The Megyn Kelly Show - Biden Agrees to Debate Trump, Cohen Crushed in Cross, and Possible ＂Baby Reindeer＂ Lawsuit, with Marcia Clark and Mark Geragos ｜ Ep. 792

00:00:00.560 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:00:12.320 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:15.400 Today we've got a great program lined up for you with a stellar Kelly's Court panel.

00:00:20.700 Trump's business records trial in Manhattan continues this week, but the court is off today.

00:00:25.240 Yesterday was former Trump fixer Michael Cohen's first day of cross-examination.

00:00:30.780 It began with a bang, as you could argue this entire case did, allegedly.

00:00:36.180 It was feisty, and it's expected to continue throughout much of the day tomorrow when they're back on.

00:00:42.240 He will be the prosecution's final witness, we now know.

00:00:45.160 The prosecution has said that.

00:00:46.620 The defense is expected to call only one witness on Monday.

00:00:50.140 It's not going to be Donald Trump.

00:00:51.520 They haven't said so explicitly, but he's not testifying.

00:00:54.660 That's not happening.

00:00:55.800 So this thing could wrap up next week.

00:00:58.900 And there was big breaking news this morning.

00:01:02.280 President Joe Biden has finally agreed to debate former President Donald Trump.

00:01:06.700 I can't believe it.

00:01:07.980 I did not think he was going to agree to this.

00:01:11.040 I did not.

00:01:12.300 I'm stunned that he actually says he's going to do it.

00:01:15.820 I mean, it happened like this.

00:01:17.160 It's the fastest booked pair of presidential debates in U.S. history, I think.

00:01:23.560 I don't know.

00:01:23.940 It's my feel.

00:01:24.820 It's my gut feel from having been 20 years in news.

00:01:26.960 I've never seen it come together so quickly.

00:01:29.340 There are some caveats.

00:01:31.200 And this thing is happening soon.

00:01:33.580 No sooner had Joe Biden released this video saying, I'll do it, and I'll do it in June,

00:01:39.340 and I'll do it one in September.

00:01:40.600 And it has to be with a news organization that has hosted both a Republican primary debate

00:01:45.700 in 16 and a Dem primary debate in 20, which would limit it to CNN, ABC, CBS, and one other.

00:01:52.500 Then Trump immediately responded, Telemundo, saying, I'll do it.

00:01:57.660 I'll do it.

00:01:58.120 And they set the June date, and then soon thereafter set the September date.

00:02:01.520 June's going to be the 27th, hosted by CNN.

00:02:05.080 September, what's the date, Steve?

00:02:08.080 In September 10th, hosted by ABC.

00:02:10.980 So we've got two debates, two presidential debates.

00:02:14.040 We went from zero to two in about two minutes.

00:02:16.940 This is exciting.

00:02:17.920 I'm thrilled this is happening.

00:02:19.940 I'm a little shocked that Trump so quickly agreed to CNN.

00:02:24.140 I'm not going to lie.

00:02:25.220 I've got some pals over there who might be in the running for this, but CNN in general

00:02:29.760 has been absolutely disgusting to Donald Trump.

00:02:32.980 And I do wonder about whether there's going to be some head scratching on the right about

00:02:37.420 why he would agree to these networks in particular.

00:02:42.720 There's not going to be a Trump-friendly moderator among them.

00:02:45.280 There will not be one moderator who is voting for Donald Trump, if history is any guide.

00:02:50.780 And what the Biden team was saying was, we require that these news organizations, and

00:02:57.100 again, now we know it'll be CNN and ABC, Trump's calling for two more debates in addition

00:03:01.100 that hasn't been agreed to yet.

00:03:03.660 And that's not including the vice presidential, which both sides, I think, have said they want,

00:03:07.820 but that's not scheduled.

00:03:09.540 Trump's calling for it to happen before a live audience.

00:03:14.000 And Biden is calling for these news organizations not to bring in a ringer, 1.00

00:03:19.840 someone who doesn't actually work at the organization, to ask the tough questions.

00:03:24.640 I feel like he's talking about me.

00:03:27.440 Just kidding.

00:03:28.220 There's no way CNN or ABC would ever bring me in.

00:03:31.420 But they should, if they want ratings and they want a hot debate.

00:03:34.820 Okay, there's a lot to get to.

00:03:36.120 And we're going to talk about the Trump trial.

00:03:37.540 We're going to talk about this and some other amazing legal stories that are on the docket

00:03:40.240 today.

00:03:40.980 Joining me for all of that, managing partner of Garagos and Garagos, Mark Garagos, and former

00:03:45.100 prosecutor and New York Times bestselling author, Marsha Clark.

00:03:49.840 Welcome back to the show, guys.

00:03:52.480 What do you make of the news that we're going to have at least two presidential debates, Mark?

00:03:58.580 You want to know what I think the cynic in me is that the reason that Trump agreed and

00:04:04.640 he agreed so readily to CNN is that this is three-dimensional chess and he knows he's going

00:04:12.180 to get, or it's most likely he's going to get convicted.

00:04:14.680 In most state courts, in New York included, if you get convicted of multiple felonies,

00:04:20.820 most judges will remand you immediately into custody pending sentencing.

00:04:25.380 He's forestalling.

00:04:26.700 He's going to dare this judge.

00:04:28.460 You put me in custody.

00:04:29.880 I've got a presidential debate.

00:04:31.320 You have definitely interfered with the election.

00:04:34.280 And here you go.

00:04:35.560 I want it in June.

00:04:36.680 I think that's exactly what's happening.

00:04:38.940 That's so interesting.

00:04:41.260 I hadn't even considered that.

00:04:42.740 Wait, could that happen?

00:04:44.320 So if we, if they wrap both cases by Monday or Tuesday, they have closing arguments maybe

00:04:51.080 on Thursday because they're off on Wednesdays.

00:04:53.080 The jury gets the case and we have a verdict potentially within two weeks from now.

00:04:57.800 You're telling me the judge, if he's convicted, could immediately sentence him to go to jail?

00:05:03.220 Ask Marsha if she can name 10 cases where somebody has been convicted of multiple felonies while

00:05:12.380 being cited for contempt during the trial and any, name a judge who has not remanded that

00:05:20.940 person pending sentencing.

00:05:23.140 It's almost virtually unheard of.

00:05:25.980 True.

00:05:26.860 Marsha?

00:05:27.200 Very, very true.

00:05:27.860 With all that he's got going on, with all, not just this case, but a judge looks at the

00:05:33.180 entire picture of what this guy's got going on.

00:05:36.520 And it's a lot of cases and there's a lot of jeopardy.

00:05:39.000 He's also been cited for contempt a million times.

00:05:42.040 He's shown that he has no regard for the law.

00:05:44.700 And someone like that, if you don't remand them, you're incompetent.

00:05:49.000 So I have to say, no, I've never seen a case where they haven't.

00:05:52.240 However, this would be the one where it doesn't happen because it's Trump.

00:05:56.240 And I think the judge will probably not remand him.

00:05:59.280 He may take his passport and do the kind of interim things you can do to control someone,

00:06:05.900 their movements and prevent him from leaving town, maybe even give him an ankle monitor.

00:06:11.000 But I don't think that he's going to get remanded.

00:06:13.560 We could have a presidential debate with one of the presidential candidates wearing an ankle

00:06:17.740 monitor.

00:06:18.840 Wait, let me give you one.

00:06:20.160 Let me just add one little kind of twist to this.

00:06:23.740 So you've got a presidential candidate who's being tried in the Supreme Court of New York,

00:06:29.780 who I think the odds are his best day is a hung jury.

00:06:33.780 I don't think there's any chance of an acquittal given the jury.

00:06:36.900 And he potentially faces being remanded into custody.

00:06:41.660 That is a real possibility.

00:06:43.920 If he was anybody but Trump, he would be in custody.

00:06:46.640 And you now have, as of yesterday, Hunter Biden scheduled not for one, but two criminal trials

00:06:55.240 in June as well.

00:06:56.900 So the son of the current president and the leading contender for president, both dealing

00:07:04.080 with criminal jeopardy in the same single month.

00:07:07.400 I'm dead.

00:07:08.460 I died.

00:07:09.280 I can't.

00:07:12.380 Can you just explain, Marshall, I'll give this to you.

00:07:14.580 Explain remand.

00:07:15.580 Remand.

00:07:16.780 That means being taken into custody.

00:07:19.180 So when they say remanded into custody, he is sent back to the custody of the jailer,

00:07:25.260 whoever that is, county, state, whatever it is, federal.

00:07:29.320 Marshall, why don't you describe what happens in the courtroom when they read the guilty verdict?

00:07:34.540 You'll see them take off the watch, take off the pen, take off the belt, put their hands

00:07:40.100 behind their back, get cuffed and walked in the back door.

00:07:43.660 Yeah.

00:07:44.860 In the courtroom?

00:07:46.280 In the courtroom.

00:07:47.120 In the courtroom, right into lockup.

00:07:49.280 It happens every single time, absent some extenuating circumstance.

00:07:54.980 Yeah.

00:07:55.700 In state court.

00:07:57.080 In state court.

00:07:58.600 In state court.

00:07:59.840 That's right.

00:08:00.480 I can't vouch for what happens in a federal trial.

00:08:02.920 But this is a state trial.

00:08:04.080 So, and I would imagine New York follows what we do, Mark.

00:08:06.660 I mean, it's the same procedure.

00:08:08.000 They absolutely do.

00:08:10.000 Federal court is more civilized.

00:08:12.500 Generally, if you've been out on bail or unreleased, they will put the case over for sentencing.

00:08:19.080 They'll order the PSR, the pre-sentence report, and you'll be allowed to stay out of custody

00:08:25.300 pending sentencing.

00:08:26.740 State court, completely different.

00:08:29.140 You are remanded.

00:08:29.700 What about a court like this, a case like this, where most legal experts I've read do

00:08:36.100 not predict Trump will be sentenced to jail?

00:08:38.620 But even under those, as somebody without a record, even under those circumstances, would

00:08:44.080 the likelihood be if his name weren't Trump, he'd be remanded?

00:08:46.640 I don't know what legal experts you're talking to, but this judge has already threatened to

00:08:52.640 put him in jail for saying the unbelievable statement that this jury is 95% Democrat and

00:09:01.160 it's a Democrat coming to get me.

00:09:03.280 That is what he has been found in contempt of.

00:09:06.400 So when you're threatening jail over that, you get convicted of 34 felonies, he's going

00:09:12.740 to go to jail.

