The twelve-person jury has been seated in the New York criminal case against Donald Trump. MSNBC legal analysts Andrew Weissmann and Mary McCord detail the latest alleged gag order violations and give insights into the jury selection process. Then, they analyze District Attorney Alvin Bragg’s own words, through his Statement of Facts submitted in the State of New York against Donald J Trump, with excerpts read by acclaimed actors Glenn Close and Robert De Niro.
Note: This is a rough transcript — please excuse any typos.
Glenn Close: During an in furtherance of his candidacy for president, the defendant and others agreed to identify and suppress negative stories about him. Two parties to this agreement have admitted to committing illegal conduct in connection with the scheme. In August, 2018, lawyer A pleaded guilty to two federal crimes involving illegal campaign contributions and subsequently serve time in prison.
In addition, in August, 2018, America Media, Inc., AMI, a media company that owned and published magazines and supermarket tabloids, including “The National Enquirer admitted in a non-prosecution agreement that it made a payment to a source of a story to ensure that the source, “did not publicize damaging allegations” about the defendant “before the 2016 presidential election and thereby influence that election.”
Andrew Weissmann: That’s the voice of acclaimed actor Glenn Close, reading from the New York Statement of Facts. That was filed by the district attorney in Manhattan, along with the New York indictment that we heard read by Robert De Niro just the other day. Here’s a bit more concerning a meeting at Trump Tower from that other preeminent actor, Robert De Niro.
Robert De Niro: From the Statement of Facts, the scheme, the 2015 Trump Tower meeting. In June, 2015, the defendant announced his candidacy for president of the United States. Soon after in August, 2015, the defendant met with lawyer A and AMI’s Chairman and Chief Executive Officer, the AMI CEO at Trump Tower in New York County.
At the meeting, the AMI CEO agreed to help with the defendant’s campaigns, saying that he would act as the eyes and ears for the campaign by looking out for negative stories about the defendant and alerting lawyer A before the stories were published. The AMI CEO also agreed to publish negative stories about the defendant’s competitors for the election.
Andrew Weissmann: Hi, and welcome to “Prosecuting Donald Trump.” It is Thursday, April 18th, late in the afternoon at, I believe, 5:11 p.m. You know, Mary we’re now actually giving exact times. This is how much like minute by minute, so much is changing. But in any event I am, as you all know, joined by my wonderful co-host Mary McCord.
Mary McCord: Hi Andrew. For me, it is 2:11 p.m. because I am on the West Coast. So, I had had my first recorded interview at 7:30 a.m. this morning.
Andrew Weissmann: You’d be impressed to know that I was guest teaching a class this morning at 8:30.
Mary McCord: Ooh, I am impressed.
Andrew Weissmann: Which, you know, for a D.C. person.
Mary McCord: Yeah.
Andrew Weissmann: You’re probably like, hmm, so what, you know. We get up at 5:00 but for a native New Yorker, basically functioning before 10:00 a.m. is hard, especially at my age. But at any event, there’s so much going on and there’s a lot to cover. So, Mary what’s up?
Mary McCord: Yeah, so we are gonna hear more from Glenn Close and Robert De Niro throughout this episode. We’re gonna break down the portions of the statement of facts that they are going to read. And we’re gonna kind of explain how that relates to what we expect to see in the trial. But before that, right now, like you said, 5:11, the court, we understand in Manhattan now has 12 jurors selected.
Andrew Weissmann: Twelve jurors and one alternate. So, Friday morning we are going to have the court picking the other five alternate jurors. So, there’ll be 12 jurors, six alternates. That’s a large number of alternates for a trial, totally appropriate in a case like this. You do not wanna run out of jurors. Remember, we’ve already seen two jurors dropped out.
And that sort of relates to the second thing, which is that I think for people who are following the show, they’re aware of a pending motion by the district attorney with respect to violations of the gag order issued by judge Merchan. And they raised new alleged violations of the gag order with respect to jurors. That’s something that’s gonna be heard by the court on Tuesday. We will certainly want to hear from Donald Trump’s counsel.
