This week, Donald Trump’s New York criminal trial began in earnest with opening statements and testimony from former AMI CEO, David Pecker. MSNBC legal analysts Andrew Weissmann and Mary McCord break down the essence of the openings from both sides and how the statements will illuminate aspects of the trial in the coming weeks. Plus, Judge Merchan admonished the defense in Tuesday morning’s gag order hearing, saying that they were ‘losing all credibility’, but reserving a decision on the issue. For now.
And looking ahead, Andrew and Mary weigh in on the questions they hope to hear in Thursday’s oral arguments before the Supreme Court to decide whether Donald Trump’s presidential immunity claim holds water.
For further reading, here is Andrew and Ryan Goodman’s article in Just Security: Questions the Supreme Court Should Ask at Thursday’s Oral Argument on Presidential Immunity
And a sincere thanks to all our listeners for voting in the Webby Awards! Prosecuting Donald Trump won the 2024 Webby Awards for both the Crime & Justice podcast category and was the Crime & Justice People’s Voice Winner.
Note: This is a rough transcript — please excuse any typos.
Andrew Weissmann: Hi, and welcome to Prosecuting Donald Trump. It’s Tuesday, April 23rd at 10:40am. You’ll recall if you’re a listener that we don’t usually give the exact time, but we’re gonna give it for reasons that we’re about to explain. I’m Andrew Weissmann, and I’m here with the wonderful Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. Yes, 10:40 is important to know because as we are recording this podcast, Judge Merchan in the Manhattan courtroom is holding a hearing on whether the former president, Mr. Trump, should be held in contempt for violating the gag order. And we are trying to multitask here and look at updates from the trial court as we record this podcast. So, we will keep you posted. But I will say I’m reading now that Judge Merchan is saying to Mr. Trump’s attorney, you’re losing all credibility. And that’s not a good sign from Mr. Trump.
Andrew Weissmann: Yeah, that would be not good. By the way, I’m sure most people are going, what happened to Andrew? What did you do with him? And the reason I basically --
Mary McCord: Sounds like you’ve been gagged, Andrew.
Andrew Weissmann: Yes, I have been. I don’t know if it’s getting over a cold or it’s like, you know what, I think, you know, I sort of view it as like, there’s only so much I can talk over a lifetime and we’re getting to the very end of my voice. But you know what? The good news is, well, I was going to say that means I’ll talk less and you’ll talk more so that’s the good news. But you know, that’s not going to be true.
Mary McCord: Yeah, that’s never going to happen Andrew, so --
Andrew Weissmann: I know. I know. That’s right. Like everyone knows me too well. Okay, so I’ll be croaking along as we do this. But we have been giving the time because there’s so much going on. So obviously, the trial started yesterday. We’re going to spend most of our time talking about that. And we’re going to sort of break it down into two pieces, sort of something that’s not gotten a lot of attention.
Mary, you’re going to walk us through sort of like what happened before the opening, sort of the instructions, make sure everyone understands what the jury is told. Then we’re going to talk a lot about the openings. And then we have a lot of sorts of things to keep tabs on. Most importantly is Thursday in the Supreme Court of the United States, there is the argument on presidential immunity. And so, we’ll talk briefly about that.
But then on Friday, when we do our second podcast for the week, we’re going to spend a lot more time on that as well as updates on the trial. So, Mary, I thought it was great when we were just chatting before we got on. You know, so much was focused on in terms of what actually the openings were. But as you pointed out, it’s kind of good to set the scene about what was the jury told, like sort of what happens at the very outset of the trial before openings.
Mary McCord: That’s right. And I think this is important for people who’ve never been on a jury or never sat in and watched an entire trial. Before openings, the judge gives an entire set of opening instructions, and these take about 30 minutes. And you and I both sat through many, many, many of these opening instructions over the course of our careers.
Andrew Weissmann: Biting your nails, just waiting.
Mary McCord: That’s right. And you just want to go.
Andrew Weissmann: Yeah.
Mary McCord: You just want to talk.
Andrew Weissmann: You’re ready.
Mary McCord: Yeah.
Andrew Weissmann: Exactly.
Mary McCord: But they’re important because the judge not only tells the jury what to expect in terms of trial, right, but importantly, he also talks about things like what is evidence. And he’ll say the questions by the attorneys when they’re either doing direct examination, which is the attorney questioning a witness that is called by that side. So, prosecution calls its witnesses. They do what’s called a direct examination. Then there’s a cross examination by the opponent.
One important concept is those questions are not evidence, right? Anything that the attorneys say in opening statement is not evidence. Anything that they say in closing argument is not evidence. The only evidence is what the jurors are going to hear from witnesses, what they’re going to see when documents, that might be text messages, that might be e-mails, that might be the actual business records here, right. Remember, this is a case about fraudulent business records.
Those documents are evidence if they are admitted and the judge explains about how a document gets admitted, it gets marked with an exhibit sticker, it gets offered into evidence, once offered into evidence, then it is in fact evidence. It may also include recordings because as we’ll talk about in a minute, we heard during opening statements that there are going to be some recordings of phone calls, et cetera. These are the things that the judge told the jurors. These are the things that are evidence.
