Failures of Biased Judge in Sham Trump Trial, with Alan Dershowitz and Mark Geragos ｜ Ep. 805
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Summary
Alan Dershowitz and Mark Garagos join host Meghan kelly to discuss the missing witness instruction in the Trump trial, and why the defense should have objected to it. They also discuss the lack of evidence from key witnesses and the defense's failure to object to pro-prosecution instructions.
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. We're staying on the Trump
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trial today with two of our favorite legal experts, Alan Dershowitz, author of Get Trump,
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and of course, Professor Emeritus at Harvard Law, and Mark Garagos, host of the Reasonable Doubt
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podcast, was a long and very storied career as one of the most successful criminal defense
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attorneys in America. Professor Dershowitz, I shall start with you. Give me your quick take.
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The only thing worse than the jury instructions is the failure of the defense attorneys to object
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to them, which precludes raising many of them on appeal. These were horrible, very, very pro-prosecution
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instructions. Now, I haven't read every word of them. I'm taking my cue from the media. But if
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the judge hasn't given the missing witness instruction, it's outrageous. Here you have...
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Wait, can I... Let me interrupt you on that and say what Arthur Idala, your friend of mine,
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said in our last segment. He said the judge couldn't give the missing witness instruction because
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he had offered to let them bring in Weisselberg in a closed-door hearing,
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and both of them asked him questions to figure out whether, you know, they wanted him or not,
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and the defense declined. Well, then it's on the defense. It's on the defense. They should not have
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declined. Here, the crucial conversation that occurred is witnessed only by Weisselberg and by
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Cohen. And in order to convict, you have to believe Cohen. And you're entitled to argue that the failure
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of the prosecution to give immunity to Weisselberg and to call him as a witness should create an
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inference that it would have been unfavorable to the defense. I don't know how the defense
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can fail to focus on these two crucial meetings, the phone conversation and the conversation
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that took place in the hotel. Without those conversations, there is no... in any corroboration
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of the key point. Now, you know, there is corroboration of the fact that money was paid. And there is
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corroboration of the fact that these items were listed as legal expenses and, you know, retainers.
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But there's no evidence other than Cohen that Trump ordered it, directed it, knew it, other than the
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uncorroborated claims of Cohen. And that ought to be the central point in the defense. And so I don't
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know what happened in the closed sessions or anything at that time. But for the jury to deliberate
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without understanding that the key witnesses have not been called and have not testified leaves an
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enormous gap in this case. The other thing that should have been objected to, and I don't know if
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Mark has ever heard of this, the idea that the defense goes first is insane, is such a violation.
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Especially in this case. Huh? Especially in this case. I mean, like...
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Especially in this case. How do you defend yourself when you don't even know what the charges
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of the second crimes are? And it creates the impression that the defendant has a burden,
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either a burden of going forward or a burden of proof. So I think the New York procedure is clearly
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unconstitutional in violation of the Sixth and the Fifth Amendments. And I don't know, again,
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whether there was an objection to that. You know, lawyers often don't object to things that are
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routine, but things that are routine are often held unconstitutional. And so I'm very unhappy with
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the defense in this case. That doesn't mean they're going to lose. This is a New York jury. Who knows
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how it will go? They may win, but they won't win, I think, as a result of great lawyering.
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You should have had the camera on, Mark. While Alan and I were talking before we came on,
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Well, first, to Alan's point, which is interesting to me, the idea of the defense going first.
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Normally, what happens is the person who has the burden of proof, it's a criminal case,
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it's the prosecution of the government. If it's a civil case, it's the plaintiff. That's why they get
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to go last. If you don't have something to argue against, then in essence, you have waived your
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burden. And to my mind, that should be a directed verdict, even though that doesn't technically exist
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in a criminal case. I've had cases, I don't know if Alan's ever seen it, where prosecutors got up and
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said, I'm going to waive my closing statement. And my response to that is, that's fine, I'm going to
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get up, I'm going to give my closing, but you don't get to reply because you waived. So there is that
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issue there. To Alan's point, and I don't know, I didn't listen to Arthur, so Megan, you can correct
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me. I've been entirely frustrated in this case, because New York state criminal defense practitioners
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are loathe to criticize this judge. One of the reasons I have been, I think, transparent in saying
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that this guy is nothing more than a prosecutor in a robe is because I don't practice in the state.
