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It’s Only Tuesday

Dissecting the cross-examination of AMI CEO David Pecker. Plus: Judge Merchan’s options as he hears more alleged gag order violations this Thursday.

Donald Trump’s New York criminal trial is back in session Tuesday, as Judge Merchan fines Trump $9000 in gag order violations. Last week, David Pecker wrapped up his testimony, detailing the catch and kill scheme, and jurors also heard from Trump’s assistant, Rhona Graff, and bank executive Gary Farro. After examining the art of cross-examination, veteran prosecutors Andrew Weissmann and Mary McCord note the options available to Judge Merchan as he hears a second set of alleged gag order violations this Thursday. Plus: what Walt Nauta’s grand jury testimony indicates in the Florida documents case.  

For further reading: here is Judge Merchan’s decision on the gag order motion. 

Note: This is a rough transcript — please excuse any typos. 

Andrew Weissmann: Hi, and welcome back to “Prosecuting Donald Trump.” It’s April 30th at 10:39 a.m. We’re giving dates and times these days because you’ll understand why in a moment.

Mary McCord: Eastern time.

Andrew Weissmann: Of course. I know. By the way, this just means everyone else is listening, not just in America, but there are all these people internationally who listen are probably not going to be like, click, hang up, like, you East Coast snob.

Mary McCord: They either add or subtract some hours, you know, they get it. 

Andrew Weissmann: So, wait, by the way, I’m Andrew Weissmann and I’m here with --

Mary McCord: Mary McCord.

Andrew Weissmann: We have a lot to cover. 

Mary McCord: Yes, we do.

Andrew Weissmann: But I do want to tell you a very quick anecdote that’s relevant to what we just talked about East Coast. When I was working on a case in Houston, Texas, like 20 years ago, everyone told me, don’t worry, Houston’s fourth largest city in America. It’s very cosmopolitan. And I was going down there and a lot of the prosecutors were either from New York or from San Francisco. 

And I had all of these preconceived views about Texas. And I was told, no, no, no, don’t be ridiculous. And very soon after the trial started, it was one of the Enron cases, I wake up in my hotel room, look at the “Houston Chronicle” on the front page of “Houston Chronicle” in describing the trial. There is a quote that says about me that I’m an East Coast, Ivy League, Evian-swilling carpetbagger.

Mary McCord: And you took umbrage?

Andrew Weissmann: Well, it’s very funny because at the time --

Mary McCord: Oh, you like, yeah, except for the carpetbagger part.

Andrew Weissmann: My boss at the time goes, Andrew, that is so unfair. You don’t drink Evian. Okay. Anecdotes over. There’s a ton to cover. Mary, what’s on our dance card?

Mary McCord: Well, you know, really, frankly, hot off the presses this morning is Judge Merchan’s ruling on at least the first 10 charges of contempt for violating the gag order. So we’re going to talk about that. Then, of course, we will recap last week’s testimony that it was primarily David Pecker, the head of American Media.

And we will also touch on the other two witnesses that testified on Friday, one of whom is continuing this morning and give our impressions on that. And then finally, we’ll switch gears over to Mar-a-Lago case because there was some new news that came out of that yesterday when a transcript of Walt Nauta testifying up here in the District of Columbia well before, actually before even the search warrant was executed at Mar-a-Lago, that grand jury transcript was made public yesterday and people might be saying, huh, why so? And we’ll explain why, so. 

Andrew Weissmann: That sounds great. So we’ll probably spend a lot more time on topics one and two.

Mary McCord: Yes.

Andrew Weissmann: And particularly two, which is very much in the weeds of what happened on Friday. I think both of us think there’s a lot that is missing in the coverage and we want to get you into those details. But why don’t we cover what just happened this morning? The judge did issue a written order. One thing that our listeners should know is that if they go to the show notes, we actually will have a link to the actual gag order ruling by Judge Merchan so they can read exactly what he said.

But what was before the court was the district attorney had alleged 10 violations of the gag order by Donald Trump at various times and places in various contexts. They had also offered various exhibits to substantiate that. And the judge had a hearing last week where he heard from both sides as to their defenses. That is not to be confused with something that is going to be heard this Thursday, which is that there are additional claims of violations that the court is going to hear this Thursday morning.

So this is a ruling on the prior ones, but there are more upcoming. And then to remind people, under the statute that operates for criminal contempt, the judge has, under that statute, has a sort of binary choice of a fine of up to $1,000. We’ll talk about that because the judge talks about it, per violation and 30 days in jail per violation. So those are his options on that.

But that’s sort of the table setter. And this morning, I think he somewhat surprised people. We were waiting for a decision and he gave his decision. And as we said, he has a written order. So, Mary, that’s sort of the background. What did you think of it and what do you think of his written decision as well? 

Mary McCord: I mean, it’s a short decision, but there’s a lot in here. I mean, first, just as to substance, he rejects Donald Trump’s arguments that reposts of things that other people posted on social media are not Donald Trump’s own pronouncements, own statements, because that was one of the arguments. Several of the actual social media postings that the prosecutors argued violated the gag order were just that, they were reposts. 