He also talks to them about you will hear some rules that hearsay, that’s a statement made out of court that wants to be introduced for the truth of the matter asserted, is usually excluded. But he says there’s lots of exceptions to that, and we won’t get into all of those right now, but I’ll give you instructions as necessary if some of that kind of evidence comes in.
The other thing that I think that was very important, and the judge said we’ll come back to this again at the end with closing instructions, but even in his opening instructions, he makes the point that it will be up to the jury to make the determination whether the government has proved the offenses charged beyond a reasonable doubt, and he reads to them the reasonable doubt instruction. I think it’s worth, just as our listeners get started in this trial, worth hearing what that instruction is.
Andrew Weissmann: Yeah.
Mary McCord: A reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and the quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person acting in a matter of this importance would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.
The proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of a defendant’s guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant’s identity as the person who committed that crime. I think this is really important because this is always the government’s burden in a criminal case, but a lot of people just hear that phrase bandied around, beyond a reasonable doubt, and they’ve never heard what that really means.
Andrew Weissmann: Right.
Mary McCord: And that can sometimes lead to confusion, and sometimes attorneys in closing arguments will try to confuse things, and that usually draws an objection because courts are very strict about this instruction. And that’s the last thing I’ll say. The judge also talks about objections, that you will hear objections sometimes being made when party is objecting to a question or a response.
And if the judge tells the jurors that that objection has been sustained, that means it was a well-founded objection, and he will sometimes instruct the jurors that now you have to disregard whatever it was that was just objected to, and he explains that. And the final thing he says was, remember your obligation to be fair and impartial. Put your biases aside, any stereotypes you have aside when you’re assessing the credibility of a witness or evidence, and judge things, you know, without any of those biases or stereotypes.
Andrew Weissmann: One of the things that’s very interesting is it’s very common in a criminal case for jurors to ask a judge, what does beyond a reasonable doubt mean? And it’s difficult because there are different standards in the law about the level of certitude that you have to have in your head, but it’s difficult to put into English-language words a level of certainty of how firmly you believe something --
Mary McCord: Right.
Andrew Weissmann: -- in your head or your heart. And so, the law really struggles with that. How do you embody different levels of certainty in English language to convey what you mean by clear and convincing evidence or the highest standard we have beyond a reasonable doubt? So that’s why the judge gives that instruction. He’s going to give it again at the end of the case. But with that, the judge then turns and says, are you ready, state, to do your opening? And the way that it works is the state goes first and then defense goes second.
Mary McCord: And they don’t even have to give an opening, but they did in this case.
Andrew Weissmann: That’s because the defense doesn’t have to do anything.
Mary McCord: They have no burden.
Andrew Weissmann: They can just sit back and say, we don’t want to do an opening statement. That’s rare to do that. And then at closing, it’s going to be the reverse. The defense goes first and the state goes second.
Mary McCord: Last thing before we get into opening --
Andrew Weissmann: I’m chopping at the bit, just like when I was doing chops. I’m dying to start dissecting.
Mary McCord: Yeah. And this didn’t really happen until after openings. But one thing that he spoke about it during his instructions, but he didn’t hand out pens and paper until after openings.
Andrew Weissmann: Oh yes. Right.
Mary McCord: And that is note taking. The judge made clear, look, I’m going to give you all pens and paper to take notes if you wish. And he did that right after the first witness started. He realized he hadn’t given them out and he handed them out. But during his instructions, he was very clear to say, look, there’s a court reporter here who is taking down every single word that is said, there’ll be transcripts and that is the official record of what happened at the trial.
So, you can take notes to keep yourself engaged or to remind yourself of things. But your notes are not the official record. You shouldn’t be getting distracted from the evidence that’s being put on if you’re writing your notes. And certainly, when you’re in the jury room, you shouldn’t be relying on your notes as you know, for memory, as opposed to if you have something that the jurors are all kind of disagreeing what happened. They can ask for the transcript, that portion of the transcript to be provided.
Andrew Weissmann: Which is the official record.
Mary McCord: Exactly.
Andrew Weissmann: But the reason judges allow note taking is because some people process --
Mary McCord: That’s right.
Andrew Weissmann: -- the facts and listening that helps them to sort of write things down. But you do have to caution because you don’t want them to be thinking, well, I have in my notes X because you don’t really have to worry about it --
Mary McCord: That’s right.
Mary McCord: -- because there’s an official record and they can ask to hear that. At the end of the case, if there’s something that there’s a disagreement on, you can ask for what’s called a readback. So, with that, Mary, shall we dive in?
Mary McCord: Let’s dive in. Yes.
Andrew Weissmann: So, I wanted to talk about what I’m going to call hard evidence because I wanted to give you a sense of what I was listening for in the state’s case. We’ll talk about the defense case second. But in the state’s case, you know, we all have a good sense of the scheme of the statement of facts. And we’ve talked about the nature of the scheme and its different elements and the sort of chronology of it.
And the state definitely went through all that. I was really interested in what I’m going to call hard evidence, like what documents, tape recordings, business records did they have that would shore up whether it’s Michael Cohen or David Pecker, the person who was the head of AMI.