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This judge, some of these decisions, which are being heralded on the left, I mean, if you turn
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on MSNBC at night, you would think that this judge is the second coming of some great judicial mind.
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He has, I just don't even understand half of what he's doing in this trial. I don't understand what
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he did with Costello, which to me is beyond outrageous that you would take one of the defenses
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only substantive witnesses and basically telegraph to the jury that you're not buying a single thing
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that he's selling, and then create this hubbub. The idea of finding the defendant summarily in
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contempt for statements that were not made in your presence, which I've done a fair amount of
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contempt cases and politically charged cases. I don't understand any of this. I don't understand
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him jamming the defense after the Southern District dumped the discovery upon the defense
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and only given him 30 days, and only because the prosecution conceded that they should get 30 days.
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I don't understand these evidentiary rulings where he's imposing or interposing his own objections.
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But I do understand, from a practical standpoint, why New York practitioners don't want to comment
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on him. But it's outrageous, frankly. But you know, the judge made one mistake. He allowed me to stay
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in the courtroom when he kicked out all the media and everybody else. And I stayed in the courtroom,
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and I saw the Robert De Niro moment where this judge looked like the psycho in Taxi Driver and turned to
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Costello and said to him, you talking to me? You talking to me? You looking at me? You raising your
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eyebrows at me? You're staring at me? I'm going to hold you in contempt. I'm going to strike your
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testimony. First of all, a judge has no power to strike the testimony of a witness unless the defendant
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did something wrong. If the witness did looked at him funny, you don't get to strike the defendant's
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key testimony. And then to have telegraphed it in front of the jury. The judge's real self came out
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when he threw the media out. You know, he's a benevolent despot when the media is there and when
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the jury is there. But when they're out and when only a few of us are back in the courtroom, the real
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judge Marchand comes out and the bias seeps through, just reeks through everything he's doing.
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Now, it's pretty amazing because the judge got so mad at Costello, he cleared the courtroom.
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He only let counsel stay. And Dersh was sitting in the front row and he let him stay. He got,
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I think, confused that Dersh was part of the defense team or something or just knew him as a
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storied lawyer and said, you can stay. He didn't kick you out. And before he knew it, you were on
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your show reporting about everything you'd seen and heard. Part of me wanted him to throw me out.
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I would have refused to leave. I would have said, Your Honor, the Sixth Amendment not only protects a
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defendant's right to a public trial, but it protects the public's right to see the trial. I'm the public.
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I'm not leaving unless you absolutely- That would have been amazing.
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Garagos, you'd be defending him. He'd be getting bailed out. You and I would be getting him out of
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chair. I would gladly defend him because Alan is absolutely right. The Sixth Amendment,
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you don't get to pick and choose when you want to show who you really are. And I am just,
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I'll say it again. I do not understand these rulings that he's making. I don't understand the
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evidentiary basis upon all of this. And frankly, I don't understand what's been reported as the
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jury instructions. It's the whole thing to me. Let me ask you a question about that. Okay. Let
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me ask you something, Garagos, on that. Because one of the controversial things among many the judge
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let in was the fact that Michael Cohen pleaded guilty to a federal election law violation. He's
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already going away on his taxi medallion scheme and his tax violations. And then the feds were like,
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oh, and also how about this federal election law violation? And by that point, Cohen was like,
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fine. Okay. I'll plead guilty to that too. And the judge allowed that in and he, wait,
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let me finish. And he also allowed in that David Pecker of AMI struck a cooperation agreement with
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the feds around the same federal election law alleged violations. Now he let the government
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bring that stuff out on their own witnesses. Normally that'd be like a Garagos or an Alan
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Dershowitz cross moment. Like you fleeted guilty to this bad thing, didn't you? But you wouldn't do
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that here because Trump doesn't want any of that in front of the jury because it makes it sound like
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they're all guilty of the thing they cooperated with Trump on. Go ahead, Mark.
