The Megyn Kelly Show - Flimsy Case Against Trump Heads to Jury After Outrageous Prosecution Tactics, with Arthur Aidala and Mark Eiglarsh

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00:00:31.200 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:00:43.220 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:46.680 Wow. Now we've seen the prosecution's case in full against Donald Trump

00:00:52.220 and it's even more outrageous than we knew.

00:00:54.880 There's a reason Alvin Bragg was playing cutesy with us on what this case was built upon

00:01:02.840 from the moment he indicted Donald Trump.

00:01:05.980 And we heard that reason for the first time during closing arguments in this case.

00:01:12.520 Donald Trump was not afforded due process in this case, not by a long shot.

00:01:17.300 They refused to tell the defendant who had to answer to criminal charges what they were charging him with.

00:01:24.980 We only found out hours ago after his defense attorney sat down and had no additional chance to address the jury.

00:01:35.600 This is an outrage. This is disgusting.

00:01:40.660 It was done with the cooperation and complicity of Judge Mershon,

00:01:45.520 who is supposedly an independent, fair-minded jurist.

00:01:49.740 It's a lie.

00:01:51.400 It's a lie.

00:01:52.460 No defense attorney in America would disagree that this was an unfair position to put any defendant in,

00:01:59.880 at least if they were being honest and not letting politics drive their analysis.

00:02:06.220 I'm going to get to exactly what's been done here.

00:02:09.140 The case is officially in the hands of the jury.

00:02:11.100 In the first criminal prosecution ever of a sitting U.S. president, ever, over this,

00:02:21.740 over whether he properly documented a payment to a woman claiming that they'd had an affair

00:02:28.120 and she wanted to tell the media in exchange for a nondisclosure agreement.

00:02:33.480 Those are the norms that we crossed, and that was just the beginning.

00:02:37.140 Twelve jurors have the case.

00:02:41.640 The additional 16 must—six, I should say, must sit around on standby in case one of the actual jurors gets sick

00:02:49.860 or cannot perform his or her duties as a juror.

00:02:54.020 The man who had been seated in the first jury seat was by default the foreman of this jury from the moment it was picked.

00:03:03.940 He is the foreperson and presumably will lead the deliberations, which began at 11.28 Eastern Time this morning.

00:03:13.000 Last night, closing arguments in this business records case dragged on and on as the prosecutor, Joshua Steinglass,

00:03:19.860 fell more and more in love with the sound of his own voice, delivering his summation for more than five hours.

00:03:26.700 Five hours.

00:03:27.380 Court wrapped up at 8 p.m.

00:03:30.500 Jurors returned to court this morning to receive the ever-elusive jury instructions,

00:03:35.860 which we've finally kind of been able to get a glimpse at.

00:03:40.580 Not yet publicly released, but those who heard the judge reading the instructions

00:03:46.320 were following along with those that had been submitted by the parties.

00:03:49.920 And in tweets, we're learning this is what the judge struck out.

00:03:55.100 This is what he allowed.

00:03:56.040 This is no way for the media or the public, which has to make a decision on whether to elect

00:04:01.440 Donald Trump or not, should have to follow along in this case.

00:04:06.480 But this is what we've been reduced to.

00:04:09.240 So we've tried to figure out the jury instructions in this first ever criminal prosecution of a former

00:04:14.660 president from tweets by those inside the courtroom.

00:04:19.200 And we, too, followed along on the proposed jury instructions.

00:04:22.740 But a lot of changes were made.

00:04:24.260 So that's a big warning in what we're going to go through in these next two hours.

00:04:28.640 I will show you and tell you where it is we think we're unsure.

00:04:33.980 And now we wait.

00:04:36.680 A verdict could come at any moment.

00:04:38.880 It could literally come within the hour.

00:04:40.440 They could go back, they could all agree, and they could come right back out.

00:04:45.140 Trump is on standby.

00:04:46.280 Yet another day, he will not be on the campaign trail because he has to sit there.

00:04:52.600 It's been weeks.

00:04:54.700 And it could be weeks, alternatively, until this jury reaches a verdict, if it ever does.

00:04:59.960 There's some speculation there might be one guy, one guy on the jury that's worrying people

00:05:06.700 who want to see Trump convicted, reports it's all tea leave reading.

00:05:11.400 I mean, honestly, put no stock in this.

00:05:12.920 But for whatever it's worth, reports that he was kind of smiling when Michael Cohen got

00:05:19.360 embarrassed on the witness stand, that he's making more eye contact with Trump defense

00:05:24.720 lawyers.

00:05:26.180 This is this could mean nothing.

00:05:28.440 But all Trump needs is one.

00:05:30.940 In order to reach a guilty verdict or not guilty verdict, the jury must be unanimous.

00:05:35.660 All 12 must agree.

00:05:37.240 But Trump only needs one for a hung jury, which is the same for him as a not guilty.

00:05:42.140 There's no time, nor will there be any realistic possibility of him getting retried if this jury

00:05:49.960 is hung.

00:05:50.480 Alvin Bragg, this has been a political play from the beginning.

00:05:53.620 He's not going to retry this case.

00:05:55.080 He doesn't actually think Trump violated the law.

00:05:57.920 The whole thing is an election play.

00:05:59.500 So if he gets a hung jury, there's no chance, realistically, of retrying him before Election

00:06:04.500 Day, and therefore it will go away.

00:06:06.000 It's exactly the same as a win, as a not guilty for Trump and his purposes.

00:06:11.120 There's a lot to go over today.

00:06:12.620 And I'm thrilled that we've got our Kelly's Court all-stars.

00:06:15.500 Martha.

00:06:16.240 Martha's here with us.

00:06:17.300 Arthur Idala, trial attorney and managing partner for Idala, Bertuna & Caymans, and host

00:06:21.540 of Arthur Idala, Power Hour.

00:06:23.580 And Mark Eiglarsh, criminal defense attorney for Eiglarsh Law, which you can find at speaktomark.com.

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00:07:01.900 Guys, welcome back.

00:07:03.280 Let's just start with a point I opened with.

00:07:05.160 This was Alvin Bragg right after he indicted Donald Trump.

00:07:10.580 He came out and said, I'm indicting him for falsification of business records.

00:07:16.220 People said that's a misdemeanor and the statute of limitations has expired.

00:07:20.380 How can you bring that?

00:07:21.220 He said, well, it becomes a felony with a longer statute of limitations if it was done,

00:07:26.780 the falsification, to cover up an underlying crime.

00:07:30.020 Then the press asked the question we all had on our minds.

00:07:33.540 What was the underlying crime?

00:07:35.240 What was he trying to cover up?

00:07:37.380 And here is that moment.

00:07:39.120 Thirty-four felony counts of falsifying business records in the first degree.

00:07:45.900 It is a felony to falsify business records with intent to defraud and an intent to conceal

00:07:52.640 another crime.

00:07:53.840 Thirty-four false statements made to cover up other crimes.

00:07:59.060 And they were done to conceal another crime, but the indictment does not necessarily say what those crimes were.

00:08:06.320 What laws were also supposed to say?

00:08:08.300 The indictment doesn't specify that because the law does not so require.

00:08:10.820 I don't have to tell you.

00:08:14.760 I don't have to tell you.

00:08:16.060 It wasn't until closing arguments yesterday when the prosecution got up second, because under New York law, unlike in most places, the defense has to go first and the prosecution goes second.

00:08:33.200 And after the defense attorney had already sat down, that's when we finally learned what the underlying crime was.

00:08:41.620 He got up there, and while he cast a wide net still, saying it could have been a tax violation, it could have been falsification of other records, like double falsifications.

00:08:52.860 But really, they're hanging their hats on the violation of federal election campaign law, campaign finance law, federal election law.

00:09:02.000 It's called FICA, F-E-C-A.

00:09:04.720 That's what the prosecution drove home.

00:09:07.240 That's the principal basis for this entire case.

00:09:09.600 He didn't want us to know because that's a federal statute.

00:09:14.740 And Alvin Bragg, this DA, doesn't have the jurisdiction to enforce federal election law.

00:09:21.260 The federal DOJ had already said there's no case here.

00:09:24.820 The Federal Election Commission had already said there is no case here.

00:09:28.440 Only Alvin Bragg resurrected this alleged violation as the underlying basis for this entire criminal case.

00:09:38.000 And I'll ask you, Mark Eiglarsh, what kind of a position that puts the defense in in a New York courtroom when they've already had to sit through the entire case without ever being told what the underlying offense is.

00:09:52.940 And only when they're no longer allowed to speak does Bragg lift the dress up for the first time.

00:10:00.840 It nauseates me.

00:10:02.180 And not because I'm a Trump lover, but I'm a lover of the criminal justice arena where like cases should be treated alike.

00:10:08.540 I have never heard in 32 years of litigating cases, not knowing what the theory of prosecution is until after we rest our closing arguments.

00:10:19.100 It's absolutely insane.

00:10:20.560 Now, that said, and I'll take some heat for this.

00:10:22.400 Anytime I ever try to keep it fair and balanced, I always get the ugly mail.

00:10:26.680 I don't blame the judge for this.

00:10:28.540 It sounded like you were blaming the judge and even the prosecution.

00:10:31.300 It sounds like the law is the problem.

00:10:34.480 The law in that jurisdiction, which allows them not to specify what specific crime, the to wit part, which we see all day long here in Florida and in federal court.

00:10:45.000 We know what exactly we're mitigating.

00:10:47.660 The law allows that to occur.

00:10:50.380 It doesn't matter.

00:10:51.120 I don't I don't give a shit what was written in the New York statute.

00:10:53.620 There's this thing called the U.S. Constitution that requires due process and the Constitution reigns supreme.

00:10:58.960 The Constitution requires that a defendant has due process and forward it to him before we throw him in jail, take away his liberty or convict him of a crime.

00:11:06.600 And there is zero chance any statute that allows the prosecutor to play hide the felony all the way through closing would ever be upheld.

00:11:16.760 Hold on.

00:11:17.660 I'm with you.

00:11:18.660 I told you I think it stinks.

00:11:20.720 But here's my question.

00:11:22.560 Did the judge do anything unlawful?

00:11:25.520 Did the prosecutors do anything that the law did not allow them to do by not revealing what specific crime it was?

00:11:33.940 Yeah, they did.

00:11:34.940 Because they're there.

00:11:35.760 As you know, their obligation is the pursuit of justice.

00:11:38.480 That's their obligation.

00:11:39.600 It's not to get a conviction.