And I wanted to point out sort of three things that I think you’re going to hear a lot more about, one of which I thought was kind of like a jaw dropper. So, one is the tape recording, which we’ve heard about before, which is that Michael Cohen has Donald Trump on tape where they’re talking about the Karen McDougal part of the scheme.
And one of the things that I used to argue when somebody like Michael Cohen has made a tape recording is that’s not usually what you do if you are just an inveterate liar and you wouldn’t tape your co-conspirator because if you’re lying about what happened, because you know what you don’t hear on that tape? You don’t hear Donald Trump saying, what are you talking about? We’re not paying Karen McDougal. I don’t even know that woman. And what do you mean we’re paying her? I mean, you don’t hear any of the things that you would hear from an innocent person. In fact, what you hear is let’s just pay it in cash. And Michael Cohen is saying --
Mary McCord: Right.
Andrew Weissmann: -- no, no, no, no, no. That’s going to look too suspicious. I mean, that’s the last part of my hyperbole.
Mary McCord: Yeah. And importantly, don’t leave out. So, what do we got to pay for this?
Andrew Weissmann: Right.
Mary McCord: $150?
Andrew Weissmann: I mean, so the tape recording, just the mere fact of the tape recording is the kind of thing that you would do only if you are confident that the person’s part of the scheme, because otherwise you’re going to get a tape recording that says, like if I said it to you, Mary, you’d be like going, Andrew, have you lost your frigging marbles?
Mary McCord: Right, right. What are you talking about?
Andrew Weissmann: That argument wasn’t made because this is, as you pointed out in our last session, this is opening statements. It’s not an opening argument. The second is telephone records. At a key moment on October 26, 2016, when Michael Cohen is creating this LLC, he creates a new LLC called Essential Consulting LLC, and that’s the vehicle to pay Stormy Daniels. Before he does that, there are two telephone calls with Donald Trump.
Mary McCord: Bum. Bum. Bum. Bum.
Andrew Weissmann: Exactly.
And so, telephone records are just so useful. Obviously, it doesn’t tell you the content. Michael Cohen will give you the content, but it’s pretty damning that it’s like two telephone calls, and then he walks across the street and creates Essential Consulting, and then the money goes out.
Mary McCord: Yeah. And, you know, this is corroborating evidence, right? Because Mr. Trump’s attorneys have already started in their opening statement and will continue throughout this trial to say, you cannot believe a word out of Michael Cohen’s mouth. He’s a liar. He’s a convicted felon, et cetera, et cetera. You shouldn’t believe him.
So, when Mr. Cohen is talking about this scheme to pay off Stormy Daniels and for him to create this shell company to do it, the fact that he creates that right after these two phone calls with Mr. Trump really helps to corroborate, or that’s the argument anyway, that he’s telling the truth.
And the prosecution here is going to use, I mean, in the opening statement, the prosecuting attorney mentioned all kinds of different e-mails and text message and recordings and then records of these phone calls that will be introduced. And also, we did have a 10, 15 minutes’ worth of the first witness, David Pecker, the former head of American Media, which owned and produced “National Enquirer”. And you might recall the prosecutor asked him, do you remember the last four digits of your phone numbers, the different numbers you had back in 2015, 2016, 2017? And he got those numbers all in the record.
Why do you think he did that? Because there’s going to be evidence --
Andrew Weissmann: Right.
Mary McCord: --in the record, I guarantee, of phone calls between Mr. Trump and those phone numbers and Mr. Cohen and those phone numbers. And this way, the prosecution has put into evidence that those phone numbers were Mr. Pecker’s phone numbers.
Andrew Weissmann: Yeah. So that’s a way that you stitch together a case. And it also really helps you a lot with phone records. It really helps you put a timeline together with specific times. The third piece that was referenced, it’s at page 880 and 881 for those following along at home. And this is how nerdy I am, by the way. I can give you the page references and the line numbers for the others. It’s 870 and 876 for the two other pieces. But anyway, we’ll see if the producer cuts that. It’s like being way too nerdy.
But then there’s really what is the key part of this case, because you have sort of the election fraud part. But as it was described, you then have the reimbursements to Michael Cohen. And that is where the false business records come in, because it is the cover.
Mary McCord: That’s the cover.
Andrew Weissmann: Exactly. They describe this as the election conspiracy and the cover up. And the cover up involved the reimbursement of $130,000. But because the amounts are going to be disguised as legal fees, Michael Cohen had to pay taxes on it. Otherwise, he’d be committing tax fraud. So, it needed to be trued up.
Mary McCord: Because he wanted to be reimbursed for the taxes he paid --
Andrew Weissmann: Yeah, right.
Mary McCord: -- not just --
Andrew Weissmann: By the way, the same frigging thing happened with Allen Weisselberg in the criminal case a year and a half ago, the tax fraud case where Allen Weisselberg pled guilty and the Trump organization was found guilty. Same thing happened --
Mary McCord: Right.
Andrew Weissmann: -- which was when the president became president. He was like, oh, we have to stop the scheme. And that meant that Weisselberg was like, oh, then I need to be paid more because now all the stuff that was off the books, I now have to pay taxes on it. So, you need to true me up. So, he knows all about truing up.
Mary McCord: Yep.
