Biden Agrees to Debate Trump, Cohen Crushed in Cross, and Possible ＂Baby Reindeer＂ Lawsuit, with Marcia Clark and Mark Geragos ｜ Ep. 792
Episode Stats
Length
1 hour and 20 minutes
Words per Minute
174.47992
Summary
Trump's business records trial in Manhattan continues this week, but the court is off today. Former Trump fixer Michael Cohen's first day of cross-examination is over, and it's time for the defense to call only one witness. President Joe Biden has finally agreed to debate former President Donald Trump.
Transcript
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Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.
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Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.
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Today we've got a great program lined up for you with a stellar Kelly's Court panel.
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Trump's business records trial in Manhattan continues this week, but the court is off today.
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Yesterday was former Trump fixer Michael Cohen's first day of cross-examination.
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It began with a bang, as you could argue this entire case did, allegedly.
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It was feisty, and it's expected to continue throughout much of the day tomorrow when they're back on.
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He will be the prosecution's final witness, we now know.
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The defense is expected to call only one witness on Monday.
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They haven't said so explicitly, but he's not testifying.
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President Joe Biden has finally agreed to debate former President Donald Trump.
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I'm stunned that he actually says he's going to do it.
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It's the fastest booked pair of presidential debates in U.S. history, I think.
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It's my gut feel from having been 20 years in news.
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No sooner had Joe Biden released this video saying, I'll do it, and I'll do it in June,
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And it has to be with a news organization that has hosted both a Republican primary debate
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in 16 and a Dem primary debate in 20, which would limit it to CNN, ABC, CBS, and one other.
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Then Trump immediately responded, Telemundo, saying, I'll do it.
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And they set the June date, and then soon thereafter set the September date.
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So we've got two debates, two presidential debates.
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I'm a little shocked that Trump so quickly agreed to CNN.
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I've got some pals over there who might be in the running for this, but CNN in general
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has been absolutely disgusting to Donald Trump.
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And I do wonder about whether there's going to be some head scratching on the right about
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why he would agree to these networks in particular.
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There's not going to be a Trump-friendly moderator among them.
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There will not be one moderator who is voting for Donald Trump, if history is any guide.
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And what the Biden team was saying was, we require that these news organizations, and
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again, now we know it'll be CNN and ABC, Trump's calling for two more debates in addition
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And that's not including the vice presidential, which both sides, I think, have said they want,
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Trump's calling for it to happen before a live audience.
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And Biden is calling for these news organizations not to bring in a ringer,
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someone who doesn't actually work at the organization, to ask the tough questions.
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There's no way CNN or ABC would ever bring me in.
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But they should, if they want ratings and they want a hot debate.
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We're going to talk about this and some other amazing legal stories that are on the docket
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Joining me for all of that, managing partner of Garagos and Garagos, Mark Garagos, and former
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prosecutor and New York Times bestselling author, Marsha Clark.
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What do you make of the news that we're going to have at least two presidential debates, Mark?
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You want to know what I think the cynic in me is that the reason that Trump agreed and
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he agreed so readily to CNN is that this is three-dimensional chess and he knows he's going
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to get, or it's most likely he's going to get convicted.
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In most state courts, in New York included, if you get convicted of multiple felonies,
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most judges will remand you immediately into custody pending sentencing.
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You have definitely interfered with the election.
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So if we, if they wrap both cases by Monday or Tuesday, they have closing arguments maybe
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The jury gets the case and we have a verdict potentially within two weeks from now.
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You're telling me the judge, if he's convicted, could immediately sentence him to go to jail?
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Ask Marsha if she can name 10 cases where somebody has been convicted of multiple felonies while
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being cited for contempt during the trial and any, name a judge who has not remanded that
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With all that he's got going on, with all, not just this case, but a judge looks at the
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entire picture of what this guy's got going on.
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And it's a lot of cases and there's a lot of jeopardy.
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He's also been cited for contempt a million times.
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And someone like that, if you don't remand them, you're incompetent.
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So I have to say, no, I've never seen a case where they haven't.
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However, this would be the one where it doesn't happen because it's Trump.
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And I think the judge will probably not remand him.
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He may take his passport and do the kind of interim things you can do to control someone,
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their movements and prevent him from leaving town, maybe even give him an ankle monitor.
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But I don't think that he's going to get remanded.
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We could have a presidential debate with one of the presidential candidates wearing an ankle
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Let me just add one little kind of twist to this.
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So you've got a presidential candidate who's being tried in the Supreme Court of New York,
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who I think the odds are his best day is a hung jury.
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I don't think there's any chance of an acquittal given the jury.
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And he potentially faces being remanded into custody.