00:09:13.400 So usually, usually that's absolutely true.

00:09:17.120 By the way, he's also been cited for contempt for calling the judge corrupt, the clerk corrupt,

00:09:21.620 insulting their families.

00:09:23.020 I mean, he's made outrageously disgusting remarks and he, any other defendant would have already

00:09:28.120 been sitting in jail for contempt.

00:09:30.760 So, you know, look at how unusual we call it in the law, sui generis this is.

00:09:35.600 It's Trump and therefore none of the rules apply.

00:09:38.660 So, I mean, the fact that he isn't sitting in jail right now is amazing.

00:09:42.420 So, I don't predict that he's going to get remanded.

00:09:45.640 I don't, it's possible he won't get jail time.

00:09:49.100 Although, given all of his behavior and everything that they've seen, if the jury does convict,

00:09:54.040 and I think it probably will, it would be really ridiculous not to give him some jail time.

00:10:01.080 We ought to think about what kind of precedent you're setting because this is, you know, people

00:10:06.060 have talked a lot about the nature of these charges and how unusual they are and how they're

00:10:10.180 trumped up misdemeanors into a felony, et cetera.

00:10:12.740 But it really was an effort to affect the election.

00:10:16.300 There's no question that that was the motive.

00:10:18.440 He didn't care otherwise.

00:10:19.480 And I do think the evidence has shown that.

00:10:21.820 So, whether you think he deserves jail time or not, it is a felony.

00:10:25.560 And you have to think about what other defendant would get away with no jail time, given all

00:10:29.760 that he's done and given what he's convicted of.

00:10:32.440 It's remarkable.

00:10:33.420 But I don't think he will.

00:10:34.280 I mean, honestly, if I had to put my money on either side, I would guess he will not

00:10:38.740 get jail time.

00:10:40.340 See, that's my legal expert right there, Mark.

00:10:42.720 She doesn't believe it.

00:10:43.840 I haven't seen.

00:10:44.800 I mean, Charlie McCarthy, I haven't seen anybody predicting that this is likely to result in

00:10:49.400 a jail time sentence, given his complete absence of any criminal history.

00:10:54.040 And I mean, you're saying this based on the fact that this is a Trump-biased judge, which

00:10:58.840 I agree with, which is why I don't think Trump's comments have been disgusting.

00:11:03.400 I know why you're saying that, Marsha, but I think he's running for president and he's

00:11:07.360 got two wars to fight.

00:11:08.540 You know, he's got a legal war and he's got a PR war.

00:11:11.440 And all those comments are very important for the PR war, which is working for him.

00:11:15.740 And I understand now the judge has got to run his courtroom and he's been chastising

00:11:19.440 Trump at every turn.

00:11:21.440 But, Mark, on the subject of jail time, is that just based on the fact that you think

00:11:25.720 this is a Trump-hating judge?

00:11:28.020 No.

00:11:28.420 I think that if this—I think most judges, when they—I'm just telling you, based on

00:11:33.800 40 years of doing this, almost 99 percent of the time in a case like this, even though

00:11:40.580 it's a documents case, you get convicted of a number of felony counts you're going to

00:11:46.540 get remanded.

00:11:47.600 Period.

00:11:48.120 End of story.

00:11:49.100 And by the way, I might bet, Marsha, on this.

00:11:52.780 I still think we'll sentence him to jail.

00:11:55.680 He may not remand him now because clearly, under any interpretation, that would interfere

00:12:03.380 with the presidential election.

00:12:05.520 But I can see him sentencing him to jail, staying the jail time, citing the fact he does

00:12:12.240 not want to interfere with the election.

00:12:14.240 But I don't think that this judge is going to say, I'm going to give you straight probation.

00:12:19.520 I don't think there's any chance of that, frankly.

00:12:22.720 You're going to take that bet?

00:12:23.740 Let's see.

00:12:24.760 I'm taking that bet.

00:12:26.400 I don't think it's going to be a long sentence.

00:12:28.440 I mean, I don't think—

00:12:30.080 You don't think—

00:12:30.620 Even if he does get jailed, it'll be something minimal.

00:12:33.080 You don't think—

00:12:33.680 Yeah, I think it'll be something minimal, if not all.

00:12:35.940 But I would take the bet that he does not get jail time.

00:12:39.020 That's—

00:12:39.500 He's going to—

00:12:39.980 I'm in.

00:12:41.100 He gets—

00:12:41.640 So you're saying no jail time and not remanded, and Mark's saying jail time and remanded.

00:12:46.540 I'm saying that I don't think he will remand.

00:12:50.500 Most judges do.

00:12:51.580 But he—

00:12:52.320 If convicted, this judge is going to sentence him to jail and then stay the jail sentence

00:12:56.460 so that he doesn't get accused.

00:12:57.960 Pending what?

00:12:59.260 What?

00:12:59.560 Pending what?

00:13:00.640 Pending appeal.

00:13:03.000 Pending appeal.

00:13:03.480 So Trump, the filing or the resolution?

00:13:07.400 Yeah, no.

00:13:08.580 You—

00:13:09.300 What he will do is set a bail pending appeal, and that will—to stay the immediate imposition

00:13:15.980 of jail time.

00:13:16.740 But I will tell you right now, this case, in my humble opinion, is so susceptible to being

00:13:23.580 reversed on appeal, I can't even tell you.

00:13:26.600 I mean, there's never any—most appeals are affirmed for the prosecution or the conviction

00:13:31.940 is affirmed.

00:13:32.640 But this case, frankly, is the most attenuated legal theory that I can even imagine.

00:13:39.520 Okay, so you—

00:13:40.440 And that is the jeopardy right there.

00:13:42.360 That's it right there.

00:13:43.040 Do you think that—do you think we talked about maybe Trump is agreeing to this immediately

00:13:46.820 because he sees the debate as a disincentive to the judge to remand him or do anything

00:13:53.720 too aggressive?

00:13:54.580 Because now it's like we're—we could be days away from—well, I guess it'll be a couple

00:14:00.160 weeks away from a debate.

00:14:01.240 Unless they're going to—unless they're going to allow him to debate from Rikers by

00:14:06.040 video.

00:14:07.040 Oh, my God.

00:14:08.460 This—I think—I think, frankly, it's—like I say, it's three-dimensional chess.

00:14:14.800 He knows, agree immediately.

00:14:16.640 He's—they're going to—this case is going to go to the jury in no time.

00:14:21.980 There's no way that this state judge is going to remand him now pending a debate.

00:14:28.660 He—you know, there—there could have been a world where he would have remanded him for

00:14:33.220 a small period of time.

00:14:35.360 But I just can't imagine it now with a debate that's in the same month when he gets convicted.

00:14:40.780 Okay, so how about Biden's calculation then?

00:14:43.840 I mean, is Biden's calculation probably no more than he's going to be fresh off of his

00:14:48.320 first conviction?

00:14:49.520 And I can't wait to discuss it in front of the—in front of the American people.

00:14:53.900 Every—

00:14:54.200 I mean, that has to play into it, don't you think?

00:14:56.160 That's the—this is—there's no more—but it's—it's a good, vulnerable point at which

00:15:01.080 to confront Trump.

00:15:02.500 Well, look at—I'm talking to a convicted felon now.

00:15:05.500 You know, I mean, this is who I'm debating.

00:15:07.660 He can—he can call him a six-year-old and everything else.

00:15:10.000 But when you can call him an actual convicted felon, that's a pretty nice position to be

00:15:15.540 in.

00:15:15.720 So I would—I would guess that has a great deal to do with it.

00:15:20.160 Yes, because, Mark, it came out of the blue.

00:15:22.460 I mean, I think most people did not expect Biden to agree to these debates.

00:15:26.100 For the record, he's rejecting the Commission on Presidential Debates and their proposal,

00:15:31.080 which we see in every election, to hold three presidential debates beginning in September.

00:15:37.060 And they happen in September, October.

00:15:39.180 And he said—Biden said, no, I'm not doing that.

00:15:42.520 I don't want your traditional structures, and I reject you.

00:15:45.780 I'll do it with two news organizations, one in June, one in September.

00:15:49.420 And as I said, he said, pick the moderator from your existing roster.

00:15:53.620 And Trump, too, said, I don't want the Commission on Presidential Debates either.

00:15:57.880 So they're both going outside the traditional colored lines.

00:16:01.200 It's kind of interesting.

00:16:02.480 Trump wants an audience.

00:16:03.980 He had his typical rhetoric like, it's going to be extremely exciting.

00:16:07.900 And I can see Biden doesn't want crowds, although he must be used to not having them.

00:16:13.480 And Biden said, right, I don't want any crowds.

00:16:16.340 I just want, like, in a news studio, quiet, and I want the opponent's mic turned off as

00:16:22.560 soon as he's done answering.

00:16:24.400 I don't know whether any of those terms have been agreed to, but we have two dates.

00:16:28.360 This could wind up being like the Ben Shapiro-Candace Owens debate, which never happened, even

00:16:32.820 though both parties said, yeah, bring it.

00:16:34.560 No, no, it didn't happen.

00:16:36.460 This could wind up—but I think it's going to happen now that you've got the Nets involved.

00:16:39.280 But I do wonder whether this could backfire on Joe Biden, Mark, because as we've seen

00:16:46.980 all along, all the big lawfare efforts against Trump, whether it was the indictments, the

00:16:51.340 mugshot, the trial, have wound up in the polls either not hurting or helping him.

00:16:59.620 Well, look, could it backfire?

00:17:02.200 I'm sure the calculus is.

00:17:04.920 I don't have any inside information, but living in my kind of left-wing Democratic bubble

00:17:11.760 that I exist in, everybody seems to think in my world that if Trump is convicted, that

00:17:22.440 the so-called swing voters are going to swing against Trump.

00:17:27.020 I think that's wrong, frankly.

00:17:29.420 I don't think that's the case.

00:17:30.960 I think that so far, to echo your analysis here, every single one of these cases has

00:17:37.800 imploded spectacularly, and every prediction by conventional kind of lawyers or wisdom has

00:17:47.000 been dead wrong.

00:17:48.100 I remember, Megan, you probably do as well.

00:17:50.700 Everybody was saying the Fannie Willis recusal motion had no legs.

00:17:54.700 Everybody was saying that the judge in, what's her name, in the January 6th...

00:18:02.540 Aileen Cannon.

00:18:03.260 ...was going to...

00:18:03.960 Oh, no, that's chucking.