Andrew Weissmann: And you obviously understood that Michael Cohen is going to say this is how it happened. It’s 130, they had to double it for the taxes because he’s in a 50 percent bracket, that there needs to be a sum of money for his expenses, like in other words, like he had to be paid to do this. And this is wait for it. Allen Weisselberg says to Michael Cohen, according to the D.A., come over with the bank statement that shows that you paid the $130,000 from Essential Consulting to Stormy Daniels.
And Michael Cohen comes over to meet with Allen Weisselberg, the CFO of Trump Org., with that piece of paper. And Allen Weisselberg wrote all of that down. The bank statement that I told you about that he asked Cohen to bring to their meeting, the bank statement from Essential Consulting, LLC, which showed the $130,000 wire that Cohen had made to keep Davidson, to keep Stormy Daniels quiet.
You will see in this trial Allen Weisselberg’s handwriting down the side of that bank statement, laying out every one of the steps that I just described, showing how they converted the $130,000 payoff amount to the 420 grand that Cohen was going to get paid back as a grossed up way to disguise it, not as a reimbursement, but as income. And he goes on to describe it in detail.
But essentially, you’re going to have these contemporaneous notes and they’re going to be admissible into evidence as a co-conspirator statement.
Mary McCord: That’s right.
Andrew Weissmann: Because to be a --
Mary McCord: Which we’ll come back to, I think, after the break and talk a little bit more about.
Andrew Weissmann: Yeah. Can I give a quick nerdy view on what a co-conspirator statement? Because it’s a way of getting what otherwise would be hearsay into evidence. It’s required that the statement be shown to be made by a conspirator. It has to be in furtherance of the conspiracy and it has to be offered against a member of the conspiracy. All three elements of that requirement are met here. At least the D.A. is going to argue. And by the way, the D.A. is confident that that’s the case or else he wouldn’t have opened on it.
Mary McCord: And that’s what I do want to come back to after the break, this idea of opening on a conspiracy, but not charging a conspiracy. But before we go to break, I just want to say I wish our listeners could see my copy of the transcript, because the last two excerpts that you read and talked about on those pages are exactly what --
Andrew Weissmann: Wait, wait.
Mary McCord: -- I have highlighted in my transcript. I mean, those two, they scroll down, nothing in between those two, those two things. So, I don’t know. It’s a weird mind meld.
Andrew Weissmann: Wait. Violent agreement. So, Mary, I wonder it’s like, you know, it’s like what they say about this is like probably a really bad analogy, how, you know, when you have a pet, you sort of end up your pet looks like you and you look like your pet.
Mary McCord: Yes.
Andrew Weissmann: I feel like we’re turning into one person like that. You know, I actually think big picture, we’ve both been trial lawyers. So, we clearly were looking --
Mary McCord: Exactly. We’re just keying in on the same things.
Andrew Weissmann: This is the thing that, you know, as a trial lawyer, you’re going to be like, what are the tentpoles that you’re going to be latching onto and viewing as a way to have something firm in your case to argue to the jury? Okay, with that, should we take our break?
Mary McCord: Let’s do it. We’ll come back after that.
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Mary McCord: Welcome back. So, before we went to break, I said, let’s talk a little bit about this conspiracy theory. The opening statement, the district attorney, the assistant district attorney opened very much this case as though it was a conspiracy case. And basically, it is a conspiracy case. But listeners may be saying, wait a minute, I listened to your last episode where you talked about the 34 counts and I don’t recall conspiracy being one of the counts in the indictment.
There were 34 counts of fraudulent business records reflecting fraudulent invoices for legal services, reflecting fraudulent entries into the general ledgers and reflecting fraudulent entries regarding the checks issued to pay Michael Cohen. That is all true. But as the assistant district attorney pointed out, the scheme here, this catch and kill scheme that started in August 2015 when Mr. Trump and Mr. Cohen and Mr. Pecker all met at Trump Tower to talk about how they could help Mr. Trump’s candidacy. That was the conspiracy that the assistant district attorney is talking about.
That is the conspiracy which started with this idea of American Media would promote favorable articles, not just promote, write and publish favorable articles about Mr. Trump, write and publish disfavorable articles about his opponents, which they did, and catch and kill negative information from sources who want to tell a story that would reflect poorly on Mr. Trump. And that was the part of the scheme that is at issue here, the conspiracy that’s at issue here in this case, starting with paying off the doorman, then paying off Karen McDougal and ultimately paying off Stormy Daniels.
So, what the assistant district attorney, Mr. Colangelo, wanted the jury to understand was this story from the beginning. And I think that was so important because in opening statement, right, the jury needs to hear a story. They need to hear how it all is going to fit together, how it’s all going to unfold throughout the evidence, and then how it’s going to conclude.
And so, his story builds up from this scheme starting in 2015 through the fruition of it, including the cover up, which we were talking about before the break, the reimbursing of Michael Cohen for paying the hush money payments to Stormy Daniel, covering up those payments to Michael Cohen, the ways you just talked about before the break, Andrew.
Andrew Weissmann: So, one thing that as a technical matter, which people may be asking, is the crimes charged here are felonies if they are false business records to conceal or further some other crime. And the some other crime here, which then becomes another element that needs to be proved or elements plural, one of them is state and federal election campaign violations. And the state election violation is a conspiracy charge.