We’ve talked about this that they’re entitled to due process. So, we’ll be covering that as well, but that is the latest. And the reason I’m raising that is that two of the jurors, who seem to have been selected and were sort of going to be sitting jurors, have dropped out. One appears to be because of new information, but one, because she was concerned about her being able to be fair in light of, she said her identity was too outed.
And so she was getting too many calls and just didn’t want that pressure. I have to say, Mary, reminds me in a very different context of sort of Shaye Moss and Ruby Freeman, that this sort of people who are just trying to do their service, just trying to be public servants, just trying to do their jury service, in their case being poll workers, being subject to attacks. It is very much a sign of our times.
What we will be looking for is how the judge responds to this and what precautions he ends up taking to potentially sequester the jury in some fashion, or to have them escorted by marshalls or court officers, whether they’re sanctions with respect to Donald Trump. All of that are tools that he has in his toolkit to make sure that this kind of thing doesn’t interfere with the jury and also the selection of jurors that this kind of attack isn’t being used in a manipulative way, as a means for Trump or his allies to target some of the jurors who they may think may not be favorable to them.
Mary McCord: Right. And I just wanna pull these two things apart because the concerns about potential violations of the gag order were with respect to new social media posts by Donald Trump about potential jurors. The two jurors that were dismissed, I don’t think said that it had anything to do with, you know, that social media post or any attacks they’ve had by Mr. Trump to them personally. But one juror, and here I’m gonna do a little bit of a I told you so, not you Andrew, but like I told you so to the world has --
Andrew Weissmann: You do those privately.
Mary McCord: Yeah, right, exactly. Because, you know, as we discussed earlier this week, I was pretty shocked to see that in this voir dire procedure, they were going to have the jurors answering these questions loudly and clearly from their seats in the jury box with everyone in the courtroom and including journalists in the overflow courtroom, hearing those. Because some of those answers I thought could potentially reveal the identity of jurors, even though their names were not being disclosed.
These were things like, who is your employer? Who is your former employer? What area of Manhattan do you live in? And I think that’s exactly what came to pass. The woman this morning, who just said, you know, I’m nervous because I’ve had friends say, I can be identified now by that information. And I no longer feel comfortable.
What that triggered, to your point, of things that the judge can do to try to address not only Trump’s statements on social media that may violate the gag order, but also to address this issue of juror identities and jurors, feeling safe and feel like they can come and do their civic duty without it resulting in threats to their safety, is he said to the journalists, no more reporting on everything that you’re hearing. No more reporting on their employers or former employers, and no more reporting on what you’re seeing, like describing them, what they look like, what they’re wearing, et cetera.
And it’s something that, I think, you know, I wish you would’ve done that at the beginning, to be honest with you, but I’m glad that he responded that way now. Because there was a lot of reporting after the first and second day of jury selection with great detail about the various jurors.
Andrew Weissmann: It also goes to show you, although Manhattan is a big place, you know, the internet is even bigger. So, that you can sort of end up getting a lot of those details.
Mary McCord: That’s right.
Andrew Weissmann: But Mary let’s turn to what we just heard about. And we’re about to hear some more from Robert De Niro on the allegations. What we were hearing about from, can I say Glenn and Bob?
Mary McCord: We’re on a first name basis with them.
Andrew Weissmann: Yeah, well this is like show three for you know.
Mary McCord: That’s true.
Andrew Weissmann: So, the allegations are that Michael Cohen and David Pecker, that is the person who’s not named, but there’s sort of lawyer A is Michael Cohen. There’s a reference to the owner and publisher of American Media, AMI. That’s the owner of “The National Enquirer.” Those two people have admitted their participation in this catch and kill scheme.
And they, as we talked about on the last episode, are gonna talk according to the DA, not just about sort of catch and kill only with respect to Stormy Daniels, but a panoply of ways in which they were both catching and killing. And they were also part of a scheme where there was dissemination of false information about adversaries. But that is the gist of what we were just hearing about.