00:18:05.920 She was going to drive this thing to trial.

00:18:08.540 We were getting to trial.

00:18:09.400 There's no way the Supreme Court would entertain presidential immunity.

00:18:13.540 Every single thing by the chattering class has been wrong when it comes to these cases.

00:18:18.840 And, you know, newsflash, it's because most of these people do not practice in trial courts

00:18:25.120 or in appellate courts and don't have any understanding of what the legal issues are.

00:18:29.220 And it's too bad because I think it misleads people who are watching or listening to these

00:18:35.360 things as to what the odds are in these cases.

00:18:37.780 All right.

00:18:38.560 I have kind of a very interesting update on the Judge Chutkin January 6th trial,

00:18:43.020 which I'm going to get to in one second.

00:18:44.260 But I just want to stay on New York for one minute.

00:18:46.840 Here's a bit of Joe Biden in his...

00:18:49.140 We found out he was willing to debate by a video statement he released on X and then

00:18:53.640 a follow-up with a written statement.

00:18:55.940 And then Trump immediately said yes.

00:18:57.240 But here's what Biden said in accepting the debate.

00:19:00.780 Donald Trump lost two debates to me in 2020.

00:19:03.400 Since then, he hadn't shown up for debate.

00:19:05.160 Now he's acting like he wants to debate me again.

00:19:07.280 Well, make my day, pal.

00:19:09.160 I'll even do it twice.

00:19:11.060 So let's pick the dates, Donald.

00:19:12.620 I hear you're free on Wednesdays.

00:19:15.700 Okay.

00:19:16.240 An attempt to humor there because Trump's on criminal trial and he's off on Wednesdays,

00:19:20.420 which is annoying, I have to say, because Trump's not allowed to talk about, you know,

00:19:26.340 there's so much that Trump is gagged in responding to.

00:19:29.620 And it's just annoying that the sitting president would be bringing it up when he knows Trump has

00:19:34.160 to fight with one hand tied behind his back.

00:19:36.340 Okay.

00:19:36.680 But whatever.

00:19:37.120 Like he can't get out there and say, yeah, I'm on criminal trial because I'm sitting in

00:19:41.220 front of a jury that's 95% Democratic.

00:19:43.940 And if you go by the stats, no, he'll get, he'll get jailed.

00:19:46.800 If he says that, okay, whatever.

00:19:48.760 He puts out the thing.

00:19:49.960 He's looking for a laugh and enter the crew at Morning Joe to provide it.

00:19:53.760 Watch.

00:19:53.980 Well, make my day, pal.

00:19:54.980 Well, make my day, pal.

00:19:56.840 I'll even do it twice.

00:19:58.500 So let's pick the dates, Donald.

00:20:00.280 I hear you're free on Wednesdays.

00:20:01.660 That was straight down the middle.

00:20:11.340 Oh, boy.

00:20:12.340 Okay.

00:20:12.640 So just a little preview of how it's going to go when CNN hosts the debate and probably

00:20:17.620 when ABC hosts the debate.

00:20:19.020 Who are they going to get?

00:20:19.600 George Stephanopoulos?

00:20:20.540 Good luck.

00:20:21.260 Let's see how that works.

00:20:22.160 And by the way, it's probably going to be George Stephanopoulos.

00:20:24.740 A Clinton operative.

00:20:26.040 That's who they're going to pick, Mark.

00:20:27.160 You would think as ratings challenged as CNN is, as they swirl the drain, that they would

00:20:33.460 want to recruit you to do it.

00:20:34.960 Because you can imagine the ratings blockbuster that would be if you did a return Trump debate.

00:20:42.380 Literally everyone would watch that.

00:20:45.740 Trump wouldn't be happy.

00:20:47.120 Biden wouldn't be happy.

00:20:48.340 But the American populace would be happy.

00:20:51.560 I don't disagree.

00:20:53.620 I agree.

00:20:54.160 I think that it would be a really smart move by them.

00:20:58.160 So prepare for it not to happen.

00:21:00.920 Yeah, right.

00:21:01.720 Exactly.

00:21:02.380 If asked, I will serve.

00:21:04.980 Okay.

00:21:05.580 So I want to tell you about what we're hearing about the J-6 trial.

00:21:09.460 Now, in the J-6 federal trial brought by Jack Smith, that's the case in which Judge Chuckin

00:21:15.100 clearly doesn't like Trump.

00:21:16.400 The prosecutor's Jack Smith, he clearly doesn't like Trump.

00:21:18.780 The jury pool's going to hate Trump.

00:21:20.440 But they've managed to stay the case because Trump is arguing that he has immunity for those

00:21:26.600 acts which are under scrutiny in that case because he was president at the time of most

00:21:31.380 of them.

00:21:32.140 That case went up to the Supreme Court.

00:21:33.660 It's been argued and we are awaiting a decision could come any day.

00:21:37.360 Now we're on May 15th.

00:21:38.420 It's going to come in the next two weeks, you know, three at the most.

00:21:42.340 Um, there's also another case before the Supreme Court which could gut the January 6th federal

00:21:48.420 trial against Trump.

00:21:50.000 It doesn't involve Trump.

00:21:50.880 It involves J-6 defendants arguing that this claim that's been brought against them, obstruction 0.92

00:21:55.600 of a federal proceeding, is bullshit and is not really on the books and is not a real 0.75

00:22:00.620 claim. 0.97

00:22:01.260 And if they win, that also helps Trump because that's the main claim against Trump.

00:22:05.500 If they win that one, half the case is gone.

00:22:08.960 Yeah, so that so Trump's got a couple of nice lanes open to him to either kill or at

00:22:15.300 a minimum continue postponing the J-6 trial.

00:22:18.360 What most legal watchers think will happen, even if the Supreme Court kills that one main

00:22:24.360 claim, obstruction claim, there's still two claims against him that could live.

00:22:28.620 And then we have the question of immunity.

00:22:30.560 And most people think probably what the court's going to do on immunity is say that we got to

00:22:34.620 kick this back down to Judge Chutkin to have her figure out what actions are at issue and whether 1.00

00:22:40.620 Trump was actually in his presidential role when he took them or in his role as candidate for

00:22:46.300 reelection where he would not clearly have immunity.

00:22:50.000 And that's just more delay.

00:22:51.720 But here's what we're hearing that, OK, maybe he gets delay.

00:22:56.560 Almost nobody thinks the whole thing gets thrown out based on immunity.

00:22:59.300 The. Or the J-6 obstruction thing getting killed, so he goes back to Chutkin, she proceeds with 0.96

00:23:09.280 the trial, she holds the hearing, she figures out what acts are in, what acts are out, and

00:23:13.040 then she proceeds on what we know is in even Trump's lawyer admitted that act wouldn't be

00:23:19.240 as president. That act would be more in his capacity as private citizen or campaign contender.

00:23:25.160 So let's say Jack Smith minimizes just down to the ones that are in disputed so that they can't

00:23:30.500 take another appeal back up. Let's go forward on those that they will try him. OK, so this could

00:23:37.240 be July that they will resume this trial against him, J-6 in D.C., and that even though it likely

00:23:44.100 won't be resolved before November. It will probably be resolved between that date in July and January

00:23:53.320 6th, which may be a familiar date, right, is when the election gets certified and Congress convenes

00:24:01.420 to count with the vice president to count the electoral college votes and the votes from the

00:24:06.020 states. And at that point, the expectation is that the Democrats will move to urge Congress,

00:24:14.820 as they have in past elections, as people like Ted Cruz and Josh Hawley did in the 20 election,

00:24:19.960 urge Congress not to certify the vote because it's irregular. There's something wrong with it.

00:24:25.640 And the urging will be he's a convicted felon and we can't certify this vote, given what's happened

00:24:32.300 between the November vote and today. Now, if any of that happens, this is going to be the most

00:24:38.660 exciting, absurd, catastrophic, cataclysmic presidential news cycle in our lifetimes.

00:24:47.280 So it probably will happen. If the Trump years and the drama, right, are any indication,

00:24:54.220 that's probably that's probably that sounds pretty good. Your thoughts on whether this judge,

00:25:00.020 Marsha, could do any of that if this case goes back to her? 1.00

00:25:05.680 Well, she probably has to. If they kick the case back to her, then she has to make the findings 1.00

00:25:10.420 that are required to determine whether you have valid charges. And that means, was he in a president

00:25:15.900 acting in his presidential capacity when he did the alleged acts? And that, I don't see how she

00:25:22.900 gets out of doing that. If she finds that he was acting in his presidential capacity, you have one

00:25:28.640 lane to go. I think that for sure, as you've said, there's at least one case, one instance in which

00:25:36.760 that he was clearly not, that's indisputable. So, you know, you wind up with a trial, I think,

00:25:42.860 no matter which way you look at it. You wind up because either you're trying the one instance

00:25:47.600 where he was clearly a private citizen, or you're trying many more because you say it's exterior to

00:25:53.660 his function as a president. In either case, you wind up in trial. It doesn't matter which way you

00:25:58.760 get to it. The number of charges will be different. So I don't know that there's any other option,

00:26:04.640 unless the Supreme Court does something crazy, like saying, holding, for example, that presidential

00:26:11.220 immunity shields him for time immemorial. No matter when he does what he does, even as a private

00:26:18.120 citizen, once he has been a sitting president, he cannot be prosecuted for anything. I really don't 0.87

00:26:22.940 see the Supreme Court doing something that insane. Me neither. So I think it really does wind up going

00:26:28.320 back to trial. And then she has to make the rulings that she does. 0.98

00:26:34.180 There's one kind of wrinkle here that I don't know, I haven't heard people talk about, maybe it's

00:26:39.780 in the briefing, but I didn't hear it in the oral arguments, is this Supreme Court, which has six

00:26:46.320 so-called conservative justices, all hue to, and they are the ones who, there's a U.S. Supreme Court

00:26:54.040 case called Apprendi. And Apprendi basically says that it's up to the jury to make findings of fact.