Mary McCord: That’s right.
Andrew Weissmann: So, some people are going, wait a second, there’s no conspiracy charge. That’s actually wrong because the reason it’s a felony, one of the theories is that this other element related to campaign finance is a conspiracy charge. So, it’s not like it’s just a bump up. It is in the same way that if you go into a house and you’re just breaking and entering versus going into a house to rob it, those are different offenses because you have different intent.
Mary McCord: What your intent was, right?
Andrew Weissmann: So here, that additional intent element, if you’re doing this, this false business record with the intent to engage in this conspiracy, that is what makes it a felony. Very technical, but it is the case that that is something that the jury will be instructed on. And that’s why they get to use the term conspiracy, not just in a sort of colloquial sense, but it actually will be part of a charge that they are told at the end of the case.
Mary McCord: Yes and no. I just want to clarify for our listeners, there is no charge of conspiracy to promote or prevent election under New York law that has been charged in the indictment. There’s no charge of federal campaign violations.
Andrew Weissmann: Right.
Mary McCord: There’s no charge of state tax fraud. So, what they’re going to hear, and I agree with you on this, is they’re going to hear that Mr. Trump, in order for this to be a felony, the jury would have to find that in engaging in these fraudulent business records, he did it with the intent to conceal another crime.
Andrew Weissmann: Yes.
Mary McCord: And then they will be told what those possible other crimes are. They do not have to find that those other crimes were completed, right, beyond a reasonable doubt.
Andrew Weissmann: But they have to intend it.
Mary McCord: He has to have intended to cover up. Exactly. So, it’s going to come in --
Andrew Weissmann: Right.
Mary McCord: -- but I just don’t want anybody to be confused that there’s actually --
Andrew Weissmann: Yeah, yeah.
Mary McCord: -- a charge of conspiracy that they will be instructed on, you know, that they have to find every element beyond a reasonable doubt. They have to find every element of the fraudulent business records, including the intent to conceal another crime in order to make it a felony. All of that beyond a reasonable doubt. Absolutely.
Andrew Weissmann: Yes.
Mary McCord: And that is something that is just part of New York law. And Judge Merchan ruled on this pretrial when he ruled against a motion to dismiss the case. And he was very clear about the only thing that is required here is that the government prove Mr. Trump’s intent. The other thing, as you noted, in this case, we’re talking about this with respect to fraudulent records charges, but it is not uncommon in many other types of criminal cases for there to be a theory of the prosecution which involves a conspiracy, even if a conspiracy is not charged.
Sometimes a conspiracy is charged. Sometimes, like think about a mass drug trafficking offense. Oftentimes a conspiracy is charged, but it wouldn’t have to be charged for the government to say there was an agreement here, a conspiracy to commit various crimes. And so, in federal law as well, obviously, in New York state law, you can make that argument as your theory of the case, even without a charge. Okay, let’s talk about what Mr. Blanche said, the defense attorney who did the opening statement for Mr. Trump.
Andrew Weissmann: So, I was struck by things that I thought were good to harp on and things that I was surprised he harped on, because as you and I know, if either side promises something and doesn’t deliver, the other side jumps on that like crazy and then they do not forget it at closing. They say, you heard from Ms. McCord at opening and she told you blah, and that didn’t happen.
Mary McCord: Right.
Andrew Weissmann: The subtext is don’t trust her, right. And so, I thought he was right to obviously you’re going to attack Michael Cohen. I mean, that’s sort of a given, like he has credibility issues.
Mary McCord: Yep.
Andrew Weissmann: I thought it was right to say you’re not going to hear that Donald Trump was creating each of the false business records himself. Essentially, when you have a CEO case, very often you’re distancing your client from what’s happening at the sort of worker bee level. So, it was right to do that as well to say, you know, how does he know what the business records looked like and what were they saying?
I thought those were perfectly fine. It’s also fine to sort of, although it’s not really a statement, it goes to argument to say, you know, beyond a reasonable doubt, beyond a reasonable doubt, he’s presumed to be innocent. All of that makes a lot of sense and you --
Mary McCord: Always.
Andrew Weissmann: -- hear it constantly. And by the way, just to be clear, that is not an opening statement that’s proper, but it happens all the time.
Oh, I should say one more thing. I think there was a slight reference to this was a while ago, and a lot of this happened in 2015, 2016. I think that may be a little bit of a preview to attack some witnesses in terms of their memory --
Mary McCord: Yes. I thought the same thing.
Andrew Weissmann: Maybe Mr. Pecker. I sort of took that as a little bit of a preview that Mr. Pecker’s, you know, may not be 100 percent positive about everything he said. That’s why documents can become very important. But now the things I was surprised by, two things. There are many, but I’ll take two things, one kind of funny and one not. That not is when he said the $420,000 that was used to pay Michael Cohen, that was not a reimbursement of $130,000. I don’t know where that’s going to come from.
Mary McCord: Yeah.
Andrew Weissmann: I mean, I just was surprised by that. That’s the kind of thing that good luck on where that proof is going to come from. I mean, I don’t think Donald Trump’s going to testify. We’ll talk about that, you know, in some other episode. But I was surprised by that. And then the --
Mary McCord: Right. Because it’s not going to be what Mr. Cohen says, right.
