh, my God. Believe me, I don't have anything on him. That was his testimony. Right. On direct examination.

And one, I just don't think that happened. And this is my opinion. I just don't think he said that because he isn't going to have said anything to push Michael Cohen to cooperate because all of the other emails that were shown that things that are in black and white are all about not cooperating. Yeah. And he actually has an email where he actually says, Michael, Michael, the Southern District and all the press are trying to get you to cooperate, but it's all fake.

BS. I'll read it right here. It's from June 2018. Yeah. Here's the text of it. The whole objective of this exercise by the Southern District of New York is to drain you emotionally and financially until you reach a point that you see them as your only means to salvation. I told you that on the very first day I met you. That's very different than I told you on that first day. If you cooperate, this is over in a week. Yes. Also,

Who says that to anybody? Plus in an email. I mean, Mary, I've been a defense lawyer, but who says this case would be over in a week? Because guess what? That's wrong. We actually know what happened, which is

He had to plead in the Southern District of New York to both the Southern District investigation. He had to plead to the special counsel investigation. So, and it wasn't over in a week. And guess what? He actually was the subject of the investigation. And so the idea that, oh, it would just be over. The other thing is the email that we had been talking about in May that we started by reading has above that, sorry to be so in the weeds because it references the Mueller investigation and it says,

Oh, the Mueller investigation is over with respect to Russian collusion. This is in May of 2018. There's like a whole other year of the investigation. And it says, I've already talked to essentially Giuliani and that's the president that we need to really make it clear that because Michael Cohen's case had been referred to the Southern District of New York, that means that, and this is the quote, Mueller had already found that there was no Russian collusion with Michael Cohen. Unbelievable.

unquote. That is just simply not true. And what lawyer is like, it's so ludicrous. In other words, the advice is bad. There are lies in this current testimony and there are receipts. Yes. The receipts are the thing that's just amazing. And so what it ends up is you have Donald Trump looking like the leader. You have Donald Trump looking like he is obstructing justice. You have

a huge effort to try and keep Michael Cohen from testifying, which the prosecution gets to say, that man, the defendant, didn't want you to hear from that witness stand. Why? Because he knew he had the goods. It just builds the whole thing. I actually think just jumping to like what you need to do in summation, I think that the prosecution needs to make sure that the jury doesn't do something that I've seen juries do, which is say,

okay, I don't think the defense case was good, and they sort of leave it to the side as if it's not evidence that they can consider in the case in chief of the prosecution, meaning like, well, did the prosecution in its own case make the case? And they need to basically make sure the jury understands that what Costello said is actually both corroboration of Michael Cohen in terms of why he didn't trust him and what he was facing, but also really is...

such good proof about what Donald Trump was doing and orchestrating. And it also really shows the big picture, which is Donald Trump in charge of everything and knowing everything versus underlings just doing stuff without knowing. I mean, he's

here, it's like, of course, he's in charge. He's like talking about micromanaging who's getting paid what. That is so, that is such a template for the actual criminal charge here. That's so right. And there's so many more that we don't have time to get into, unfortunately. But, you know, including to the point you just made, plenty of times when Costello is saying, if there is something that you want, if there is something that you need to be communicated to

You just need to tell us. And remember, this is after he and Rudy talked about this back channel to President Trump, then President Trump, and then on and on and on. If you need to communicate something, the time to say so is now. Mary, do you want me to just read you quickly? This is, by the way, this is so funny. This is like what happens when you have two trial lawyers with a really, like a piece of red meat. Look at this one. Me, me, me. So April 21st,

In 2018, Costello writes to Michael Cohen, subject is Giuliani, and he says, and I'm quoting, this is about Rudy. He, Rudy, said, thank you for opening this back channel of communication and asked me to keep in touch.

I told him I would after speaking to you further, unquote. Right. One more I want to bring out before we move on, which is later in June of 2018. And I think this one is important, not so much because it directly shows Trump's sort of involvement and that he's being, you know, everything that's going from Costello to Giuliani to Trump, back to Giuliani, back to Costello to Cohen. This one, though, shows, really puts the lie to Costello's testimony that his interests are

His only interests were in serving his client. He thought that Michael Cohen was his client and that it was Mr. Cohen's interests that were paramount. And this is the one from June 22nd, where again, he writes an email to his partner complaining about Michael Cohen, by the way. Jeff, this is the response I received from Michael Cohen after sending him a detailed text followed by a voicemail one hour later at 4 o'clock p.m.

