The Megyn Kelly Show - Failures of Biased Judge in Sham Trump Trial, with Alan Dershowitz and Mark Geragos ｜ Ep. 805

00:00:00.600 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:00:12.140 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. We're staying on the Trump

00:00:15.820 trial today with two of our favorite legal experts, Alan Dershowitz, author of Get Trump,

00:00:20.860 and of course, Professor Emeritus at Harvard Law, and Mark Garagos, host of the Reasonable Doubt

00:00:25.660 podcast, was a long and very storied career as one of the most successful criminal defense

00:00:30.980 attorneys in America. Professor Dershowitz, I shall start with you. Give me your quick take.

00:00:38.100 The only thing worse than the jury instructions is the failure of the defense attorneys to object

00:00:42.560 to them, which precludes raising many of them on appeal. These were horrible, very, very pro-prosecution

00:00:50.740 instructions. Now, I haven't read every word of them. I'm taking my cue from the media. But if

00:00:57.760 the judge hasn't given the missing witness instruction, it's outrageous. Here you have...

00:01:03.440 Wait, can I... Let me interrupt you on that and say what Arthur Idala, your friend of mine,

00:01:07.120 said in our last segment. He said the judge couldn't give the missing witness instruction because

00:01:11.280 he had offered to let them bring in Weisselberg in a closed-door hearing,

00:01:17.420 and both of them asked him questions to figure out whether, you know, they wanted him or not,

00:01:22.980 and the defense declined. Well, then it's on the defense. It's on the defense. They should not have

00:01:30.080 declined. Here, the crucial conversation that occurred is witnessed only by Weisselberg and by

00:01:39.800 Cohen. And in order to convict, you have to believe Cohen. And you're entitled to argue that the failure

00:01:50.520 of the prosecution to give immunity to Weisselberg and to call him as a witness should create an

00:02:00.360 inference that it would have been unfavorable to the defense. I don't know how the defense

00:02:06.040 can fail to focus on these two crucial meetings, the phone conversation and the conversation

00:02:14.180 that took place in the hotel. Without those conversations, there is no... in any corroboration

00:02:23.980 of the key point. Now, you know, there is corroboration of the fact that money was paid. And there is

00:02:29.140 corroboration of the fact that these items were listed as legal expenses and, you know, retainers.

00:02:37.280 But there's no evidence other than Cohen that Trump ordered it, directed it, knew it, other than the

00:02:43.580 uncorroborated claims of Cohen. And that ought to be the central point in the defense. And so I don't

00:02:50.920 know what happened in the closed sessions or anything at that time. But for the jury to deliberate

00:02:57.120 without understanding that the key witnesses have not been called and have not testified leaves an

00:03:06.560 enormous gap in this case. The other thing that should have been objected to, and I don't know if

00:03:11.400 Mark has ever heard of this, the idea that the defense goes first is insane, is such a violation.

00:03:18.640 Especially in this case. Huh? Especially in this case. I mean, like...

00:03:23.360 Especially in this case. How do you defend yourself when you don't even know what the charges

00:03:28.300 of the second crimes are? And it creates the impression that the defendant has a burden,

00:03:36.280 either a burden of going forward or a burden of proof. So I think the New York procedure is clearly

00:03:42.060 unconstitutional in violation of the Sixth and the Fifth Amendments. And I don't know, again,

00:03:47.300 whether there was an objection to that. You know, lawyers often don't object to things that are

00:03:52.020 routine, but things that are routine are often held unconstitutional. And so I'm very unhappy with

00:03:58.540 the defense in this case. That doesn't mean they're going to lose. This is a New York jury. Who knows

00:04:03.580 how it will go? They may win, but they won't win, I think, as a result of great lawyering.

00:04:10.380 Mark, what's your take?

00:04:12.240 You should have had the camera on, Mark. While Alan and I were talking before we came on,

00:04:17.280 Well, tell us. We want to know.

00:04:20.280 Well, first, to Alan's point, which is interesting to me, the idea of the defense going first.

00:04:29.140 Normally, what happens is the person who has the burden of proof, it's a criminal case,

00:04:34.360 it's the prosecution of the government. If it's a civil case, it's the plaintiff. That's why they get

00:04:39.860 to go last. If you don't have something to argue against, then in essence, you have waived your

00:04:47.800 burden. And to my mind, that should be a directed verdict, even though that doesn't technically exist

00:04:54.980 in a criminal case. I've had cases, I don't know if Alan's ever seen it, where prosecutors got up and

00:05:00.380 said, I'm going to waive my closing statement. And my response to that is, that's fine, I'm going to

00:05:07.440 get up, I'm going to give my closing, but you don't get to reply because you waived. So there is that

00:05:14.160 issue there. To Alan's point, and I don't know, I didn't listen to Arthur, so Megan, you can correct

00:05:20.380 me. I've been entirely frustrated in this case, because New York state criminal defense practitioners

00:05:29.400 are loathe to criticize this judge. One of the reasons I have been, I think, transparent in saying

00:05:37.500 that this guy is nothing more than a prosecutor in a robe is because I don't practice in the state.

00:05:43.620 This judge, some of these decisions, which are being heralded on the left, I mean, if you turn

00:05:50.680 on MSNBC at night, you would think that this judge is the second coming of some great judicial mind.

00:05:58.520 He has, I just don't even understand half of what he's doing in this trial. I don't understand what

00:06:06.000 he did with Costello, which to me is beyond outrageous that you would take one of the defenses

00:06:13.500 only substantive witnesses and basically telegraph to the jury that you're not buying a single thing

00:06:19.700 that he's selling, and then create this hubbub. The idea of finding the defendant summarily in

00:06:27.720 contempt for statements that were not made in your presence, which I've done a fair amount of

00:06:34.140 contempt cases and politically charged cases. I don't understand any of this. I don't understand

00:06:41.300 him jamming the defense after the Southern District dumped the discovery upon the defense

00:06:48.980 and only given him 30 days, and only because the prosecution conceded that they should get 30 days.