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Well, then he, and he compounded it because they put forth a witness. If you look at what Trump keeps
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posting, he keeps posting. I had a witness. I wanted a witness to opine on these issues.
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And he excluded the witness. I don't, I mean, to me, um, there's been a lot of things,
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you know, I don't disagree with that one, that there's been a lot of waiver here,
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uh, inexplicably, but maybe, you know, I, I'm always hesitant to, uh, criticize the trial lawyer
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in the middle of the fray. But I will tell you that the idea that you allow in all of this stuff
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with the idea and then allow in closing, which happened yesterday to talk about federal election,
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federal election crime, federal election crime, but knowing at that point that you've excluded you,
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the judge has excluded their proffered witness who would have opined that there was no election
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Right. And the judge today, Alan, I'll give it to you one second, but the judge today, Alan said,
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he tried to fix it with a limiting instruction to the jury saying, I let all that stuff come in
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about Michael Cohen's guilty plea to federal election law violations and the cooperation agreement
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with David Pecker, not to prove that they, that they're actually guilty or that Trump's guilty of
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anything, but because it goes to their credibility, but it's like, okay, it was the prosecution's own
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witness. The prosecution brought it up. It was all used against Trump. And the, that bell had been
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rung. The jury had heard that two of the star witnesses had already basically pleaded guilty
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or admitted to the crime. Go ahead, Mark. And then I'll go to Alan.
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He let the prosecutor argue it. He excoriated for saying liberty. I mean, by the way, I haven't
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ever done a criminal or civil trial where I haven't talked to the jury about the difference between
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fighting over money and fighting over liberty. Since when is that verboten that you're going to
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get excoriated by a judge by saying, send somebody to jail. It's a colloquialism. You're not telling
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them that they're going to do the sentencing, which is, but the fact that he allowed the,
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the prosecutor to argue these things and to argue them, that's why he gave the limiting
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instruction. Cause he realized in my mind that that was reversible.
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They argued it a lot in closing yesterday. The prosecution did. It was outrageous. They
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Remember that Cohn not only pleaded guilty himself, but he basically said hearsay. Uh, and so Trump is
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guilty too. He's my co-conspirator and, uh, the federal government complicit with the state in
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this case, um, uh, compelled Cohen to make a kind of hearsay accusation of Trump that could then be
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used against a Trump. And that's why it was so imperative that the expert witness be allowed to
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testify. No, there, there was no violation of federal election law here. Uh, first of all,
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the idea that somehow voters would be defrauded because they all believe that Donald Trump was
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this virgin, this, this, this man who's never had any sexual misconduct in his life. And then the
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prosecution arguing essentially that he would never have been elected if the material about Stormy
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Daniels had come out. First of all, voters of New York, uh, voted against him. Overwhelming.
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Second of all, everybody knew that Trump was a player and whether or not it included
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Stormy Daniels is totally irrelevant. First of all, whether he had sex with Sam,
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Stormy Daniels is irrelevant, but it kept him off the witness stand, uh, because, uh, the only issue
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was whether or not she attempted to extort him and collect money from him and threatened him to expose
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it. Uh, that's the only relevant issue. Uh, there was another accusation by a doorman, uh, that maybe
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Trump had fathered, uh, a child. They paid him off too, even though it turns out that accusation was
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totally false. So it absolutely didn't matter. Here's what he said. Here's what the assistant
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district attorney Stein, Stein glass said about this in closing. Uh, he talks about how the access
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Hollywood tape broke that Trump decided he would call it locker room talk, which they said was
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Melania's suggestion. And then Stein glass argued the following. This is important because at the
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same time, this access Hollywood tape comes out, the defendant was attempting to muzzle a porn star
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stormy Daniels during the final month of the campaign. Stormy Daniels was a walking, talking reminder
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that the defendant's behavior, I guess, was not only words. She would have totally undermined his
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strategy for spinning away the access Hollywood tape. Meanwhile, Alan, the access Hollywood tape said
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when you're a celebrity, women will let you grab them by the P word and you can get away with it.