And what Michael Cohen had said was basically, I just got back from doing some things. It's 8 p.m. I'm taking my wife to dinner. I'll talk to you later. Yeah. And this really, really ticked off Bob Costello. So Costello says, tune in to CNN and see how they are playing this up. Cohen has to know this. Yet he continues to slow play us and the president. Is he totally nuts?

I'm in a golf tournament tomorrow, early and again on Sunday. What should I say to this asshole? He is playing with the most powerful man on the planet. This from a lawyer who testified his interests were the interest. His only interest was in serving the interests of Michael Cohen, who he now just called an asshole. Yeah. So I'd say the emails speak for themselves. Yes, indeed. The emails speak for themselves. Maybe that should be the title of this episode.

Okay, shall we take a quick break? Absolutely. But I have one quick note before we do that. Okay. As always, I always have one last note. One of us does. One of us does, always. Yeah, I'm going to give you one quick thing. After every trial I've done, I've always said to myself, I never want to do another trial. It's like, I don't think people understand how painful trials are in terms of the pressure, the workload. I mean, you're exhausted by the end of it. I'm just...

physically exhausted. Plus, you know, there's different types of trial lawyers, those people who eat through trial and those people who don't eat through trial. I'm a don't eat through trial. Yeah. So I usually am like emaciated, gaunt, huge black bags under my eyes, even more than normal. Same. So like, by the end of the trial, I'm just like, I'm not doing this again. It's like, you know, it's like, it's like chewing ground glass. Bad for my health. Yeah. So this is the one of the times that I was just like,

Please, could somebody just give me an hour to do some of this? Because it just made me really want to be in the courtroom again. Yeah, I hear you. I had the same. I had the same thought. Okay, let's take a break. We'll come back. We'll talk a little bit about the charge conference.

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So welcome back. We are going to talk about the charging conference on Tuesday. That is where the judge has heard from both parties in writing. And then on Tuesday, he heard from them orally about what they think the law should be. It is not public what both sides submitted to the judge. So we don't have the written charges that both sides are advocating, which was kind of annoying, frankly. And

And there's no good reason for that. It's just like a glitch in the New York system. Eventually, those will become public, but we don't have them. And lots of people have asked for them. We do have the written record of the charging conference. Mary, you're an appellate lawyer. So I know this whole process, which I'm going to turn to you, is something you were probably much more focused on. I have to tell you, as a trial lawyer, I hated this part because

Because all I was thinking about was the summation and getting ready for the summation. And I was just like, there was a reason I was like a trial lawyer. And I mean, I should have been more focused on the charging conference because it's really important. But I just hated this part. Yeah. I have two global thoughts about this for anyone coming to the end of the trial and they're getting ready to do the charge conference. But like you said, also trying to prepare closing argument. One is,

you know, as a prosecutor, what I always wanted was instructions that were going to be as favorable as possible to the government's position while not creating an appellate issue. Right. So sometimes there might be something I really wanted to argue that the trial court should give as an instruction and I could find a case to support it. But

My appellate brain would say, and frankly, a lot of times this came up actually while I was doing deputy chief of appellate, when somebody from trial would come to me and say, this is the instruction I want to ask the judge to give. Mary, what do you think? And I'd be like, no, I know why you want that. I know you've got a case that somewhat supports it, but that is really putting your entire conviction, assuming you get one, at risk because...

I think there's a decent chance that that's something that a court could find as reversible error. Now, not every error is reversible. Some errors are harmless, and we'll talk about that at some point, I'm sure. But instructions can oftentimes, if they're wrong enough, can be reversible error. So sometimes it's this battle between what you want that you do have legal support for. You're not stretching completely, making things up out of whole cloth, but what you want to be safe about.

a defense counsel is a completely different place, right? They don't have to worry about, you know, will their acquittal get reversed on appeal because the government doesn't get to appeal an acquittal. And so they're just being like, what can I get that's favorable? Let me take every single possible thing that's favorable, no matter how well supported or little supported. And we'll give an example of that in a minute here. The second thing that I think when you're in trial that you're thinking about and the reason this is important, and it's particularly important in this case, not every case

is like this, but there are rulings that the judge here, Judge Marchand, is going to make about the jury instructions that are going to impact

what arguments can be made by both sides. And, you know, that's partly why the judge said, I'm going to try to get you these by Thursday night, because if they're both preparing their summations for Tuesday, they need some answers to a few things about how they're going to argue about intent to defraud, how they're going to argue about what is the unlawful means. Things we'll talk about in a minute.

how they're going to argue, you know, what inferences jurors can draw from certain facts that they believe are in evidence that they believe they've established. And that is from both sides. So it's really important the

these instructions in some cases, and this is one of them, that the parties know what they can argue based on the instructions with time to prepare, like you said, when you're trying so hard to get prepared. Right. So what's going to happen on Tuesday, just so people follow your point, is that they're going to hear from the defense, then they're going to hear from the state, then the judge is going to instruct them on the law.