00:27:00.800 I don't know how this Supreme Court is going to navigate, because they've got a majority, six,

00:27:07.340 how they're going to navigate sending it back to the judge. Because I'm telling you,

00:27:12.080 I don't understand how the defense would say, oh, we're going to let this judge make factual

00:27:18.780 determinations as to what goes to the jury. I would, I would take the position if I'm on the

00:27:25.560 defense that no, the jury has to make determinate the factual determinations. You can't, you can't

00:27:32.000 have a judge be the gatekeeper on facts as to whether or not it was within the present, the scope of

00:27:38.260 the presidential actions. That to me seems to be a complete violation of the doctrine of Apprendi

00:27:44.260 and the cases that came after it. But Mark, isn't it better for the defense if they do allow the

00:27:49.300 judge to do it and don't say it's a jury matter because they just want delay. They just want delay,

00:27:54.780 delay, delay. And so if the judge rules this one through five are in as presidential conduct,

00:28:00.340 six through 10 are out as candidate Trump conduct. So the out stuff is allowed to be

00:28:06.220 raised as the basis for criminal liability. Go have a trial on six through 10. Then they can appeal

00:28:11.600 her. This again speaks to presidential immunity and they can appeal her up again. 0.99

00:28:16.080 That's exactly what's going to happen because they're going to make the argument that she can't

00:28:21.060 do it. And that what she has done is violated is Apprendi violative. And they're going to take that

00:28:27.140 back up. It's, it's really a kind of a brilliant kind of three-step process. It's going to happen.

00:28:32.480 And if you think the U S Supreme court justices haven't thought this through, in fact,

00:28:38.420 my guess is that the dissent in this case will point out the fact that that's exactly what's

00:28:43.940 going to end up happening. Okay. But here's what, here's what could happen, Marsha.

00:28:48.940 I think Mark is wrong about the law here. I think the trial court sits as a finder of fact for

00:28:55.840 various preliminary rulings for various preliminary issues. And that happens all the time. Apprendi

00:29:01.640 applies to sentencing. And so when you're talking about choosing the high term versus the middle term,

00:29:06.500 low term, then you do need a finder of fact because that exposes a defendant to a loss of

00:29:11.960 liberty. But when you're talking, you know, to greater or lesser loss of liberty, but when you're

00:29:16.280 talking about preliminary findings that, that shield the jury from making decisions about charges

00:29:21.920 that shouldn't exist, judges make those kinds of rulings all the time and they should.

00:29:27.200 Okay. So let me, let me interrupt you. I get it. You, you think that this judge would be able to say

00:29:31.280 this is presidential, this is candidate Trump and make that determination. Mark says,

00:29:35.180 even if she does make that, it'll probably be challenges improper and they'll take an appeal. 0.99

00:29:39.140 She's going to get challenged no matter what. Okay. But we're, we're forgetting that this,

00:29:44.160 the initial ruling that where she said Trump's not immune on any of it, go forward. That was

00:29:49.700 appealed too. That's how it got to SCOTUS. It went up to the DC circuit court of appeals,

00:29:53.540 which agreed with judge Chutkin. And then to the surprise of many, the Supreme court said,

00:29:57.580 we're going to take it. And so we expect some sort of a reversal. Uh, we don't,

00:30:01.500 just don't know how big the reversal will be, how beneficial to Trump, how, I mean, I've,

00:30:05.100 I haven't read many who think it'll be complete sweeping immunity for a president who's in office,

00:30:10.540 no matter whether he was acting as a candidate or not. But anyway, so let's say they appeal judge

00:30:15.360 Chutkin, Marsha, they appeal her to the DC circuit. And let's say the DC circuit, once again,

00:30:19.680 agrees with judge Chutkin. SCOTUS isn't going to take it again. Do you think they're going to take

00:30:24.100 it again? I think they barely wanted away in this time. Well, yeah, I think that once they rule on this

00:30:29.360 level right now, they're taking this for a broad purpose. And I think it is to say immune doesn't

00:30:35.360 mean forever and always. And I think it's a really simple, if that's going to be the way they view it.

00:30:40.460 And I think it kind of has to be, they can't get down in the weeds about this. And once they make

00:30:44.920 that ruling, then it really is up to the lower courts to decide whether they do it by judge or

00:30:50.000 jury, whether he was acting as in a presidential capacity or as a private citizen. And that will,

00:30:55.480 and then the ruling by SCOTUS as to whether or not immunity is sweeping as the president's

00:31:01.180 asserting, the four residents asserting, that will be the ruling. The ruling that the court's

00:31:06.100 going to make right now will serve. I don't think it comes back to the U.S. Supreme Court.

00:31:10.140 I don't think they accept it. No. I don't think they're taking it. And Mark,

00:31:13.620 if they don't take it again, we're back to my wacky plan that is expected by a source close to the

00:31:19.980 case that the debt, that that team Trump will not be able to run out the clock post J six,

00:31:28.340 that they could run it out post the November election, that they could keep this case going

00:31:33.960 post the vote, but that he'll be a convicted felon in the federal case, which is what they want.

00:31:42.340 Because if he wins, if he wins, he can pull the DOJ off of this case and end it if he hasn't yet

00:31:50.000 had a verdict against him. But they're saying they'll keep the pedal to the metal. Again, this

00:31:54.920 is a speculation about what the government is likely to do, that they'll keep the pedal to the metal

00:32:01.720 post the November vote and get a presumed guilty verdict against him between November and January.

00:32:08.820 And then all bets are off because now we've got a verdict against him and they'd likely be guilty

00:32:14.900 prior to him being the vote being certified, nevermind him being sworn in. And that just feels like the

00:32:22.560 most rogue, excessive behavior by a federal judge I've ever heard of. Even this judge, do you think

00:32:31.060 she would engage in that? I really don't. And, you know, I wonder if Jack Smith at that point,

00:32:38.640 remember, you have to do the calculation. We have to fast forward. If he's already been convicted

00:32:43.560 in state court in New York, that's a different calculation than if it's a hung jury, for instance,

00:32:51.280 which I think is his best hope is being Trump. But, you know, you also run headlong into the DOJ

00:32:59.860 policy, which is ironically was violated back in 20s.

00:33:03.900 They've already said they don't care about that, Mark. The DOJ, right. They say they don't interfere

00:33:07.200 in a case 60 days before the election. They've already said this, this, the Trump cases don't

00:33:10.880 count because they started them more than 60 days before the election. So the DOJ, not surprisingly,

00:33:17.560 has no qualms about going after Trump, you know, balls to the wall. So I don't, this is wacky. And I

00:33:23.580 know Judge Shutkin has said, I'll cancel all my European vacations. I will do what it takes. I will be in

00:33:28.260 the judge's chair to try this case when it's ready for me after SCOTUS. And I believe she means it.

00:33:35.200 So I think Washington, the District of Columbia is probably the only place in America that is a worse

00:33:44.720 venue than Manhattan State Court for the election.

00:33:50.020 Maybe Berkeley. I don't know. You guys are both Californians. I don't know. I could think of

00:33:55.460 that. You tell me.

00:33:56.960 I'm not so sure about Berkeley being worse than DC. I think DC, if I had to move for change of venue,

00:34:03.660 I think I would, I would want Berkeley over DC.

00:34:08.320 At least in Berkeley, you might find some like libertarians who are like government,

00:34:12.600 keep your hands off me. In DC, it's just all hard partisan Dems. 0.98

00:34:16.020 Yeah. Well, remember we've had several Republican governors in California over the years. So

00:34:23.840 we're not exactly, I know we're, we're super. It's been a while now, but we do.

00:34:29.400 It's been a while.

00:34:30.260 Trump will go to San Diego like that. He'd go to Orange County like that.

00:34:34.240 Just like he'd go out to Long Island or Staten Island to have this case in New York, but

00:34:37.940 that was rejected. All right. I'm going to take a quick break and then I'm going to get into

00:34:41.480 what happened with Michael Cohen yesterday. I'd love to get your guys' take on how he did.

00:34:46.020 Uh, now that we're moving on soon from him more with Marsha and Mark right after this.

00:34:54.100 There's so much drama. I can barely, I can barely get my arms around it. All right. So Michael Cohen,

00:34:58.020 he's not on the stand today because they're off on Wednesdays, but he's going to be back on the

00:35:01.580 stand tomorrow, Thursday and cross-examination will resume. It began yesterday with a bang. Um,

00:35:09.240 the defense attorney got up there. Uh, hold on a second. Where is it? Do I have it around here?

00:35:14.940 Okay. He, he started, he started Todd Blanche by saying, uh, hi, I'm Todd Blanche. Uh, Mr. Cohen,

00:35:22.940 my name is Todd Blanche and you, you and I have never met. You went on TikTok and called me a

00:35:28.660 crying little shit. Cohen sounds like something I would say. The prosecutors objected and the judge 1.00

00:35:36.640 sustained it. I don't know why that was sustained. Then even his co-counsel, Susan Necklace couldn't

00:35:43.020 help but smile. According to the times, by the way, the New York times writes this up that the,

00:35:47.500 you know, ever fragile New York times didn't want to write crying little shit. So they said they, 0.99

00:35:53.640 he suggested Michael Cohen had called him a small and weeping piece of feces. 0.98

00:35:57.420 Okay. Then he goes on to say, you referred to Donald Trump as a dictator douchebag. Cohen sounds 1.00

00:36:06.060 like something I said, Blanche, you said he should go back to quote, uh, or go back where he belongs 1.00

00:36:12.900 in a fucking cage, like a fucking animal. You recall saying that I recall saying that, uh, 1.00

00:36:18.900 he asked him, is this trial personally important to you, Mr. Cohen? And Cohen says personally. Yes,

00:36:24.660 it is. Uh, let's see. He gets into the obsession with Trump. You do four podcasts a week and he's

00:36:34.380 mentioned in every one, isn't he? Yes. I would say he Trump is mentioned in every single one. Um,

00:36:40.500 by the way, the New York times points out at least one juror said on voir dire that they listen

00:36:45.520 to at least one of Cohen's four different podcasts as well. Cohen admits he's made roughly 3.4 million

00:36:53.120 in sales of his two books over the past four years, both of which were about Trump. And then

00:36:59.620 of course, do you want president Trump to get convicted in this case? Sure. Uh, Blanche shows

00:37:04.700 him in a large photo of a coffee mug that sold on his site, Cohen's, which reads, send him to the big

00:37:10.420 house, not the white house shows a shirt. He sells that says convict 45 shows a shirt. He sells of Trump

00:37:16.560 behind bars and wearing an orange jumpsuit. So what do you make of those highlights?

00:37:23.060 Marcia, as a prosecutor yourself, if you were sitting there watching that cross of your witness,

00:37:27.700 how would it make you feel? Um, I would hope that I would be completely unfazed because could you not

00:37:35.540 see this coming a mile away or even like 50,000 miles away? Obviously this is a very flawed witness.

00:37:41.560 And when you put somebody I like this on the stand, and I would hope that she did, um, prepare the jury.