00:11:40.860 And they did everything within their means to prevent Arthur, Donald Trump, from knowing exactly what he was defending against so that they could surprise him, so that they could keep him off balance and so that they could surprise when no one else could stand up on behalf of Donald Trump, say, this is a federal case.

00:11:59.040 We're here, we're wolves in sheep's clothing, we're actually the feds trying to enforce this completely amorphous, difficult to understand statute after we've already kept out, through all of our arguments, any federal election law expert from testifying so this jury or any of us could understand the fundamental foundation of the entire criminal case.

00:12:22.660 I can't wait to hear what Arthur has to say on this.

00:12:25.200 And Arthur, keep it, listen to what I said, okay?

00:12:28.520 It does suck, but is it unlawful?

00:12:30.660 Be quiet.

00:12:31.560 Go ahead, Arthur.

00:12:32.500 Here we go, Arthur.

00:12:34.160 Mark, I am going to, I'm going to rely on my supreme leader when it comes to the law, who last night, on a phone call with me, utter the same words that just came out of Megyn Kelly's mouth.

00:12:46.840 Who is this?

00:12:48.680 My father.

00:12:49.320 Who's your supreme leader?

00:12:51.020 My father.

00:12:51.560 Your dad, okay.

00:12:52.940 He was a lawyer in the Frank Hogan's, in the Manhattan DA's office in the 60s and the 70s, and has practiced there for decades.

00:13:00.460 Literally, he's been a lawyer over 60 years.

00:13:03.260 He said what you just, the exact words you just said, Megyn, that the job of any prosecutor is justice.

00:13:10.120 It's not just to obtain a conviction.

00:13:12.420 And Mark, I will tell you what is standard operating procedure here in New York, is there is a bill of articulars.

00:13:18.220 And for those people who don't know what that is, is after a defendant gets charged with a crime, you request a bill of particulars.

00:13:24.520 And what you're asking for is, what are the particulars?

00:13:27.220 What are you saying my client actually did?

00:13:29.580 They just give you the elements of the crime.

00:13:32.160 Tell me what my client actually did.

00:13:33.720 And Mark, they give those out like cotton candy in state court.

00:13:37.120 Our friends in federal court are like, oh, that never happens.

00:13:39.540 You're right.

00:13:39.960 In federal court, it doesn't happen.

00:13:41.520 But in New York state court, it happens all the time.

00:13:43.600 And I'm going to give you the example that everyone here is using.

00:13:46.400 It's burglary.

00:13:47.720 So burglary is basically a trespass with the intent to cause a crime therein.

00:13:52.600 And the people, the prosecutors don't have to prove the crime therein beyond a reasonable doubt.

00:13:59.000 However, they almost always tell you what the crime is therein.

00:14:03.220 They trespass to commit a law city to steal something.

00:14:06.780 They trespass to commit sexual assault inside the property.

00:14:10.600 They trespass to commit a physical assault.

00:14:13.600 Here, they did not do that.

00:14:15.160 And look, I don't want to say-

00:14:16.760 Do they have to?

00:14:17.720 Do they have to, Arthur?

00:14:20.180 No.

00:14:20.540 It sucks.

00:14:21.300 They should do it in the name of justice.

00:14:23.520 I agree with you, Megan.

00:14:24.820 I agree with you, Arthur.

00:14:26.180 I'd be livid as a defense attorney.

00:14:28.140 The question is, why didn't the defense lawyers seek a bill of particulars to find out what theory the prosecution's relied upon?

00:14:35.540 They did.

00:14:36.580 And in a very unlikely move or an unconventional move, judge said no.

00:14:42.200 By law, they don't have to do it.

00:14:44.160 So I'm not having them do it.

00:14:45.660 Supposed to, if I was the judge, I'd be saying, listen to me.

00:14:48.140 We've done it in every other case with some Tom, Dick, and Harry.

00:14:50.840 You got the President of the United States here.

00:14:53.140 A bill of particulars.

00:14:54.300 But Judge Rashawn did not do that.

00:14:56.360 Wait a second.

00:14:56.740 Why didn't the defense, let me ask you this, Mark.

00:14:59.620 Let me ask you this, Mark.

00:15:01.760 You're Todd Blanche, Trump's defense attorney.

00:15:05.700 You tried this whole case to the best of your abilities.

00:15:08.520 He made some mistakes, for sure.

00:15:10.280 But to the best of your ability.

00:15:12.580 Then it's time to do closings.

00:15:14.700 Yeah.

00:15:14.900 You're told you have to go first.

00:15:17.460 You're like, what am I arguing?

00:15:21.660 What's, like, can you say to the judge, judge, you got to make him go first.

00:15:28.260 I'm going to reserve my time for a rebuttal.

00:15:30.780 Like, what do you do to preserve the record for an appeal, right?

00:15:34.080 To start laying the foundation for him?

00:15:36.140 My client's been deprived of his due process rights.

00:15:38.100 There's a U.S. Constitution at play here.

00:15:39.760 I don't give a shit what the statute says.

00:15:41.460 This is wrong.

00:15:42.180 I've never seen a prosecutor do this to a defendant, and I'm not getting up there and

00:15:46.040 defending a case.

00:15:46.900 I have no idea, even on closings, what it's about.

00:15:50.440 Okay.

00:15:51.140 So you don't say all of that, but you say to the jury, look what they've done here.

00:15:55.840 Add to the list of things that they've done, like getting into the detail of Stormy Daniels

00:16:00.920 and all the things that they did throughout this trial, where it's win at all costs.

00:16:05.460 They're not here to seek the truth.

00:16:06.980 The worst thing is that I'm up here.

00:16:10.340 We've all been here for weeks.

00:16:12.040 We've been listening, and we don't know what this other crime is.

00:16:16.340 They're going to wait until after I sit down to get up here to tell you.

00:16:21.540 Objections to state.

00:16:22.700 I'm not saying that they have an obligation.

00:16:26.200 But folks, if they're really here to seek the truth, if they're here to, if this is really

00:16:30.800 about due process and the truth, they would have told us and not waited until I sat down.

00:16:35.860 It's because they don't feel comfortable with this case.

00:16:38.420 Put it out there, and I'd be able to tell you they didn't prove this case beyond a reasonable

00:16:42.100 doubt.

00:16:43.220 I like that.

00:16:44.260 Go ahead, Arthur.

00:16:45.480 Logistically speaking, the defense did know what the prosecution's theory is because there

00:16:51.380 was a charge conference last week.

00:16:53.600 And in that charge conference, they requested, and the judge gave, the three theories, either

00:16:59.520 violation of federal election campaign law, falsification of-

00:17:02.780 It's a spaghetti against the wall.

00:17:04.400 I have that.

00:17:05.080 I have that.

00:17:05.480 We're going to go through that in detail.

00:17:07.060 But that is a spaghetti against the wall approach.

00:17:08.980 It could be one of 20 felonies.

00:17:10.540 I was saying yesterday, you know, it could be New York law, could be federal law, could

00:17:13.580 be Murphy's law.

00:17:14.440 Have no idea.

00:17:15.340 We're just going to say, like, any possible law, like the, and by the way, he also ruled

00:17:21.460 that they don't have to find, the jury doesn't have to agree on which law was violated.

00:17:25.320 Three could think it was federal law.

00:17:27.060 Two could think it was New York state law.

00:17:28.820 The others could think it was, I don't know, Irish law.

00:17:31.260 I have no idea what they might think.

00:17:34.360 Fine.

00:17:34.840 So he had some knowledge he was keeping the wide net as of Thursday.

00:17:39.120 That's not good enough.

00:17:41.200 All right, let's go through the, what we understand to be the actual charge.

00:17:46.820 All right.

00:17:47.200 Cause that's, what's really interesting.

00:17:48.820 This is it.

00:17:49.380 This is what the verdict is going to come down to this and the verdict form.

00:17:54.560 Um, as the jury, as the audience knows, it's a business records case.

00:17:59.780 It's the principal charges that Trump falsified business records in the first degree.

00:18:05.420 Uh, again, all of this has my caveat that I said at the top, but this is what we

00:18:09.060 think the charge was.

00:18:10.200 We weren't in the room and I wasn't taking shorthand listening.

00:18:13.260 Uh, okay.

00:18:13.940 The first count, uh, pertains to, well, they have multiple pieces of business records.

00:18:21.200 They have the invoices from Michael Cohen.

00:18:23.760 They have the checks as written out by Trump and they have the internal Trump organization

00:18:30.480 business, uh, legal expenses record, but none of this was ever shown to anybody, by the

00:18:36.340 way, none of who was defrauded.

00:18:38.060 The Trump books were defrauded.

00:18:40.760 They never circulated these documents to anyone.

00:18:43.920 They sat on the shelf at Trump tower.

00:18:46.560 That's who was defrauded.

00:18:47.760 The Trump books.

00:18:48.720 We know that now with the case having closed.

00:18:51.320 Uh, okay.

00:18:53.080 Falsifies business records pertains to an invoice, for example, from Michael Cohen.

00:18:56.440 Um, okay.

00:19:00.120 Under our law, a person is guilty of falsifying business records in the first degree when with

00:19:04.900 intent to defraud that includes an intent to commit another crime or to aid or conceal

00:19:11.720 the commission thereof.

00:19:12.920 The person makes or causes a false entry in the business records of an enterprise.

00:19:17.200 So did you falsify a business record with intent, intent to, in this case, conceal the commission

00:19:28.660 of another crime?

00:19:30.800 Did you falsify the record and did you do it with intent?

00:19:34.420 Yeah.

00:19:34.640 And there's two parts.

00:19:35.600 And did you do it with the intent to either commit another crime or to conceal one?

00:19:39.660 Go ahead, Mark.

00:19:40.760 Okay.

00:19:41.560 To help people understand there's the misdemeanor and then there's the felony,

00:19:45.820 um, or not guilty.

00:19:47.900 So the misdemeanor, they, he had to have the requisite intent to falsify records.

00:19:54.720 Okay.

00:19:54.980 There's your misdemeanor, but then it had to be done with the intent to conceal or commit

00:20:01.760 this other crime.

00:20:03.400 So they can find that, well, it didn't get to that point.

00:20:06.460 He did it to hide it from his wife, or he did it because he has a brand and he doesn't

00:20:12.560 want it getting out there that he allegedly the story, even that he had this, this crazy

00:20:18.100 type of liaison with this porn star.

00:20:21.300 If they find that, then there's no felony.

00:20:24.300 The question is, did we get to the first part?

00:20:27.020 And that involves Cohen.

00:20:28.580 I think you have to believe Cohen to get to that part.