And the rest of what we’re gonna talk about are sort of key parts of the statement of facts that lay out for the public and give us a bit of a roadmap from the DA’s perspective of the chief pieces of evidence, that’s about the nature of this scheme. All done, as alleged, on behalf of candidate Trump.
And just to channel Nicole Wallace, her point is gee, you know, Michael Cohen is not the person who was running for office. David pecker was not the person who was running for office. Neither of them were the people who were having derogatory information about their alleged sexual escapades being suppressed. It’s all clearly being done according to the, these allegations for one person.
Mary McCord: That’s right.
Andrew Weissmann: And that is the candidate who is running for office. So, they have already admitted their liability.
Mary McCord: Yeah, let’s be clear. They have pleaded guilty, well not they.
Andrew Weissmann: Well, Michael Cohen has pleaded guilty. David Pecker has admitted his liability.
Mary McCord: That’s right.
Andrew Weissmann: In an agreement.
Mary McCord: In an agreement with prosecutors, right?
Andrew Weissmann: Absolutely. So, the subtext is really, they’re the ones who are supposed to only admit their liability, but the person who it’s for is not liable. That is a theme that I think you are going to hear from the DA’s office from opening to closing.
Mary McCord: That’s right. And on that note, let’s take a quick break. When we come back, we will hear more of the Statement of Facts. We’ll hear about suppressing the account of Karen McDougal.
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Mary McCord: Welcome back. As promised, we’ll now hear another excerpt read by Robert De Niro that concerns the attempt to suppress Karen McDougal’s story.
Robert De Niro: Suppressing woman one’s account, about five months before the presidential election in or about June, 2016, the editor-in-chief of “The National Enquirer”, and AMI’s Chief Content Officer or the AMI editor-in-chief contacted lawyer A about a woman, woman one, who alleged she had a sexual relationship with the defendant while he was married.
The AMI editor-in-chief updated lawyer A regularly about the matter over text message and by telephone. The defendant did not want this information to become public because he was concerned about the effect it could have on his candidacy. Thereafter, the defendant, the AMI CEO and lawyer A had a series of discussions about who should pay off woman one to secure her silence.
AMI ultimately paid $150,000 to woman one in exchange for her agreement not to speak out about the alleged sexual relationship, as well as for two magazine cover features of woman one and a series of articles that would be published under her byline. AMI falsely characterized as payment in AMI’s books and records, including in its general ledger. The AMI CEO agreed to the deal after discussing with both the defendant and lawyer A and on the understanding from lawyer A that the defendant or the Trump Organization would reimburse AMI.
Mary McCord: So Andrew, I think it’s worth, you know, we talked before the break about the catch and kill scheme, and this was an integral part of that. And in fact, this is not the only part that the jurors are gonna hear. They’re also probably going to hear from a person referred to in the indictment as the doorman.
Because even before the catching and killing the Karen McDougal story, there was another account of a story potentially about the doorman at one of Mr Trump’s properties, who had heard information that he had reported, also that would reflect negatively on Mr. Trump about another type of sexual encounter. Well, actually specifically, let’s just be clear here, it was that the doorman wanted to sell information regarding a child that Mr. Trump had allegedly fathered out of wedlock.
So, that information is other information that is going to come in front of the jury to start to show what this catch and kill operation really meant. And then the next account, before we even get to Stormy Daniels, will be this account of Karen McDougal. And I will say that Mr. Trump, in a motion in limine which we talked about several weeks ago, I think, at this point wanted to keep that all out of trial.
He wanted to keep out the catch and kill. He wanted to keep out the doorman. He wanted to keep out Karen McDougal and the judge in ruling on that held that their testimony qualifies under the Malino or Molino. How do you pronounce that in New York? That’s in New York case, Molino?
Andrew Weissmann: It’s like either or either or tomato and tomato.
Mary McCord: Or Giglio or Giglio
Andrew Weissmann: Giglio, exactly.