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If he was anybody but Trump, he would be in custody.
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And you now have, as of yesterday, Hunter Biden scheduled not for one, but two criminal trials
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So the son of the current president and the leading contender for president, both dealing
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with criminal jeopardy in the same single month.
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Can you just explain, Marshall, I'll give this to you.
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So when they say remanded into custody, he is sent back to the custody of the jailer,
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whoever that is, county, state, whatever it is, federal.
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Marshall, why don't you describe what happens in the courtroom when they read the guilty verdict?
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You'll see them take off the watch, take off the pen, take off the belt, put their hands
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behind their back, get cuffed and walked in the back door.
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It happens every single time, absent some extenuating circumstance.
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I can't vouch for what happens in a federal trial.
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So, and I would imagine New York follows what we do, Mark.
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Generally, if you've been out on bail or unreleased, they will put the case over for sentencing.
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They'll order the PSR, the pre-sentence report, and you'll be allowed to stay out of custody
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What about a court like this, a case like this, where most legal experts I've read do
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But even under those, as somebody without a record, even under those circumstances, would
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the likelihood be if his name weren't Trump, he'd be remanded?
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I don't know what legal experts you're talking to, but this judge has already threatened to
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put him in jail for saying the unbelievable statement that this jury is 95% Democrat and
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So when you're threatening jail over that, you get convicted of 34 felonies, he's going
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By the way, he's also been cited for contempt for calling the judge corrupt, the clerk corrupt,
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I mean, he's made outrageously disgusting remarks and he, any other defendant would have already
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So, you know, look at how unusual we call it in the law, sui generis this is.
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It's Trump and therefore none of the rules apply.
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So, I mean, the fact that he isn't sitting in jail right now is amazing.
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So, I don't predict that he's going to get remanded.
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Although, given all of his behavior and everything that they've seen, if the jury does convict,
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and I think it probably will, it would be really ridiculous not to give him some jail time.
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We ought to think about what kind of precedent you're setting because this is, you know, people
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have talked a lot about the nature of these charges and how unusual they are and how they're
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trumped up misdemeanors into a felony, et cetera.
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But it really was an effort to affect the election.
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So, whether you think he deserves jail time or not, it is a felony.
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And you have to think about what other defendant would get away with no jail time, given all
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that he's done and given what he's convicted of.
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I mean, honestly, if I had to put my money on either side, I would guess he will not
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I mean, Charlie McCarthy, I haven't seen anybody predicting that this is likely to result in
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a jail time sentence, given his complete absence of any criminal history.
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And I mean, you're saying this based on the fact that this is a Trump-biased judge, which
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I agree with, which is why I don't think Trump's comments have been disgusting.
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I know why you're saying that, Marsha, but I think he's running for president and he's
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You know, he's got a legal war and he's got a PR war.
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And all those comments are very important for the PR war, which is working for him.
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And I understand now the judge has got to run his courtroom and he's been chastising
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But, Mark, on the subject of jail time, is that just based on the fact that you think
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I think that if this—I think most judges, when they—I'm just telling you, based on
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40 years of doing this, almost 99 percent of the time in a case like this, even though
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it's a documents case, you get convicted of a number of felony counts you're going to
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He may not remand him now because clearly, under any interpretation, that would interfere
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But I can see him sentencing him to jail, staying the jail time, citing the fact he does
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But I don't think that this judge is going to say, I'm going to give you straight probation.
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I don't think there's any chance of that, frankly.
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I don't think it's going to be a long sentence.
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Even if he does get jailed, it'll be something minimal.
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Yeah, I think it'll be something minimal, if not all.
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But I would take the bet that he does not get jail time.
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So you're saying no jail time and not remanded, and Mark's saying jail time and remanded.
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If convicted, this judge is going to sentence him to jail and then stay the jail sentence
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What he will do is set a bail pending appeal, and that will—to stay the immediate imposition
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But I will tell you right now, this case, in my humble opinion, is so susceptible to being
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I mean, there's never any—most appeals are affirmed for the prosecution or the conviction
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But this case, frankly, is the most attenuated legal theory that I can even imagine.
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Do you think that—do you think we talked about maybe Trump is agreeing to this immediately
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because he sees the debate as a disincentive to the judge to remand him or do anything
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Because now it's like we're—we could be days away from—well, I guess it'll be a couple
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Unless they're going to—unless they're going to allow him to debate from Rikers by
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This—I think—I think, frankly, it's—like I say, it's three-dimensional chess.
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He's—they're going to—this case is going to go to the jury in no time.
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There's no way that this state judge is going to remand him now pending a debate.