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It wasn't, it wasn't speaking to, you can have consensual sex with porn stars who come to your hotel
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room in the middle of the night while you're on the road. Like those actually aren't two of the same
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things. Um, I don't think this is actually true, but what do you make of his argument? She was a
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walking, talking reminder that he was not just about words. She would have totally undermined his
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strategy for spinning away the access Hollywood tape. And according to that theory, whether they
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actually had sex or not, um, you can threaten somebody with disclosure of a sexual relationship
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that didn't occur. And that's called extortion. And if it was done to avoid a lawsuit, then it's not
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extortion, but then it's a perfectly legal, legal expense. Uh, then he can't be charged with
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mislabeling it unless it's, if it's extortion, then she should have been prosecuted. If it's not
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extortion, then the money he paid is a perfectly legitimate legal expense, maybe even deductible,
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uh, from taxes. And I think they even argued that he had in his mind that two years from now,
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maybe he would deduct this from his taxes and that would be tax fraud. I mean, this, this,
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the, these combination of made up crimes that they don't have to prove beyond reasonable doubt,
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and they don't have to agree which ones is turned this into, uh, uh, such an injustice. How does the
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jury begin to deliberate? If you have three jurors saying, well, maybe he intended to impact the state
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election, three jurors saying, well, maybe he intended to cheat on his taxes, three jurors
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saying, well, maybe he wanted his wife not to know about it. And then you get a verdict that just says
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guilty. Uh, it's very hard to challenge that on appeal or in a motion after the trial. So, uh,
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you know, the judges is really invited the jury in this case to convict. And that's he's complicit.
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He's complicit. He is a prosecutor in a judge's robe, Mark. He's out there at every turn. As I said
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to somebody yesterday, trying to lead this jury right to the fountain of guilt, right? Like lead
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the horse to water. They're leading them right to the fountain of guilt. Like they're not going to have
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these instructions. What they're going to hear is Michael Cohen pleaded guilty to election law
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violations. David Pecker was accused of election law violations and entered into an agreement with,
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um, the prosecutors not to be prosecuted. Donald Trump is accused of that too, as one of the many
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underlying crimes. And we don't have to agree on which crime he committed. And by the way,
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we don't actually have to agree that he committed the crime, just that he intended to commit the crime
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and that if he intended to commit the crime, and then he intended to conceal it by documenting
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these. I mean, this is insane, but they're going to go in there and be like, well, the others pleaded
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guilty. I guess it was a crime. He covered it up done. Well, look, there's, there's two other things
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that I would be remiss if I didn't mention as well, that just drive me crazy about this trial.
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Number one, that the defense opened the door. And I hate that term, by the way, I've never talked to
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Alan about it, but my father, who was a former prosecutor, used to hate it as well and imbued it
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in me, opening the door as if the evidence code gets run over because you opened the door.