Mary McCord: Giglio, yeah.
Andrew Weissmann: But can I just say two quick things, woman one that we just heard, the reference to from Mr. De Niro, that is Karen McDougal.
Mary McCord: Exactly.
Andrew Weissmann: We’ve already heard about lawyer A, that is Michael Cohen. And to remind people, the reason that a Statement of Facts or an indictment uses those monikers and doesn’t name them is because of a policy that prosecutors have that you don’t denigrate people needlessly. You don’t make accusations about them unless and until they are charged by a grand jury. So, that is why those descriptors are used. Obviously at trial, they’re gonna all be named because you’re actually hearing evidence.
Mary McCord: Right. It’s not as though there was the suggestion that, you know, Ms. McDougal might be charged. It’s just that, you know, you just anonymize oftentimes these kind of names in an indictment. But we digress here, so back to the motion that the judge had to determine. What the judge determined is that under this case, which is the same essentially a case that establishes the same doctrine we have in federal law, which we’ve talked about under the rules of evidence, Rule 404b evidence, which is evidence of other crimes or wrongs.
It is admissible for certain circumstances, right, to prove evidence of intent, motive, knowledge, absence of mistake, et cetera. And what the judge said, Judge Merchan, when he denied Trump’s request to keep all of this out. He said the steps taken to secure the stories of the doorman, although he referred to him by name, Ann McDougal, complete the narrative of the agreement that was reached at the meeting, meaning the Trump Tower meeting that we heard about before the break, to wit, stemming the flow of negative information that could circulate about the defendant before it reaches the public eye.
Locating and purchasing the information from Stormy Daniels not only completes the narrative events that precipitated the falsification of business records, but is also probative of the defendant’s intent and is inextricably intertwined with the narrative of the events and necessary background for the jury. So, he’s saying all of this comes in. It’s inextricably intertwined into what ultimately happened in the hush money payments to Stormy Daniels. It shows its probative of Mr. Trump’s intent and the jury is gonna hear it. So, I think that’s really important because this is the entire theory of the case.
Andrew Weissmann: Yeah. And so what the judge is trying to do is say, I’m not letting this in for the impermissible purpose of showing propensity. In other words, you did A, so you’re more likely to have done B.
Mary McCord: Right.
Andrew Weissmann: That here’s something that you cannot argue, you cannot admit evidence for that, but he’s saying that’s not what it’s for. This is like, you really can’t understand the nature of the scheme, if the jury thinks that it only happened once. That there’s many, many times that this was going on and that you have to understand the nature of it. It would almost seem odd to a jury if they thought, oh, there’s lots of bad information, but you’re only doing this once.
That doesn’t make any sense. So, it really does complete the picture of what they were about. I was gonna make it another point that I think is interesting to watch for the jury, because here, this is all sort of very much a precursor to the main event, which we’re about --
Mary McCord: Right.
Andrew Weissmann: -- to turn to, which is Stormy Daniels. But it’s useful to remember that with respect to the allegations by the doorman, who we expect to be a witness, from Karen McDougal, who may also be a witness and then from Stormy Daniels, who may also be a witness, the truth of what they have to say is not actually something that the jury has to find. In other words, you could imagine a scheme to suppress bad information and rumors and all sorts of negative information, regardless of whether it is true or not.
Mary McCord: Right.
Andrew Weissmann: Now you may --
Mary McCord: Right.
Andrew Weissmann: -- in fact, if you do think it’s true, it may be something that you have a sort of greater motive to try and suppress because it would be harder to refute. But it is not necessary for this scheme to work that the jury believed that in fact there was a tryst with Stormy Daniels or there was an affair with Karen McDougal or that what the doorman said is true. In fact, I think, that the state may say that they actually don’t think that what the doorman was reporting was true.
Mary McCord: That’s right.