00:20:30.740 That, well, first of all, the, the, the defense spent more than half of its closing trying

00:20:35.960 to prove there was no falsification.

00:20:37.560 That is a big element.

00:20:39.200 What was a business record falsified by Donald Trump?

00:20:42.820 But of course the other piece of the charge is, or did he cause the falsification, which

00:20:48.180 is good enough?

00:20:49.920 And the intent though, you had to have the right.

00:20:51.880 Yes, but I'm, but I'm just saying like, it's not just that Michael Cohen submitted the

00:20:56.120 invoices there, you know, the, the prosecution's argument is yes, Michael Cohen submitted the

00:21:00.100 invoices that were incorrect, but Donald Trump told them to do it.

00:21:03.380 They sat down together, Cohen, Weisselberg, and Trump at a meeting preceding all of this.

00:21:08.160 They came up with a scheme.

00:21:09.320 That's their word by which Michael Cohen would falsify the reasons for which he was getting

00:21:15.300 these repayments, which were repayments and not payments for go forward legal services

00:21:20.080 as the Trump defense contended.

00:21:22.500 Arthur, did you want to say something?

00:21:23.380 Yeah, I mean, just don't leave out because this is really what hurts Trump the most,

00:21:29.240 in my opinion, is the acting in concert charge.

00:21:32.260 So in other words, the prosecution doesn't need to prove beyond reasonable doubt that

00:21:36.720 Donald Trump made out the checks, put them in the books, filed them away.

00:21:41.360 Yes, they have to act, they have to prove that he acted along with others.

00:21:45.480 So if Michael Cohen came up with the scheme and Weisselberg did, did the, did the books,

00:21:50.740 that's enough.

00:21:51.460 They don't need to prove that Donald Trump actually was the hands-on participant.

00:21:56.120 Okay, so they go on.

00:22:00.660 That's, so the falsification we've heard a lot of evidence on.

00:22:03.440 The defense attorney went through all of it yesterday.

00:22:06.980 It was a legal expense.

00:22:09.440 Yes, he wrote per a retainer.

00:22:12.480 There was a retainer to make Michael Cohen do legal services in 2017.

00:22:17.580 No, it wasn't written down.

00:22:19.100 It had never been written down in Michael Cohen's history as a lawyer for the Trump organization.

00:22:23.740 They never had a written retainer.

00:22:25.280 So it's not unusual.

00:22:26.400 They didn't, didn't have one in 2017.

00:22:28.180 And indeed, he did do some work.

00:22:30.040 That is a, that is a violation of the, the rules of ethics in the state of New York.

00:22:34.500 Anything over $3,500 has to have a written retainer just for the record.

00:22:39.440 Shocked.

00:22:39.840 Shocked.

00:22:39.880 These two violated the ethics.

00:22:41.000 I'm sure Trump knew that.

00:22:42.220 Come on.

00:22:42.900 He didn't know that.

00:22:43.620 No, but Michael Cohen.

00:22:45.240 Michael Cohen.

00:22:45.920 I mean, if I'm the defense attorney, I would have thrown him under the bus for that.

00:22:49.680 You know, I, I didn't read all.

00:22:50.880 That's the least of that guy's sins.

00:22:52.160 That's the least.

00:22:53.180 Okay.

00:22:53.360 But anyway.

00:22:54.060 I am on.

00:22:54.780 No, but the defense, the defense is that the defense didn't throw him under the bus on

00:22:59.540 that because there Cohen is saying there was no retainer.

00:23:03.860 It's a lie.

00:23:04.940 It's the defense that's saying, no, it wasn't a lie.

00:23:07.860 There was one.

00:23:08.440 It was just oral anyway.

00:23:09.720 Okay.

00:23:10.180 So Trump is claiming he did do some work for Trump in 2017 while Trump was president

00:23:15.600 minimal, but he did some, and it was a fee to keep him on retainer, you know, like, uh,

00:23:21.200 Arthur, you and I used to have this organization, this representation, you and Marianne represented

00:23:26.040 me on some stuff and I would pay you a certain amount every month.

00:23:29.200 You weren't necessarily doing a bunch of legal stuff for me every month.

00:23:32.740 I have this with it.

00:23:33.640 Like I, this is something people do.

00:23:35.180 You keep a lawyer on retainer.

00:23:36.640 I didn't violate attorney Clyde privilege right there.

00:23:39.340 Yeah, you did.

00:23:39.820 So I, I did it.

00:23:41.080 It's fine.

00:23:42.140 So that's Trump's argument.

00:23:44.440 The prosecution says it's BS.

00:23:47.300 Megan, Megan, I'll charge half.

00:23:48.660 Come on.

00:23:49.460 Okay.

00:23:50.300 He was, he was local Mark.

00:23:52.740 The prosecution says that's all BS.

00:23:56.040 Michael Cohen did negligible work for Trump and the organization.

00:23:59.380 It was like, he looked into like one copyright, you know, that he did not get paid 260,000,

00:24:05.580 the 130 times two for that BS, nor was it important to Trump to keep this, this lawyer on staff

00:24:13.700 just in case he needed him.

00:24:15.720 Trump is a cheapskate.

00:24:16.960 He wouldn't have paid those kinds of monies to Michael Cohen just to keep him on staff for

00:24:20.620 some random legal call.

00:24:21.820 Um, it's, it's a lie.

00:24:24.700 It was repayment.

00:24:25.980 And they show the notes from Alan Weisselberg and this, the Trump organization, CFO in his

00:24:31.460 handwriting, sketching out the math, like the one 30 plus the 50 to reimburse Cohen for this

00:24:36.480 payment.

00:24:36.780 He made to a polling firm, plus another piece of it.

00:24:39.780 And that added up to the 420,000 that was repaid to Cohen over the course of those months

00:24:43.840 with Trump's handwriting on the checks.

00:24:45.740 All right.

00:24:46.900 So that's falsification.

00:24:48.020 The jury's, Trump's got a shot on that.

00:24:50.320 He's got a shot on the falsification.

00:24:52.100 They may find they wrote down legal expenses.

00:24:54.460 They were paying a lawyer to reimburse him or not.

00:24:57.100 Those are legal expenses.

00:24:58.220 We're good.

00:24:58.980 And that would be the end of the case.

00:25:00.620 I like the idea, um, that Trump even said it himself.

00:25:05.020 If it was going to be fraudulent, I didn't want anybody looking at it.

00:25:08.100 I'd put down construction costs.

00:25:09.860 I put something that was so different that nobody would even know.

00:25:13.100 So, uh, legal is in the, is in the arena of acceptability, probably more than campaign

00:25:19.160 expense.

00:25:20.080 I find this not to be a campaign expense, you know, more of a legal than that.

00:25:26.020 Mark, since you brought up construction costs, the analogy I would have made to the jury is

00:25:31.220 we all know that Donald Trump is a developer.

00:25:33.360 You think when he has to write out a check for a hundred thousand or a million dollars to

00:25:38.340 the actual contractors who's putting up one of his skyscrapers, because now I'm getting

00:25:43.020 into his background a little bit to the jury, you think he breaks it, he breaks it down

00:25:47.560 item by item, a hundred thousand dollars for cement, a hundred thousand dollars for

00:25:52.420 bricks.

00:25:53.240 Or do you think he just puts down a million dollars construction expenses for one, two,

00:25:58.120 three main street, the same way he did with Michael Cohen.

00:26:01.080 He put it down.

00:26:02.320 This was the amount of money, legal expenses.

00:26:04.540 Michael Cohen handles it.

00:26:05.760 He's handling the money.

00:26:06.800 It's his money.

00:26:07.660 He wasn't trying to falsify anything.

00:26:09.800 I like that argument.

00:26:10.540 I'll go one step further.

00:26:12.220 I don't think when Donald Trump is spending money on construction costs, he's in the weeds

00:26:16.760 deciding how to label it.

00:26:18.520 I think the best argument here is fix it, Mr. Fixer.

00:26:22.200 You deal with it, Cohen.

00:26:23.640 And Cohen decides how to label it.

00:26:25.580 He has a guy with a lawyer degree who's supposed to put things down and do it legally.

00:26:30.760 The only way that you prove that Trump was in the weeds and he knew precisely with evil

00:26:35.780 intent that what he was putting was false was from Cohen.

00:26:38.980 How dare the president claim that this case is about Cohen.

00:26:41.860 That's where Trump not testifying in the minds of the jurors might hurt him.

00:26:48.160 Mark and I both tried cases and we didn't get the result we wanted.

00:26:51.400 And in the hallway, the jurors tell us afterwards, well, if your guy really didn't do it, why

00:26:55.060 didn't he tell us?

00:26:56.060 Well, he doesn't have to under the law.

00:26:57.520 Okay.

00:26:58.200 But in the world that we live in, we like to hear both sides of the story.

00:27:01.440 So if Trump didn't know, why didn't he take the stand and just tell us, look, I was

00:27:05.100 running, I was being the president of the United States or running for presidency.

00:27:08.720 I just said, deal with it.

00:27:10.420 And they dealt with it.

00:27:11.600 And I had no idea.

00:27:12.480 Okay.

00:27:13.720 What about Weisselberg?

00:27:15.360 Weisselberg is the key to all of this.

00:27:17.480 The Trump CFO, he's in Rikers.

00:27:19.260 We talked about this last time.

00:27:20.480 He's literally in jail right now for other alleged crimes, not having to do with this.

00:27:26.020 And the prosecution didn't call him.

00:27:28.380 The prosecution did not call him.

00:27:31.260 And so what would you have done with that, Mark?

00:27:34.600 Because I've heard people like Dershowitz has been saying they should have asked for

00:27:37.860 like an instruction to the jury that they could draw an adverse inference from this.

00:27:42.440 You can't do what you want to do.

00:27:44.400 How dare they not call him?

00:27:46.400 It shows that they're afraid of what he would say.

00:27:49.260 It would help exonerate my client.

00:27:50.640 You can't do that because you equally have access to subpoena power and you could have

00:27:55.540 brought him to court.

00:27:56.240 In fact, there's an instruction.

00:27:56.900 Or he would have just plead the he would plead the fifth if the defendant called him.

00:28:00.580 Only the state can immunize him.

00:28:04.200 Correct.

00:28:04.800 But you can't make the argument if you didn't try to subpoena him and call him.

00:28:09.500 You can't.

00:28:10.120 In New York, you absolutely can.

00:28:11.940 In New York, I don't have to prove anything to you, folks.

00:28:14.580 They have the burden of proof.

00:28:15.900 Where's Weisselberg?

00:28:16.720 I would have had a stand up cut up of him.