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He—you know, there—there could have been a world where he would have remanded him for
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But I just can't imagine it now with a debate that's in the same month when he gets convicted.
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I mean, is Biden's calculation probably no more than he's going to be fresh off of his
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And I can't wait to discuss it in front of the—in front of the American people.
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I mean, that has to play into it, don't you think?
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That's the—this is—there's no more—but it's—it's a good, vulnerable point at which
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Well, look at—I'm talking to a convicted felon now.
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He can—he can call him a six-year-old and everything else.
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But when you can call him an actual convicted felon, that's a pretty nice position to be
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So I would—I would guess that has a great deal to do with it.
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I mean, I think most people did not expect Biden to agree to these debates.
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For the record, he's rejecting the Commission on Presidential Debates and their proposal,
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which we see in every election, to hold three presidential debates beginning in September.
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And he said—Biden said, no, I'm not doing that.
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I don't want your traditional structures, and I reject you.
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I'll do it with two news organizations, one in June, one in September.
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And as I said, he said, pick the moderator from your existing roster.
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And Trump, too, said, I don't want the Commission on Presidential Debates either.
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So they're both going outside the traditional colored lines.
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He had his typical rhetoric like, it's going to be extremely exciting.
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And I can see Biden doesn't want crowds, although he must be used to not having them.
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And Biden said, right, I don't want any crowds.
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I just want, like, in a news studio, quiet, and I want the opponent's mic turned off as
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I don't know whether any of those terms have been agreed to, but we have two dates.
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This could wind up being like the Ben Shapiro-Candace Owens debate, which never happened, even
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This could wind up—but I think it's going to happen now that you've got the Nets involved.
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But I do wonder whether this could backfire on Joe Biden, Mark, because as we've seen
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all along, all the big lawfare efforts against Trump, whether it was the indictments, the
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mugshot, the trial, have wound up in the polls either not hurting or helping him.
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I don't have any inside information, but living in my kind of left-wing Democratic bubble
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that I exist in, everybody seems to think in my world that if Trump is convicted, that
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the so-called swing voters are going to swing against Trump.
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I think that so far, to echo your analysis here, every single one of these cases has
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imploded spectacularly, and every prediction by conventional kind of lawyers or wisdom has
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Everybody was saying the Fannie Willis recusal motion had no legs.
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Everybody was saying that the judge in, what's her name, in the January 6th...
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There's no way the Supreme Court would entertain presidential immunity.
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Every single thing by the chattering class has been wrong when it comes to these cases.
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And, you know, newsflash, it's because most of these people do not practice in trial courts
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or in appellate courts and don't have any understanding of what the legal issues are.
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And it's too bad because I think it misleads people who are watching or listening to these
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I have kind of a very interesting update on the Judge Chutkin January 6th trial,
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But I just want to stay on New York for one minute.
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We found out he was willing to debate by a video statement he released on X and then
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But here's what Biden said in accepting the debate.
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Now he's acting like he wants to debate me again.
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An attempt to humor there because Trump's on criminal trial and he's off on Wednesdays,
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which is annoying, I have to say, because Trump's not allowed to talk about, you know,
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there's so much that Trump is gagged in responding to.
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And it's just annoying that the sitting president would be bringing it up when he knows Trump has
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Like he can't get out there and say, yeah, I'm on criminal trial because I'm sitting in
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And if you go by the stats, no, he'll get, he'll get jailed.
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He's looking for a laugh and enter the crew at Morning Joe to provide it.
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So just a little preview of how it's going to go when CNN hosts the debate and probably
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And by the way, it's probably going to be George Stephanopoulos.
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You would think as ratings challenged as CNN is, as they swirl the drain, that they would
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Because you can imagine the ratings blockbuster that would be if you did a return Trump debate.
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I think that it would be a really smart move by them.
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So I want to tell you about what we're hearing about the J-6 trial.
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Now, in the J-6 federal trial brought by Jack Smith, that's the case in which Judge Chuckin
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The prosecutor's Jack Smith, he clearly doesn't like Trump.
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But they've managed to stay the case because Trump is arguing that he has immunity for those
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acts which are under scrutiny in that case because he was president at the time of most
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It's been argued and we are awaiting a decision could come any day.
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It's going to come in the next two weeks, you know, three at the most.
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Um, there's also another case before the Supreme Court which could gut the January 6th federal
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It involves J-6 defendants arguing that this claim that's been brought against them, obstruction
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of a federal proceeding, is bullshit and is not really on the books and is not a real
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And if they win, that also helps Trump because that's the main claim against Trump.
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Yeah, so that so Trump's got a couple of nice lanes open to him to either kill or at
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What most legal watchers think will happen, even if the Supreme Court kills that one main
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claim, obstruction claim, there's still two claims against him that could live.