Andrew Weissmann: None of that is relevant. And of course, Donald Trump has denied the Karen McDougal affair and the Stormy Daniels tryst but that denial, while the jury may choose to disbelieve the denial, to extent that it even comes into evidence that there is that denial, that it’s not really technically relevant. Because you can still have the scheme, whether these allegations are true or not. So, keep an eye out for that.
And that’s one of the reasons, Mary, I’m gonna be interested in something as to whether you did this. When I was picking a jury and I was confident in my case and I was only bringing a case because I thought there was proof beyond a reasonable doubt. So, I usually was confident in my case. I wanted the smartest jury possible. I don’t mean just like, oh, they went to Princeton, not just academically smart.
I meant that I wanted them to have common sense and seemed like they were savvy and not gonna be fooled. Because I thought if I’m right, what I really want is a jury that’s gonna be able to cut through arguments that don’t hold water or not logically sound. And so I always was looking for a smart jury. I don’t know about you. What was your strategy?
Mary McCord: That’s my assessment as well, because you want them to analyze the facts and apply the law to those facts and not be swayed by things that I have seen happened. And I’ve sat on a jury myself, even as a lawyer before I was a prosecutor. I sat on a jury in a murder trial and you know, there were some, I will say, smoke and mirrors theories that the defense counsel tried to spin, which ultimately as jurors we saw right through it.
But you want people who are gonna not be swayed by, frankly, that case, the defense was a conspiracy theory and it had no legs. It had no evidence supporting it, but there were some jurors until we started talking about it, who were kind of taken by that conspiracy theory. And once the other jurors started saying, well, what was the evidence of this conspiracy between two witnesses basically to frame the defendant. There just wasn’t any, it was smoke and mirrors. So, I agree with you on that.
Andrew Weissmann: So, it’s really interesting. By the way, I think that you and I need to have an entire episode where we compare our jury service. Because you know, I have a friend who said, you know, it’s ridiculous. You worked on Enron, you worked on the Special Counsel Mueller case, you were the general counsel of the FBI.
But with all of that, the case that I can speak the most about was the jury service I had for sort of an aggravated slip and fall. And by the way, I was on the jury a month after the Mueller investigation was over. I came back to New York and I thought there’s no way they’re going to pick --
Mary McCord: I didn’t even know that, wow.
Andrew Weissmann: -- before a jury.
Mary McCord: Okay.
Andrew Weissmann: And I did. Okay, boy, do you want to talk about the digression.
Mary McCord: No, no, no.
Andrew Weissmann: I could talk for way too long and at some point our producer is gonna come in and be like, and we’re done. So with that, I think it’s time for us to move ahead and hear from Glenn Close. She is going to relate some more from the Statement of Facts about suppressing woman two’s account. Remember woman two is Stormy Daniels. Here is the account read by the great actor, Glenn Close.
Glenn Close: Suppressing woman two’s account. About one month before the election on or about October 7th, 2016 news broke that the defendant had been caught on tape saying to the host of “Access Hollywood”, “I just start kissing them, women. It’s like a magnet, just kiss. I don’t even wait. And when you are a star, they let you do it. You can do anything. Grab them by the genitals. You can do anything.”
The evidence shows that both the defendant and his campaign staff were concerned that the tape would harm his viability as a candidate and reduce his standing with female voters in particular. Shortly after the “Access Hollywood” tape became public, the AMI editor-in-chief contacted the AMI CEO about another woman, woman two, who alleged she had a sexual encounter with the defendant while he was married.
The AMI CEO told the AMI editor-in-chief to notify lawyer A. On or about October 10th, 2016, the AMI editor-in-chief connected lawyer A with women two’s lawyer, lawyer B. Lawyer A then negotiated a deal with lawyer B to secure woman two’s silence and prevent disclosure of the damaging information in the final weeks before the presidential election. Under the deal that lawyer B negotiated, woman two would be paid $130,000 for the rights to her account.