00:06:55.900 I don't understand these evidentiary rulings where he's imposing or interposing his own objections.

00:07:03.360 But I do understand, from a practical standpoint, why New York practitioners don't want to comment

00:07:10.140 on him. But it's outrageous, frankly. But you know, the judge made one mistake. He allowed me to stay

00:07:16.400 in the courtroom when he kicked out all the media and everybody else. And I stayed in the courtroom,

00:07:22.200 and I saw the Robert De Niro moment where this judge looked like the psycho in Taxi Driver and turned to

00:07:30.200 Costello and said to him, you talking to me? You talking to me? You looking at me? You raising your

00:07:35.800 eyebrows at me? You're staring at me? I'm going to hold you in contempt. I'm going to strike your

00:07:40.540 testimony. First of all, a judge has no power to strike the testimony of a witness unless the defendant

00:07:46.660 did something wrong. If the witness did looked at him funny, you don't get to strike the defendant's

00:07:52.840 key testimony. And then to have telegraphed it in front of the jury. The judge's real self came out

00:08:00.360 when he threw the media out. You know, he's a benevolent despot when the media is there and when

00:08:05.400 the jury is there. But when they're out and when only a few of us are back in the courtroom, the real

00:08:10.400 judge Marchand comes out and the bias seeps through, just reeks through everything he's doing.

00:08:17.120 Now, it's pretty amazing because the judge got so mad at Costello, he cleared the courtroom.

00:08:20.680 He only let counsel stay. And Dersh was sitting in the front row and he let him stay. He got,

00:08:26.440 I think, confused that Dersh was part of the defense team or something or just knew him as a

00:08:30.380 storied lawyer and said, you can stay. He didn't kick you out. And before he knew it, you were on

00:08:35.340 your show reporting about everything you'd seen and heard. Part of me wanted him to throw me out.

00:08:41.120 I would have refused to leave. I would have said, Your Honor, the Sixth Amendment not only protects a 1.00

00:08:44.920 defendant's right to a public trial, but it protects the public's right to see the trial. I'm the public.

00:08:50.200 I'm not leaving unless you absolutely- That would have been amazing.

00:08:54.280 Garagos, you'd be defending him. He'd be getting bailed out. You and I would be getting him out of

00:08:57.660 chair. I would gladly defend him because Alan is absolutely right. The Sixth Amendment,

00:09:01.800 you don't get to pick and choose when you want to show who you really are. And I am just,

00:09:06.960 I'll say it again. I do not understand these rulings that he's making. I don't understand the

00:09:13.840 evidentiary basis upon all of this. And frankly, I don't understand what's been reported as the

00:09:20.800 jury instructions. It's the whole thing to me. Let me ask you a question about that. Okay. Let

00:09:25.360 me ask you something, Garagos, on that. Because one of the controversial things among many the judge

00:09:29.600 let in was the fact that Michael Cohen pleaded guilty to a federal election law violation. He's

00:09:36.240 already going away on his taxi medallion scheme and his tax violations. And then the feds were like,

00:09:42.620 oh, and also how about this federal election law violation? And by that point, Cohen was like,

00:09:47.000 fine. Okay. I'll plead guilty to that too. And the judge allowed that in and he, wait,

00:09:52.140 let me finish. And he also allowed in that David Pecker of AMI struck a cooperation agreement with

00:09:57.900 the feds around the same federal election law alleged violations. Now he let the government

00:10:05.260 bring that stuff out on their own witnesses. Normally that'd be like a Garagos or an Alan 0.89

00:10:12.280 Dershowitz cross moment. Like you fleeted guilty to this bad thing, didn't you? But you wouldn't do

00:10:19.740 that here because Trump doesn't want any of that in front of the jury because it makes it sound like

00:10:24.440 they're all guilty of the thing they cooperated with Trump on. Go ahead, Mark.

00:10:29.040 Well, then he, and he compounded it because they put forth a witness. If you look at what Trump keeps

00:10:34.900 posting, he keeps posting. I had a witness. I wanted a witness to opine on these issues.

00:10:41.660 And he excluded the witness. I don't, I mean, to me, um, there's been a lot of things,

00:10:50.080 you know, I don't disagree with that one, that there's been a lot of waiver here,

00:10:53.420 uh, inexplicably, but maybe, you know, I, I'm always hesitant to, uh, criticize the trial lawyer

00:10:59.840 in the middle of the fray. But I will tell you that the idea that you allow in all of this stuff

00:11:06.380 with the idea and then allow in closing, which happened yesterday to talk about federal election,

00:11:13.020 federal election crime, federal election crime, but knowing at that point that you've excluded you,

00:11:19.780 the judge has excluded their proffered witness who would have opined that there was no election

00:11:26.580 law violation.

00:11:28.100 Right. And the judge today, Alan, I'll give it to you one second, but the judge today, Alan said,

00:11:32.120 he tried to fix it with a limiting instruction to the jury saying, I let all that stuff come in

00:11:37.120 about Michael Cohen's guilty plea to federal election law violations and the cooperation agreement

00:11:41.420 with David Pecker, not to prove that they, that they're actually guilty or that Trump's guilty of

00:11:46.000 anything, but because it goes to their credibility, but it's like, okay, it was the prosecution's own

00:11:51.960 witness. The prosecution brought it up. It was all used against Trump. And the, that bell had been

00:11:59.420 rung. The jury had heard that two of the star witnesses had already basically pleaded guilty

00:12:04.320 or admitted to the crime. Go ahead, Mark. And then I'll go to Alan.