Andrew Weissmann: Right.
Mary McCord: And we haven’t heard of any other. We have documents.
Andrew Weissmann: And we just talked about this document where Allen Weisselberg details it. So that’s a contemporaneous statement. This is not Michael Cohen now saying it. This is Allen Weisselberg, the defendant’s own CFO, chief financial officer, writing it down at that time.
Mary McCord: Yeah.
Andrew Weissmann: So, I don’t know how they’re going to deal with that. And that could have been an overpromise. And again, you do not want to do that. The second, which I thought was just like a foolish statement was, and imagine my client’s surprise when it turns out Michael Cohen was committing all these crimes behind his back.
Mary McCord: Right. Right.
Andrew Weissmann: I was like, I mean, this is going to date me, but this is what I call the Claude Rains defense. Claude Rains, as you recall, is in Casablanca, the movie. And he says, I’m shocked to Rick. He goes, Rick, I’m shocked, shocked to find that there’s gambling in this place. And he closes down Rick’s Cafe. And as he says that, somebody comes up to him and says, sir, your winnings.
Mary McCord: Yes.
Andrew Weissmann: And, you know, this was the Claude Rains defense of like, I’m shocked that Michael Cohen was committing crimes.
Mary McCord: Lying about things.
Andrew Weissmann: I mean, this is what’s so amazing. This is the former president. But I mean, let’s just look at some key things. He thinks the January 6th defendants should all be released because they’re not criminals. He wants to bring Paul Manafort, a convicted criminal, to work on his campaign. Who was working on his campaign in 2016? Paul Manafort, Rick Gates. He had help from Roger Stone, Steve Bannon. You know what those people all have in common? They’re all felons.
Mary McCord: That’s right. That’s right. But he was shocked.
Andrew Weissmann: Yes. Okay, that’s my amusing part of what he said.
Mary McCord: Yeah. You know, those are the key things, too, I think that he sorts of said, like you said, made promises, we’ll see if he can keep. Otherwise, I would say that, you know, it was, I guess, what I would expect when you don’t really have a lot to say. I mean, some of the key comments, you know, I have a spoiler alert. There’s nothing wrong with trying to influence an election. It’s called democracy.
Now, of course, there are lawful ways to influence elections called campaigning and talking about what your platform is and what you would do if you become president. And then there are other ways which are unlawful, which would include paying hush money to keep information from becoming public just days before the election and then falsifying the records regarding those payments. That’s another way, right. So, it’s an interesting tactic.
The other thing I would point out about the defense closing is that during the government’s opening statement, there were no objections during the defense closing. There were several objections made by the government. And these were times, I think, when Mr. Blanche just went too far. One of them was he basically accused Stormy Daniels of trying to extort President Trump. That drew an objection that was sustained. Of course, Stormy Daniels has never been charged with extortion. Extortion is a crime.
That was really an unfair attempt to label her with some sort of crime that is not going to be supported in the record and is not supported in any other place. And so, it was properly sustained. So, each one of those times that Mr. Blanche went a little too far, that’s when we heard the government object. I don’t know about you, but in my experience, I tried hard to never object during openings unless it was just --
Andrew Weissmann: Yes, yes.
Mary McCord: -- really, really something I just could not let stay there in the jury’s mind. And I think that’s probably a little bit what was happening here.
Andrew Weissmann: Yeah, I mean, I think the one where I would have objected here is the judge had ruled pre-trial that Donald Trump couldn’t, with respect to attorney-client privilege, he couldn’t say, I relied on advice of counsel --
Mary McCord: Right.
Andrew Weissmann: -- without then turning over what the advice was. You can’t have your cake and eat it too.
Mary McCord: Right.
Andrew Weissmann: That’s something that the defense lawyer started talking about and that I thought was an appropriate objection and the judge sustained it.
Mary McCord: Yes. Absolutely. Yeah, that’s basically him justifying what the judge had already excluded by trying to sneak it in through an opening statement.
Andrew Weissmann: Right, which is, you know, well, we’ll talk about this as the case goes on. But I should say this morning, in connection with the gag order hearing, the judge said, I’m paraphrasing, to the same lawyer, Mr. Blanche, you are losing all credibility with the court. And Mary, you and I know that especially, you know, when I was in the fraud section, I was so often in front of judges and courts, not in sort of a home turf. We tried cases all around the country.
You use the pretrial phase to develop a relationship --
Mary McCord: That’s right.
Andrew Weissmann: -- and credibility with the court, not a relationship like your friends.
Mary McCord: No.
Andrew Weissmann: You want the judge to trust that when you say something, it’s true.
Mary McCord: That’s right.
Andrew Weissmann: And it’s surprising to me that Todd Blanche has not even tried to develop that kind of relationship, it seems to me.
Mary McCord: He has a difficult client.
Andrew Weissmann: Yeah.
Mary McCord: Last thing before the break, we now know that Judge Merchan has declined to rule this morning on the contempt motion involving alleged violations of the gag order. He’s reserving and he’ll rule, I guess, you know, in the coming days. And so, we’ll talk about that after he rules.
Andrew Weissmann: Right. It could be today.