00:37:48.060 I would do it in an opening statement even and say, look, this guy is a tough one. You know,

00:37:52.780 he's tough to believe. Were you lying then? Were you lying now? He's got all kinds of bias.

00:37:57.360 Nevertheless, we believe he's telling the truth because, and then you talk about all the reasons

00:38:01.760 you, all the ways you corroborated his testimony. Um, but you should be completely unsurprised by

00:38:08.140 all of this exchange as crazy as it is. And as wildly ad hominem as these attacks are. I mean,

00:38:13.920 that is the whole tenor of this thing, especially with Cohen on the stand. So, um, I would think that

00:38:19.460 she would have a very, um, she should be looking very calm, um, and very relaxed. Like I saw this

00:38:26.180 coming and I knew this was going to happen. And this is what I told the jury. It's what they were

00:38:30.060 going to do. Mark, your thoughts? You know, I've often, um, wondered why anybody thinks that Michael

00:38:39.320 Cohen was going to make any difference in this case. I know that the prosecution has to put him

00:38:45.200 on or arguably has to put him on, but I would venture to say that there's not a single juror

00:38:50.960 who's going to come out of these deliberations and say to anybody, if they're being honest,

00:38:56.500 you know what? I was going to acquit Donald Trump, but then I heard Michael Cohen and he changed my

00:39:02.280 mind, or I was going to convict Donald Trump, but then I heard Michael Cohen and now I'm going to

00:39:07.940 acquit. To my mind, he's already baked into this. And frankly, I don't want, I know I've been very

00:39:14.660 cynical during this program, but this case was over in jury selection. I tried these cases. I mean,

00:39:23.660 my career was made on trying Susan McDougall down in Little Rock on contempt and obstruction of 1.00

00:39:30.680 justice, which was a politicized case back before we'd even, you know, back, it's almost quaint by

00:39:37.420 comparison, but the idea that somehow you're going to turn this, these jurors around either by Michael

00:39:46.180 Cohen or in your closing arguments, I hate to be the cynic here, but it's not going to happen. I mean,

00:39:52.000 these jurors' minds were made up when they were selected. I think that's probably true. But yeah,

00:39:58.420 go ahead, Marsha. Yeah. I mean, you know, a thing or two about, you know, the jury pool and the ultimate

00:40:04.120 jury being selected, having their minds made up. Yeah, it's true. And by the way, it's kind of an

00:40:10.300 axiom of trial law that your cases won or lost in jury selection. And I think that I could say an awful

00:40:16.640 lot about the ways in which we, things went very wrong in the rules that were imposed during the

00:40:24.420 Simpson voir dire. That said, Mark is right. It probably was decided when they selected the jury.

00:40:32.040 That said, even if it wasn't, I also agree with Mark that Michael Cohen is not going to be the

00:40:37.280 deciding factor either way. And I think that there were court watchers even saying that during his

00:40:43.000 testimony, they were, the jurors were looking very unimpressed, yawning, looking around, et cetera.

00:40:48.440 By way of contrast, when Stormy Daniels was testifying, they were riveting. There was an

00:40:53.920 air of tension. Yeah, it was a completely opposite. I wouldn't have thought that, but that's what they

00:40:58.140 were describing. You know, there's an interesting, I don't, you know, not having been in the courtroom,

00:41:04.620 I wish this was televised, but I will tell you, at least from the reporting and reading some of the

00:41:10.200 excerpts of the transcripts, Stormy seemed to bring some game or bring her a game. I mean,

00:41:15.940 she seemed to, you know, I love Susan Nicholas. I think she's one of the best criminal defense 0.92

00:41:21.660 lawyers in Manhattan. But she, Stormy gave as good as she got. And I think that that's what jurors like

00:41:29.440 top. They like that back and forth, whether they say it or not, or admit it or not. They're interested

00:41:35.520 in that. I mean, they're sitting there. They're kind of a captive audience. They don't want to be

00:41:39.960 born to death. And, and somebody like Stormy is colorful and, uh, it's quite a show to mark.

00:41:47.200 Okay. She brought her a game in terms of entertaining. That's literally her job. And,

00:41:53.320 but all that BS about newly me too remembrances after all the previous statements, I never felt

00:42:01.620 threatened, never felt threatened. He was my bitch. And now suddenly it's like, she's, you know, 1.00

00:42:06.360 Ashley Judd on the couch with Harvey, please. And I, Megan, I don't disagree with you. As soon as I

00:42:13.100 saw power imbalance, I wanted to gag because if you watch, if you watched her interviews, like I did

00:42:20.840 back in 2018, the idea, in fact, Bill Maher to his credit replayed one of those interviews recently

00:42:28.320 within the last week. And there were many, no, I bit right. He wasn't the only one. So it was

00:42:35.480 rehearsed. It was contrived, but it was still entertaining. Yes. She had their attention.

00:42:43.000 That's for sure. And you're right, Marsha. I read the same reports that this jury's bored

00:42:46.240 with Michael Cohen, which tells you what? I think that to me, it tells me that they got exactly what

00:42:54.060 they expected from him. And I, you know, I don't, I don't remember what they were saying in opening

00:42:58.540 statements. It may be that they were, that they, the prosecutors really did pave that road for the

00:43:03.460 jury to say, this guy's going to get caught in a thousand lies. So be prepared. And I hope they did

00:43:08.640 do that because he should. In which case he got up and he did exactly that. This is somebody who's a

00:43:14.560 very, very difficult witness to lean on. They, I understand why they felt they had to call him.

00:43:20.020 They did. He was in the middle of it all, but, but, but he's problematic. And as I understand it,

00:43:25.320 the feds did not want to bring charges because they knew he was going to be a necessary witness

00:43:29.700 and they didn't like what they saw. So he's problematic, no matter how you look at it,

00:43:35.500 bias all over the place, lied here and lied there. I mean, it's very difficult to walk a straight line 1.00

00:43:42.120 with a guy like this, unless you have a lot of corroborating evidence, which I'm going to assume

00:43:47.440 giving the prosecution the benefit of the doubt that they do. So, you know, I just think the jury's

00:43:53.020 like, yeah, okay. We knew who you are and here you are. There's been a lot of cross-examination

00:43:59.500 and testimony about how deeply he feels the need to see Donald Trump go to prison. I mean,

00:44:06.460 I read a couple of, I'll play it. Some of that stuff we have on camera. So there's nothing quite

00:44:10.740 like hearing it in his own words. Take a listen to thought one.

00:44:14.320 The seriousness of these charges is fueling Trump's relentlessness, scorched earth campaign,

00:44:20.280 for he knows that his loss spells not just the end of his terrible reign of power,

00:44:24.800 but his freedom as well. I truly fucking hope that this man ends up in prison. 0.99

00:44:29.760 It won't bring back the year that I lost or the damage done to my family, but revenge is a dish 1.00

00:44:35.640 best served cold. And you better believe I want this man to go down and rot inside for what he did

00:44:41.200 to me and my family. So here with the gag water. Yes. The other day, Donald, once again, he comes out, 0.81

00:44:48.960 you know, he comes out of the courtroom and goes right into that little cage, which is where he belongs 1.00

00:44:57.700 in a fucking cage, like an animal. I mean, I would think like, if you're the defense lawyer, 0.99

00:45:04.740 Mark, it's a dream. It's of course he's an established liar, even under oath. This is the 0.93

00:45:12.220 thing he wants more than anything in life. We played the site yesterday of him at the Trevi

00:45:16.080 fountain in Rome, wishing for Donald Trump's conviction, not for the wellbeing of his children,

00:45:20.480 his marriage, his mom, like whatever, right? Donald Trump behind bars.

00:45:24.960 So the jury gets it. Like, I know it's a biased jury, but is there any chance they're going to say,

00:45:30.220 I completely threw away everything he said? Because if they do that, the prosecution has no

00:45:35.760 case. There's no testimony. Like there could be a directed verdict without Michael Cohen's testimony.

00:45:42.360 The odds on you getting a directed verdict in this courtroom on this trial,

00:45:47.100 I can't even imagine, but I will tell you this. One of the interesting things about this trial so far

00:45:54.100 has been the, I think it was the testimony by Keith Davidson, Keith Davidson, who I've sat across the

00:46:01.300 table from representing clients who Keith had clients who were making claims against them.

00:46:08.060 He testified that Michael- He was Stormy's lawyer for a time.

00:46:12.200 Correct. And he was the one who said that Michael, when dealing with Michael Cohen,

00:46:17.160 he recounted the fact that Michael Cohen was bitterly disappointed that he was not getting

00:46:23.400 a position in the administration. That to me, you don't even need anything else. When he starts

00:46:30.460 talking about how many things I had done for him, and I was trying to basically curry favor to get a

00:46:36.860 position in the administration. That to me, you know, basically there are jury instructions that say,

00:46:44.100 if somebody is being dishonest in one part of this material, you can disregard everything.

00:46:49.680 That's the type of thing he is.

00:46:52.300 He said that, Keith Davidson said, he dealt with Michael Cohen regularly on trying to get this payout

00:46:57.100 to Stormy, and that Michael Cohen was suicidal when he didn't get a position in the cabinet.

00:47:04.260 And he suggested AG is what Michael Cohen wanted. Michael Cohen denied that on the stand, but did

00:47:12.620 admit he wanted his name at least considered and put out into the press for chief of staff. He said,

00:47:20.140 for me, it was an ego thing. I thought I had deserved it. Now, I do want to talk about what they did get

00:47:27.120 from Michael Cohen and the corroborating evidence. They say the prosecution says it established that would

00:47:34.140 help bolster his credibility from other witnesses, because I think we now have a clear picture of what

00:47:40.060 they got and whether it's enough. I'll pick that up. We'll take a quick break and we'll pick that up when

00:47:45.620 we come right back. Don't go away. Marcia and Mark, stay with me. Isn't this a great legal panel? You can see

00:47:50.620 why we love them.

00:47:51.640 I'm Megan Kelly, host of The Megan Kelly Show on SiriusXM. It's your home for open, honest,

00:47:57.860 and provocative conversations with the most interesting and important political, legal,

00:48:01.660 and cultural figures today. You can catch The Megan Kelly Show on Triumph, a SiriusXM channel

00:48:06.940 featuring lots of hosts you may know and probably love. Great people like Dr. Laura, 0.83

00:48:12.900 Glenn Beck, Nancy Grace, Dave Ramsey, and yours truly, Megan Kelly. You can stream The Megan

00:48:19.040 Kelly Show on SiriusXM at home or anywhere you are. No car required. I do it all the time. I love

00:48:25.980 the SiriusXM app. It has ad-free music coverage of every major sport, comedy talk, podcast, and more.