And the court completely rejects that. He says both the Truth Social account and the official campaign website, because some of these reposts were on the campaign website, exclusively represent the opinions and views of the defendant. Neither is an open forum for others to post their own content. Defendant curated the posts at issue, took the steps necessary to publish the posts on his Truth Social account and on his campaign website. And in doing so, he endorsed the posts with one purpose in mind, to maximize viewership and to communicate his stamp of approval.

And the judge goes on to talk about how Donald Trump has bragged that when he posts things on Truth Social, so many followers see it immediately and he has everything. He’s even said when I put out a statement, it is spread all over the place, fast and furious. Everybody seems to get whatever I have to say and quickly.

And Judge Merchan used that to say, these are your statements. These are your posts, your endorsements. I’m rejecting your argument that reposts cannot violate the gag order.

Andrew Weissmann: Can I just say with exhibit 10, which is one of the allegations. Actually, this is the one that’s gotten a lot of attention, the Jesse Watters one -- 

Mary McCord: Right.

Andrew Weissmann: -- which is allegedly a repost. And the judge in a footnote says it’s actually not a repost because although it’s in quotations, Donald Trump actually added words that were not actually in the Jesse Watters original. So, it’s not even a correct quote. And he just says this isn’t fallen. Even if you accepted a repost argument, it would not cover this. 

Mary McCord: Exactly. No, that’s right. The second sort of legal point he made before ruling on these is that he rejected in part, I’d say, the argument that Mr. Trump was merely responding to political attacks. Now, he had given him some leeway in earlier discussions about as an expected nominee.

Andrew Weissmann: Presumptive nominee.

Mary McCord: Presumptive nominee in the middle of a presidential campaign. He’s got to have some leeway, right, to campaign and respond to attacks. But he said, look, Mr. Blanche, you have not connected every one of Mr. Trump’s posts to a specific political attack for the most part and I can’t just take you blanketly saying these are all in response to political attacks and just say, okay, therefore, they don’t violate the gag order. 

Now, he made one exception to that, which is the judge found that there was not adequate nexus between this argument, I’m merely responding to a political attack. That one exception had to deal with a post that Michael Cohen posted of a different social media post by Michael Avenatti. Remember, an original attorney to Stormy Daniels back before he himself went to prison for various criminal violations.

At any rate, this had to do with sort of taunting whether Mr. Trump might pardon Mr. Avenatti. That one, the court decided he was not going to find was contemptuous, was not a violation of the gag order. For the other nine, he said, I’m going to impose this $1,000 fine per violation. They all are violations.

Okay, so here’s where it gets interesting, though. The court then goes on -- 

Andrew Weissmann: Can I just make one point, which is that because it’s criminal contempt, it’s useful to know that the judge found that the state had proved its case beyond a reasonable doubt in terms of the finding that Donald Trump knew of the order and willfully violated it. 

Mary McCord: Right. 

Andrew Weissmann: So those are the things that are necessary. Okay. So then he has the $9,000, which is $1,000. You know what, even although I’d never do math in public --

Mary McCord: You could do that math. 

Andrew Weissmann: -- I would. I could do this one, nine times a thousand.

Mary McCord: One times nine.

Andrew Weissmann: Yeah, exactly.

Mary McCord: Right. So, you know, the maximum would have been $10,000 here, $1,000 each. But now he does two very important things, I think, in this opinion. First is he does talk about his recognition of the defendant’s First Amendment rights, particularly given his candidacy for the office of the presidency. He explains how it’s important that his legitimate free speech rights not be curtailed and that he be able to fully campaign for office.

And he also says it’s important, though, at the same time that the court, of course, protect the administration of justice and protect witnesses, but that his gag order should not be used as a sword instead of a shield by potential witnesses. In other words, if a witness say, I think here he didn’t name names, but potentially Michael Cohen, potentially Stormy Daniels, actually sort of uses this gag order thinking, I can go ahead and I can attack Trump and attack Trump and attack Trump and I’m protected.

He’s saying, I’m going to start taking that into account potentially, says consideration of such usage again as a sword rather than a shield will be weighed by this court when ruling on the willfulness of any future claims of alleged violations of the gag orders, as well as when determining appropriate punishment, if any. 

Andrew Weissmann: And also he said he might actually take them away from the protection of the gag order because he said it would sort of undermine the utility. And he basically he’s saying, watch it. And, you know, what’s very interesting is Michael Cohen, a few days ago through his counsel, issued a statement saying that he is not going to be saying anything anymore. And I think it probably was reading. He saw what the defense argument is here. And essentially it’s sort of goose gander.

It’s like, you know, if you start attacking this person like crazy, that’s not the purpose of the gag order, is to protect you and protect witnesses. So, you know, it doesn’t look like you’re needing protection, there’s no reason to have you there. 

Mary McCord: And that’s exactly what the court said, right. He said the protected party turns the underlying purpose of this gag order on its head, it becomes apparent the protected party likely does not need to be protected. I would also say before we move to that last thing on Michael Cohen, because I think you’re right that he and his attorneys probably saw, oh, you know, things may change in terms of this gag order if I continue with these attacks.

Also, come on, he’s going to be a government witness. Stop adding to all of the things you’re going to get cross-examined on about how biased you are against Mr. Trump. 

Andrew Weissmann: Mary? Mary? Mary? 

Mary McCord: Yes? 

Andrew Weissmann: Too late.