Mary McCord: It could be later today. We also haven’t, you know, really started to talk except for just the tiniest bit about the first witness, David Pecker, because yesterday he was only on the stand for about 10, 15 minutes. He’s back today. So, when we do talk on Friday, we will be able to talk a little bit more about the other witnesses that we’ve heard since then. So, shall we take a break and then we’ll talk about what’s on our radar?
Andrew Weissmann: Yeah, sounds great.
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Andrew Weissmann: So welcome back. Mary, two quick things that are on our radar screen, because I mean, Trump is like the gift that keeps on giving in a bad way. And one of the things that happened yesterday is people may remember there was a whole contretemps about the $175 million bond that Donald Trump posted so that the judgment in the New York attorney general’s civil fraud case wouldn’t be able to be enforced immediately.
So, he was putting up a bond, but there were a lot of issues about that bond that were raised by the attorney general, and that was before Judge Engoron. And so, what happened there?
Mary McCord: Yeah. And just to frame it up a little bit more of a reminder, this is a bond in order for Trump to not have to pay the judgment while he is appealing, right? Because otherwise you still --
Andrew Weissmann: Right.
Mary McCord: -- pay it, even though you can still take an appeal. And that $175 million was a dramatic reduction from the judgment against him of some, you know, almost a half a billion dollars. So yes, the questions really are whether that bond had adequate collateral behind it, because supposedly it was supported by a bank account of Mr. Trump’s that has cash in it.
But I think what the attorney general was arguing is that cash was not put under control of the company that issued the bond, that cash was remaining --
Andrew Weissmann: Right.
Mary McCord: -- under Mr. Trump’s control.
Andrew Weissmann: Yes. So how is that collateral? It’s collateral until I take it out.
Mary McCord: Exactly. I mean, not normally the way you think of collateral for a bond. So --
Andrew Weissmann: Can you imagine like a real bank doing that? Like, hey, we need collateral. So just you hold the money for us.
Mary McCord: Yeah. And, you know, this also speaks to like, who is this person who’s never ever done a bond like this in New York or maybe anywhere of this kind of size? What is his relationship with Mr. Trump? I mean, there’s been a lot of reporting on this, not that they had a prior relationship, but that he is a supporter.
Andrew Weissmann: You know, this is one where it got easily resolved in some ways because the AG was appropriate to say, wait a second, you can’t still maintain control, Donald Trump, and that the court agreed and said, no, this has to be under the exclusive control of the bond company. And so that actually then made sense that the $175 million is now under the control of the bond company. And so, Donald Trump can’t dissipate that collateral.
Mary McCord: Yeah.
Andrew Weissmann: That seems like a totally --
Mary McCord: Perfectly reasonable. Exactly what we would expect.
Andrew Weissmann: Exactly. Yes. But you know what’s not reasonable? That they had to litigate this.
Mary McCord: Exactly.
Andrew Weissmann: It’s like --
Mary McCord: What a waste of time and resources.
Andrew Weissmann: Are you freaking kidding me?
Mary McCord: Yeah.
Andrew Weissmann: Right.
Mary McCord: But a lot of these things just bothers me. It’s an incredible amount of time and resources that judges and the parties are having to expend on things that, frankly, they shouldn’t have to take the time.
Andrew Weissmann: And it tells you that when you’re dealing with Donald Trump, you need to be like a dog with a bone.
Mary McCord: Yeah.
Andrew Weissmann: I mean, you have to be meticulous about everything and watch for getting your pocket picked.
Mary McCord: Yep. Absolutely. Okay, let’s turn to the big thing coming up this week, which we will have far more to say about when we record on Friday. But Thursday is the Supreme Court argument on whether Donald Trump is absolutely immune from criminal prosecution in the D.C. January 6th related case brought by Special Counsel Jack Smith and his team. And this is one where listeners will recall, I’m sure, that the District Court Judge Chutkan said, no, you don’t have absolute criminal immunity. No man is above the law, including the president. The D.C. Circuit said, no, all three judges agreeing. No, Donald Trump, there’s no absolute immunity from criminal prosecution.
And he took that on up to the Supreme Court, arguing that everything he did was part of his official acts of president and that surely the president should be immune from criminal prosecution for official acts. That is what the court is hearing on Thursday. And I know, Andrew, you and our good friend Ryan Goodman, a professor at NYU, wrote a piece I think that published just yesterday in “Just Security” suggesting some of the questions that the justices might want to ask of the parties here. So, what kind of questions do you want to hear them asking?
Andrew Weissmann: Yeah, so Ryan Goodman and I, we write a piece in “The Atlantic.” We also wrote a similar piece for “Just Security,” which is a legal forum that Ryan is one of the co-managing editors. We’re really trying to get the court focused on speed, on timing here. And by the way, for people who want to read the piece, the link to the “Just Security” piece will be in the show notes.
So, one of the things we did is, we just wrote down some questions in the “Just Security” piece. I’m going to just read a few and you can sort of get, I think, what the import is. Before the Court of Appeals, Mr. Trump claimed that the gag order in this very case, that’s the D.C. federal case, interferes with his ability to run for office. Given that claim and Mr. Trump’s claim that he should not suffer one day longer the opprobrium of this indictment as he is immune, why should we not decide this case as expeditiously as possible?