And it's going to say a whole bunch of things, but it's going to say in order to find the defendant guilty, here are the elements of the crime that need to be established beyond a reasonable doubt by the state. And he's going to set out what those elements are.

For instance, what it means to make or cause a false business record, the sort of so-called bump up, what the intent has to be, whether the jury has to be unanimous as to which of the bump ups. So he's going to give them a number of instructions about what they have to do. And the both sides need to know that so that they know how to argue about what has or has not been proven.

So that's why they're important. Can I give you my big picture, which you're going to probably disprove in a second about this? Because I've been on air so much. And right now we don't know what the judge's jury charge is. The parties may very well know by this point. Yes. Because it's not public yet. You know, on Tuesday, there was this charging conference. And it's just so funny.

This is the kind of thing that usually doesn't get any press play. It's not all that interesting. But we were covering it as if it was, you know, like,

I don't know what the right analogy is, but like as if it's, you know, this was like... Breaking news. Everything's breaking news. Did you ever notice that? Yes, exactly. You're right. It was covered. That's exactly the perfect analogy. It was like breaking news. Prosecution asked for charge about unanimity. You know, it's like, okay, my big picture, I would need to put this in context. I'm not saying that the jury charge and what exactly gets said isn't important. Of course it is.

But I think the big picture I took away is the defense was arguing for some things that are kind of like, as you said, like they're not going to be given and they should fine, go ahead and argue for that. But like Judge Morshan's not going to do that. The prosecution at times was asking for what I'll call icing. They sort of were like, okay, we're going to be able to prove this this way, but you know, we'd like a charge that we can also prove it that way. And I just didn't think at the end of the day, I thought there was interesting things around the edges.

But Alvin Bragg was not going to bring a case where it all came down to his having to win on the jury charge issue that was not terribly settled. I mean, that just isn't going to be this case. Yeah, I hate to say this, but like, I thought there was just a lot of wasted noise. You know, I think it's really good for this podcast because there are nuances. But my big picture takeaway, with all due respect to the people who are clueless

clutching pearls on air is, I think it's a pretty straightforward issue, a pretty straightforward jury charge here. Yeah, I mean, I think, I guess the only place, basically I agree with you, but I do think that in the sense that Alvin Bragg's case, the prosecution's case here is not going to rise or fall on the judge's decisions on any of the disputed issues about jury instructions. They are going to be prepared to say they meet their burden no matter what.

how the judge comes out on some of the issues where the defense wanted something different than one of the prosecutors should wanted and the judge reserved ruling meetings. I'm going to decide that, you know, in the next couple of days and let you know, which like you said, maybe they already know because maybe he gave them their answers last night. So from the prosecution's perspective, I think you're right that it's icing. Defense, of course, is going to want more. But I do think some of the issues are interesting and telling

Because even though there are lots and lots of fraudulent business records cases, false business records cases, including those with this, what you've been calling the bump up, which is remember for listeners that filing a false business record is generally a misdemeanor unless it is done with the intent to commit or to conceal another crime. And

And so the context here is where a lot of these disputes have arisen. And so that's where I think it impacts what they'll be able to argue, because that's where a lot of the disputes are. And I want to bring up one because we've both now alluded to it that I think is one that's significant. And then I had two others in my head that I think are somewhat significant. And this is on the point of whether the jury has to all 12 of them who will deliberate

whether they all have to agree on what is that underlying, what we call predicate crime, that they have to determine Mr. Trump intended to commit or to conceal by the false business records. And, you know, we've alluded to this in past episodes, for example, with the crime of burglary, which is breaking and entering into a house or coming into a house without permission with the intent to commit a crime in the house. And

Under New York law, as well as under other law, the jury does not have to unanimously agree what crime was going to be committed inside of that house. In other words, was it going to be to steal property? Was it going to be commit an assault on the occupant? Right. Which crime does have to be? They don't have to agree. And that's what New York law is with respect to this false business records charge as well. New York law is clear based on the parties and the judge.