00:28:18.940 You know, folks, when we played the game as kid, where's Waldo?

00:28:21.420 Where's this guy?

00:28:22.480 They made it.

00:28:23.020 I think it's a number 35.

00:28:25.840 You don't have a Halliburton.

00:28:27.640 Where is he?

00:28:28.520 Where is he?

00:28:29.260 We are absolutely allowed to make an argument.

00:28:31.520 You can't do that.

00:28:32.720 You're not allowed to.

00:28:33.760 You can't.

00:28:34.500 Why didn't they call witnesses?

00:28:35.800 So we have that here.

00:28:36.680 If you can do it there, then absolutely that should have done.

00:28:38.960 So why didn't they do that?

00:28:40.820 Arthur, why didn't the defense get up there and say, where is he?

00:28:44.340 He's the crux of this whole thing.

00:28:46.200 Where's Keith Schiller, the bodyguard?

00:28:48.200 He's the one who was allegedly there who handed his phone to Trump so Cohen could say,

00:28:52.920 payment complete.

00:28:53.980 I took care of it to stormy, boss.

00:28:56.320 Where's Schiller?

00:28:57.300 Where's Weisselberg?

00:28:58.120 Mark, so it's just me and you and Mark talking right now, right?

00:29:01.860 Megan, I'm going to be honest about what's going to happen.

00:29:04.480 Yeah.

00:29:05.240 Yeah.

00:29:05.800 I go out of my way not to speak poorly of any other lawyers.

00:29:10.100 And by all accounts, Todd Blanche is a smart person who's a really nice guy.

00:29:14.140 I believe this is the first time he is giving a summation in a state trial.

00:29:19.320 He is trained as a federal lawyer.

00:29:22.760 And the federal court is much different.

00:29:24.700 It's much more dainty.

00:29:26.800 It's much more like having a pleasant parlor conversation with scones and tea.

00:29:31.080 Rowing into the state courthouse is rough and tumble stuff.

00:29:34.680 We say things in state court because the defense is allowed to put on a defense in state court.

00:29:39.720 Where it's federal court, you're not really allowed.

00:29:41.380 You're supposed to go in and plead guilty.

00:29:43.160 So I don't know why he didn't say it, but I'm going to be shoving it up their nose.

00:29:47.260 But they have the burden of proof.

00:29:49.720 They're the ones who are supposed to call Weisselberg.

00:29:52.380 They're the ones who are supposed to tell you what this piece of paper is.

00:29:55.320 They want you to take away someone's liberty by guessing what all these numbers mean,

00:30:00.180 as opposed to using their power to put them on the stand and have them explain to you what they mean.

00:30:05.600 And why didn't they?

00:30:06.680 Because they're afraid.

00:30:07.920 Because he doesn't fit their narrative.

00:30:10.040 That's why you didn't hear from him.

00:30:11.420 Yes, you'd say you don't think they went down to Rikers and had a talk with Alan Weisselberg to

00:30:17.980 figure out whether he had a story that would help them or called Keith Schiller, the bodyguard,

00:30:22.280 to figure out whether he would verify that he handed that phone to Trump.

00:30:26.080 You know they did that.

00:30:27.360 Of course they did that.

00:30:28.660 And they didn't get the answers they wanted, which is why those two guys didn't testify.

00:30:32.040 It all comes down to Cohen the gloat, right, as Todd Blanche called him in the closing.

00:30:39.280 And Megan, to take Arthur's brilliant argument, assuming, again, we could not make that argument

00:30:43.900 here in Florida, Halliburton is the case that says, no, if the witness is equally available to you

00:30:48.800 and you didn't call him, you can't make that argument.

00:30:50.740 But if you can make that in New York, then you then take it home and say reasonable doubt

00:30:54.760 can be found from the evidence itself, the lack of evidence or the conflicts in evidence.

00:31:00.200 And the fact that they didn't call him is a lack of evidence.

00:31:06.380 You need to hear from him.

00:31:07.700 What if he was waiting right here at the door and he was willing to come in?

00:31:11.020 Would you want to hear from him?

00:31:12.560 That's reasonable doubt.

00:31:13.760 If you say, no, we've got this wrapped up.

00:31:15.860 Cohen was so solid, like a busload of nuns testifying.

00:31:19.280 He's so credible.

00:31:20.280 We don't need anybody else.

00:31:21.960 We're good.

00:31:22.920 That's not how you feel, folks.

00:31:24.420 That's reasonable doubt.

00:31:25.620 That's not guilt.

00:31:26.380 All right.

00:31:27.000 The next piece of it.

00:31:28.220 Let me just add,

00:31:29.600 because I know Professor Dershowitz has been saying about talking a lot about a missing

00:31:33.220 witness charge and it was not given.

00:31:35.100 But apparently the reason why it was not given was the judge a week ago or so gave the defense

00:31:41.480 an opportunity to talk to, to bring Weisselberg in and have a hearing outside of the presence

00:31:49.480 of the jury and see if he was going to take the fifth, see if they were going to give him

00:31:54.180 immunity.

00:31:54.660 And I believe the defense passed up on the opportunity to do so.

00:31:59.160 Therefore, they lose their ability to get a very powerful missing witness charge.

00:32:05.040 Do they lose their ability to argue in closing the way Mark just outlined?

00:32:08.580 No.

00:32:08.880 They don't lose their ability to argue it, but they lose their ability to get that charge,

00:32:12.760 which is a big deal coming out of the judge's mouth, saying the fact that he wasn't here,

00:32:16.660 you can hold that against the prosecutor.

00:32:18.280 OK, all right.

00:32:20.260 Stand by, because the next item up is intent to defraud.

00:32:23.240 And now we're really going to get into it because we'll talk about how they prove that.

00:32:27.080 And we'll talk about these absurd underlying surprise felonies that he's, I guess, being

00:32:33.560 charged with.

00:32:34.440 So says the prosecution as of yesterday.

00:32:36.620 More with Martha right after this quick break.

00:32:38.660 Assuming the jury gets passed.

00:32:44.780 Yes, some records were falsified, either the Michael Cohen invoices, the Trump internal

00:32:50.980 drop down menu of legal expenses or the checks themselves that Trump's signed were falsified.

00:32:58.740 Then they've got to figure out whether Trump had the intent to commit or the intent to defraud.

00:33:07.360 And here's in part how the instructions read.

00:33:10.460 In order to prove an intent to defraud, the people need not prove that the defendant acted

00:33:17.940 with the intent to defraud any particular person or entity.

00:33:22.300 A general intent to defraud any person or entity suffices.

00:33:29.140 Now, this is interesting.

00:33:30.820 The prosecution wanted the inclusion of a general intent to defraud any person or entity,

00:33:37.280 including the government or the voting public suffices, which is just ridiculous.

00:33:45.600 If that's the law and we're still, frankly, in this boat, but it would have been even more

00:33:50.120 explicit than any politician who tries to cover up any bad news about themselves has violated

00:33:56.740 the law, right?

00:33:57.560 Like there's some obligation to let the public see your dirty laundry.

00:34:02.400 I mean, that's really that's what the prosecution is arguing with or without this clause

00:34:07.120 being included.

00:34:08.460 OK, but anyway, the way it was charged was a general intent to defraud any person or entity

00:34:13.120 suffices.

00:34:14.100 Now, here's the and then they go on to say intent to defraud is also not constricted to

00:34:19.880 an intent to deprive another of property or money.

00:34:23.380 In fact, intent to defraud can extend beyond economic concerns.

00:34:28.460 Now, here's what's interesting to me on this.

00:34:30.260 If you've been following Andy McCarthy's writings over the past year, we've been he's been talking

00:34:36.720 a lot about this, writing a lot about this, saying the Supreme Court last summer issued

00:34:43.060 a pair of rulings in connection with a couple of losers connected with Governor Andrew Cuomo

00:34:47.560 in New York.

00:34:49.100 And the ruling said it is not sufficient to prove a general intent to defraud for all fraud

00:35:00.240 claims and that if if it's specific to a person.

00:35:04.840 No, let me restate it.

00:35:06.740 If you're stating a mere general intent to defraud, then you do need to show that it's

00:35:12.380 about money or economics.

00:35:14.480 If that's your fraud theory, a general intent to defraud, it actually must be about money,

00:35:21.240 a financial matter.

00:35:22.300 In order for us to recognize it, they don't like when Congress uses the fraud laws to try

00:35:28.900 of like broad net, wide net, just general bad behavior, especially by politicians around

00:35:37.700 elections.

00:35:38.940 They don't they don't want Congress doing that.

00:35:41.760 So I don't think this instruction is going to be upheld.

00:35:46.840 And it doesn't look to me like the defense objected to it.

00:35:52.240 I don't think they objected to it, which is a fucking nightmare.

00:35:56.860 Sorry.

00:35:57.140 Um, but I think I'm sorry.

00:36:01.620 Oh, God, forgive me, Mrs.

00:36:02.840 Idala.

00:36:03.440 We already said all those nice things about your husband.

00:36:05.980 Um, I think this is a misstatement of the law and what needs to be proven, but I'll keep

00:36:13.020 going.

00:36:13.620 All right.

00:36:14.740 Um, so you've got to, according to this judge, have a general intent to defraud anyone.

00:36:22.660 I just feel like I'll be a defrauder today is good enough.

00:36:26.520 And then they go on to say, uh, the intent to defraud here must include an intent to commit

00:36:33.920 another crime or to aid or conceal the commission of another crime.

00:36:41.140 Now we're back to that initial language that we kicked it off with.

00:36:43.880 Why was he lying on the business records?

00:36:45.880 If you find he was lying, he, he, you have a prosecution must prove he was doing it because

00:36:50.160 he was concealing another crime or he was in the process of committing another crime.

00:36:56.740 And it seems to me they're using the conceal more than anything else.

00:37:01.180 And, um, they go on to say under our law, although the people must prove an intent to commit this

00:37:05.900 other crime or to conceal one, they need not prove that the other crime was in fact committed,

00:37:11.860 aided or concealed.

00:37:13.460 In other words, you just have to prove that he intended to, he intended to do it.

00:37:19.720 Okay.

00:37:20.500 So that gets us to, so I think, do you guys have any thoughts on whether they've correctly

00:37:27.660 stated intent to defraud and what needs to be proven?

00:37:30.620 Go ahead, Mark.

00:37:31.240 Here are my thoughts.

00:37:32.300 There's a couple of parts before we hold him responsible for that.

00:37:36.220 First, his position is I'm running the country, man.

00:37:40.900 I'm doing my thing.