Mary McCord: Yes, I know it is too late in a way at this point. Like, it’s just, anyway. But when we get to Michael Cohen, we’ll have lots to discuss about his baggage. Okay, the other really significant thing is the judge made a whole point in terms of his punishment of saying under the law, the limit for punishment in terms of a fine per violation is $1,000.

But he says that might suffice in many instances to protect the integrity of the judicial system and to punish the offender for disobeying the court’s order. However, he says in some cases that might not be enough. In some cases, it might be a $2,500 fine or $150,000 fine. But he can’t give that kind of fine in this case because the law limits him to $1,000.

So he then explicitly says because this court doesn’t have discretion to raise the fine, it must therefore consider whether in some instances jail may be a necessary punishment.

Andrew Weissmann: Yeah, I’m going to just quote from it so that people have it. Quote, “it would be preferable if the court could impose a fine more commensurate with the wealth of the contemnor. In some cases, that might be a $2,500 fine. In other cases, it might be a fine of $150,000 because this court is not cloaked. That’s what you were saying, Mary, is not cloaked with such discretion. It must therefore consider whether in some instances jail may be necessary punishment,” unquote.

Mary McCord: And then he goes on to warn him. Defendant is hereby warned that the court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment. 

Andrew Weissmann: So the other thing he did is he ordered that the nine posts be taken down by 2:15 today, Tuesday, April 30th. And one thing that he didn’t do is he didn’t essentially create a babysitter, like a monitor over future posts. He also, in imposing the sentence now, didn’t sort of do things to dangle over Donald Trump’s head. You know, I’m going to hold off sentencing.

Mary McCord: Yeah.

Andrew Weissmann: This is something Neal Katyal had thought might be possible, which is to sort of keep that as a sort of Damocles or as our friend Ryan Goodman suggested, say, I want you to be aware that these violations and future violations can be considered by me if there were to be a conviction in this case in sentencing you. 

Mary McCord: Right.

Andrew Weissmann: That would be true whether he finds the contempt now or not.

Mary McCord: That’s right.

Andrew Weissmann: So it’ll be interesting to see whether he does do that. In other words, I thought there were other tools in his tool kit --

Mary McCord: Yes.

Andrew Weissmann: -- that he could have used and he could have changed the gag order, for instance, to say there’s now going to be this additional restriction on you in terms of posting. I think if I were in his shoes, I would think about that. He’s clearly frustrated by the $1,000 limitation or jail. And so if you’re thinking about reasons, you know, you don’t want to jump to jail. 

And in part, I know many listeners would think, why the hell not? But in some ways, that will be such a huge distraction from the testimony.

Mary McCord: Yes.

 Andrew Weissmann: Just think about last week. David Pecker’s testimony was so damaging that if you’re Donald Trump, you want anything to distract from that. 

Mary McCord: And his arguments about being the victim of a weaponized New York system would just get that much louder if he were actually jailed.

Andrew Weissmann: That much more oxygen. But as I said, one thing to keep an eye on is we have more gag order violations coming up. And this is not the first time that Trump has been found in violation. If you remember, Judge Engoron in the New York civil attorney general’s case has found him in violation twice before. So this is now the third time a judge has found contempt. And so there has been a lot of notices here. So it’ll be interesting to see on Thursday. That’ll be the hearing. And then we’ll see what the judge does with that. 

Mary McCord: Just before we go to break, I do want to flag one thing about the hearing on Thursday, because of the four additional alleged violations of the gag order that the D.A.’s office has asked for the judge to consider and that the judge will be considering on Thursday. One of those is a new type of violation.

Most of the alleged violations have had to do with attacks on potential witnesses, attacks on the jury. This is actually something that looks more like trying to curry favor with a witness. And this was a statement that Mr. Trump made on the morning of April 25th when he had a press event in Manhattan and when he was asked a question about David Pecker’s ongoing testimony, he said, he’s been very nice. I mean, David’s been very nice, a nice guy.

Andrew Weissmann: Gee, Mary, where have I heard something like that before? Paul Manafort?

Mary McCord: Yep. This happens.

Andrew Weissmann: I mean, it’s so blatant. This is like carrot and sticks. 

Mary McCord: Yeah.

Andrew Weissmann: Right? I mean, this is not something where you’re like, gee, I wonder what’s going on. So, okay, let’s take a break. And then I know the two of us are completely loaded for bear to talk about what happened on Friday and to get into some of the details. So let’s take a break and we’ll come back and do that.

Mary McCord: Sounds good.

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Andrew Weissmann: Hey, Mary. So, one, I need to apologize to you because apparently our producers and you were hearing birds in the background.

Mary McCord: Don’t apologize. I love the birds.

Andrew Weissmann: You know what I love? So I’m the city slicker. And so everyone’s like, who’s got birds? Who’s got birds?

Mary McCord: They thought it was me.

Andrew Weissmann: Of course, no one’s thinking it. Yeah, exactly because no one’s going to think it’s me. I’m like in the middle of New York City and -- 

Mary McCord: There are birds there. 

Andrew Weissmann: Exactly. New York, we’re friendly.

Mary McCord: Yes, yes.

Andrew Weissmann: We have owls, a very famous owl. 

Mary McCord: Yes. 

Andrew Weissmann: And no, Vicki Vergolina, we don’t just have pigeons. 