that there doesn't have to be agreement about what that predicate crime is. Nevertheless, the defense counsel here said, we understand the law, Your Honor. We understand that's New York law. But these are extraordinary circumstances. I.e., the defendant is an extraordinary person. Exactly. And we think that the court has discretion here to require unanimity. And the judge said, I'm not going to change the law. I will not instruct that. Sure.

that. Shocker. But again, this is where prosecution would never ask a court to do something that is completely against what the law is, or they shouldn't, because if they win on that, they're going to lose on appeal. But a defense counsel, they got nothing to lose. By the way, Mary, Judge Howell, Beryl Howell, the former chief judge in the D.C. Circuit, one of her decisions in a case about attorney client privilege and crime fraud was recently unsealed just the other day, and she made it

a comment about Donald Trump's argument, which was that he's special. And then he entitled to special consideration. And she said, leaving aside that that is antithetical to the rule of law. I mean, so she just like went right at it. So to me, it's exactly you're hearing

You know, it's interesting. You're hearing that at what I'll call... It's what Judge Marchand is doing. Exactly. The place where you're not hearing that is in the Supreme Court, but that's for a different show. Yep. Okay, Mary, you said you had two other quick issues you wanted to flag? Yeah. So one of these relates to something I think we're going to end up seeing come back in the closing argument. This is a request that the defense made...

having to do with the charge to the jury about the proof of intent, right? The proof of Donald Trump's intent. Here's what they ask for. This is what they want the judge to read. Evidence that President Trump was present when others agreed to engage in performance of a crime does not by itself show that President Trump personally agreed to engage in the conspiracy. Proof of separate or independent conspiracy is not sufficient.

In determining whether or not any single conspiracy has been shown by the evidence in the case, you must decide whether common goals or objectives existed and served as the focal points in the efforts and actions of the members of the agreement.

And here's this kicker. In arriving at this decision, you may consider the length of time that the alleged conspiracy existed and the mutual independence or existence between various persons alleged to have been its members and the complexity of the goal or objective. So I think what he's getting at here is building up to an argument that he's going to make with or without an instruction that Michael Cohen was doing this out on his own. He might have been conspiring with Pecker. He might have been conspiring with Keith Davidson and Stormy Daniels.

But that conspiracy that Michael Cohen was in to pay hush money, that's not a conspiracy that Donald Trump was part of. And what he wants is he wants an instruction that will support the argument that I think we are going to hear in summation. The government came back and said, look,

Donald Trump isn't charged with conspiracy. So this is irrelevant whether there's a single or multiple conspiracy as long as Trump had the intent to conceal another crime, that other crime being, you know, under New York election law, the effort to actually promote conspiracy.

one's candidacy through unlawful means. Those unlawful means can be federal election crime violations. They can be tax violations. All of these unlawful means can be the support here. The judge didn't really rule on that. He said, let's go ahead and turn to unlawful intent. And then they talked about the issue we just talked about before, which is whether there has to be unanimity in the predicate crime. Yeah. So he may or may not give that. I doubt he will, frankly. But it's one where it's great to

point out that that lays out the factual battleground that will be argued. Right.

What's the second one? So the second one, and this is really just, I think, a point of interest, again, to show Judge Michon's personality here. This is when essentially the defense tried for its third time to sneak an advice of counsel type of defense into instructions. Oh, my God. Basically saying, look, we know the court has already ruled against us, you know, that we cannot make an argument that Donald Trump was relying on sort of, you know, counsel, you

being president and blessing something. But the government opened the door to it when they elicited that David Pecker told Michael Cohen that this agreement with Karen McDougal was bulletproof. That showed that after it had been

shared with AMI lawyers. That's something that Michael Cohen told Mr. Trump. And that shows now what he called the involvement of counsel in a way that doesn't prove that Mr. Trump, you know, we're not trying to say that means Mr. Trump could rely on that, but that goes to showing what Mr. Trump's intent might be and essentially to rebut the government's evidence of intent. And essentially, after going on, let me say three more things. After a long time, the judge was like,

No way. First, you came in, you know, we pressed you months and months before trial started. Are you making the advice of counsel defense? You said no, you didn't make the prerequisites for you didn't ask for it. But then you turned it into something called the presence of counsel. And I rejected that, that you can't make a presence of counsel defense. And now I can hardly believe you're now turning it into involvement of counsel and essentially trying to get the same thing. I'm not going to do it. The judge was saying, if you want to.