00:12:06.860 He let the prosecutor argue it. He excoriated for saying liberty. I mean, by the way, I haven't

00:12:16.440 ever done a criminal or civil trial where I haven't talked to the jury about the difference between

00:12:21.260 fighting over money and fighting over liberty. Since when is that verboten that you're going to

00:12:26.020 get excoriated by a judge by saying, send somebody to jail. It's a colloquialism. You're not telling

00:12:32.020 them that they're going to do the sentencing, which is, but the fact that he allowed the,

00:12:37.800 the prosecutor to argue these things and to argue them, that's why he gave the limiting

00:12:44.020 instruction. Cause he realized in my mind that that was reversible.

00:12:48.200 They argued it a lot in closing yesterday. The prosecution did. It was outrageous. They

00:12:51.540 compounded the injury. Go ahead, Alan.

00:12:53.560 Remember that Cohn not only pleaded guilty himself, but he basically said hearsay. Uh, and so Trump is

00:12:59.960 guilty too. He's my co-conspirator and, uh, the federal government complicit with the state in

00:13:06.080 this case, um, uh, compelled Cohen to make a kind of hearsay accusation of Trump that could then be

00:13:13.300 used against a Trump. And that's why it was so imperative that the expert witness be allowed to

00:13:19.920 testify. No, there, there was no violation of federal election law here. Uh, first of all,

00:13:25.620 the idea that somehow voters would be defrauded because they all believe that Donald Trump was

00:13:32.300 this virgin, this, this, this man who's never had any sexual misconduct in his life. And then the

00:13:38.580 prosecution arguing essentially that he would never have been elected if the material about Stormy

00:13:45.280 Daniels had come out. First of all, voters of New York, uh, voted against him. Overwhelming.

00:13:50.360 Second of all, everybody knew that Trump was a player and whether or not it included

00:13:56.480 Stormy Daniels is totally irrelevant. First of all, whether he had sex with Sam,

00:14:01.040 Stormy Daniels is irrelevant, but it kept him off the witness stand, uh, because, uh, the only issue

00:14:07.460 was whether or not she attempted to extort him and collect money from him and threatened him to expose

00:14:14.320 it. Uh, that's the only relevant issue. Uh, there was another accusation by a doorman, uh, that maybe

00:14:21.760 Trump had fathered, uh, a child. They paid him off too, even though it turns out that accusation was

00:14:27.320 totally false. So it absolutely didn't matter. Here's what he said. Here's what the assistant

00:14:33.200 district attorney Stein, Stein glass said about this in closing. Uh, he talks about how the access

00:14:38.940 Hollywood tape broke that Trump decided he would call it locker room talk, which they said was

00:14:46.020 Melania's suggestion. And then Stein glass argued the following. This is important because at the

00:14:53.420 same time, this access Hollywood tape comes out, the defendant was attempting to muzzle a porn star

00:14:59.480 stormy Daniels during the final month of the campaign. Stormy Daniels was a walking, talking reminder

00:15:06.040 that the defendant's behavior, I guess, was not only words. She would have totally undermined his

00:15:14.400 strategy for spinning away the access Hollywood tape. Meanwhile, Alan, the access Hollywood tape said

00:15:20.920 when you're a celebrity, women will let you grab them by the P word and you can get away with it. 1.00

00:15:26.720 It wasn't, it wasn't speaking to, you can have consensual sex with porn stars who come to your hotel 0.98

00:15:34.940 room in the middle of the night while you're on the road. Like those actually aren't two of the same 0.84

00:15:39.220 things. Um, I don't think this is actually true, but what do you make of his argument? She was a

00:15:43.920 walking, talking reminder that he was not just about words. She would have totally undermined his

00:15:48.120 strategy for spinning away the access Hollywood tape. And according to that theory, whether they

00:15:52.760 actually had sex or not, um, you can threaten somebody with disclosure of a sexual relationship

00:15:59.600 that didn't occur. And that's called extortion. And if it was done to avoid a lawsuit, then it's not

00:16:07.080 extortion, but then it's a perfectly legal, legal expense. Uh, then he can't be charged with

00:16:12.580 mislabeling it unless it's, if it's extortion, then she should have been prosecuted. If it's not 0.60

00:16:20.380 extortion, then the money he paid is a perfectly legitimate legal expense, maybe even deductible,

00:16:26.280 uh, from taxes. And I think they even argued that he had in his mind that two years from now,

00:16:32.720 maybe he would deduct this from his taxes and that would be tax fraud. I mean, this, this,

00:16:38.620 the, these combination of made up crimes that they don't have to prove beyond reasonable doubt,

00:16:44.020 and they don't have to agree which ones is turned this into, uh, uh, such an injustice. How does the

00:16:51.480 jury begin to deliberate? If you have three jurors saying, well, maybe he intended to impact the state

00:16:57.080 election, three jurors saying, well, maybe he intended to cheat on his taxes, three jurors

00:17:01.480 saying, well, maybe he wanted his wife not to know about it. And then you get a verdict that just says

00:17:07.180 guilty. Uh, it's very hard to challenge that on appeal or in a motion after the trial. So, uh,

00:17:13.960 you know, the judges is really invited the jury in this case to convict. And that's he's complicit.

00:17:21.020 He's complicit. He is a prosecutor in a judge's robe, Mark. He's out there at every turn. As I said

00:17:26.900 to somebody yesterday, trying to lead this jury right to the fountain of guilt, right? Like lead

00:17:33.200 the horse to water. They're leading them right to the fountain of guilt. Like they're not going to have

00:17:36.480 these instructions. What they're going to hear is Michael Cohen pleaded guilty to election law

00:17:40.000 violations. David Pecker was accused of election law violations and entered into an agreement with,

00:17:45.740 um, the prosecutors not to be prosecuted. Donald Trump is accused of that too, as one of the many

00:17:52.640 underlying crimes. And we don't have to agree on which crime he committed. And by the way,

00:17:58.060 we don't actually have to agree that he committed the crime, just that he intended to commit the crime

00:18:04.020 and that if he intended to commit the crime, and then he intended to conceal it by documenting

00:18:09.680 these. I mean, this is insane, but they're going to go in there and be like, well, the others pleaded

00:18:15.240 guilty. I guess it was a crime. He covered it up done. Well, look, there's, there's two other things

00:18:21.960 that I would be remiss if I didn't mention as well, that just drive me crazy about this trial.