Andrew Weissmann: Mary, you know, I think everyone who’s listening to this is going to remember where they were when they had news that this tape was out. For me, it has some additional significance because during the Mueller investigation, and I’m not saying this, I’m not doing the trial-est (ph) case, and this isn’t an anecdote. It actually relates to --
Mary McCord: Oh, warning to listeners, this is not an anecdote.
Andrew Weissmann: Yeah, it’s a warning to listeners. It’s not an anecdote, it’s relevant information. I know it’s like, I’ve become so much embroidery, that I have to say, wait, wait, wait, it’s not. Within hours of the “Access Hollywood” tape coming out and no coincidence WikiLeaks put out the information and the internal e-mails and texts and information in the Hillary Clinton campaign, John Podesta --
Mary McCord: Right.
Andrew Weissmann: -- e-mails. And there’s a lot of background connective tissue to Roger Stone, to the Trump campaign but it clearly was a way to say, look over here.
Mary McCord: That’s right, distraction.
Andrew Weissmann: You know, to change the narrative. And I think one of the things that we’re going to learn about during this trial is I think we’ll probably get evidence about the sort of the panic, not just within the Republican party, but within the Trump campaign.
And that is relevant to the information we just heard from Glenn Close about needing to quickly figure out how are they going to deal with the Stormy Daniels allegations. How do they squash that? How do we take immediate action? So, there isn’t fuel on the fire after this very explosive tape was made public.
Mary McCord: Yeah. And you know, I love that reminder of what was happening, because if we take ourselves back to 2016, while all of these things are going on, this catch and kill operation, we also had, as you just indicated, these sort of, one might say, selective drops of information, e-mails and the like that were reflected very negatively or were perceived to be reflecting negatively on Mr. Trump’s opponent, Hillary Clinton.
And we also had during the same time, Trump famously saying, Russia, if you’re listening, can you find the missing Hillary Clinton e-mails, right? So, all of that effort to paint this picture of these candidates was going on that summer and that fall. And the other thing critical here too is that “Access Hollywood” tape dropped so close to the election and it really was so explosive. It was on every TV station. It was all over social media. It was all over print news.
And I will tell you, I actually thought it might actually be the end of Donald Trump. Boy, was I wrong? But that, plus the Stormy Daniels allegations, particularly given that the allegations would involve an extra marital affair, you know, that’s something that who knows whether it would’ve shifted voters’ views, particularly, I think, female voters views. But obviously, Mr. Cohen, Mr. Pecker thought it had the potential to do so, otherwise they would not have worried about it.
Andrew Weissmann: Right. That’s the key, which is, it’s not necessary for the jury to say, oh, if this information came out, X would have happened. It’s that they didn’t want the risk of that happened.
Mary McCord: That’s right.
Andrew Weissmann: They needed to lower the risk. I mean remember they don’t know what’s happening in the election. So, they need to figure out how do I denigrate the opposition? How do I rosy up and put lipstick on a pig with respect to the campaign, given that this had just come out? So, you know, in many ways with all of Donald Trump talking about fake news, this child may become sort of ground zero of, you know, Donald Trump, fake news, both with respect to his own campaign and with respect to the Clinton campaign.
And also other Republican campaigns like Ted Cruz’s. So, I think that is something that’s gonna be fascinating because we’re gonna really get a behind the scenes view, I think, during this trial. I don’t think people quite realize that it’s not like we already know everything that’s gonna be said. I think there’s gonna be a lot of details that I suspect will take all of us, you and me included Mary ---
Mary McCord: Yeah.
Andrew Weissmann: -- by surprising, getting that kind of granular picture of what was going on.
Mary McCord: Because there will be much more than what is actually in the statement of facts, right?
Andrew Weissmann: Yeah.
Mary McCord: These selected excerpts, these are just the highlights, right?
Andrew Weissmann: Highlights.
Mary McCord: With that, let’s take a quick break. And when we come back, we will hear more of the Statement of Facts in the New York criminal case against Donald Trump.
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Andrew Weissmann: Welcome back. So, we’ve covered a lot so far, but now let’s hear from Robert De Niro, who’s gonna continue to lay out events in the New York Statement of Facts. This time with respect to suppressing the Stormy Daniels account. Remember woman two.