Mary McCord: That’s right. 

Andrew Weissmann: Although the New York pigeon, love the New York pigeon. 

Mary McCord: But those were not pigeons we were hearing. They do not make that noise. 

Andrew Weissmann: Exactly. Okay. So, Mary, let’s talk about what happened on Friday and the witnesses there. David Pecker, Rhona Graff, and Gary Farro were the three witnesses. As you noted, Gary Farro continues today. David Pecker was on cross-examination for most of the morning and some of the afternoon. And then there’s something called redirect, where the state gets to ask questions to sort of clear up anything.

Mary McCord: The people. They like to call themselves the people.

Andrew Weissmann: Yep, the people of the state of New York. And they have to do redirect directed at things that came up on cross. Then there is recross, a limited recross. But again, it has to be directed at things that came up on redirect. And then it ends. It usually doesn’t go back and forth and back and forth and back and forth. Recross itself is sort of --

Mary McCord: Disfavored even itself.

Andrew Weissmann: Yes, exactly.

Mary McCord: So just so that in case people hear this term being used outside of our podcast, what Andrew was just talking about, it means it has to be within the scope. So when you redirect, that has to be within the scope of things that came up on cross. When you recross, that has to be within the scope of things that came up on redirect.

Andrew Weissmann: It’s not new stuff. 

Mary McCord: Yeah.

Andrew Weissmann: So I wanted to focus just on two things and then turn it over to you, Mary, because I think there wasn’t enough attention on two types of arguments that were being made. And there were lots and lots of things that came up in the cross and redirect as a chance to answer those. And in some ways, like the ideal situation is lots and lots of issues get raised on cross and redirect as an opportunity if you’re a right and a good prosecutor to have the jury go, oh -- 

Mary McCord: Those weren’t such a big deal. Yeah.

Andrew Weissmann: What seemed like a big deal is actually very explainable. And if it really is good, essentially, you’re not saying it, but what the message is, is don’t trust cross because there was actually a really good answer to that and it was kind of misleading.

But having said that, I want people to understand that Emil Bove, who is the defense lawyer who did the cross, you know, he only has a certain number of cards to play.

Mary McCord: That’s right.

Andrew Weissmann: In other words, he’s dealt a hand like in poker and he has to play that hand. Obviously, he has to stay within the rules, but there’s only so much he can do. And his job is to poke holes. And it isn’t necessarily to have a consistent, wonderful theory, because sometimes it’s hard to have a consistent, wonderful theory and it’s like a smorgasbord. You sort of want to just find one juror and so you offer a lot of things like the witness is mistaken. The witness is a liar. You know -- 

Mary McCord: Bad memory.

Andrew Weissmann: -- maybe you think both. Yeah, exactly. And so none of this is a criticism of him. In fact, I think he did a pretty good job. But my big takeaway is that I thought the redirect was pretty sensational. 

Mary McCord: I thought it was really good at answering the questions I had after cross was like, ooh, is that a problem, and came back and redirect. Nope, that’s not a problem.

Andrew Weissmann: Exactly. I very much sort of was thinking, oh, he did that very effectively and I just thought Josh Steinglass, who is the prosecutor, did a really nice job. There were lots and lots of issues that he raised, but I thought there were two key ones. One was answered and one is a little Easter egg that I think we’re going to see down the road that wasn’t answered yet, but I think it will be.

So I think the big picture theme that both was trying to hit on cross was this idea that the agreements that were reached between AMI and Karen McDougal, that the things that AMI agreed to with the Southern District of New York in reaching its non-prosecution agreement, that essentially this was all legal, that there was no campaign violation, that in the negotiation, for instance, with the FEC, the Federal Election Committee, that Pecker had taken the position that there was no campaign violation, that with respect to the Southern District of New York non-prosecution agreement, he wasn’t pleading guilty to some campaign violation.

And this was pretty critical in cross, that when the agreement with Karen McDougal and AMI, the “National Enquirer,” was reached, that the general counsel of AMI, Cam Stracher, had approved that, that this had all been approved by lawyers, that there were outside lawyers that approved it. There was in-house lawyers that approved it. So this idea that there was a violation is wrong, that it was lawyered, that he’d never said it, that it was a violation, that it’s all sort of now he’s saying it, but it wasn’t said before.

And that lawyers had looked at all of this, and it was all blessed by lawyers. So how can you now say that this is illegal? Or someone in good faith could think it was not a campaign violation, at the very least. That was sort of a big theme. And as I said, it came up with respect to the agreement with Karen McDougal. It came up in terms of what was admitted between AMI and the Southern District of New York. It came up in connection with the litigation with the FEC, not to be confused with the SEC.

Mary McCord: Right. Federal Election Commission.

Andrew Weissmann: Right. So that sort of came up over and over again, and that was as close to a theme in cross. And that’s sort of the big one. I mean, there are lots and lots of other little things that aren’t worth our time at this point. But that’s where I was thinking, like you, Mary, I wonder what he’s going to say to that.

Mary McCord: Yes.

Andrew Weissmann: So here’s one really big answer that I thought was just fascinating, was first he said, okay, let’s just take the Karen McDougal agreement. He goes, Mr. Pecker, when you were dealing with your general counsel, Cam Stracher, did you tell him that you had a private agreement with Donald Trump to do three things, be his eyes and ears as a presidential candidate, to foment fake stories on his behalf and to run them by him.