00:18:27.320 Number one, that the defense opened the door. And I hate that term, by the way, I've never talked to

00:18:34.760 Alan about it, but my father, who was a former prosecutor, used to hate it as well and imbued it

00:18:40.140 in me, opening the door as if the evidence code gets run over because you opened the door.

00:18:45.560 Somehow they opened the door to the salacious details of this newly minted story by Stormy Daniels

00:18:53.560 in the opening. At the same time, he's giving the jury instructions that you're not supposed to

00:18:59.280 take as evidence anything the lawyers say. And so therefore, then he's going to allow the

00:19:06.780 prosecution to run roughshod over violations of more prejudicial than probative, to be salacious,

00:19:14.180 and to have her create this kind of fantasy land of what transpired. Then to tell the Susan Nicholas

00:19:21.620 that she didn't object enough, and to say that is mind-boggling, and against the backdrop of Harvey

00:19:29.300 Weinstein's conviction being reversed. And I got this from Alan because I was thinking it at the same

00:19:35.800 time. How in the world do you read that opinion by the highest state court in New York and say to

00:19:42.920 yourself, hey, now I'm going to do the exact same thing to Trump. I'm going to tell him if you get on

00:19:49.600 the stand, all of this is fair game, right after the highest court in New York just told you that

00:19:55.560 we're going to reverse, and we did reverse Harvey Weinstein's conviction on the very same grounds that

00:20:03.180 it unnecessarily imperils your right to get up and testify.

00:20:10.000 Very simple.

00:20:10.700 I just don't get it.

00:20:12.160 I get it. Very simple. Everybody knows there's a special law for Donald Trump. And the law,

00:20:17.520 even Weinstein, and that was a great victory for Arthur Idala. I consulted on that case. I'm proud

00:20:23.540 of my role in that case. I'm proud of contributing to the reversal in that case. And people attack me

00:20:30.000 for it, but that's what it means to be a criminal defense lawyer, Mark, as you know very, very well.

00:20:35.300 But it's only the kind of chutzpah that could come from saying to yourself, the New York Court of

00:20:40.100 Appeals is not going to reverse a Trump conviction. We don't care what the facts are. We don't care what

00:20:43.940 the lawyers. They're not going to have to go home to their family and their friends and say,

00:20:48.680 we're the responsible for Trump being the next president of the United States. I know that from

00:20:53.260 personal experience. People hold me responsible for Trump being possibly the next president because

00:20:58.640 I defended him in his impeachment.

00:21:02.380 I'm Megan Kelly, host of The Megan Kelly Show on Sirius XM. It's your home for open,

00:21:08.280 honest, and provocative conversations with the most interesting and important political,

00:21:12.240 legal, and cultural figures today. You can catch The Megan Kelly Show on Triumph,

00:21:16.660 a Sirius XM channel featuring lots of hosts you may know and probably love,

00:21:21.960 great people like Dr. Laura, Glenn Beck, Nancy Grace, Dave Ramsey, and yours truly,

00:21:27.580 Megan Kelly. You can stream The Megan Kelly Show on Sirius XM at home or anywhere you are,

00:21:33.420 no car required. I do it all the time. I love the Sirius XM app. It has ad-free music coverage

00:21:41.140 of every major sport, comedy, talk, podcast, and more. Subscribe now. Get your first three months

00:21:46.000 for free. Go to SiriusXM.com slash MKShow to subscribe and get three months free. That's SiriusXM.com

00:21:55.300 slash MKShow and get three months free. Offer details apply.

00:22:00.340 So, Alan, you were saying that they're worried about blowback. All these jurors are real people

00:22:10.180 who are going to have to worry about blowback. And the judges on the appellate court and on down the

00:22:14.360 line, none of them wants to be kicked out of all their polite social circles for being the ones who

00:22:18.900 saved Trump and not democracy. And the jurors' names will leak eventually, and jurors will have to

00:22:26.980 do some splaining. And there's no explanation. The people on the hard, hard left, the hard progressives

00:22:34.200 think of Donald Trump as Adolf Hitler, and they think of me as Himmler or Goebbels having helped 0.67

00:22:40.300 him and facilitated him. They don't remember that I voted for Biden, that I'm a liberal Democrat.

00:22:45.320 And there are a lot of, not enough, liberal Democrats and people who are nonpartisan who

00:22:52.820 think this trial is a disaster. But to ask a judge who has to run for office occasionally to be the

00:23:00.380 one responsible for making Trump president, to ask jurors, to ask anybody, I just know what happened

00:23:08.000 to me, to my family, to my wife, to my children when I defended Trump on constitutional grounds and

00:23:14.220 just multiply that by many times when you think of a juror having to justify or a judge having to

00:23:21.360 justify why they allow Donald Trump to run for president and perhaps be the next president of

00:23:26.240 the United States. That's the dynamic that's operating in this case. And unless you understand

00:23:31.360 that, you can't comprehend why the prosecution did so many things it did, why the judge made the

00:23:37.800 rulings he made, and why appellate courts may conceivably even affirm this disaster of a verdict

00:23:43.620 if there is a guilty verdict.

00:23:45.500 Meanwhile, Mark, when you hear the press describe what actually happened here, it's insane.

00:23:50.460 What happened was he got threatened, he paid off this woman through his lawyer, and she went away

00:23:57.360 until she decided she was going to tell her story anyway. That's what Trump did. And then he wrote down

00:24:02.140 legal expenses in a book that no one saw, a book that no one saw. The book never left the shelf

00:24:08.020 at Trump Tower. This is his big fraud that he committed. I pulled it up. We'll play it.

00:24:15.080 I'll just play it off my phone and my team will fix it later. But listen to the New York Times in

00:24:19.260 their daily podcast, it's called The Daily Today, describe Trump's evil crimes. Okay, just listen to this.