If you wanted to rely on advice of counsel, he wasn't saying you can't do that. He was saying pre-trial, he said, if you want to rely on that, then there's certain ramifications. One, it's a waiver of the attorney and client privilege.

And you have to provide discovery. So he's like, if you want to do that, there are issues that you can do it. And they elected not to. And he's like, you can't have your cake and eat it, too. Can't have your cake and eat it, too. And he followed the my favorite phrase from Judge Bramwell, a respected district judge in the Eastern District in New York, who said, I have two words for you. Denied. Denied.

I'll never forget that anecdote. Yes. Yes. So we're getting to the phase where you're going to be like, how many times are we going to hear the same anecdote? It's a good one, though. It's an oldie but goodie. It is because it just, you know, it's one of those that applies to so many different things. So the other thing, just to keep an eye out, and we'll take a short break, is in spite of the fact that the judge said it's denied now for the third time, watch out for

In summation, the defense is going to say it. So you get to prove me wrong, but the defense is going to say it and there's going to be an objection and it's going to be sustained and have been heard by the jury. That is like a tried and true thing that happens. The best thing I have ever heard a judge do is

is call the defense to sidebar while in summations and turn to the defense counsel and say, and actually this was Judge Deary. You might remember Judge Deary from the being appointed special master by Judge Cannon. Judge Deary called everyone a sidebar, turned to the defense counsel and says, if you do that again, if you violate the restrictions on what you can and cannot argue,

I will cut your knees out from under you in front of the jury. Okay, that is a real warning, like he told him. Right, meaning I know you think there's no cost to you because the jury will hear it, but I'm telling you now that if you do it, there will be a cost to you because you will have a judge telling you in front of the jury. So that's one way to control what is going to happen in summations. Yep. All right, let's take a short break and come back. Okay.

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Welcome back. So we have just been talking about jury instructions that we still don't even know what they're going to be. So we've been speculating about jury instructions. But now we can speculate some more. Andrew, what are you looking for on Tuesday and what would you do? What do you think the prosecution has to do? What do you think the defense has to do in their summations to the jury? This is the last time the jury is going to hear from the attorneys in this case before they get their instructions.

from Judge Mershon. So I think from the prosecutor's perspective, you'll hear a lot about the timeline and putting everything in chronological order and piecing together that timeline using what I'll call hard evidence, the phone records, the emails, the checks, the signed checks, particularly the signed checks that were Donald Trump signed them so that they can put the invoice, the false invoice and the check in his hands.

And that'll be the end of the timeline. And then they will layer into that timeline various pieces of evidence to show how things that Hope Hicks said corroborate what Michael Cohen said corroborate what David Pecker said. But I think that making sure that the jury is seeing a timeline and looking at the totality of the evidence together,

That is always something that the prosecution, every trial I've ever done, wants the jury to not be just considering proof in isolation. The defense wants the jury to think about each piece and say, well, that piece alone is not proof beyond a reasonable doubt. And so that they're looking at in little chunks and not seeing a big picture. And I think the other thing that the prosecution needs to do is it needs to deal with a Michael Cohen problem.

And if I were doing it, I would do this whole timeline and everything that they learned up until the time that Michael Cohen testified. You can add in the Costello stuff, but I would leave Michael Cohen out. Then I would layer him in. And I think that's where the order of proof that they chose is so useful because you're

While there may be not a lot of direct proof on each and every one of the elements, there is a lot of circumstantial proof on the whole case and some direct proof. And circumstantial evidence is just as good as direct, and sometimes it's even better. So I think that's what I would do. On the defense side, I would say there are lots and lots of distractions, but getting to the key part, I would be saying that Michael Cohen was an indispensable witness.

that prosecution knows that. That's why they

called him that he is the only one with direct evidence and you can't possibly think that it's appropriate to convict a president of the United States. The more times you can say president of the United States, the better because you're hoping that the jury holds the government to an even higher standard here than they would in any other case. Then you basically say, of course, Michael Cohen, you can't find proof beyond a reasonable doubt just based on Michael Cohen. That actually is a true statement.

that I think everyone would agree with. So you want to sort of elevate his importance to the case. And then there are lots of, as you talked about last time, there are lots of issues that you can use to try and create doubt about, did he have some private motive? Was he too busy? The October 24th forgetting some part of that conversation. I mean, there are lots and lots of ways to attack it, but big picture,