And third, to engage in a catch and kill scheme? Whether you call it catch and kill, whether you call it finding bad stories and alerting them so that they can figure out what to do, whatever you want to call the scheme, those three pieces. And he’s essentially, the answer was, of course not.

Mary McCord: That’s right.

Andrew Weissmann: And he’s like, so all the lawyer was opining on was a piece of paper that didn’t have the actual agreement.

Mary McCord: The reason for it.

Andrew Weissmann: Exactly. It just was like a normal looking contract. And we know that --

Mary McCord: And a contract, just to be clear, by which it wasn’t just we’re paying money to Karen McDougal for a story. Also, it was we’re going to provide her opportunities to be on the cover of our magazines and to write for us and all of these things. So it just looks kind of like an employment contract type of a thing.

Andrew Weissmann: Yeah, exactly. And what was great is it was like and what was the reason for all of that sort of embroidery? And it was like, oh, that was just cover for the catch and kill scheme. And he said, in fact, wouldn’t it have been the “National Enquirer’s” interest, financial interest to run her story? And this is the great catch line, which I refer to as a summation line, is wouldn’t it have been “National Enquirer” gold?

Mary McCord: Yes.

Andrew Weissmann: That was the phrase. “National Enquirer” gold to run this story. And he’s like, absolutely. And Emil Bove tried to say on recross, well, no, isn’t it the case that Karen McDougal was a celebrity in her own right? And that’s what I would call like, don’t --

Mary McCord: Don’t go there. Just don’t do it.

Andrew Weissmann: -- don’t question too many because he’s like, no. 

Mary McCord: Yeah, right. 

Andrew Weissmann: I mean, it’s like, no, he explained.

Mary McCord: Yeah.

Andrew Weissmann: I mean, he’s just like a celebrity, not by our definition. I mean, wasn’t she a well-known like fitness model? And he sort of was like, well, she was a fitness model. You know, I mean, it was just --

Mary McCord: Right.

Andrew Weissmann: -- like, come on. So that sort of fell flat. And then Josh Steinglass pointed out just how different these agreements were with respect to the doorman and Karen McDougal, that there was so much more money, that there was a penalty clause in the doorman’s for of a million dollars for a breach, that these were not your typical things that they do for celebrities. And this was all in connection with a campaign violation. 

So I think that was very neutralized. I wanted to quickly turn to a second thing and then turn it over to you, Mary, which is, I think one of the themes that just got sort of mentioned, but we’re going to hear later is that on cross, David Pecker was asked, well, isn’t it true that Michael Cohen had his own personal relationship with Keith Davidson, who is the lawyer for Stormy Daniels? 

And he said, yes, I learned that. And he said, so you’re not aware of what side deals they may have had. And he’s like, of course not. And so I think we’re going to hear that because they have to explain what was going on with the reimbursement, like why Michael Cohen took out a home equity line for $130,000 and this reimbursement of over $400,000 from Donald Trump. 

They’re going to have to come up with a theory that this was some private scam between Michael Cohen and Mr. Davidson. So I think that was the reason for that. I mean, good luck in terms of that. But I think they just wanted to get a little bit of what they could from David Pecker, that there was this relationship and that line about you’re not aware of some side deal makes me think they’re going to try and push that when Michael Cohen takes the stand.

Mary McCord: Yeah. And that happens a lot with early witnesses. There’s like these few tidbits out there and the jury’s probably kind of scratching their head thinking, what does that connect to? And it’ll get connected up later. And then even if it later, the jury is maybe not making the connection. That’s what closing argument is about. That’s what summation is about. Let me make those connections for you.

Andrew Weissmann: Exactly.

Mary McCord: And you hear that with things. Remember, David Pecker was asked about the different phone numbers he had had over the relevant years. Those are going to come back later and be in some records, right. And some of this also happened with respect to the examinations of the other witnesses on Friday, besides David Pecker -- 

Andrew Weissmann: Yes, very much. 

Mary McCord: -- which we’ll get to in a minute. I agree with all of the points you just made. I wanted to give a little flavor of the same way that things work in terms of redirect on the conciliation agreement with the FEC. Because again, on cross-examination, David Pecker had been, you know, basically pushed to look at particular pages of that FEC conciliation agreement -- 

Andrew Weissmann: Yes.

Mary McCord: -- where it says there’s no admission of any kind of liability for campaign finance violations. And remember, folks, the campaign finance violation comes from the idea that if you have done something of value for a candidate without it complying with the campaign finance regulations, which include limitations on the amount of money or other things of value that can be contributed, there’s reporting requirements, there’s monetary limitations, all that. 

If you provide something of value, such as paying off a source to squash a story in order to help someone’s campaign, that can be a campaign finance violation. And I think in many ways, the reason that David Pecker ever cooperated with prosecutors in this case is because the FEC came knocking on his door. And recall, we talked about last week that that happened after he had had a similar experience back when he had caught and killed stories about Arnold Schwarzenegger when he was running for governor, stories that would have been negative to Mr. Schwarzenegger.