00:48:33.660 Subscribe now. Get your first three months for free. Go to SiriusXM.com slash MKShow to subscribe

00:48:40.380 and get three months free. That's SiriusXM.com slash MKShow and get three months free. Offer details apply.

00:48:54.320 These are my notes outlining what they've gotten, the prosecution, and what they haven't gotten so far.

00:49:02.000 They, this was a tweet by the New York Times' Benjamin Protests, and I think it's good. I think he said 0.85

00:49:10.120 Cohen's testimony was hardly a smoking gun, and I think he's right. This sums it up, but then I'll get to the specifics.

00:49:15.460 He wrote,

00:49:16.020 I agree with that. That's, that's what they established, if you believe me.

00:49:46.000 Michael Cohen and some corroborating evidence, that Trump knew that the records would disguise

00:49:53.020 the reimbursement as ordinary legal expenses. And I don't, I mean, I would classify that even more

00:49:58.300 narrowly. He knew that Michael Cohen would submit bills that disguised the reimbursement as ordinary

00:50:06.180 legal expenses. Trump's going to deny that, but they, I'm just saying they've got witness testimony to

00:50:10.340 back that up, at least through Cohen. And I'll give you the specifics. Michael Cohen said,

00:50:15.180 Donald Trump was a micromanager, and there's been other testimony to support that. Michael Cohen

00:50:20.280 testified that he did all of this at the direction of, and with the consent of, Donald Trump, that he

00:50:25.480 didn't make a single move when it comes to paying these women or working with AMI, the National

00:50:29.720 Inquirer, that wasn't blessed and known about by Donald Trump. Keith Davidson, the lawyer we just

00:50:37.740 discussed who represented Stormy, said the same, that he believed firmly that Michael Cohen lacked the

00:50:43.640 authority to do anything without Donald Trump's okay. This is some of the corroborating evidence

00:50:48.580 the prosecution is going to point to. Hope Hicks took the stand. And when asked if she thought

00:50:53.160 Michael Cohen would just pay the 130 to Stormy without, you know, going to Donald Trump and

00:50:59.240 telling him about it and getting his approval, she said, um, I don't, I don't know him to be a man

00:51:04.180 like that. He would have always wanted credit for everything he did. He was not an altruistic kind of

00:51:08.280 guy. Um, the, we know from at least one of the tapes played that Trump did know about the payment

00:51:15.620 to another woman, Karen McDougal, that AMI orchestrated with Michael Cohen. For sure.

00:51:21.960 We know Trump knew about that one. That wasn't Stormy. It's not really the one at issue, but it

00:51:26.780 certainly shows a pattern of him being involved in the payments to women to keep them quiet.

00:51:30.920 And there's testimony by Michael Cohen that Trump also knew AMI paid the doorman $30,000 to stay quiet

00:51:36.700 about what we know as his false claim that Trump fathered a child, a Trump tower out of wedlock.

00:51:42.720 Cohen testified that he told Trump about that and that the guy had been paid off and Trump said,

00:51:46.240 good, good. So that's what we've heard so far. The biggest statements, the biggest pieces of

00:51:54.940 testimony, uh, have been, and they came yesterday and late the day before that Michael Cohen said,

00:52:01.700 Donald Trump heard us discuss the scheme. He heard me and Alan Weisselberg, his CFO in his office

00:52:11.320 discussing how I would get reimbursed for my money to Stormy Daniels. Now we're getting closer to

00:52:18.960 who wrote down the allegedly false business records and who knew about it. Um, each month,

00:52:25.760 this is per an Anna McCarthy article, uh, each month in 2017, beginning in February, when the

00:52:31.880 arrangement was finalized, Cohen was to provide an invoice. That invoice would be paid by check

00:52:37.420 and an entry would be made in the Trump organization's books. The DA's theory is that

00:52:42.280 these records are false because the payments to Cohen really constituted payment of repayment of a

00:52:47.760 debt. They were not for legal expenses. It was repayment of a debt. That's it's so ridiculous. This

00:52:53.560 is this whole thing that comes down to you should have said repayment of a debt. You shouldn't have

00:52:57.880 said legal expenses. And now we're in a felony territory. Um, they were a made to appear in the

00:53:03.720 records as if Cohen was being paid for ongoing legal services in 2017 when Trump was, was president

00:53:12.520 and Cohen was saying, okay, there was no legal retainer. I wasn't providing legal services for him

00:53:20.040 in 2017. Um, this was all the, all the money I got 35 grand a month for 11 months was all repayment

00:53:27.120 for stormy and a couple of related expenses, but they were not for legal services. And Trump is

00:53:32.900 going to dispute that. Trump's going to say you did do some work for me during that time. And I was

00:53:38.120 paying to have you on retainer. What if I needed you? What if I needed you to go threaten somebody

00:53:42.140 or sue somebody? I have a lawyer on retainer. You're friends with him, Mark. Um, a lot of us do that,

00:53:47.820 you know, just to scare people. And just so we have somebody who we trust, who we can go to at

00:53:53.200 any time with confidential concerns. That's what Trump's going to say. That's why you've got that

00:53:58.140 130 plus. It wasn't repayment for the stormy debt. Um, the checks they had, they, they've got Trump

00:54:04.380 signing the checks. They don't say anything about why Cohen was being paid. So there's no evidence in

00:54:11.120 the check other than money was paid to Cohen and Trump signed the checks. It doesn't help either

00:54:15.300 sides argument. Um, the entries in the Trump organization's records testimony at trial this

00:54:23.060 week showed, uh, was it was in the bookkeeping department and they logged the payments to Cohen

00:54:28.620 as legal expenses. Why did they do that? Because they used a dropdown menu on a computer program

00:54:34.520 designed in the early nineties. And it's routinely used to pay lawyers and related expenses. And you

00:54:41.060 just put them into this general category. There there's no category for reimbursement of a debt

00:54:45.460 for hush money. It's you're paying a lawyer. They chose legal expenses. That's how it was documented

00:54:50.440 in books that were never submitted anywhere. Like the book was defrauded. The book sat on the shelf

00:54:56.420 at Trump tower. Um, okay. Then they also claimed that they lied because Michael Cohen's bill said

00:55:05.180 pursuant to a retainer agreement. Well, there was no written retainer agreement, but that's the case for a

00:55:09.820 lot of lawyers. They don't actually put the retainer retainer agreement in writing. So I guess they're

00:55:14.380 going to argue about that. Now here's the crux of it. So Cohen says, Trump heard all that. He knew I

00:55:20.720 would be submitting these false invoices for legal expenses. And he knew it was actually repayment of

00:55:25.560 a debt. And his CFO who's now in jail, Alan Weisselberg was in on the whole thing. And we discussed it in

00:55:31.040 front of him with Trump's blessing. Then late yesterday, he drops this alleged bombshell that.

00:55:39.980 And by the way, Keith Davidson, that same lawyer, no, sorry, David Pecker from AMI had testified to

00:55:44.720 this earlier. Now Michael Cohen corroborated it. Keith Davidson said, Cohen told me that, um, or sorry,

00:55:51.280 I keep screwing it up. David Pecker said, Cohen told me that we at AMI did not have to worry about

00:55:57.480 violating campaign finance laws because Trump had assured Cohen that Jeff Sessions, Trump's AG

00:56:06.280 would not come after AMI or any of them. That's an important piece of testimony that came from David

00:56:14.100 Pecker, who is friendly to Trump, but so far I could only say that's what Michael Cohen told me.

00:56:19.340 And now we had Michael Cohen take the stand and say the same thing and say, Trump told me that

00:56:26.760 that wasn't Michael Cohen's speculation. That was Donald Trump saying Sessions is, is in my back

00:56:34.880 pocket. Here it is. Cohen confirms that he told that Trump told him Sessions would take care of it.

00:56:41.440 Um, had you been prior to saying that to David Pecker, Mr. Cohen, that Sessions was in Trump's pocket.

00:56:47.480 Had you been told that by president Trump answer? Yes, ma'am. Uh, Cohen goes on to say,

00:56:54.660 I told Pecker that the matter was going to be taken care of. And the person of course,

00:56:59.500 who was going to be able to do it was Jeff Sessions. That's the case so far, guys,

00:57:05.760 that I think last piece tries to get to the malicious intent, the willfulness that they need

00:57:10.520 to prove to violate the law fraudulently. They're going to say Trump knew it was going to be submitted

00:57:15.740 by bullshit lawyer bills. And he knew that it was a potential campaign finance violation, 0.98

00:57:21.240 because why else would he be saying, don't worry about that, everyone? Jeff Sessions is not going

00:57:26.460 to prosecute anyone. How do you like the case so far, Marsha?

00:57:29.280 Yeah. So I think that there's more than enough there for jury to draw the inferences they need

00:57:34.480 to, and they're allowed to, by the way, even though you go, the testimony may step right up

00:57:39.640 to the line and not fill in the last blank, a jury is allowed to make inferences that the last step

00:57:44.680 was taken. Um, and what you have is an awful lot of testimony there that shows guilty knowledge and

00:57:51.000 awareness of the illegality of what he did. And the fact that he's saying he's got Jeff Sessions in

00:57:55.920 his pocket is, uh, is a sign that he's aware of the illegality and he knows that he can get away

00:58:02.120 with it because he has the AG in his pocket. So I think it's, I think they have more than enough

00:58:07.940 to convict. I think the question really that's going to get posed here is on appeal, is whether

00:58:13.040 a court of appeal looks at it and says, you know what, this is just a, this is at most of misdemeanor.