Robert De Niro: The defendant directed lawyer A to delay making a payment to woman two, as long as possible. Instructed lawyer A that if they could delay the payment until after the election, they could avoid paying altogether. Because at that point, it would not matter if the story became public. As reflected in e-mails and text messages between and among lawyer A, lawyer B and the AMI editor-in-chief, lawyer A attempted to delay making payment as long as possible.
Ultimately with pressure mounting and the election approaching, the defendant agreed to the payoff and directed lawyer A to proceed. Lawyer A discussed the deal with the defendant and the TO CFO. The defendant did not wanna make the $130,000 payment himself and asked lawyer A and the TO CFO to find a way to make the payment. After discussing various payment options with the TO CFO, lawyer A agreed he would make the payment.
Before making the payment, lawyer A confirmed with the defendant, that defendant would pay him back. On or about October 26th, shortly after speaking with the defendant on the phone, lawyer A opened a bank account in Manhattan in the name of Essential Consultants L.L.C. A new shell company he had created to effectuate the payment.
He then transferred $131,000 from his personal home equity line of credit he locked into that account. On or about October 27th, lawyer A wired $130,000 from his Essential Consultants L.L.C. account in New York to lawyer B to suppress woman two’s account.
Mary McCord: Right, so here, I think, is where we really get to the heart of the charges in this case. What we’ve been leading up to so far is sort of the conspiracy, how we got to this place of having to hide these payments. If they’d had just made the payments, that would have been one thing, but it didn’t end there, right. Here is where we see how we ended up with fraudulent business records. Rather than just have Mr. Trump just hand Stormy Daniels a bunch of cash, they wanted to make this look like some sort of legitimate business expense.
And this is where we come up with the idea of Michael Cohen creating this shell company, Essential Consultants, opening a bank account for the shell company. And then from that shell company, paying Stormy Daniels. But that’s not all and those payments, of course, became the invoices that got entered into the ledgers of the Trump Organization, right. So, first set of falsified records, but the invoices weren’t for payments to Stormy Daniels. The invoices were for legal services. There were no legal services taking place, paying Stormy Daniels $130,000.
The other thing is the invoices weren’t just for a total of $130,000. They ended up being for a total of $420,000. The Statement of Facts make clear that figure they came up with by adding another $50,000 that Michael Cohen claimed that he was owed from Mr. Trump, coming up to 180,000. Then just doubling that amount to 360,000, so that lawyer A could call this legal services and income from legal services on his tax returns instead of a reimbursement.
And of course that had to cover what taxes he might owe on it. If it had been a reimbursement, he would be losing money and then just adding some more to that to get up to a nice 420,000. So, that’s how we end up with 420,000. I think what’s remarkable here is Michael Cohen then goes out and gets a personal home equity line of credit to put the original $130,000 into his account to pay Stormy Daniels.
So, lots of numbers here, lots of figures I’ve been throwing at you but this is the crux of the false statements. We’ve got false invoices for legal services, false vouchers, calling them legal services and checks, calling them legal services.
Andrew Weissmann: Yeah, I mean I think there’s sort of intricacies to the scheme, but the bottom line is they made payoffs to Stormy Daniels. That’s part of the catch and kill. And to make it clear that there’s payments that didn’t just write on them, hush money payments.
Mary McCord: Right.
Andrew Weissmann: The whole point is to --
Mary McCord: Right.
Andrew Weissmann: -- keep this hush or hush-hush. So, the paperwork denominated (ph) this all as legal fees. And the problem in that is if you’re going to call it legal fees, is Michael Cohen realized, if there are legal fees, he has to pay taxes on it. Meaning he’s owed more money by Trump in the reimbursements, because if he has to pay taxes on it he could be out --
Mary McCord: Thus the doubling, right?