That's what I think I would be looking for. Yes, I agree with all of that. The timeline, and this is a classic case of laying out that timeline. I love your idea of doing it first without going and then just showing when you bring him into the mix that he's corroborated really on all of the material things that the government has to prove. From the defense, I just want to pick up on your point about, you know,

In every case I've ever tried or transcript I've read, again, the defense just has to sow reasonable doubt on anything. Even frankly, I would say it impacts jurors, even if the thing they sow reasonable doubt about is not load-bearing. By that, I mean, it could be that they would say, okay, that fact is not proven, but I still have plenty of others. Sometimes once you sow a little bit of doubt, then that starts getting jurors to kind of

question other things and sometimes can kind of permeate through. And I know from my own experience serving on a jury, that definitely happened. The defense counsel in a murder case, this is when I was a very young attorney before I was a prosecutor, you know, picked apart every little aspect of where there could be doubt and

And still, eight of the 12 of us immediately voted for conviction because we felt strongly the government had proved its case and everything the defense attorney was picking apart was immaterial. But there were four other people who

you know, over the course of several days of deliberations, eventually agreed with the rest of the jurors that the government approved its case. But they were really troubled by these little possibilities of doubt. And in fact, beyond a reasonable doubt is something that jurors struggle with. Like, what is that? What's reasonable? We can talk more about that instruction when it's given next week. There is an instruction about what's reasonable. And it talks about things like a doubt can't be fanciful, right? But we're also not talking about

Something that has to be with a certainty. So it's just a confusing concept for a lot of jurors. So the defense counsel will often just try to pick at anything where they can sow doubt. And I'll give you one example that I think that came out in a jury instruction. And it actually was very funny because one of the last requests that the defense made was for an instruction on spoliation. At least that's what I think the defense said, but it came out in

The transcript, which again, we're getting these transcripts on a daily basis. So with the court reporter working as fast as they can without even having a chance to fully proofread. So I'm not trying to denigrate the court reporters here who are doing a wonderful job, but oftentimes they'll go back, they'll find errors in the transcript and they'll fix them. Yeah, and clean it up. And on this first day, it's called exfoliation. Did you see this? I laughed out loud. I'm like,

He's like, the judge said, it looks like they're requesting an instruction on exfoliating. So I'm sure lots of people out there will be like, oh, what does exfoliation have to do with this? But spoliation...

What cleanser do you use when you, exactly. But there is a legal concept of spoliation. And spoliation is when you basically aren't, you have an obligation to, but you are not complying with an obligation to keep evidence. And preserve in its perfect, pristine form. Right. Yeah, go ahead if you want to explain it. Yeah, I mean, basically they were just saying Michael Cohen may have violated this obligation and spoliated with respect to the material on his phone.

And so they wanted to basically argue that if there was that lack of preservation, that there could be sort of a presumption that there would have been material that was favorable to the fence and not favorable to Michael Cohen. Right.

It'll be interesting to see what the judge does on that. I actually would be surprised if the judge gives that spoliation charge. Well, he said he would not. But certainly to your point. He said he would not, but they can argue it. He said, I think you did a good job with the witness. Yes, exactly. The forensic witness by pointing out that there were opportunities that Michael Cohen could have

First of all, it was a long time before they got those phones in order to do the analysis. So Michael Cohen could have changed things on them. And he had certain codes set, things like that. And the judge said, I think you did a good job with that witness calling the jury's attention to ways that the evidence could have been altered on the phone. But I'm not going to give the instruction. You can argue it. So one really quick thing that I think might be useful just to maybe end on is just

To talk about the verdict sheet, I think there's sort of two things that I don't think people have focused on enough.

There are 34 counts, and that means there are 34 verdicts. Even though a lot of these counts look identical, the jury has to decide each and every one. And as to each one, the jury can, like for count one, if 12 people agree, there can be a vote of guilty. If 12 people agree, there can be a vote of not guilty. If there is...

a disagreement, and after lots and lots of deliberation, they cannot agree. There's no unanimity one way or the other. You will have a hung jury. And that can go all the way through for all 34 counts. So

You could end up in a situation where obviously there's a flat-out acquittal, there's a flat-out conviction, or there's a flat-out hung jury on each count. But there's also a mix and match. You could have, for instance, the main way in which you could separate these counts is the counts where Donald Trump is signing the checks himself versus ones where Don Jr. and Eric are signing. And you could end up with, let's say,

counts where the jury says, we find that not guilty on certain counts that Donald Trump didn't sign and guilty on ones he signed. Or we find not guilty on the ones he didn't sign and a hung jury on the ones he signed, in which case there would be a retrial on the hung counts. But as soon as there's an acquittal, we'll talk about what can happen on appeal in terms of an acquittal or conviction.