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And most people think probably what the court's going to do on immunity is say that we got to
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kick this back down to Judge Chutkin to have her figure out what actions are at issue and whether
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Trump was actually in his presidential role when he took them or in his role as candidate for
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reelection where he would not clearly have immunity.
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But here's what we're hearing that, OK, maybe he gets delay.
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Almost nobody thinks the whole thing gets thrown out based on immunity.
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The. Or the J-6 obstruction thing getting killed, so he goes back to Chutkin, she proceeds with
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the trial, she holds the hearing, she figures out what acts are in, what acts are out, and
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then she proceeds on what we know is in even Trump's lawyer admitted that act wouldn't be
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as president. That act would be more in his capacity as private citizen or campaign contender.
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So let's say Jack Smith minimizes just down to the ones that are in disputed so that they can't
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take another appeal back up. Let's go forward on those that they will try him. OK, so this could
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be July that they will resume this trial against him, J-6 in D.C., and that even though it likely
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won't be resolved before November. It will probably be resolved between that date in July and January
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6th, which may be a familiar date, right, is when the election gets certified and Congress convenes
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to count with the vice president to count the electoral college votes and the votes from the
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states. And at that point, the expectation is that the Democrats will move to urge Congress,
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as they have in past elections, as people like Ted Cruz and Josh Hawley did in the 20 election,
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urge Congress not to certify the vote because it's irregular. There's something wrong with it.
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And the urging will be he's a convicted felon and we can't certify this vote, given what's happened
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between the November vote and today. Now, if any of that happens, this is going to be the most
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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?
00:25:05.680
Well, she probably has to. If they kick the case back to her, then she has to make the findings
00:25:10.420
that are required to determine whether you have valid charges. And that means, was he in a president
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acting in his presidential capacity when he did the alleged acts? And that, I don't see how she
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gets out of doing that. If she finds that he was acting in his presidential capacity, you have one
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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
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where he was clearly a private citizen, or you're trying many more because you say it's exterior to
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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
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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.
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
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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.
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.
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
00:33:56.960
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.
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.
00:34:30.260
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
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,
00:35:53.640
he suggested Michael Cohen had called him a small and weeping piece of feces.
00:35:57.420
Okay. Then he goes on to say, you referred to Donald Trump as a dictator douchebag. Cohen sounds
00:36:06.060
like something I said, Blanche, you said he should go back to quote, uh, or go back where he belongs
00:36:12.900
in a fucking cage, like a fucking animal. You recall saying that I recall saying that, uh,
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
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
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,
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
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.
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
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,
00:44:48.960
you know, he comes out of the courtroom and goes right into that little cage, which is where he belongs
00:44:57.700
in a fucking cage, like an animal. I mean, I would think like, if you're the defense lawyer,
00:45:04.740
Mark, it's a dream. It's of course he's an established liar, even under oath. This is the
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.
00:46:52.300
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
00:47:51.640
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
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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
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.
00:49:16.020
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,
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
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.
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
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
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
01:08:47.740
Look, Martha, just go back home. I have a sneaky feeling you might be the death of me.
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
01:09:16.660
first thing in the morning and she would be there. I love your nipples. Think of me at work today.
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
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.
01:11:09.200
None of that's true. I don't think I sent him anything.
01:11:12.740
No. I think there may have been a couple of emails exchanging, but that was it.
01:11:30.580
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.
01:11:38.180
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?
01:12:09.300
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.
01:12:20.220
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?
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.
01:14:21.820
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.
01:14:33.340
That's my prediction because she seems like a nutcase.
01:14:38.960
Quote, she is now demanding a payday from Piers Morgan for the interview.
01:14:48.660
OK, this is I think this is Daily Mail reporting this.
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.
01:15:14.020
We got a lot of clicks and she wants to partake in it.
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.
01:15:38.920
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?
01:16:23.040
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.
01:16:43.100
And I wanted to rebut that completely on this show.
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.
01:17:26.660
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.
01:17:51.100
You put the side-by-side pictures of the actress and her next to each other up on the screen again?
01:17:59.980
The split screen for the listening audience is identical.
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.
01:18:15.600
So you guys think she may have a legal leg to stand on?
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.
01:18:39.140
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.
01:18:51.000
To what degree did their disclaimer really expose the fact that, hey, we embellished, we changed things.
01:18:59.400
I know we need to go back and actually look at that exactly.
01:19:02.500
They marketed it as a true story, which is problematic.
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.
01:19:13.680
So, and listen, to me, I think this woman's an obvious liar.
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.
01:19:31.640
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.
01:19:56.980
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.