00:24:25.600 It's the last time lawyers get to address the jury. And for the defense lawyers in particular,

00:24:30.260 it's a day that comes with really serious stakes. Because this case has been really

00:24:34.700 prosecution driven, right? They've charged Donald Trump with falsifying business records 34 times.

00:24:41.640 And they've charged Trump with a conspiracy to suppress negative news about himself to aid his

00:24:48.060 path to victory in the 2016 election. A conspiracy to suppress negative news about himself to aid in

00:24:57.640 his election. Mark, I'd say you can't make it up, but they just did.

00:25:02.740 Well, and by the way, you know, you described it as a book. What the evidence showed is it's just a

00:25:07.800 drop down in the old QuickBooks where you hit it. It says legal expense. Somebody, you know,

00:25:14.200 the old expression garbage in garbage out couldn't be better. The better description of what happened here. 0.52

00:25:20.540 To Alan's point, this judge, once again, I'm going to put it on him. He, during jury selection, had a

00:25:29.660 potential juror come back and overnight said, I am too scared that somebody's going to find out who I am.

00:25:39.440 I'm too afraid of what my decision is going to be. And I can't be fair. Well, if you're a judge,

00:25:47.120 do you just excuse that juror? Yes. But then do you just go on your merry way? No. There is a remedy for that.

00:25:55.580 You either continue the case until such time that it's not as politically overheated six months out from an

00:26:03.700 election, or you do what other judges do, which is you sequester the jury so they don't go home every night

00:26:11.480 and hear or be exposed to all of these things. Neither of those was done. They had every, I will

00:26:18.260 tell you, if the government had said, just for a second, do this mind game. If the government

00:26:25.600 had come into that courtroom and said, on the eve of trial, the defense just dumped on us terabytes worth

00:26:33.960 of information directly relevant to this case. And the defense expects us to go to trial in the next

00:26:42.380 30 days. There isn't the mother of the judge who was born who wouldn't grant the prosecution's motion

00:26:48.420 to continue and overrule the defense's speedy trial rights. Yet here, the defense who's willing to waive

00:26:56.240 their speedy trial rights in order to put this case over is poo-pooed and said, no, you can go

00:27:03.680 through the terabytes of information. You'll get ready. It doesn't matter because the prosecution's

00:27:08.320 got the burden of proof. It's outrageous, frankly. And I'll give you one other thing that just,

00:27:13.780 because this happens all the time. Alan will, I think, agree with me. The prosecution gets to

00:27:20.980 investigate these cases, and not just Trump, any case, for as long as they want within the statute

00:27:26.700 of limitations. And then they're the ones who say, on your mark, get ready, go. And then the defense

00:27:33.480 has to take what is normally years worth of investigation, digest that, do an investigation,

00:27:41.140 get ready for trial. You've got to do all of that against the backdrop of somebody who's being

00:27:46.300 prosecuted in four different jurisdictions and trying to run for president at the same time.

00:27:51.900 And you're supposed to get his attention, pick him off the campaign trail, get ready for trial,

00:27:56.520 and have a massive document dump on the eve of trial. And out of all the days in the last four years,

00:28:03.360 365 days times four, we need to get this case to trial on this date. Why? Why do we have to do that?

00:28:11.980 And why do we have to do that? Because he engaged in a conspiracy to suppress negative news about

00:28:17.420 himself before the election. It's insane. Go ahead, Alan. Well, first of all, everybody tries to

00:28:24.460 suppress negative news about them in every context, and they use it with more than one person. So it's

00:28:30.760 a conspiracy. The other thing the judge could have done and should have done was to change venue,

00:28:34.900 move it to Rockland County, to Staten Island, to places where there is at least not at 85 or 90 percent

00:28:41.620 jury pool who voted against Trump and would do anything to avoid Trump becoming president again.

00:28:48.060 There are so many options to have made this a fair case. Obviously, Mark is correct, postponing it

00:28:54.000 until after the election. And he couldn't have pardoned himself. It's a state charge, not a federal

00:28:58.400 charge. But they wanted it to interfere with the election. This case is a paradigm of election

00:29:05.020 interference. They wanted a down and dirty conviction to influence some independent voters,

00:29:09.680 even though it might be reversed on appeal. They wanted a gag order to prevent him from

00:29:14.400 attacking the witnesses, and the witnesses, some of whom are Democratic activists. And they wanted to

00:29:22.180 sequester him, essentially, in the jury, in the courthouse during four days a week. And if they succeed

00:29:31.420 in this, you know, we're in Putin land. Putin goes after his political opponents, obviously,

00:29:38.120 in a much worse way. He kills them. Here, they're just trying to use, weaponize the criminal justice 1.00

00:29:44.760 system to influence the election. And again, as a liberal Democrat, I want to see my side win fair

00:29:51.300 and square. I don't want them to cheat. I don't want an elbow on the scale of justice. And that's what

00:29:56.840 we're seeing here. I want to see an election.

00:29:59.640 Let me ask you a follow-up question, Alan, because Trump was tweeting or truthing about some of this

00:30:05.600 earlier today. And one of the things he raised, and this is how we started our show with a point

00:30:11.300 similar to this, but he wrote,

00:30:12.240 he wrote, can you imagine that I, as a defendant, am not allowed to rebut or correct the many lies

00:30:18.620 told during the five-hour filibuster just put on by the Soros-backed DA's office in the Manhattan court?

00:30:24.180 What a disgraceful performance of misrepresentation it was.