Andrew Weissmann: Exactly. And by the way, that’s how there’s gonna be proof that Donald Trump knew this was also gonna have a tax fraud component because he’s paying more than just the $130,000.
Mary McCord: That’s right.
Andrew Weissmann: And some little bit to Michael Cohen. So, that intricacy and that amount over 130 is gonna be really good proof for the state’s gonna point to, as to his intent that this also was gonna involve a tax fraud.
Mary McCord: And that’s critical because that’s what makes --
Andrew Weissmann: That’s one of the theories for why this is a felony.
Mary McCord: That’s right.
Andrew Weissmann: And not a misdemeanor, absolutely.
Mary McCord: Yeah, because remember there’s three underlying crimes that are possibilities for Alvin Bragg to prove that Mr. Trump had an intent to conceal a crime. Alvin Bragg doesn’t have to prove those crimes beyond a reasonable doubt, doesn’t have to charge those crimes. But he has to show that Trump was intending to conceal other crimes.
And that’s based on exactly what we just talked about, tax fraud. It’s based on violations of New York elections law and violations of federal campaign finance law. And we’ll talk more about those when we get to that in the trial.
Andrew Weissmann: Yeah, that’s gonna be a fun thing. By the way, this is where I always wanted to have this be called, I haven’t said this in a while, which is I always thought this podcast was gonna be called like, Two Nerds Talking.
Mary McCord: Yeah, yeah.
Andrew Weissmann: But like we’re so excited about that is because it’s gonna be like super in the weeds as to like the intricacies of the law. But I’ll make a point that’s actually much less in the weeds. One of the things that I really love about the piece that Robert De Niro just read is something really smart, which is the very first thing that he read said the defendant directed lawyer A to delay making a payment to woman two, as long as possible.
He instructed lawyer A that if they could delay the payment until after the election, they could avoid paying all together. Now why is that? Because after the election, he may not have to pay at all because --
Mary McCord: He’s already the president.
Andrew Weissmann: Right, he’s either already the president or he’s lost.
Mary McCord: Or not.
Andrew Weissmann: So, he’s either one or he has lost, but he doesn’t have to pay anymore. A defense in this case is that he was doing this only to keep this from his wife. It wasn’t to keep it from anyone else. That’s not a total defense by the way to false business records. But this is making it clear that’s not what was going on, if this evidence comes in and is believed.
This is clear allegations that, oh, he didn’t care about this information coming out and being kept from Melania. This is, according to the DA, information about, he’s so cheap, that he is like, you know what? I’m gonna have to pay this money.
Mary McCord: And it shows it was all about keeping it from the voters, right? And I actually think this, if this comes out at trial, is one of the most significant, besides the entire scheme, sort of one of the most significant statements that will support proof of his intent.
Andrew Weissmann: So Mary, there is so much by the minute going on. We will have the end of the jury selection and we may very well, the next time we’re together, talk about one of the things that I think will be sort of the most enjoyable and I hope, actually, the most profitable for our listeners, which is our listening to the openings. And that’s where I do think that your expertise in terms of being a trial lawyer, I won’t say that about myself.
Mary McCord: And yours too. You tried more cases than I did. I probably handled more appeals, but you tried more cases.
Andrew Weissmann: Oh totally, I’m kidding, I always need appellate lawyers. You know, even now in the podcast, I just think that’s gonna be a really interesting part to see strategically what both sides are focusing on and how they are pitching their narratives --
Mary McCord: Agree, 100 percent.
Andrew Weissmann: -- to the jury.
Mary McCord: I can hardly believe though with only just two more courtroom days, I think we’re gonna be in a very different place by next Tuesday.
Andrew Weissmann: Absolutely.
Andrew Weissmann: We’ll continue to bring you new episodes twice a week to keep you up to speed in the New York trial. Thanks so much for listening. We’ll be back to you very shortly.
The show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Catherine Anderson and Bob Mallory are our audio engineers. A special thanks to Glenn Close and Robert De Niro for reading from the Statement of Facts in the New York indictment.
Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and please follow the series.