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Somehow they opened the door to the salacious details of this newly minted story by Stormy Daniels
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in the opening. At the same time, he's giving the jury instructions that you're not supposed to
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take as evidence anything the lawyers say. And so therefore, then he's going to allow the
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prosecution to run roughshod over violations of more prejudicial than probative, to be salacious,
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and to have her create this kind of fantasy land of what transpired. Then to tell the Susan Nicholas
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that she didn't object enough, and to say that is mind-boggling, and against the backdrop of Harvey
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Weinstein's conviction being reversed. And I got this from Alan because I was thinking it at the same
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time. How in the world do you read that opinion by the highest state court in New York and say to
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yourself, hey, now I'm going to do the exact same thing to Trump. I'm going to tell him if you get on
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the stand, all of this is fair game, right after the highest court in New York just told you that
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we're going to reverse, and we did reverse Harvey Weinstein's conviction on the very same grounds that
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it unnecessarily imperils your right to get up and testify.
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I get it. Very simple. Everybody knows there's a special law for Donald Trump. And the law,
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even Weinstein, and that was a great victory for Arthur Idala. I consulted on that case. I'm proud
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of my role in that case. I'm proud of contributing to the reversal in that case. And people attack me
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for it, but that's what it means to be a criminal defense lawyer, Mark, as you know very, very well.
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But it's only the kind of chutzpah that could come from saying to yourself, the New York Court of
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Appeals is not going to reverse a Trump conviction. We don't care what the facts are. We don't care what
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the lawyers. They're not going to have to go home to their family and their friends and say,
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we're the responsible for Trump being the next president of the United States. I know that from
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personal experience. People hold me responsible for Trump being possibly the next president because
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00:21:08.280
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00:22:00.340
So, Alan, you were saying that they're worried about blowback. All these jurors are real people
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who are going to have to worry about blowback. And the judges on the appellate court and on down the
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line, none of them wants to be kicked out of all their polite social circles for being the ones who
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saved Trump and not democracy. And the jurors' names will leak eventually, and jurors will have to
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do some splaining. And there's no explanation. The people on the hard, hard left, the hard progressives
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think of Donald Trump as Adolf Hitler, and they think of me as Himmler or Goebbels having helped
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him and facilitated him. They don't remember that I voted for Biden, that I'm a liberal Democrat.
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And there are a lot of, not enough, liberal Democrats and people who are nonpartisan who
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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
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to me, to my family, to my wife, to my children when I defended Trump on constitutional grounds and
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just multiply that by many times when you think of a juror having to justify or a judge having to
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justify why they allow Donald Trump to run for president and perhaps be the next president of
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the United States. That's the dynamic that's operating in this case. And unless you understand
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that, you can't comprehend why the prosecution did so many things it did, why the judge made the
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rulings he made, and why appellate courts may conceivably even affirm this disaster of a verdict
00:23:45.500
Meanwhile, Mark, when you hear the press describe what actually happened here, it's insane.
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What happened was he got threatened, he paid off this woman through his lawyer, and she went away
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until she decided she was going to tell her story anyway. That's what Trump did. And then he wrote down
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legal expenses in a book that no one saw, a book that no one saw. The book never left the shelf
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at Trump Tower. This is his big fraud that he committed. I pulled it up. We'll play it.
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I'll just play it off my phone and my team will fix it later. But listen to the New York Times in
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their daily podcast, it's called The Daily Today, describe Trump's evil crimes. Okay, just listen to this.
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It's the last time lawyers get to address the jury. And for the defense lawyers in particular,
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it's a day that comes with really serious stakes. Because this case has been really
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prosecution driven, right? They've charged Donald Trump with falsifying business records 34 times.
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And they've charged Trump with a conspiracy to suppress negative news about himself to aid his
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path to victory in the 2016 election. A conspiracy to suppress negative news about himself to aid in
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his election. Mark, I'd say you can't make it up, but they just did.
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Well, and by the way, you know, you described it as a book. What the evidence showed is it's just a
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drop down in the old QuickBooks where you hit it. It says legal expense. Somebody, you know,
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the old expression garbage in garbage out couldn't be better. The better description of what happened here.
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
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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
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
00:29:59.640
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
00:30:12.240
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
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.
00:34:36.160
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,
00:36:11.040
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.
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.
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,
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
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
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.