00:30:27.380 Okay. Andy McCarthy has just, this is just forwarded to me, has just dropped an article

00:30:34.500 on National Review. Judge Mershon and Trump conceal, well, let's see. Oh yeah. Yeah. He's saying Judge

00:30:43.260 Mershon and Trump counsel, I think, conceal the holes in Bragg's case. And he says, it's highly

00:30:48.340 likely that Trump is going to be convicted. He says, first, with the help of Judge Juan Mershon,

00:30:53.320 and also none other than Donald Trump. He says, these prosecutors from this DA's office, Alvin

00:30:59.600 Bragg, have effectively concealed what should have been fatal holes in their case. And he's talking,

00:31:03.840 I think, here about the fact that Alvin Bragg hid the felony. He played hide the felony. He didn't

00:31:10.980 want us to know the underlying crime until the big closing argument where he was like, surprise,

00:31:15.760 it was federal election law, or maybe tax law. You could consider that too, or maybe another business

00:31:19.840 record he falsified, but federal election law. And the point is, because he doesn't have the

00:31:24.260 jurisdiction to enforce that. But you'll never be able to appeal that because the other side will be 0.98

00:31:30.320 able to say, no, no, no. Some of the jurors may have done state election law. Some of the jurors may

00:31:34.900 have done a state tax law, so you can't appeal it. The other prosecution made a direct misrepresentation,

00:31:41.400 which to my mind raises ethical questions. They said that the claim that Donald Trump knew,

00:31:51.780 knew that this was being listed as a legal expense and that all this occurred is corroborated. And I

00:31:59.660 look very hard at this case, and I challenge anybody to find me where that conversation is

00:32:06.120 corroborated. That's only Cohen. It could have been corroborated, again, by Allen Weissenberg,

00:32:12.080 but it wasn't corroborated. There is no evidence other than Cohen's to prove the fact, if it's true,

00:32:18.720 that Donald Trump knew or facilitated or in any way participated in entering the record. Now,

00:32:26.680 we're not talking about just the entering of the record, the dropdown, which he didn't do,

00:32:32.980 which some underling did. And that's the missing point, because without that, you don't get to the

00:32:37.960 felonies, because you have to first get the misdemeanor. And the misdemeanor requires an

00:32:43.160 intent to defraud. And unless Trump knew about how it would be listed, there can be no intent to

00:32:49.880 defraud, so you don't even get to the felonies. And the process—

00:32:52.700 Alan, I have a question. Why didn't they request—why didn't they request that the jury make a

00:32:59.780 determination whether it was a misdemeanor or a felony? And why wasn't that given? And I'll tell

00:33:06.520 you why that's important. Because if they find that it was a misdemeanor and not felonious,

00:33:12.120 the statute of limitations would have expired, and that would have been the end of this case.

00:33:17.380 And so the jury should have been given some kind of a verdict form that has the ability for them

00:33:25.980 to distinguish between the felony and the misdemeanor. And if that's the case, and they

00:33:30.600 choose misdemeanors, and they should have been able to argue that to the jury, then this case would

00:33:36.900 be over, because the statute is wrong. I don't know whether or not there's a verdict form in New York

00:33:42.220 beyond guilty or not guilty. As you know, in federal courts and in other courts,

00:33:46.060 there are long verdict forms that make you check the boxes. I'm not sure what it is in New York,

00:33:52.400 but there should have been a verdict form in this case, because you're absolutely right.

00:33:55.800 If they say misdemeanor, it's out as a matter of law.

00:33:58.740 But no, that wasn't an option, because what made this a felony that was—he resurrected the dead

00:34:04.760 misdemeanor by charging it as not just the falsification of business records, which would

00:34:10.560 have been a misdemeanor, but the falsification of business records with intent to commit or cover

00:34:15.880 up another crime, which is what makes it a felony. So, I mean, maybe you could have come up with

00:34:20.960 something that would style, number one, tell us whether there was another crime that was being

00:34:25.500 covered up. That could have been a question, number one. And if not, then the falsification

00:34:30.520 of business records would be bumped back down to a misdemeanor. But they went the other way.

00:34:35.220 They did falsification first.

00:34:36.160 The U.S. Supreme Court has specifically said, in the criminal context, you can't revive an expired

00:34:43.460 statute of limitation in a criminal context. So, why can't you have and why shouldn't you? I think

00:34:51.980 you should be compelled to have the jury make that finding. You can't give them an either-or when you've

00:34:57.940 revived a case that should have been dead by something that doesn't make any sense in terms of

00:35:04.340 this theory. Fine. Give the prosecution. Let them have their felony approach. But you should give the

00:35:12.980 jury the ability to make that finding. The prosecution argues that, no, this wasn't a misdemeanor turned

00:35:20.180 into a felony. It was always a felony because at the moment he made the entry, which alone would

00:35:26.280 have been a misdemeanor, he had this intent in his mind. We've psychoanalyzed him. And while some

00:35:33.320 secretary did a drop-down, somebody must have intended that this affect the election, even

00:35:41.000 though we're not going to let an expert come and testify that that wouldn't constitute a crime,

00:35:45.220 or a tax expert come in and testify that, as far as I know, the tax returns haven't even been filed

00:35:50.320 yet. And the idea that you can indict somebody or charge somebody with intending to perhaps in the

00:35:58.240 future engage in tax fraud by deducting these expenses, which may very well be deductible,

00:36:07.300 again, is a bridge too far.

00:36:11.040 Meanwhile, you'll appreciate this, Mark, as somebody who used to go on CNN a lot,

00:36:15.540 they are covering the prosecution's closing, which was, it did feel like a filibuster. It went on forever,

00:36:22.120 as though Jesus had come down. I'll just give you a little sample. Here's Nicole Wallace. 0.89

00:36:32.580 You know, to sort of steal Ari's analogy, you know, one person has to write like Shakespeare,

00:36:38.300 the other one like a Trump tweet, right? But I don't even think they did that. And what the

00:36:43.060 prosecution had going for it today was the ability to say, take the sex. Sex happened in 06. Why do

00:36:48.540 think they paid for it two weeks before election day? Shakespeare. It was Shakespeare. Whereas that

00:36:54.920 loser defense attorney only had to come up with the equivalent of a Trump tweet. 0.93

00:37:00.100 I, you know, I said, I turn it on at night. It's been my habit for many years, as you know, 0.95

00:37:06.300 and it's, I don't know. Alan shares my frustration with this. I don't know what's happened to the,

00:37:14.600 the party that I grew up with. When did they flip and become cheerleaders for the prosecution?