00:37:42.400 I'm not in the weeds deciding how things should be carried out.

00:37:46.460 So the first thing is they have to believe that he was in on the specifics of what was

00:37:53.360 done.

00:37:54.000 That's the first thing.

00:37:54.660 That's just knowledge.

00:37:55.860 And I don't know that they've proven that beyond a reasonable doubt or refuted.

00:37:59.080 Let me just, let me just talk.

00:38:00.080 Let me address that, Mark.

00:38:01.040 Let me just tell you what the evidence is.

00:38:03.600 I got the second point.

00:38:04.860 Yeah.

00:38:05.020 Let's do one by one.

00:38:06.120 So when the prosecutor is relying on that, his testimony from his secretary, I believe,

00:38:12.360 I think both the White House secretary and the Trump Tower secretary saying that when

00:38:17.840 he had to buy a present or the secretary had to buy a present from Tiffany's, they got

00:38:22.400 to get approval for spending $650 on a picture frame.

00:38:26.760 And is that enough or not enough?

00:38:28.340 That's what they're relying upon to show how deep in the weeds he was when it came to money.

00:38:33.540 Got it.

00:38:34.000 So the second question is, and that's helpful, but that doesn't necessarily get everybody

00:38:39.560 where they need to be.

00:38:40.740 The second question is, okay, how specifically are we going to list this payment?

00:38:47.640 Right?

00:38:47.820 And listen, I've been practicing for 32 years.

00:38:50.040 I'm still not sure what the proper thing to put down.

00:38:53.540 I'd refer somebody to another lawyer.

00:38:55.720 I don't know.

00:38:56.580 And Cohen was the only one he had doing this.

00:38:59.540 So when Cohen says, all right, well, we'll label it as a legal fee.

00:39:03.760 The question now becomes, does Donald Trump know that labeling it a legal fee is nefarious?

00:39:11.340 Meaning it's fraudulent.

00:39:12.840 That's right.

00:39:13.360 I don't know that.

00:39:15.480 That's the question.

00:39:16.540 That is the question right there.

00:39:18.140 There's been no proof of that, Mark, that the prosecution has in evidence, Michael Cohen

00:39:26.260 saying there was a meeting, as I mentioned, between Trump, Weisselberg and Cohen, where

00:39:30.980 they said, all right, we're going to pay her off and you just submit it to us as legal

00:39:35.740 expenses.

00:39:36.860 And so Trump gave the order, he gave the order.

00:39:40.180 And then the minions ran off and obeyed Weisselberg, Weisselberg's underlings and Cohen, and that

00:39:49.060 that's sufficient.

00:39:49.980 But what they did not have Cohen testify to was that Trump did that because he understood

00:39:57.580 if he had properly documented it, reimbursement to lawyer for hush money payment, it would

00:40:05.780 have been a violation of the federal elections law.

00:40:08.500 They missed that piece entirely, Arthur.

00:40:13.040 Also, the whole purpose of a non-disclosure agreement is that it doesn't get disclosed.

00:40:18.800 So you don't really write everywhere, oh yeah, I'm paying all this money so that this person

00:40:23.200 doesn't tell that person that I did X, Y, or Z.

00:40:25.620 So the fact that it's somewhat like covered up through a shell company or whatever, I

00:40:30.280 mean, that's not crazy.

00:40:32.240 The whole purpose of all of this is to not let anybody know what's going on.

00:40:37.520 Also, the fact that Trump signed the checks, that they definitely proved beyond a reasonable

00:40:42.680 doubt.

00:40:43.160 I mean, they got into how the checks got there, who signed them, when they were signed, etc.

00:40:46.800 But how the secretary then goes into the drop-down menu and where she puts those things, nobody

00:40:54.220 testified.

00:40:55.320 22 witnesses.

00:40:56.820 No one said, oh yeah, and Trump told me, put it in under legal expenses, as opposed to

00:41:01.060 what?

00:41:01.720 I guess it's supposed to be reimbursement to Michael Cohen for the money, as opposed to just

00:41:10.180 paying Michael Cohen's retainer agreement.

00:41:12.160 But even that just goes to falsification.

00:41:15.580 That goes to falsification.

00:41:16.580 Like, how do we prove what was in Trump's head?

00:41:18.560 And he knew, oh shit, this is going to be a federal election law violation.

00:41:22.060 I better mark it down as a retainer and a reimbursement of legal expenses.

00:41:26.160 There was no testimony or evidence at all putting thoughts, anything like that, in Trump's head,

00:41:33.320 Mark.

00:41:33.480 Yeah, what Arthur just said so eloquently is what I would spend most of my closing on,

00:41:38.920 because you don't get to part two, you don't get to anything else unless that is proven.

00:41:43.160 So I kept saying to anchors, I'm waiting for the big video or the audio, or in Trump's words,

00:41:52.120 him saying to Cohen, listen, I know we should list it under something else, but just put it

00:41:57.740 under legal fees.

00:41:59.060 There was none of that.

00:42:00.180 That, to me, is the missing link that gets you to proof beyond a reasonable doubt.

00:42:05.780 Otherwise, in the best case scenario, prosecutors get to, oh, he probably knew, maybe he knew.

00:42:12.920 And then you say, folks, that's not enough.

00:42:14.840 You come back and you say loud and proud, not guilty, because they didn't prove it.

00:42:19.160 Here's the one piece of evidence they did have on Trump and the federal election law

00:42:25.120 was an alleged discussion that Cohen testified to that happened in 2018 when this story broke

00:42:34.440 and Cohen got arrested for a bunch of stuff and they tacked on this charge.

00:42:38.640 But at that point, it came up, was this a violation of federal election laws?

00:42:44.320 And at that point, Cohen says, Trump says something like, don't worry, you know, I've got, like,

00:42:52.140 you don't have to worry about it.

00:42:53.060 Like, the attorney general is going to take care of it for me.

00:42:55.580 It wasn't, I think, if my memory serves correctly, it wasn't until that became a national news story

00:43:01.420 with Cohen and Weisselberger and with Pecker that Trump was like, don't worry, we're not,

00:43:06.480 that's not going to be a problem for us.

00:43:07.760 But there's been zero testimony that Trump said this at the time they came up with the alleged

00:43:15.940 scheme.

00:43:17.060 Is that your understanding, too, Arthur?

00:43:18.540 You've been following it closely.

00:43:20.180 Yes, that's why they needed five hours to sum up yesterday, because they're trying to connect

00:43:25.120 all these dots.

00:43:26.620 They're trying to put all these pieces of the puzzle together.

00:43:28.980 And as much as they want to run away from Michael Cohen, it's only assumptions and presumptions

00:43:34.340 that you have to garner from Michael Cohen's testimony to cross over the bridge to get

00:43:39.680 to where the prosecution wants you to get.

00:43:41.700 Because of what Mark just said and what you just said, there was no, like, holy cow moment.

00:43:46.560 Like, Trump said, make sure you hide this or make sure no one knows about this.

00:43:50.220 It doesn't happen.

00:43:51.440 He just says, Michael Cohen, the worst thing he says is, you take care of it.

00:43:55.540 If I had a dollar for every client who told me, Arthur, I'm paying you, you take care of

00:44:00.000 it, I wouldn't have to be here right now when you're paying mortgages.

00:44:03.140 So, but here, look, I hate to like, you know, we're all here basically on the same page,

00:44:08.020 but Megan, we're in Manhattan.

00:44:10.520 I've been at that courthouse.

00:44:11.980 I've been in that courtroom.

00:44:13.800 This case, and I hate to say this because I love the system, it is going to fall on political

00:44:19.020 lines.

00:44:19.640 I really believe that.

00:44:20.600 I hate to say it.

00:44:21.400 I agree with you.

00:44:22.280 But the Biden people are going to find, say he's guilty.

00:44:25.640 If there's one or two Trump people in there, they're going to say he's not guilty.

00:44:30.560 And then there may, I mean, it's just like the election.

00:44:32.160 And then there may be one or two undecided folks in there, and it's going to be a battle

00:44:36.620 of the wills.

00:44:38.100 And, you know, again, I do not rule out some sort of a compromise verdict, even though it

00:44:43.020 may be a repugnant verdict, but it doesn't make sense.

00:44:46.200 I can see him say, look, he definitely proved he signed those checks.

00:44:50.100 So that's 12 counts.

00:44:51.600 Let's all agree we can find him guilty of that.

00:44:53.780 And let's throw the other, whatever it is, 22 things or 20, yeah, 22 things out the window.

00:44:59.120 I will just be hung on them or leave it alone after the judge.

00:45:02.740 See, I don't think so.

00:45:03.560 I think a compromise verdict is the least likely.

00:45:05.560 I think there is a chance that there's a Trump supporter on that jury.

00:45:08.960 How he got on, I know not.

00:45:11.500 OK, but there's a chance there's one.

00:45:14.880 And if it's a true Trump supporter, there is zero chance that he will vote to convict

00:45:21.100 on anything.

00:45:22.080 It will be a hung jury, 100 percent.

00:45:23.940 Or she, but I know I'm going off of like these reports that there's one guy who's, you know,

00:45:29.120 was amused when Cohen got tripped up.

00:45:30.940 Who knows?

00:45:31.440 We've all tried to make these predictions looking at juries and been wrong.

00:45:35.280 So wrong.

00:45:36.220 So many times.

00:45:36.900 This is like we're not complete.

00:45:38.380 We're not in the core science.

00:45:40.000 And we don't we don't know.

00:45:41.320 But here's what we do know.

00:45:42.240 And I agree with Arthur.

00:45:43.480 You know, the NBA finals are happening now.

00:45:45.780 So I'm big into basketball.

00:45:46.820 Whether it's a charge as the guy's going towards the rim or whether it's a blocking foul hinges

00:45:53.600 upon what team you're supporting, the same exact activity can be perceived so passionately

00:46:00.060 differently based upon what team you're on.

00:46:03.720 And I think that's the same that goes with how you look at this evidence.

00:46:06.200 When prosecutors say, use your common sense, what they're saying is we don't have the evidence

00:46:12.200 through Cohen, but just imagine, use your common sense.

00:46:14.740 You don't think this guy knew that what Cohen was up to was nefarious.

00:46:18.600 Of course, he did.

00:46:20.920 All right.

00:46:21.160 So just finishing up on this piece of the intent, the jury's got to ask itself, was the intent

00:46:26.920 of the Cohen invoices, which said retainer legal expenses or the Trump organization's

00:46:35.140 drop down menu selection of legal expenses or the Trump checks?