00:58:17.860 Um, and you, you jammed it into this felony by means that are very circuitous and we don't like

00:58:23.100 basically. Um, I think that's where the rubber meets the road, but is there enough here for the

00:58:27.120 jury to convict? Yes, there is. Mark, is there awareness of the illegality based on, this is all

00:58:34.880 you have to believe Michael Cohen, who's the only one who really ties it to Trump. Is there awareness

00:58:40.260 of the illegality? Because I think you could argue this by saying, if Trump made the assurance and

00:58:46.920 first they're going to say Michael Cohen lied, Trump did not talk about Jeff Sessions, but they'll say,

00:58:51.920 even if, even if you believe that, that could be Trump saying there's no FEC violation. Jeff

00:58:59.220 Sessions is a reasonable man. He's not going to be messing with us just for the sake of messing with

00:59:03.900 us. Why would he come after us? This is a bullshit. This, we didn't do anything wrong, right? It could

00:59:09.100 be a completely innocent explanation for that. And also Trump hearing about Michael Cohen and the way he

00:59:16.720 was going allegedly to submit his bill doesn't show that Trump knew anything about how the Trump

00:59:23.760 organization was going to document the payments. Say, if I accept everything that you say they've

00:59:32.820 proved, there's two problems with all of this and two problems with the case. And there's a reason they

00:59:39.320 did not call Karen McDougal because, and there's another reason why saying Jeff Sessions would take

00:59:48.100 care of this, both completely undercut this case. Jeff Sessions was the AG after the election. Karen

00:59:57.980 McDougal was paid off well prior to the election. The only way this is a case is if there are false

01:00:07.060 entries entries in the books that are then used or were done to disguise, as you said, an FEC violation,

01:00:18.020 which means the election. If these, if Karen McDougal was not done for the election, and if Jeff 0.98

01:00:26.460 Sessions was after the election, all of this is nonsense and irrelevant to the core of why this is a felony

01:00:36.240 case, which was to influence the 2016 election. So frankly, I don't think they proved their case. But,

01:00:44.320 you know, as I've said 20 times already, they've got a jury who's going to tilt towards conviction.

01:00:53.040 But actually, the Karen McDougal information does matter, because it shows a pattern of conduct. 0.91

01:00:59.000 You know, it shows a way of doing business. And so it is relevant to show that he's done it before,

01:01:04.400 and he's doing the same thing again. He has this. This does show.

01:01:08.880 Well, but that's fine. But let me let me just interrupt you on that, Marcia, because it's fine.

01:01:11.840 You know, as you know, hush money payments are not illegal. It's fine to pay off Karen. It's fine to pay

01:01:16.580 off Stormy. What the prosecutor is alleging is not fine is to document it as something other than

01:01:22.540 exactly what it is. Reimbursement for hush money as opposed to legal expenses. That's the insanity of

01:01:31.020 this case, Marcia. I mean, that's it's so nuts that we've gotten to a criminal trial.

01:01:35.740 That's why I embrace what Marcia says. It does show a pattern. It shows a pattern that it had

01:01:41.760 nothing to do or very little to do with the election and everything to do with reputation

01:01:47.220 management. He's been doing this for years. He's had David Pecker in his pocket for years.

01:01:53.460 The 2016 election. Yes, it was embarrassing because it would be amplified. But there was

01:02:00.740 evidence and there were statements that he did it because of Melania, that he did it because of

01:02:06.140 reputation management. And by the way, AMI did this for others as well. Not noteworthy Arnold

01:02:13.900 Schwarzenegger. So there is there is this idea in Hollywood that you can use your publicist to

01:02:22.440 trade stories with the tabloids that goes on every single days and it has for decades. So I this case

01:02:30.360 to me couldn't be. Can I say this on your show? Could be more bullshit. Try. Yeah, you're allowed to say

01:02:38.860 that's true. I mean, all the this is the other side of the coin. And the problem with this particular

01:02:46.920 charge in and of itself is that you have conduct that is by itself, not illegal. You hush money is

01:02:54.700 allowed to be paid. It's sleazy, of course. And having the David Pecker in your in on your team

01:03:01.960 to kill the stories that are bad for you. You know, I get it. And it sure it surely is a way

01:03:08.080 of doing business in Hollywood, for sure. I mean, we've known about this forever. And the only

01:03:12.340 question is whether truly this was meant to affect the campaign. It was a, you know, an electioneering

01:03:18.540 I disagree. Whitewash is not. This is what's driving me crazy. My audience is I'm a broken record on this

01:03:24.400 now to Marsha. But the legal standard is not whether what was in his head was to help his campaign.

01:03:30.160 The legal standard is what's the nature of the payment. And could it only ever be used to advance

01:03:33.920 a campaign? That's what the FEC officials have told us over and over that it doesn't matter what

01:03:39.280 was in Trump's head. Even if his whole goal was, I want to affect the election with this payment,

01:03:44.060 shut her up. It's still not illegal. It hush money payment by its very nature can be used in any number

01:03:49.360 of circumstances outside of a campaign, which therefore makes it not a federal election expense. If

01:03:54.680 Trump had tried to use his campaign coffers to pay off that money, the FEC would have come after him

01:03:59.620 saying that was an improper use of election funds. This is not an expense that you can classify as an

01:04:04.760 as an FEC type expense. So it's not you don't you look at the nature of the payment. You don't look at

01:04:10.700 the subjective intent of the payor. And everybody on television is getting that wrong. Everybody.

01:04:16.160 But you're going to what you're going to have to contend with is what the jury instruction says.

01:04:20.960 I know it's driving me nuts. It's you know, this judge wouldn't even take expert testimony from

01:04:25.280 Brad Smith, the former head of the FEC. But wait until you get the jury instruction.

01:04:30.740 And by the way, hat tip, if it was you and hat tip, if it was one of your producers,

01:04:35.920 that this all started with a bang. I don't want to let that pass.

01:04:39.460 That was me. I'm gonna take the credit. Yeah, thank you. Thank you. I have the sense of humor

01:04:43.780 of a 12 year old boy. I've said it for a long time. Okay. Okay. How do you think you two got booked?

01:04:49.800 That makes sense. Okay. We got to move on because there's no way I can let you go without talking

01:04:57.660 about baby reindeer. Did you guys watch it on Netflix? I've not watched it yet. I've read a

01:05:03.280 lot about it, heard a lot about it. It's crazy. It's so crazy. Oh, man. Crazy. It's so dark. And for

01:05:09.820 the listening audience, it's this one man's recitation, his story, embellished, not 100% truthful,

01:05:16.520 he admits, but you know, the emotion of it is correct. He says, um, but that's disclosed up

01:05:21.260 front about this terrible stalking experience he had and abusive relationship for lack of a better

01:05:28.300 term. He had, uh, over in Scotland with a groomer, uh, a man who he thought could help him with his

01:05:34.480 career and actually wound up really abusing him. All I can tell you is fast forward through episode

01:05:38.860 four, very dark, very dark, but the rest of it is riveting. And most of it is about this stalker,

01:05:45.560 this woman, he was a bartender and aspiring comedian. And, um, this woman, he says, came into

01:05:52.480 his bar one day, he offered her a free cup of tea or something like that. And that the switch flipped

01:05:59.580 and she developed an obsession with him, which is how it happens. I mean, it's very, very scary

01:06:07.760 when you develop a stalker and like a legit stalker. So the series is riveting as it details what she

01:06:17.160 did to him, the amount of attention, bizarre attention, obsessive she gave to him. She was

01:06:23.100 ruining his life, approaching his parents, his place of business, his relationship that he developed with

01:06:29.200 another person, um, a fist fight that he alleged took place. Again, we don't know how much is real

01:06:34.520 and how much is embellished, but he admits some was embellished. Ultimately she, he claims went to

01:06:39.440 prison for this first, the better part of a year. She used to sit outside at a bus stop in front of

01:06:45.940 his house, just sitting there all day, every day, waiting to catch a glimpse of him. And there were

01:06:50.380 many others around him who had to deal with this lunatic Martha. And he admits to like a codependency 0.95

01:06:56.880 that developed with this woman. Like he kind of needed her in a way he had been abused by this

01:07:01.900 guy. He was down on himself. He was having self-loathing and he just kind of like needed

01:07:08.300 the weird attentions of this bizarre woman who called him baby reindeer. Well, it's, I do think 1.00

01:07:15.900 the series is worth your time. We fast forward through episode four. So the re this set the internet

01:07:20.800 sleuths, a buzz. And I admit I was eating it up. Of course they found the real Martha and the

01:07:30.260 protagonist of the story says, I did everything possible to change identifying information so she

01:07:34.680 could never be discovered. Well, it wasn't good enough because the internet sleuths are good.

01:07:41.720 And they found her. Her name is Fiona Harvey. I think apparently they found her because one of the

01:07:47.380 things she did was show up at some of his comedy gigs and openly heckle him. And that was, some of

01:07:52.120 that was on tape. So it was kind of knowable and God bless Pierce Morgan. He booked her. I love Pierce.

01:08:00.500 He booked her and she, the reason I'm bringing it to you is threatening now to sue. She said she's going

01:08:09.940 to sue Netflix. She's going to sue this guy. I'm just going to give you some of the tape because it's

01:08:17.040 very good tape. Here's a soundbite from the trailer for baby reindeer. Stop five.

01:08:22.920 You say this woman is stalking you. Yeah. Like six months, maybe. Why'd it take you so long to

01:08:26.980 report it? I think she needs help. She comes to my work, my house. She sends me emails like all the

01:08:32.200 time. Are they threatening towards you?

01:08:47.740 Look, Martha, just go back home. I have a sneaky feeling you might be the death of me. 1.00

01:08:51.440 Oh, oh, here's just a little more. This is a scene from Netflix's baby reindeer showing her

01:09:04.820 outside of his house, which he alleged happened often.

01:09:09.100 Every day now, Martha would be outside, this ticking time bomb on my life. I would leave 1.00

01:09:16.660 first thing in the morning and she would be there. I love your nipples. Think of me at work today. 1.00

01:09:24.640 Then I would come back, sometimes as late as 11 or 12 at night, and she would still be there.

01:09:30.020 How was your shift, reindeer? Did you think of me?

01:09:33.540 I never understood what she got from it. She never approached me. She never came to the house again.

01:09:38.320 She avoided Liz whenever she passed. It was all catcalls and snatch glimpses,

01:09:43.420 as she devoted 15, 16-hour days to a fleeting encounter.

01:09:48.720 Okay, one other point. Having been the target of a legit stalker who was locked up for 10 years

01:09:55.620 after what he did to me, I can tell you the number one rule in dealing with a stalker is don't talk to

01:10:01.240 your stalker. Don't have any contact with your stalker. A stalker hears no as yes. Hears stop

01:10:09.520 bothering me as I love you. There's just no reasoning with a stalker. There's some debate in

01:10:15.640 the stalker advising field about whether there should be an initial no, but the people I've dealt

01:10:21.360 with who are the experts in it say it's just no, just no contact. So to have made this movie

01:10:26.520 was a very risky move for this guy, Richard Gad, if indeed it happened, as he said. Very risky move.

01:10:34.840 I would not have advised this because she's alive and well and not behind bars.