He had, you know, recognized then that those were campaign finance violations. So when the FEC came knocking this time, he thought, okay, we need to resolve this. So after on cross-examination, it looks like this agreement with the FEC sort of absolved AMI of any sort of liability. Of course, the prosecutor comes back on redirect and says, yes, Mr. Bove showed you a page of that agreement, right? Yes, he did, you know.

And this page contains some additional language, right, that you guys didn’t talk about. Yeah. So and that’s what it says. The following language, solely for the purpose of settling this matter and avoiding litigation and with no admission as to the merit of the commission’s legal conclusions, respondent, that means AMI, agrees not to contest that AMI’s payment to Karen McDougal to purchase a limited life story right, combined with this decision not to publish the story in consultation with an agent of Donald J. Trump and for the purpose of influencing the election, constituted a prohibitive corporate in-kind contribution in violation of.

And then there’s a specific site to the U.S. code that covers campaign finance violations. So again, this is the oh, but boom, what happened in cross maybe has a big explanation, which is this was part of your agreement. You said, AMI, I’m not going to contest that what we did was prohibitive conduct. 

Andrew Weissmann: Yeah. And the same thing happened with the Southern District of New York.

Mary McCord: Yes.

Andrew Weissmann: And there was just a lot of that stuff. One quick thing, which happens all the time at trials, which is somewhat related to what you’re saying, which is the number of times a witness is confronted with an FBI interview report that says something different or doesn’t have a statement in it. And of course, that happened with this witness and he handled it really well. He goes, look, I don’t know what the FBI wrote or didn’t write. All I know is what I told.

Mary McCord: That’s right.

Andrew Weissmann: Which is like, you know, that’s the answer. And one of the questions that typically, so are you saying the FBI may have made a mistake? And the answer that this is the defense wants to use, like, how could the FBI make a mistake? And as a prosecutor --

Mary McCord: Oh my gosh.

Andrew Weissmann: -- the number of times I’m sitting there going, oh, yeah, that’s what happened.

Mary McCord: Yeah. Yeah.

Andrew Weissmann: You know, and it’s also makes sense.

Mary McCord: They’re human beings. They’re taking notes.

Andrew Weissmann: You know, this is the advantage, actually, of recording something.

Mary McCord: That’s right.

Andrew Weissmann: When you have a recorded statement, it’s really easy because then you really don’t have this issue. It’s either there or it’s not there. So that was one on the three I choose. It’s like, yes, they sort of point out the FBI. Are you saying the FBI made a mistake? And the answer is like, yes, that is what happened. The FBI did make a mistake. 

I would say here what was really interesting, it was really similar to the example you gave where the prosecutor on redirect pointed out like it was basically at the same or the connected interviews, like whether it was on day one or day two, he had actually said the same thing. So this is where judgment really comes in on a defense lawyer about how much weight can an argument or can a point make? And you don’t want to get caught sort of overselling or overstressing something.

Mary McCord: Yeah.

Andrew Weissmann: Final point, Emil Bove at a sidebar told the judge, you know, this is my first time as a defense lawyer cross examining.

Mary McCord: Yeah.

Andrew Weissmann: I’ve never cross examined. He was a federal prosecutor like you and me, Mary. By the way, I thought he did a very good job as a defense lawyer, especially for this first time. It is remarkable to me that he did the cross. And, you know, there is one defense lawyer in that room who has done this repeatedly and extremely well, which is Susan Necheles. 

Mary McCord: Right. Yeah. We can speculate about that, but we won’t, okay. 

Andrew Weissmann: Okay. The other witnesses.

Mary McCord: Yeah.

Andrew Weissmann: Rhona Graff and Gary Farro.

Mary McCord: So Rhona Graff, you know, long, long time, 34-year executive assistant to Mr. Trump, I think a significant and I didn’t necessarily hear this so much reported. People were talking about how she testified that The Trump Organization had contact information for Karen McDougal and Stormy Daniels in its records. And I thought, okay, well, that’s important and that corroborates things. But how important is it?

Well, when you read the transcript, it’s not just The Trump Organization. She says she was the executive assistant who maintained Mr. Trump’s contacts in The Trump Organization computer system and that she did that so that those contacts, the question was included information such as phone numbers and addresses for people in his life that he wanted to be able to contact is the question. She answers, that is correct.

So this isn’t just the huge Trump organization having somewhere in its records the name Stormy Daniels or the name Karen McDougal. This is her as an executive assistant to Donald Trump, keeping his personal contacts and his personal contacts included Karen McDougal and Stormy Daniels. So, again, this is just part of that little bits of corroboration that is stacking up to show that he knew these people were and he was remaining in contact with these people or had contacts with these people. 

Andrew Weissmann: Absolutely. And, you know, people analogize this to your building a wall and there are lots of different pieces to that and lots of bricks. And so these are all sort of the connective tissue to be able to prove it. Gary Farro, who’s on the stand now, is somebody who works at First Republic. He is the person who helped Michael Cohen as his banker established this company called Essential Consulting.

That is the vehicle that was used to pay the money from Essential Consulting, obviously at the direction of Michael Cohen. And he funded Essential Consulting with his home equity line. 

Mary McCord: Right.

Andrew Weissmann: I mean, talk about something like, you know, this is a lawyer doing this. And by the way, you know from David Pecker why he had to, because David Pecker said, you know, it gets to Stormy Daniels. 