00:46:39.380 The checks themselves didn't say anything of substance, but the stubs said retainer.

00:46:43.420 Was the intent of those documents to conceal another crime, another possible crime.

00:46:53.240 And then the judge looked at the jury and said, you'd have to figure out what crime that was.

00:47:00.140 This is the hide the felony piece of Alvin Bragg's case.

00:47:03.360 There are three possibilities that were fed to the jury today.

00:47:07.540 But in closing, only one was hit over and over by the prosecutor.

00:47:13.700 One, federal election law violations, meaning this was a campaign contribution by Michael

00:47:21.260 Cohen to Donald Trump.

00:47:23.640 Under the law, you can only make campaign donations of $2,700 as an individual.

00:47:28.940 This was one hundred and thirty thousand dollars.

00:47:32.200 Therefore, it was a violation.

00:47:34.120 That's why it wasn't disclosed and so on.

00:47:36.680 That's number one.

00:47:37.800 Number two is a tax law violation.

00:47:41.980 And number three is falsification of other records.

00:47:47.920 This is new to me.

00:47:48.920 I hadn't even seen this one coming.

00:47:50.360 But the DA did spend some time, ADA yesterday, speaking to it, saying Michael Cohen had to set

00:47:58.520 up this shell corporation through which the bills were going to be paid.

00:48:04.320 And Michael Cohen had to do some other preliminary financial setup stuff to make sure the payment

00:48:10.520 got from him to Keith Davidson, Stormy's lawyer, and then to be whatever.

00:48:16.540 And that's like the underlying falsification of business records that the big whopper of the

00:48:23.080 falsification was meant to cover.

00:48:25.340 This is all brand new.

00:48:26.300 Good luck to the defense.

00:48:27.560 Brand new for you.

00:48:28.700 It's too late for you to speak to it.

00:48:31.440 But the federal election law violations are the big magilla.

00:48:35.460 It's, again, a bait and switch because Alvin Bragg has no jurisdiction to enforce the

00:48:40.780 federal election laws.

00:48:41.960 This is the way he's sneaking it into this case.

00:48:44.140 And we're going to do it.

00:48:44.960 And I'm going to take a break because that's a longer discussion.

00:48:48.000 When we come back, we'll pick it up with what the judge told the jury when it comes

00:48:52.080 to federal election law.

00:48:53.760 Martha stands by.

00:48:55.340 I'm Megyn Kelly, host of The Megyn Kelly Show on Sirius XM.

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00:49:52.960 I would say, in listening to the charges from the judges, as you know, very conflicted and

00:50:05.640 corrupt because of the confliction, very, very corrupt.

00:50:10.960 Mother Teresa could not beat these charges.

00:50:14.100 These charges are rigged.

00:50:15.560 The whole thing is rigged.

00:50:17.780 The whole country's a mess between the borders and fake elections.

00:50:22.020 And you have a trial like this where the judge is so conflicted he can't breathe.

00:50:28.520 He's got to do his job.

00:50:30.800 And it's not for me that I can tell you.

00:50:33.280 It's a disgrace.

00:50:34.560 And I mean that Mother Teresa could not beat those charges.

00:50:37.300 But we'll see.

00:50:38.360 We'll see how we do.

00:50:39.740 Mother Teresa could not beat these charges.

00:50:42.760 That was President Trump this morning after the jury went in to deliberate.

00:50:48.020 Joining me again, Arthur Idala, trial attorney, managing partner for Idala, Bertuna, and Caymans,

00:50:52.480 PC, and Mark Eiglarsh, criminal defense attorney at Eiglarsh Law.

00:50:56.540 So just to wind back to the one point of doubt that we all had or I had, and Arthur, you said

00:51:03.260 I was right with what I was saying.

00:51:05.840 I was right.

00:51:06.540 And you were right, too.

00:51:07.260 So the issue of whether this could potentially have been a federal election law violation,

00:51:15.880 this payment to Stormy, did not come up, at least according to any of the witnesses who took the stand in this trial,

00:51:21.980 until 2018.

00:51:23.960 And here was the testimony on it.

00:51:25.680 When trial began, David Pecker testified that Michael Cohen told him not to worry about the FEC probe into the payments that AMI had made to Karen McDougal and the doorman.

00:51:39.300 There was an FEC complaint once this story hit the news.

00:51:42.140 And some well-meaning citizen, I'm sure it was a Trump lover, filed a complaint with the FEC saying, hey, they violated something.

00:51:48.480 So the FEC did look into it, and apparently Pecker was a little worried and talked to Cohen, and Cohen said, don't worry about this,

00:51:55.500 because he, Cohen, according to Pecker, said Trump has AG Jeff Sessions quote in his pocket.

00:52:02.040 When Cohen took the stand, he confirmed that he told David Pecker Jeff Sessions would take care of this.

00:52:09.320 The question prior to saying that, had you been told that by President Trump?

00:52:12.720 Yes, ma'am.

00:52:13.340 And then he went on to say that, at first, David Pecker was very concerned about this, and so I told him I would assist.

00:52:23.820 And I ultimately told him, after conversations with the president, don't worry, we have it under control.

00:52:28.700 It'll be taken care of.

00:52:29.580 What did you tell him?

00:52:30.460 I told him the matter was going to be taken care of, and the person, of course, who was going to be able to do it was Jeff Sessions.

00:52:35.620 So this is not even Michael Cohen claims that the conversation with Trump happened at the time they were ginning up their scheme,

00:52:45.640 which doesn't prove, that doesn't help him in the effort to prove that Trump had the intent to defraud when he said,

00:52:54.320 let's document the books, let's falsify the books so we can cover this up,

00:52:58.420 because we're trying to cover an underlying federal election law crime.

00:53:02.160 It doesn't work. It has to be in Trump's head at the moment of the alleged scheme being concocted.

00:53:08.700 And none of us think that they've proven that intent was there.

00:53:13.500 You know, I saw on CNN the other day, they had a debate about whether it's even been proven beyond a reasonable doubt

00:53:19.680 that Trump knew anything about it, that he knew, forget getting to intent and what was in his head when he was concocting the scheme.

00:53:26.620 What is the proof that he knew anything about it other than Cohen's word?

00:53:34.540 Look at this. I mean, it's pretty extraordinary to see.

00:53:36.720 For the record, it's a black woman defense attorney talking to Jake Tapper.

00:53:41.000 That's exactly Biden's demo, by the way.

00:53:43.540 Black women voting for Trump, for Biden, almost overwhelmingly in all the polls.

00:53:47.120 But she's here talking to Jake Tapper, who I must say has gotten a little bit more fair since he got appointed as the first debate moderator.

00:53:54.840 I like Jake, but boy, oh boy, if I watch him today, you'd think he was straight down the middle.

00:53:59.000 OK, anyway, listen to their exchange.

00:54:01.880 I don't know that they have proved, beyond a reasonable doubt, that Donald, that even if you believe the prosecution's theory of the case,

00:54:11.220 that Michael Cohen was doing this and Allen Weisselberg was doing that and McConaughey was doing this and all these people were doing all this stuff,

00:54:16.360 I don't know that they've proven that Donald Trump knew.

00:54:19.200 They have not.

00:54:19.920 Yeah.

00:54:20.280 They absolutely have not.

00:54:21.280 And I think, you know, time and time again, people keep talking about what might be missing or what's not quite there.

00:54:27.020 That is, in fact, reasonable doubt when things are missing, when there are facts that you want to hear and you look to the prosecution and say,

00:54:33.860 so where is that thing?

00:54:35.340 That means, unfortunately, here he should be acquitted.

00:54:40.720 She owns her bias right there explicitly, Arthur.

00:54:43.360 Unfortunately, it means he should be acquitted.

00:54:45.640 And that's that's just that on the subject of knowledge.

00:54:48.160 Did he know anything about this as he was writing these checks out?

00:54:53.260 I've been following things pretty close closely.

00:54:55.800 I've been in the courtroom.

00:54:58.060 I mean, look, he's the secretaries actually or whatever the politically correct term is, his assistants, special assistants.

00:55:06.620 You know, they did testify that he had his fingers on the pulse of a lot of the finances, even when he was in the Oval Office,

00:55:12.980 that they would send him checks to sign.

00:55:15.780 And then the White House secretary would send it back to the Trump Tower secretary.

00:55:20.640 And there would be checks that were unsigned because Trump refused to pay certain bills.

00:55:26.120 So his fingers were on the pulse.

00:55:28.460 Now, the counterargument to that, which I would have shoved up the jury's nose, and I don't think that happened yesterday, is, yes, ladies and gentlemen,

00:55:35.240 they want you to believe that he is such a micromanager of every nickel that comes out of his pocket, talking about Tiffany picture frames.

00:55:43.060 And yet he didn't notice that $30,000 went in Michael Cohen's pocket that was supposed to go to the media company or the technology company.

00:55:54.500 Red Finch.

00:55:55.320 So how close is he really monitoring his money?

00:55:58.820 How much is his fingers on the pulse?

00:56:00.320 $30,000, folks.

00:56:01.800 Not $3,000, not $300,000.

00:56:03.920 $30,000.

00:56:05.500 In the middle of this exact theme that the prosecutor wants to call it, just filthies this whole thing up so much more than we even knew about in opening statements.

00:56:15.600 All right.

00:56:16.140 Now, I would have said to that, Mark, if I were the prosecutor, how was he supposed to know that Michael Cohen was stealing from him?

00:56:22.540 Like, that wouldn't have been reflected on the documents that Trump poured over.

00:56:26.480 By the way, it was $60,000 he stole from the Trump organization because they doubled it for tax purposes.

00:56:30.660 So it was $60,000 that was paid out by Trump that Cohen wasn't entitled to.

00:56:35.180 But I think you could make the argument as the prosecutor, just, yes, he was a line-by-line kind of guy, but there are limits to any human's abilities.

00:56:44.260 And determining that Michael Cohen actually secretly did not get $50,000 from Red Finch.

00:56:50.040 He only made them pay $20,000, or he did get the $50,000, but he only made them whatever.

00:56:56.880 He stole $30,000 is the way I'm trying to say it.

00:56:58.800 But you take the $20,000.

00:56:59.660 How would Trump know that?

00:57:00.700 But wait, but one other point on it.

00:57:02.420 Because the other, I think the best evidence that Trump knew anything about the stormy payment is the tape that proves he knew about the Karen McDougal payment.

00:57:11.780 You know, Mark, because that's the thing.

00:57:12.880 We heard on tape him and Cohen discussing the Karen McDougal payment that AMI paid, and Trump claims that it was, you know, clipped.