01:10:39.080 Well, Piers Morgan found her, and Martha's pissed. Her name is Fiona Harvey, and here she is denying 1.00

01:10:48.740 some of the claims Richard makes against her in the Netflix show, Sat 7.

01:10:52.860 In the course of your relationship with Richard Gad, you send him 41,000 emails, 350 voice messages,

01:10:59.780 744 tweets, 48 Facebook messages, and 106 letters.

01:11:05.600 That's simply not true.

01:11:07.540 What did you send him?

01:11:09.200 None of that's true. I don't think I sent him anything.

01:11:11.960 You haven't sent him anything?

01:11:12.740 No. I think there may have been a couple of emails exchanging, but that was it.

01:11:16.980 Just jokey banter emails.

01:11:19.140 So you're denying sending anything to him?

01:11:21.980 There may have been a couple of emails.

01:11:23.620 Tax messages?

01:11:24.520 No.

01:11:25.560 Facebook messages?

01:11:26.680 No.

01:11:27.380 Did you tweet him?

01:11:28.620 I may have done years and years ago.

01:11:30.580 You actually tweeted him numerous times. Who has sent all this stuff to him?

01:11:33.840 I have no idea. I think he's probably made it up himself.

01:11:36.800 So they are lying?

01:11:38.180 They are lying. Yes, OK, yeah. In effect, he is lying and they are lying.

01:11:42.760 She's lying. That's my opinion. I think she's a liar and I believe she stalked him. I don't know

01:11:49.300 to what extent or the numbers, but that didn't seem like a truth teller to me. Here's one more

01:11:54.660 Saat. She is discussing here her decision to take legal action against them. Watch Saat 8.

01:12:01.000 And you will categorically be taking legal action?

01:12:05.320 Absolutely. Against both him and Netflix.

01:12:07.560 Have you instructed lawyers?

01:12:09.300 We've instructed them in part, but we want to explore all the options out there. There are a number of people to sue. We can't all be in 10 quotes all at once.

01:12:19.060 Who else are you planning to sue?

01:12:20.220 The Daily Mail. Anyone that's saying this is true and harassing me and that kind of thing.

01:12:30.180 Well, you can't sue me because it's my opinion and I'm entitled to it. So does she actually have a claim? 0.84

01:12:37.660 If he did grossly exaggerate her behavior or tell outright lies, like, for example, about her going to prison that she claims are not true.

01:12:46.900 So he didn't name her. He changed the name. He changed a lot of her details.

01:12:51.920 It was the Internet sleuths. Mark, I'll start with you on it.

01:12:55.620 You know, I actually did a panel with Pierce after this and watched this.

01:13:00.300 And it's I said it then and I still believe it.

01:13:03.480 It's hard for me to believe that Netflix characterized this as a true story and that she had done been convicted.

01:13:12.280 In fact, they even showed a recreation of her pleading and was sentenced to jail and that nobody can find any evidence that that is true and that she sent forty one thousand emails and she's saying none.

01:13:28.360 If all of that is true in California, defamation by implication, I could I could see it surviving a anti slap and it would be a whale of a case.

01:13:40.320 What gives me pause is that I cannot believe Netflix at every turn because they've got a very robust in the in-house and outside counsel.

01:13:50.220 I cannot believe they dropped the ball that bad.

01:13:53.080 That is the surprising thing to me. I have to say they they owe a duty of care.

01:13:58.800 They certainly owe it to her to shield her identity better than they did.

01:14:04.300 The fact that Internet sleuths could, you know, break through and find out who she really was.

01:14:09.940 That's what gives me the biggest pause in this whole thing.

01:14:12.560 And so there really might be a lawsuit against Netflix for duty of care violations.

01:14:19.760 It does. It's surprising to me, too, Mark.

01:14:21.820 OK, here here's one of the many reasons why I think she's a liar and she she may sue because she probably wants ongoing contact with him, but she's going to lose. 0.97

01:14:33.340 That's my prediction because she seems like a nutcase. 1.00

01:14:36.620 Here is the addendum to the story. 0.65

01:14:38.960 Quote, she is now demanding a payday from Piers Morgan for the interview. 0.74

01:14:48.660 OK, this is I think this is Daily Mail reporting this.

01:14:52.920 She OK, quote, I will be seeking TMZ.

01:14:55.460 Quote, I will be seeking far more than a piddling 250 pounds.

01:15:00.080 Fiona said she's planning on formally demanding one million pounds, which is around one point two five million dollars from Piers and co.

01:15:09.240 She's upset that he made, I guess, got a lot of clicks.

01:15:12.920 He didn't exactly make money.

01:15:14.020 We got a lot of clicks and she wants to partake in it. 0.85

01:15:16.320 That's a nutcase.

01:15:17.300 And it gives me even more reason to doubt her claims.

01:15:21.960 Somebody probably explained to her how much Piers makes by eight point five million views.

01:15:27.820 Last time I looked of the interview and YouTube probably wrote him a check and she's figured I should have had somebody negotiate this better than I did.

01:15:36.320 It's my guess.

01:15:37.080 I mean, I would guess so.

01:15:38.920 And also, Megan, even if she is a liar, which, OK, you won't have to push me very hard to agree with that.

01:15:46.480 The problem is that they embellished the story to a point and then you're going to get down to parsing.

01:15:52.520 So how much worse did Netflix or the producers make this story than was actually true?

01:15:59.440 And can you make any claim for damages based on that?

01:16:02.980 In other words, if she sent 30,000 stalking texts and not 41,000, is that really a claim that can survive a summary judgment in terms of showing that, you know, she was ruined to an extent she would not have been had they not exaggerated?

01:16:17.580 But, Marcia, what about the business of jail?

01:16:20.260 Hold on.

01:16:20.660 We have a soundbite on that.

01:16:22.700 Sat 9.

01:16:23.040 If they basically have a key point in their drama, which they say is a true story, which involves you admitting to intimidating Richard Gad and getting a nine-month prison sentence, and that is completely untrue.

01:16:36.880 That's completely untrue.

01:16:38.160 Very, very defamatory to me.

01:16:41.200 Very career damaging.

01:16:43.100 And I wanted to rebut that completely on this show.

01:16:45.760 I'm not a stalker.

01:16:46.620 I've not been to jail.

01:16:48.040 I've not got injunctions.

01:16:49.460 This is just complete nonsense.

01:16:53.040 Okay, so I can see, Marcia, how that would be very defamatory, but what about the fact that they're saying it wasn't totally, like, it was disclosed that, you know, this is his remembrance.

01:17:07.140 Like, Netflix is saying, their Netflix policy chief, Benjamin King, told the UK Parliament that Netflix was satisfied with the duty of care standards on the show.

01:17:16.760 Quote, baby reindeer is an extraordinary story.

01:17:19.080 It's obviously a true story of the horrific abuse that the writer and protagonist Richard Gad suffered at the hands of a convicted stalker.

01:17:25.160 He says convicted.

01:17:26.660 King said Netflix and producers took every reasonable precaution in disguising the real-life identities of the people involved in that story.

01:17:34.520 So what obligation do they have if they say, like, we try to layer it up by 20 so people couldn't find her?

01:17:40.920 It's not our obligation to make sure, as a bulletproof matter, they never find her.

01:17:45.220 And, you know, we're not saying it's true to the letter.

01:17:48.400 We're saying this was his experience of it.

01:17:51.100 You put the side-by-side pictures of the actress and her next to each other up on the screen again?

01:17:58.300 Yeah, put them off of you guys.

01:17:59.980 The split screen for the listening audience is identical.

01:18:02.340 This is how they tried to disguise her?

01:18:04.220 Yeah, it doesn't look like a good job, you know what I mean, of disguising at all.

01:18:10.380 That would be exhibit A if I'm representing her.

01:18:14.180 Yeah.

01:18:15.600 So you guys think she may have a legal leg to stand on?

01:18:19.140 I think she survives an ACL slap. 0.99

01:18:21.580 If, if, and I keep saying this, I just can't believe I'm adverse to Netflix right now on a case.

01:18:28.700 I cannot believe that they dropped the ball this way.

01:18:31.340 And I, I just, that's my, that's my hesitation.

01:18:36.020 Yeah, I agree.

01:18:37.680 Well, you know, we'll see.

01:18:39.140 It looks like there could be enough to survive for a lawsuit to exist.

01:18:44.500 And I think we need to know more about what exactly Netflix did do.

01:18:49.160 And also what their disclaimer was.

01:18:51.000 To what degree did their disclaimer really expose the fact that, hey, we embellished, we changed things.

01:18:56.480 You know, that's important too.

01:18:58.580 I agree with that.

01:18:59.400 I know we need to go back and actually look at that exactly.

01:19:01.860 What did they say?

01:19:02.500 They marketed it as a true story, which is problematic.

01:19:06.720 That's not, that's not good.

01:19:08.240 Especially if she, if they said she went to jail and she didn't go to jail, but Netflix, even in a statement defending itself, calls her convicted. 0.97

01:19:13.680 So, and listen, to me, I think this woman's an obvious liar. 1.00

01:19:16.780 So I put zero stock in what she told Pierce, though it was an interesting interview.

01:19:21.740 I'll tell you something funny before I let you go.

01:19:23.460 My hairstylist, Sarah, who I love, she's the best recommender of television offerings to me and Doug.

01:19:29.680 And she's the one who recommended it.

01:19:31.640 And after Doug and I made the mistake of not fast forwarding through the beginning of episode four, we saw a little too much.

01:19:37.260 He said, we're really going to have to have a chat with Sarah about curation in her, in her recommendations.

01:19:43.440 This is not, you've just gotten people to fat, to not fast forward to episode four.

01:19:52.420 Trust me.

01:19:53.100 No, don't do it.

01:19:55.680 Oh, trust me.

01:19:56.980 You don't, you don't want to see, you get the gist by a few minutes in, you don't have to watch the whole thing.

01:20:01.280 You guys, that was a great hour and a half.

01:20:03.160 Thank you so much for being here.

01:20:04.820 Thank you.

01:20:05.540 Thanks, Megan.

01:20:08.960 Thanks for listening to the Megan Kelly show.

01:20:10.880 No BS, no agenda, and no fear.

The Megyn Kelly Show - May 15, 2024

Biden Agrees to Debate Trump, Cohen Crushed in Cross, and Possible ＂Baby Reindeer＂ Lawsuit, with Marcia Clark and Mark Geragos ｜ Ep. 792

Episode Stats

Summary

Transcript