Mary McCord: I’m not paying.

Andrew Weissmann: I’m not paying because you know what, he says I thought this was fascinating. He’s like, we already paid out for the doorman. We already paid out for Karen McDougal. And I did want to and I was planning on getting reimbursed by Donald Trump, but I had a conversation with my general counsel, the same general counsel that we talked about before. And he obviously can’t say what that conversation was because it’s showing client privilege.

But he says after that, I couldn’t do it anymore. So I guess that’s general counsel going, you want to do what? And his general counsel is like, you have to rip up the agreement and you cannot take the money. So David Pecker calls up Michael Cohen and says, we’re out. I’m no longer your banker. So he obviously knows that it’s illegal. It’s improper. He’s not doing it. But it also meant Michael Cohen now had to come up with the pool of money that he’s going to use to get the Stormy Daniels story suppressed.

And so Gary Farro is talking about that. He’s also talking about what he’s being represented by Michael Cohen, about what Essential Consulting is. He’s not being told the truth.

Mary McCord: Real estate consulting.

Andrew Weissmann: Yeah, exactly, which, you know, in many ways is kind of right. It’s real. If you think about it, Donald Trump, real estate mogul, I’m consulting.

Mary McCord: Yes. Okay. And at very 35,000 foot level.

Andrew Weissmann: Yes.

Mary McCord: Significant here was, though, Mr. Farro explaining that when you do open an account, right, you are asked is among the various questions the bank wants to protect itself. It wants to protect itself against the risk of facilitating any type of crimes. Those include, as Mr. Farro discussed, crimes with transferring money to sanctioned countries or sanctioned individuals under some of our, you know, foreign policy sanction regimes that we have. 

But also is making sure they’re not facilitating campaign finance violations. And so one of the questions is, you know, is this entity, this account being used for any political campaign purposes or PAC fundraising purposes? And the answer, Mr. Cohen put on the form was no. 

Andrew Weissmann: Yeah. Basically you committed bank fraud and it would have been a huge problem or at least slowed things down at First Republic.

Mary McCord: He might not have been able to use the account to pay off Stormy Daniels if he had told the truth. 

Andrew Weissmann: Exactly. So you really get the sense with David Pecker and all of this, that the issue of the law was like this is the speed bump rules. That’s like for the little people. And I think one of the things that’s sort of big picture about David Pecker, he was so remorseless.

Mary McCord: Yeah.

Andrew Weissmann: There was none of this, I’m so sorry that I engaged in election fraud or that I was engaging in intentional defamation -- 

Mary McCord: Right.

Andrew Weissmann: -- that I did this. It’s like, yep, yep, but that true self in many ways is why he seems so credible.

Mary McCord: I thought so, too. If he did come off otherwise, I’m not sure people would have thought that it was legitimate, so. Okay, shall we go to break? And then we will talk very briefly about new developments in Mar-a-Lago.

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Mary McCord: Welcome back. As promised, we are going to talk briefly about the transcript of testimony that Walt Nauta. Remember, he is one of the co-conspirators charged along with Donald Trump in the Mar-a-Lago indictment. He’s Mr. Trump’s valet. He’s somebody who’s accused not of the substantive mishandling of classified information counts, but of the obstruction of justice, both by allegedly moving boxes of classified documents in order to withhold them from Mr. Trump’s attorney, Evan Corcoran, who had come there to go through the boxes in response to a government subpoena and also for his alleged efforts, along with another Trump employee, Carlos de Oliveira, to try to destroy surveillance videos from Mar-a-Lago that could have been damaging to Mr. Trump.

So the reason this transcript came out, this is a transcript of Walt Nauta testifying before a grand jury in Washington, D.C. at the time before the Mar-a-Lago case had been brought, even before the search warrant of Mar-a-Lago had happened. And it was testimony as Jack Smith was investigating the mishandling of classified information, sort of in its early stages. 

Now, everyone knows that case was later transferred down to Florida and a whole new grand jury impaneled down there. That’s the grand jury that heard evidence in support of the criminal charges that were brought there. And the reason this came to light is because in that Mar-a-Lago criminal prosecution, Mr. Nauta had filed various motions to dismiss his indictment. 

And one of those motions was to dismiss his indictment on the grounds of vagueness, that these charges of obstruction of justice are too vague as they are applied to him because they require him to have done things with corrupt intent. And we don’t know what a corrupt intent means. And by the way, as this grand jury transcript from D.C. reveals, I didn’t even know what was in those boxes. So how could I possibly be getting charged with moving boxes with corrupt intent to obstruct an official proceeding? 

Because as I testified up in Washington, D.C., I didn’t even know what was in them. I thought mostly it was newspaper articles and hats and T-shirts and paraphernalia. And I think at one point he said he didn’t even know what the cover page of a classified document looked like. So that’s why he had attached that grand jury transcript.

Judge Cannon held a hearing on this and other motions maybe two weeks ago at this point. She denied those motions. She said, this is an issue for the jury. You can argue to the jury that you didn’t know what is in the boxes. I’m not dismissing the case on those grounds. And then said, because this was an exhibit, we should make this public unless there’s anything that needed to be redacted.

The only thing that needs to be redacted are the names of potential witnesses, other employees of Mar-a-Lago who might be witnesses. Those were redacted. And this was made public yesterday. So of course, we all ran and read it real quickly. I thought it was kind of underwhelming, but there are some points in there that are interesting.