00:57:21.640 There might have been more on the tail end.

00:57:23.240 But on that, you can clearly hear them discussing the payment, and Trump's happy that it got made.

00:57:26.580 They're talking about how's it going to be paid, cash, what, blah, blah, blah.

00:57:29.480 I mean, I can see as a juror saying, all right, what are the odds he knew that much and that level about the Karen payment, but not the stormy payment, which was weeks before the election?

00:57:42.300 Which is why, if I'm handling this case, and I've said it from the beginning, number one, I don't insult their intelligence and say that he didn't know that these people were being paid off.

00:57:52.100 Secondly, I go one step further.

00:57:54.200 While I wouldn't say that he had the affair, I would say, we're not going to turn this trial into whether he did or he didn't.

00:58:03.360 And the reason why I do that is because that's better than what happened, to get Stormy Daniels to come in there and make it seem like Trump is lying about the affair.

00:58:10.960 And I think that the prosecution won on that issue because she got into all those details and it just seems so believable.

00:58:18.180 I would never have turned this trial into was Trump telling the truth about the affair and or he didn't know anything about the payoffs.

00:58:27.480 The specific issue is how the payoff would be handled.

00:58:31.700 He wasn't in the weeds.

00:58:34.180 He deferred to Cohen on that.

00:58:35.760 And he then didn't know, even if Cohen told him, that somehow that was unlawful and he wasn't supposed to put down legal fees as opposed to something else.

00:58:45.140 OK, I like it.

00:58:46.600 All right.

00:58:46.860 So here's what actually happened.

00:58:49.400 Now we're on to what did what crime was he trying to conceal?

00:58:52.580 And the first step in this is Bragg's understanding that he's not a federal prosecutor and doesn't have the jurisdiction to enforce federal election law.

00:59:01.180 He tries to pin it on.

00:59:02.440 Well, he was trying to he was trying to cover up.

00:59:04.960 Basically, he violated a New York law.

00:59:06.740 It's New York law, section 17 dash 152.

00:59:10.180 And it goes as follows.

00:59:13.280 It provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and then one of them acts on it shall be guilty of conspiracy to promote or prevent an election.

00:59:25.900 This is so ridiculous.

00:59:26.900 I mean, everybody who's running for public office acts in concert with somebody else to promote or prevent the election of somebody.

00:59:34.480 It's the unlawful means that this statute hangs its hat on.

00:59:40.540 All right.

00:59:40.940 Well, what are you doing?

00:59:41.820 You know, are you I don't are you stealing ballots out of people's boxes?

00:59:45.900 Oh, that that would qualify.

00:59:47.100 That's unlawful means.

00:59:48.580 But this is.

00:59:51.420 Well, I don't know.

00:59:52.380 That's the question.

00:59:53.060 What is the awful unlawful means?

00:59:54.560 And that's where we get to these three possibilities.

00:59:57.920 It's like, what was that show you guys we watched back in like the 70s where the doors would open?

01:00:03.260 You have to pick door one or door two or door three.

01:00:07.460 Let's make a deal.

01:00:08.900 Right.

01:00:09.260 It's like, let's make a deal.

01:00:10.440 Which door do we want?

01:00:11.520 No, behind door number one.

01:00:13.100 It's a federal election law violation behind door number two.

01:00:16.880 That would have been a great analogy for the defense summation.

01:00:19.880 I'm dead serious.

01:00:21.720 They want you to pick a theory like this is let's make a deal.

01:00:25.300 But it's not let's make a deal in somebody's life and somebody's liberty.

01:00:28.160 It's not a game show.

01:00:29.280 It's real life.

01:00:30.040 Yeah.

01:00:30.160 You you tell us you make them tell you which one.

01:00:34.240 What did he violate specifically?

01:00:36.380 So number one is well, let's dispense of the other two first falsification of other business records and violation of tax laws.

01:00:46.800 Here's what the jury got charged on tax laws under New York state and New York City law.

01:00:51.760 It is unlawful to knowingly supply or submit materially false or fraudulent information in connection with any tax return.

01:01:00.820 Same thing under federal law.

01:01:02.600 And then they say under these federal, state and local laws, such conduct is unlawful, even if it does not result in underpayment of taxes.

01:01:13.140 So the theory is they they doubled.

01:01:17.140 This is the prosecution's theory.

01:01:19.680 Cohen paid 130.

01:01:21.060 They doubled that to 60 so that he could and made it look like income so that Cohen could actually get back 130.

01:01:29.940 The Trump organization was out more money than it needed to be, right?

01:01:34.840 If they had just submitted as reimbursement because it paid the tax on all this money and that that was false.

01:01:42.260 It wasn't they didn't write down reimbursement and they didn't treat it for tax purposes on Michael Cohen's bills like a reimbursement.

01:01:48.560 They treated it like a legal expense.

01:01:51.060 And even though no one was hurt, the New York State Tax Department got more money than it otherwise would have.

01:02:00.220 It's a crime to lie on that form.

01:02:02.600 They ripped off the mattress tag.

01:02:04.560 Mark, that's basically they ripped it off.

01:02:07.120 You know, you know, this feels like we know.

01:02:09.340 I just started teaching my law class again, and this feels like a law exam where you get points for every issue that you spot.

01:02:17.560 You know, he could have done it for this purpose.

01:02:19.320 Oh, point there.

01:02:20.040 Yes.

01:02:20.460 That's very creative.

01:02:22.020 But then I would say, but just be mindful in the real world.

01:02:24.720 This wouldn't fly.

01:02:25.540 And in this particular case.

01:02:27.560 Yeah.

01:02:27.820 In theory, all these things might possibly have occurred, but weren't proven.

01:02:33.300 It's a mattress tag territory, Arthur.

01:02:35.480 Can I ask you, I would like to ask you guys somewhat of a hypothetical here.

01:02:40.760 If Trump was about to run for president and a construction company who Trump did not owe money to.

01:02:48.900 So let's just say he didn't have sex with Stormy Daniels.

01:02:51.180 He didn't owe money to.

01:02:52.340 But this construction guy says to his, one of Trump's underlings, Trump owes me $100,000.

01:02:57.780 And if he doesn't pay me the $100,000, I am going to tell the whole world that he's a deadbeat and you can't elect him president of the United States.

01:03:06.080 And Trump says, fine, Michael, take care of it.

01:03:09.280 And Michael Cohen stupidly takes out a home equity loan and takes that out for $100,000 and he pays him.

01:03:14.200 And Trump gives him $200,000 back.

01:03:15.980 And now they sign a general release.

01:03:18.040 And there's no more, no one's calling him a deadbeat while he runs for president.

01:03:21.860 Is that a crime?

01:03:22.760 Is that the same thing?

01:03:24.000 Without the salaciousness?

01:03:25.120 Yeah, it's not a crime.

01:03:27.960 Same as the Stormy thing is once again, not a crime.

01:03:30.340 I mean, a payment in settlement of a possible legal dispute is a settlement.

01:03:35.000 You know, it's like if the person's saying anything other than I might sue you or like it, then they're extorting him.

01:03:43.640 Right.

01:03:43.840 Then they're committing.

01:03:45.280 There's the word I've been dying to hear.

01:03:48.020 You know, I was on CNN last night, which Stormy's, which Stormy's lawyer.

01:03:51.900 And I have no problem admitting to my two friends here.

01:03:54.340 I didn't have the guts to use the word extortion.

01:03:57.120 But once the host did, he's like, extortion?

01:04:00.680 And he's like, no, that's ridiculous.

01:04:02.260 Nobody ever used the word extortion.

01:04:04.040 And I'm thinking, certainly it's just a sweet way of doing extortion.

01:04:07.860 Well, I'll either sell it to the National Enquirer or I'll tell the whole world.

01:04:11.500 So you can figure out what you want to do.

01:04:14.040 But I'm sorry, you can either pay it or I'll just give it to the National Enquirer.

01:04:16.880 I'll tell the whole world.

01:04:17.900 It's totally a form of extortion.

01:04:19.400 No ifs, ands, or buts.

01:04:21.100 Certainly you could argue that.

01:04:22.320 Well, there was a but.

01:04:24.760 Yeah.

01:04:25.100 What's the but?

01:04:26.080 All right, Glarge, I'm surprised you didn't get that.

01:04:27.960 Oh, there was a but.

01:04:28.860 I'm sorry.

01:04:29.620 I'm a little slow.

01:04:30.560 I'm busy thinking about my next thought.

01:04:32.260 Sorry.

01:04:32.840 Come on.

01:04:33.460 That's your department, Mark.

01:04:34.740 If you're getting more and more racy, I'll have to tell my mom not to watch.

01:04:38.720 Sorry.

01:04:39.420 Yeah.

01:04:39.620 I was thinking about my next point, which I should make.

01:04:42.900 If someone had come to Arthur or me, and let's say there was some benefit in listing this

01:04:48.500 as a campaign expense, I don't know that we would have signed off on it.

01:04:52.860 But I don't know.

01:04:54.080 Really?

01:04:54.540 You paying Stormy Daniels?

01:04:55.780 We're going to, you're going to put that on as a campaign expense.

01:04:57.960 And let's say, again, he really wanted to put that down as a campaign expense because

01:05:02.020 there was some benefit to him.

01:05:04.300 I don't know that I would say it's a campaign expense.

01:05:06.920 We're going to get to that.

01:05:08.440 We're going to, you're getting it.

01:05:09.220 You're getting the car before the horse.

01:05:10.440 Cause right now we're, we're on whether this is a violation of tax laws.

01:05:13.480 This has been submitted to the jury and they've been told, this is what they've been told that

01:05:18.000 if you put materially false or fraudulent information in connection with any tax return,

01:05:22.400 that even if it didn't result in an underpayment of taxes, you've committed a crime.

01:05:28.320 So that one's in front of them.

01:05:29.560 The other one is falsification of other business records.

01:05:31.680 And they list the bank records associated with Michael Cohen's account formation paperwork

01:05:37.720 for the resolution consultants, LLC and essential consultants, LLC accounts.

01:05:42.700 These are the ones through which he did the Stormy payments.

01:05:45.760 The bank records associated with his wire to Keith Davidson, that's Stormy's lawyer

01:05:50.080 and a couple of other petty Annie shit.

01:05:52.400 I don't even understand what they are, but they're small things that came in

01:05:54.800 to evidence in connection with Michael Cohen's setting up of the payment system.

01:06:00.480 All right, let's get to the big Magilla, the federal election campaign act.

01:06:06.480 Here is what the jury was charged.

01:06:12.300 Okay.