00:37:21.520 When did all of a sudden, the, everything that Alan and I were bitching and moaning about in the

00:37:27.660 90s, when they, Republicans were coming at Bill Clinton during Whitewater. I mean, I, I remember trying

00:37:34.800 that case with Susan McDougal back in Little Rock, Arkansas on obstruction of justice and contempt

00:37:41.820 charges and saying to myself, this is so outrageous. I can't believe this. What a political show trial,

00:37:48.400 blah, blah, blah. Everything that we were saying, and Alan was the, you know, that's where we bonded

00:37:54.140 in the 90s. Everything we were saying now, then is what's happening now, but it's just the shoe on the

00:38:01.580 other foot. Sure. Professor Lawrence is the leader of that PAC. It's only good if it's good for the

00:38:09.280 Democrats. This is the perfect case for why all trials should be televised. We should be able to

00:38:14.700 have seen Judge Marchand. We should be able to have seen all the actions, all the witnesses, and be able

00:38:20.900 to judge for ourselves instead of having to see it through the prism of CNN and MSNBC. You know,

00:38:27.240 when you, when you flip the channels, it's as if you're seeing descriptions of two different cases.

00:38:32.240 They bear no resemblance. And the American public has the absolute right to make its own judgments.

00:38:38.600 Who are you going to blame? Me or your lying eyes? And, and, and I would hope that this would 0.75

00:38:43.860 increase the movement toward having trials, particularly trials of this dimension and

00:38:50.280 magnitude on television so that everybody can see it. Mark, I think you'll agree with me. We've done

00:38:54.920 trials, both of us that have been on television. You don't even remember that the camera's on. You focus so

00:39:00.340 much on the fact finder, whether it be a judge or a jury. I argued some of the motions in the OJ Simpson

00:39:05.560 case on television. I argued the appeal in the Von Bulo case, which is on television, never occurred

00:39:10.880 to me in a million years to focus on the cameras. I wanted to focus on who was going to decide the

00:39:16.220 case. So this is a perfect case for why everything should be on television. You know, it's also

00:39:21.120 interesting, Megan, I think I've mentioned this before, you know, Shepard v. Maxwell, which is

00:39:26.800 decided some 70 odd years ago, was the U.S. Supreme Court case that talked about and was originally

00:39:34.860 designed, and that's where F. Lee Bailey, speaking of the OJ Simpson case, made his career on, or the

00:39:41.040 first thing that catapulted him into it. That was originally designed to protect the defendant. And it

00:39:47.020 has been so perverted over the years into something that is virtually unrecognizable, where now we do not

00:39:54.440 televise. And one of the biggest mistakes I ever made in Scott Peterson, I've said it repeatedly,

00:39:59.600 is that I agreed with the prosecution not to have cameras in the courtroom. There should have been

00:40:04.560 cameras in the courtroom, because I would go home at night, and I would watch people reporting from

00:40:09.340 New York what was happening in San Mateo County, and it was unrecognizable to what had actually

00:40:16.480 happened in the courtroom. That's the same thing. Alan's kind of summary of what it is happening now

00:40:22.260 is the exact same thing. I can pick up or turn on one. I know instantly, by where the source of the

00:40:29.480 news is, what their spin on the case is. I can't get any kind of an accurate historical view of what

00:40:40.160 actually happened in the courtroom, unless you read the transcript. And even then, that doesn't tell you

00:40:45.300 what the, it doesn't give you the nuances. You know, the interesting thing. It's very frustrating.

00:40:49.720 I want to say one other thing. Let me, let me say one other thing. Jonathan Turley, who, you know,

00:40:53.580 is a legal contributor on Fox News, he was raising a point. I'm just following up on her Shakespeare

00:40:58.540 comment. So Shakespeare, also known as Steinglass, the ADA, got up in front of this jury and lied.

00:41:05.740 He lied repeatedly in that closing of his, and Turley did a great X thread on it. For example, saying

00:41:12.240 that Steinglass got up there and said, it is a fact that these were campaign violations,

00:41:20.140 that, that the federal law had been violated. Nothing from the judge reading here, quoting,

00:41:25.660 nothing from the judge and nothing from the defense. This jury has now been told dozens of times that

00:41:31.240 the payments were campaign violations. And the judge is letting that false claim stand

00:41:36.220 uncontradicted. He literally said that Trump lied in denying that these were campaign contributions

00:41:43.420 because they are, they were in fact, campaign finance violations. Judge Mershon is treating all

00:41:49.880 of this as argument. However, Steinglass is making a statement of law that is contradicted by a wide

00:41:56.580 variety of experts. Of course, we all know those experts were denied entry to this courtroom to

00:42:02.160 actually instruct on the law. And when judge Mershon took a shot at it, defining what the federal

00:42:08.080 election law actually does require, he whiffed and did not state the accurate description of how we

00:42:15.740 determine whether something falls within the campaign finance laws. It has nothing to do with

00:42:19.940 the defendant's subjective belief or desires in paying it. It has only to do with the nature of the

00:42:25.320 payment. Is this the kind of payment that can only ever be paid within the context of a campaign?

00:42:29.820 Polling, um, rallies, that kind of thing. Or is this the kind of the pay a payment that might be,

00:42:35.860 might be paid to advance a campaign, but also has made many times outside of the electoral context.

00:42:40.800 That's a hush money payment. That's this case. Go ahead, Alan.

00:42:44.460 No, uh, the prosecutor made a serious mistake, which will result in reversal of this conviction.