That’s a question to put to Donald Trump’s lawyers. It’s like, let’s hear what he has to say of that. And then the second, which is a little snarky, is, is your view that we should decide this case expeditiously only if we are going to rule in your favor, but otherwise we should take our time? Which, by the way, is their view.
Mary McCord: Yeah.
Andrew Weissmann: But I mean, you can’t, you know, say that. And then the other goes more to the merits of it, which is, under your view of sort of absolutist presidential immunity, would President Biden be free to order the assassination of a political rival if the president felt his opponent was a threat to democracy, if he believed in good faith that the rival was working with foreign adversaries like Russia to undermine our democracy, if he wanted to impound all the voting machines, if he did not like the election results in certain states?
Meaning this is goose gander --
Mary McCord: Right.
Andrew Weissmann: -- questions, which is, is your position really that unless there’s a successful impeachment, that all of this is immune? And then finally, with respect to this argument that it’s only with a successful impeachment that you can bring a criminal case.
Mary McCord: And by successful impeachment, you mean conviction in the Senate? Because, of course --
Andrew Weissmann: Exactly.
Mary McCord: -- he was impeached in the House. He just was not convicted.
Andrew Weissmann: Yes, right. Exactly. That’s what I meant. Absolutely. You’re totally technically correct. So, we talk about the fact that in the impeachment trial in the Senate, Mr. Trump, through his attorneys, argued against conviction by the Senate on the ground that criminal investigation and prosecution were the appropriate processes for addressing President Trump’s alleged misconduct on January 6th.
So, the question is, why are you not stopped from making a contrary argument now? I.e., you have forfeited the claim of immunity by seeking to be acquitted in the Senate on the ground that you could face criminal prosecution when out of office. And so, you cannot contend now that you’re immune and less convicted by the Senate. That is sort of a standard doctrine that, Mary, I know you’re an appellate lawyer. I mean, at some point, if you make a representation and the other side’s relying on it, you are stopped or you are viewed as forfeiting the claim.
Mary McCord: And it’s particularly common when there’s been a previous court case and another, like think the E. Jean Carroll cases, right?
Andrew Weissmann: Yes.
Mary McCord: There was a first trial where there was a determination that Mr. Trump had sexually assaulted E. Jean Carroll. And so, in the second trial, the judge ruled you are stopped from making any arguments that you didn’t sexually assault her because you had a full and fair opportunity to litigate that in the first trial. And so that remains. You can’t attack it again.
This is a little different because this is like lipping positions. But my point is that when you go court case, court case, these are common arguments. Here we’re talking about does that kind of rule apply when the first case was not in court. It was in the Senate, a trial in the Senate where your lawyers took a certain position. Now they’re actually in an appeal from criminal charges in a courtroom. Does this argument apply?
Now, I will say the government has not made that argument as a legal matter. They have raised in their briefing the fact that throughout this case --
Andrew Weissmann: The tension. Right.
Mary McCord: -- the tension there. And I do think we’ll see questions about it, as you’ve just indicated. I also think we’re likely to see questions, maybe not quite as snarky as some that you put in your piece, although there are justices quite willing to be snarky that I think timing will be, you know, one of the issues that are raised.
And I think those hypotheticals that you indicated, I mean, we had those hypotheticals when this was argued in the D.C. Circuit. Judge Pan famously asking, you know, are you saying that you could order the assassination of a political opponent and that would be within the scope of your official acts? And Mr. Trump’s attorney said yes. So, I think we’ll hear those kinds of things. It will be a fascinating argument. And I’m really looking forward to breaking it down after listening to it.
Andrew Weissmann: Yeah. So, Mary, there’s some good news that we got --
Mary McCord: Just this morning.
Andrew Weissmann: -- just this morning and I’d sort of forgotten that they were coming out. But we won not one, but two Webby Awards. And this is a huge team effort.
Mary McCord: Yes.
Andrew Weissmann: And if you had told me a year ago that there was going to be a following for the show and this is where we’d be, I would have been surprised. But it’s so nice that we won two Webby Awards. One is sort of like a People’s Choice Award that everyone gets to vote.
Mary McCord: So, thank you, people. Thank you, people.
Andrew Weissmann: Exactly. So, for all of you listeners, thank you, thank you, thank you. And we also got the Judge’s Award. So, they agreed with the people.
Mary McCord: Yes.
Andrew Weissmann: Which is great.
Mary McCord: Which is nice. Nice to see that line up. Yeah.
Andrew Weissmann: Exactly. But, you know, at the end of the show, I always read the various people who are behind the scenes making us sound good. And this is a real testament to them.
Mary McCord: That’s right.
Andrew Weissmann: So, thanks, everybody.
Mary McCord: Yeah, we would just be two probably scratchy, not well heard voices speaking from, you know, our cell phones or something if we tried to do it on our own, and we have a whole team behind us. So, thank you to all of them. And so, listen carefully to those names when Andrew reads them today.
Andrew Weissmann: Thanks so much for listening. We’ll have another episode this Friday. Listen carefully. This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez, with production support from senior producer Alicia Conley. Katherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And all of our really heartfelt and sincere thanks to Rebecca Kutler, the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.