Andrew Weissmann: So the date of the grand jury transcript is June 21st, 2022. It’s as part of the investigation, and it’s about a month and change prior to the search at Mar-a-Lago. So I had one sort of factoid that I thought was interesting, which is Walt Nauta said that Donald Trump’s office in Mar-a-Lago was actually in the, quote, “bridal suite,” unquote.

Mary McCord: That’s true. I wondered about that.

Andrew Weissmann: So if you’re wondering what they’re doing with the bridal suite at Mar-a-Lago, that’s his office. So that’s the interesting or not so interesting factoid. The other is like, why on God’s green earth did he testify? I mean, like he should have taken the fifth because so much of his testimony sort of disproves his interview. 

He had been interviewed just a few weeks before by the FBI, where he basically was, I don’t know anything about these boxes or where they moved or I never saw them prior to moving them later. And then he testifies under oath that, oh, no, no, no. He was like moving them. And then we know from the indictment, assuming it’s accurate, but they quote text messages that he has where he’s clearly moving these things. 

So between the grand jury testimony that was unsealed and those text messages, you know, let’s just say there’s a lot of explaining to do, you know, because it’s very inconsistent. And the final piece is the sort of dangling of pardons problem. This is somebody in a normal case, but it happens all the time in public corruption cases. It happens in organized crime cases. It happens in any sort of group case where there’s powerful people at the top of the group where underlings really should be just telling the truth about what happened.

But there are all sorts of pressures on them not to, whether it’s financial pressures, whether sometimes it’s loyalty. In this case, it could also be the idea that, you know what, I’m indicted now, but there’s information from at least one witness that’s now public where the information is that Walt Nauta was told, don’t worry, Donald Trump, if he’s re-elected, is going to pardon you. 

And I mean, does anyone who’s listening to this think that that’s not going to happen if he’s reelected? I mean, look at the Mueller investigation where he categorically went through every single person who didn’t cooperate with us and pardoned them. So, you know, Walt Nauta, that’s a big bet on his part in terms of his future. But that’s sort of my take in terms of what’s going on here. 

Mary McCord: Well, and it’s interesting, too, because one of the things that he was asked during this grand jury testimony was whether he had talked to Mr. Trump about the fact that he was being interviewed by the FBI or about the fact that he had been subpoenaed to the grand jury. And he said that he had told him and that in both cases what Mr. Trump said to him was, go in there, handle it, do what you need to do, and I’ll see you when you get back. So how do you take that? I mean, multiple interpretations. 

Last thing I will say is that, you know, we’ve set out this timing for a reason, because even though I think the 67 pages, you know, doesn’t have any earth-shattering stuff in it, it clearly gave the government some of the probable cause that it needed to get that search warrant, because he did clearly talk about there being many, many, many, many, many, many, many boxes that were in the storage room that were moved to Mr. Trump’s offices. You know, at one point, I think he agreed at least 100 boxes and also the residence, not in the storage unit. And as everyone knows, stated that many of them remained, I think, in the office or in the residence, not in the storage unit.

And as everyone knows, they will recall when Mr. Corcoran, Mr. Trump’s attorney, went to try to look through boxes to comply with the subpoena for classified information, there were just a limited number of those boxes in the storage room. That was the only place he was told to look. He reviewed all of the materials in those boxes. He had a small number of classified information documents, which he turned over to the prosecutors, but he was not told to go look in the residence or in the office or any place else where boxes were obviously found.

Andrew Weissmann: So unfortunately, I think this is all fascinating, but, you know, there are lots and lots of pending motions that have not yet been decided by Judge Cannon and there is no trial date. 

Mary McCord: That’s right. 

Andrew Weissmann: So this is like General Francisco Franco is still dead. And that little old reference to Saturday Night Live. But anyway, this is like Judge Cannon still hasn’t given a trial date. And, you know, there’s nothing about the Supreme Court argument that we talked about last week that is going to make her think that the Supreme Court is going to particularly view her shenanigans with a jaundiced eye, even though the 11th Circuit might.

So with that, Mary, we will continue monitoring the trial and other updates and have a wonderful weekend and I’ll see you on the other side of it. 

Mary McCord: It’s Tuesday.

Andrew Weissmann: Oh, my God. It’s Tuesday?

Mary McCord: It’s Tuesday morning. Okay.

Andrew Weissmann: Okay. So, Mary, lots to continue. We have the trial today, Tuesday. I think we’re off Wednesday. Then we have a Thursday and Friday dates. There’s the contempt hearing on Thursday. Lots that we’ll have on Friday to discuss.

Mary McCord: We will see you then.

Andrew Weissmann: So as the trial continues in New York, Mary and I are going to bring you new episodes twice a week to keep you up to speed. Tuesdays and Fridays, although sometimes Tuesdays feel like Fridays. And we want to answer your questions as they come up. 

You can leave us a voicemail at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@nbcuni.com. As I mentioned, we really do read all of them and our team reads them and we talk about them. So even if we don’t get to them on air, you should know that we’re actually thinking about them and it does inform what we should be covering. So thanks so much. And thanks so much for listening. We’ll have another episode this Friday.

This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. 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 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.