00:42:49.740 Uh, if there is a conviction, he said that it's a fact, if it's a fact, then you are allowed to have

00:42:56.440 expert witnesses to dispute that fact. The only basis on which you can't have an expert witness

00:43:01.760 is that it's the law, not a fact. But if the state concede, I would open my brief that way if I were

00:43:07.900 doing an appeal. The state has conceded that the issue of whether or not this was a campaign

00:43:14.260 contribution is a fact, yet the judge excluded a fact witness, uh, that over objection. That's

00:43:20.320 clearly reversible error. But, you know, they're so arrogant. They know that this is Trump and that 0.99

00:43:27.040 whatever the law is for other people, it doesn't apply to Donald Trump. But once you allow that to

00:43:32.420 happen, the next person it doesn't apply to could be you. And that's why this is so dangerous for all

00:43:38.340 Americans and why some decent civil libertarians who are Democrats or liberals are so upset about

00:43:45.460 this. And they're not following the path of, uh, professor tribe and others for whom the only

00:43:50.940 issue is, is it good or bad for the Republicans or the Democrats? You know, when I used to come back

00:43:56.480 from a baseball game, a Brooklyn Dodger game, I'd say to my old grandmother, who was a Polish

00:44:00.580 immigrant, grandma, the Dodgers won. And she would say, yeah, but was it good or bad for the Jews?

00:44:06.360 And that's the Lawrence Trump. Is it good or bad for the Democrats? If it's good for the Democrats,

00:44:12.260 it's the law. If it's bad for the Democrats, it's crazy. It's bizarre. And that's the language he uses.

00:44:18.340 He has totally, totally become a partisan when it comes to the law. And, you know, you must maintain

00:44:25.360 neutrality. And I hope Mark and I and you, Megan, are among the few that maintain a kind of neutrality

00:44:35.400 and objectivity without regard to the partisan implications. It's so important that those principles

00:44:41.540 remain intact. Yeah. All right. Well, I know you don't like to give a predictions, Alan, on what

00:44:46.660 a jury will do. You will predict what a judge will do and you have either a perfect record or almost

00:44:52.160 perfect record, but, um, okay. So on that note, I'll start with Mark, Mark, any predictions on what

00:44:59.880 this jury is likely to do, how it's likely to come out. I won't hold you to it because we all know

00:45:04.880 none of us knows anything on this front. I, um, the one thing I do know is that jurors in cases like

00:45:11.960 this generally will come back Friday afternoon after lunch. And if they don't come back Friday

00:45:18.380 afternoon after lunch, then the odds of a hung jury are much greater. You've got, as we sit here today,

00:45:25.940 you've got basically 55 hours for them to not deliberating the whole time, but until you get

00:45:33.480 to Friday after lunch, but Friday after lunch, three o'clock is just the bewitching hour. If they

00:45:39.220 don't, that's good. They don't convict by then. Then I think the odds of a hung jury increase

00:45:45.140 dramatically if they come back next week. You know, I was trying very hard to watch the jurors and I

00:45:51.820 couldn't get anything from them, except when Cohen admitted stealing $60,000, they raised their

00:45:58.220 eyebrows. I'm amazed the judge didn't hold them in contempt for raising their eyebrows. But, uh,

00:46:03.120 the one thing I did notice when they were walking in and they walked in a lot because the judge

00:46:06.940 kept throwing them out, um, they didn't seem to like each other. They didn't seem to have a camaraderie.

00:46:13.880 And that I think increases the possibility of a hung jury as well.

00:46:18.760 Hmm. Of course it could just be a New Yorker thing. As you know, in New York,

00:46:21.440 like you're considered a freak if you make eye contact with somebody else. So it's could just

00:46:24.760 be, though they've been together for six, seven weeks now. So you'd think, go ahead,

00:46:27.920 Mark. I'll give you a last word. I was just going to say that if I'm going to handicap this,

00:46:32.140 I'll get even more, uh, speculative. You've got two lawyers, uh, and you've got somebody who

00:46:39.200 consumes their news on truth social. No, it's not true. We looked up that claim. He, he just said

00:46:45.860 he sees everything. He reads everything. And he has seen some of Trump's truth social posts

00:46:53.180 on Twitter, on Twitter. It's not, it's not what some others are claiming.

00:46:58.020 I'm not so sure that that that's a guy that I would, uh, necessarily want. The two lawyers to me

00:47:04.080 are the wild card. I mean, big firm lawyers. Um, I, uh, if somebody is going to drive a

00:47:11.320 hum jury, that to me seems to be the most likely candidates. I know. I agree with that, except

00:47:17.620 you think a juror is going to want to go back to his or her law firm. I'm the one who made him

00:47:23.200 president. That's going to be a problem. Exactly. Right. Uh, the odds are much more likely that

00:47:28.900 one of those lawyers, it was very sympathetic when the draft opinion in Dobbs was leaked by someone

00:47:36.180 and who probably was going right on sister, whoever did it anyway, we'll never know me or maybe we

00:47:41.040 will, uh, maybe someday she'll take credit. I have a feeling it's a woman guys. You're great.

00:47:45.400 Thank you both so much for being here. Thank you. All right. And we will bring you the verdict

00:47:50.100 if, and when, as soon as it comes, uh, we'll have it all covered for you. See you next episode.

00:47:58.560 Thanks for listening to the Megan Kelly show. No BS, no agenda and no fear.

00:48:11.040 Thanks for listening.

00:48:16.040 Bye.

00:48:18.040 Bye.

00:48:20.100 Bye.

00:48:22.040 Bye.

00:48:24.040 Bye.

00:48:26.040 Bye.

00:48:28.040 Bye.

00:48:30.040 Bye.

00:48:32.040 Bye.

00:48:34.040 Bye.

00:48:36.040 Bye.

00:48:38.040 Bye.

The Megyn Kelly Show - May 30, 2024

Failures of Biased Judge in Sham Trump Trial, with Alan Dershowitz and Mark Geragos ｜ Ep. 805

Episode Stats

Summary

Transcript