But you could have a whole mix and match. And you could have hung on some and conviction on some too, right? Exactly. You could imagine a jury could say that we're hung on the ones that Don Jr. and Eric signed, but convict on the ones that Donald Trump Sr. signed. So it's a big mix and match. The other thing is it could be a very scary verdict because if the jury were to think that

they were going to vote not guilty on the ones where Donald Trump didn't sign, but guilty on the ones that he did sign. You will not know that until the 11th count is the first time you will know whether that's happening because the first 10 counts don't relate to things that Trump himself signed.

So you could think after counts one through 10 that this is going to be a flat out acquittal on all 34 counts, but you really won't know that until once you have count 11, you probably will know that. Yes.

because that will be the tell-all. It's a great point. And the way it works is that, I don't know about New York, but, you know, the court will ask the foreperson, you know, for each count, guilty or not guilty, and the foreperson answers. And the reporters in the room are going to be reporting this immediately, right? And it's going to go on 34 times. Yes, yes, yes. That's what you mean by could be scary. Exactly. So it could be scary in the same way, by the way, like, Mary, you and I have been in court where that

is happening and you're just like, you're dying inside, like just dying. Yes. I always felt like I was more nervous than the defendant. I mean, the defendant actually knew what the facts were, you know, like, so we'd know whether she or she was guilty or not. Obviously it's scary for them. I'm sorry. Yes, yes, yes. I'm being a little facetious. But the other is, so if there's an acquittal on account, it's over, it's done. There is no appeal.

appeal from the prosecutor that is double jeopardy cannot be retried on that. It's done. A hung count, except for sort of... Complicated scenarios, yep. Right. It is a hung count means it can be retried, except in unusual circumstances. Let's not worry about that. And a conviction is not final. That conviction means that the person will get sentenced. It takes about 60 days or so in New York.

And then the defendant is entitled to appeal that primarily on legal grounds. It's really, really hard to get it reversed on factual grounds to say that there were insufficient facts on which to convict. But as you said, Mary, the jury charge, for instance, is like a perfectly valid basis to say that's some sort of error. So a conviction can be appealed. An acquittal cannot be appealed by the prosecution themselves.

And a hung jury means that you'll have a retrial. Yes. Two things to add to that. Judge Marchand still has not ruled on the motion for judgment of acquittal, at least insofar as we know. He hasn't done it on the record. So I think defense counsel noted that during the charge conference. There's an outstanding motion, Your Honor. So we're still, you know, I think it's highly, hugely unlikely. I would bet a lot if I had a lot of money that the judge will not grant that motion. But you will see that later.

And that in an ordinary case, right, that is something that, you know, sometimes a judge will do very, very unusual at this stage of the trial. The second thing is sometimes rather than going straight to taking an appeal from a conviction, a defendant will move for a new trial in the trial court on the grounds of some mistake, hoping to get that another bite at the apple there in the trial court before even going up on appeal. Oftentimes this is

a delay tactic if you are not in jail pending your sentencing or pending appeal because you're like, well, I can just keep stretching out the amount of time things are pending in court before I ever have to report to any kind of incarceratory sentence. And so I might as well file every possible motion. You're not suggesting that that would happen? Mary, you're not suggesting that Donald Trump would do that? Of course not. Delays?

He always wants to get things done as fast as possible. He would never file a motion to delay anything. His attorneys might, but, you know, he would not want to do that. Okay. All right. Now I'm being really facetious. Yeah.

Mary, have a great end of your vacation. I will see you stateside. Remember, we are going to do our next recording on Wednesday morning after the Tuesday summations that we just got over. We'll see whether our predictions with respect to the jury charge, our predictions with respect to how the both sides are going to approach summations. We'll see how that fares. And with that, have a wonderful, long Memorial Day weekend. You too. And we'll see you all next week. Bye now.

Thanks so much for listening. This episode was produced by Vicki Virgolina and Max Jacobs. Jamaris Perez is our associate producer. Katherine Anderson is our audio engineer. 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.

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