01:06:13.940 Drum roll.

01:06:15.120 I know it's exciting.

01:06:17.340 Under the federal election campaign act or FICA, it is unlawful for an individual to willfully

01:06:24.040 make a contribution to any candidate with respect to any election for federal office,

01:06:29.500 including the office of president, which exceeds a certain limit.

01:06:34.240 In 2015 and 2016, that limit was 2,700.

01:06:38.940 It's also illegal for a corporation to do it.

01:06:42.280 Okay.

01:06:43.400 That's what they're telling the jury.

01:06:44.760 Then they go on.

01:06:46.060 The terms contribution and expenditure include anything of value, including any purchase payment

01:06:51.520 loan or advance made by any purpose, any person for the purpose of influencing any election

01:06:56.820 for federal office.

01:06:58.000 Under federal law, a third party's payment of a candidate's expenses is deemed to be a contribution

01:07:07.000 to the candidate unless the payment would have been made irrespective of the candidacy.

01:07:14.660 The candidate's status as a candidate for federal office does not have to be the sole or only

01:07:23.800 motivation for the third party's payment so long as the payment would not have been made

01:07:29.020 but for the candidate's status as a candidate for federal office.

01:07:33.440 They seem to be offering a 51 percent more likely that it was to help Trump win the election

01:07:37.760 and 49 percent for Melania's feelings possibility to the jury.

01:07:42.580 Like, it's fine if there was a dual purpose, so long as you believe that if he weren't running

01:07:47.620 for president, he actually wouldn't have cut the check.

01:07:50.340 Melania's feelings didn't matter to him that much.

01:07:53.540 That seems to be—that's how I interpret this instruction.

01:07:56.820 And it's legally erroneous.

01:07:59.080 Go ahead, Arthur.

01:07:59.580 The evidence that they're going to use, or at least they did use to some degree, was

01:08:04.540 that was Stormy Daniels' feeling.

01:08:07.140 Her testimony was—and they have her on tape somewhere saying, and other witnesses testified,

01:08:12.500 if he be—we have to settle this case.

01:08:15.360 I need to get my money before the election because after the election, it doesn't matter.

01:08:20.620 So if you believe what's in her mind was in Donald Trump's mind, then it's a problem

01:08:25.720 for Donald Trump.

01:08:26.480 If you believe, I don't need my wife hearing this, I don't need my brand, my Apprentice

01:08:31.760 TV show, or anything else hearing about this, then I agree with Mark.

01:08:36.060 If someone came in to me and said, you know, I want to make this payment and put it down

01:08:39.540 as a campaign expense, I would have to really read that law and be like, I'm not sure about

01:08:44.140 that because you'd be making this payment regardless.

01:08:46.320 It's really a—

01:08:46.980 Hold on on that.

01:08:48.500 Hold on.

01:08:48.720 Because Michael Cohen also testified that Trump told him allegedly this seemed like an

01:08:52.760 obvious lie, said to him, oh, I don't care if Melania leaves me, how long do you think

01:08:56.560 I'll be on the market?

01:08:57.940 Sure.

01:08:58.160 Sure, Jan.

01:08:59.440 Sure, sure he did.

01:09:00.620 Okay, but there's another piece that I didn't read.

01:09:03.100 FECA's—this is part of the jury instructions—FECA's, federal election law, definition of contribution

01:09:07.600 and expenditure, do not include any cost incurred in covering or carrying a news story, commentary,

01:09:18.740 or editorial by a magazine, periodical publication, or similar press entity, so long as such activity

01:09:25.240 is a normal, legitimate press function.

01:09:29.340 So if you, I don't know, had to pay a news organization, I'll pay 20 grand for your reporter

01:09:41.340 to come out here and cover Mr. Trump, even though that would be ethically problematic as

01:09:46.100 a journalist, they're saying that wouldn't be a campaign contribution.

01:09:49.480 And the prosecution wanted more in there about what would be allowed and what wouldn't

01:09:57.160 be allowed under the so-called press function.

01:10:00.160 Anyway, the jury's been told that certain payments, certain contributions are allowed

01:10:06.520 with respect to media, but it's not going to encompass what was done with AMI.

01:10:12.940 Here's the problem with all of this.

01:10:14.680 All, all, all of this is wrong.

01:10:17.420 It's wrong, wrong, wrong.

01:10:19.420 It's not a 51-49% analysis.

01:10:22.240 It's not—so long as the payment would not have been made but for the candidate status as

01:10:26.840 a candidate for federal office.

01:10:27.840 I mean, that's kind of it, but they've misstated it in a way that's too confusing.

01:10:31.240 It's the nature of the payment.

01:10:33.820 It's not what was in Donald Trump's head or Michael Cohen's head or anyone's head.

01:10:38.440 It is the nature of the payment that determines whether it falls under campaign—federal campaign

01:10:43.240 finance law.

01:10:44.140 That's it.

01:10:45.020 Is this the kind of payment that can ever be made outside of the electoral context?

01:10:52.040 That's the question.

01:10:52.940 That's how the jury charge should read.

01:10:56.380 I give you, once again, former Federal Election Committee Chairman Brad Smith, who, FYI, said

01:11:04.740 this on my show, but has been saying this for years.

01:11:09.420 He was appointed by Bill Clinton.

01:11:11.200 He's been saying this for years.

01:11:13.160 He said it when Michael Cohen got indicted.

01:11:15.780 He was like, I saw him on C-SPAN saying, I don't like the charges.

01:11:20.320 These payments, they're not of the kind that could ever be classified as a campaign finance

01:11:26.120 expense, to your point, Mark, and then yours too, Arthur.

01:11:29.140 Like, we wouldn't allow someone to use campaign coffers to pay this kind of thing.

01:11:33.800 Therefore, it's not a campaign finance expense, and we can't use it against somebody when they

01:11:38.480 don't classify it as a federal campaign expenditure.

01:11:41.360 And here he is on my show explaining that.

01:11:45.960 Let's suppose I decide to run for Congress, and I say, you know, I need to be in a debate,

01:11:51.040 and I need a really good suit.

01:11:52.840 So I go out and I spend, you know, $2,000 on a suit, which I would never otherwise do, right?

01:11:58.320 It doesn't make it a campaign expense, even though my purpose was to do it to influence

01:12:03.200 the election.

01:12:04.000 Campaign expenditures are things that no one would spend money on unless you're running for office.

01:12:07.880 So again, it's not the subjective reason why Trump made the payment, it's the actual

01:12:12.700 nature of the payment itself.

01:12:14.320 John Edwards was prosecuted by the feds for something just like that.

01:12:19.860 He had an outside, some rich folks who are paying off his mistress so that he could help

01:12:25.620 win the election.

01:12:26.400 They kept paying off the mistress even after the election, and he, his wife had cancer,

01:12:31.840 and it was clear that he didn't want her to know, how then were the feds able to prosecute

01:12:36.980 John Edwards under the same set of facts?

01:12:39.520 Judges are not experts in campaign finance law.

01:12:42.720 Most prosecutors are not.

01:12:44.320 And I think it was just a wrong decision.

01:12:45.760 There is a lot of Supreme Court precedent emphasizing that idea that you have to use objective

01:12:50.840 standards for campaign finance law, not subjective standards.

01:12:55.000 It's sort of the only logical reading of the statute because otherwise, you know, take a person

01:12:59.640 like Hillary Clinton, right?

01:13:00.860 One could at least theoretically argue that everything she did between 1976 and 2016 was

01:13:06.480 for the purpose of influencing her election as president.

01:13:10.420 There it is right there.

01:13:11.800 It's not subjective.

01:13:13.600 And Arthur Idala was part of that panel.

01:13:15.080 It's not subjective.

01:13:15.920 And these jury instructions have a subjective standard.

01:13:19.660 So long as the payment would not have been made, but for the candidate status as a candidate

01:13:23.360 for federal office, this is wrong.

01:13:25.480 This is completely legally erroneous and it will be reversed on appeal if he gets convicted.

01:13:31.280 Oh, well, you just made my point.

01:13:32.480 As we all, the three of us know, but many, I don't know if I could say most, but many cases

01:13:37.820 that are overturned on appeal hinge on what took place today in the Trump trial.

01:13:42.780 And that has to do with jury instructions.

01:13:45.500 And 99.9% of the time, jury instructions have been, you know, tried and true over the years

01:13:52.800 and judges mess up a little bit.

01:13:54.640 This is a brand new thing.

01:13:55.860 We're in brand new territory.

01:13:57.560 No jury has ever heard a jury charge like this in the history, definitely, of New York.

01:14:02.060 I can't say the country, well, top of my head, but I can say for a fact, in the county

01:14:06.580 of New York, here in Manhattan, no jury has ever heard this before.

01:14:09.920 So the appellate division, there'll be five judges chosen randomly out of, I think, the 23

01:14:14.640 who are going to hear this, I don't know, six or nine months from now, if there's a conviction.

01:14:18.920 And they're really going to have to see what took place here.

01:14:23.540 This will not be an easy appellate argument.

01:14:25.560 I agree with Arthur.

01:14:27.200 You know, most of the things that people are yelling about, that's reversible error, these

01:14:31.100 issues that Stormy Daniels brought up, that's going to reverse the trial.

01:14:34.700 I disagree with.

01:14:35.600 They'll write that off as harmless error, but the jury instructions, that's going to be key.

01:14:41.060 And keep in mind, you just read this jury instruction.

01:14:43.380 And if your viewers are a little confused and lost as to what you said, yeah, you're

01:14:49.500 not alone.

01:14:50.380 It's very confusing.

01:14:51.880 Don't expect that you understand what just flowed from Megan's lips.

01:14:55.220 Here's the worst part.

01:14:56.600 That's one instruction amongst many, over an hour long, the jurors are listening.

01:15:02.900 You think they have the attention span to hear that?

01:15:05.420 Worse, they're not given the read along.

01:15:08.980 It's a joke.

01:15:10.540 They don't get to take it into the jury room with them.

01:15:12.320 Good luck.

01:15:13.820 Good luck.

01:15:14.840 That's why, as Arthur said, it's going to come down to, are you wearing team blue or

01:15:19.040 are you wearing team red?

01:15:20.840 Okay, then we know what to do.

01:15:22.460 What they were able to take into the jury room, and I don't remember having a trial where

01:15:28.340 this has happened, but I could be wrong.

01:15:30.280 They were able to take into a cleaned off laptop with, I think, no internet access where

01:15:35.200 all of the evidence is.

01:15:37.020 Normally, we get notes saying, we'd like to see the note with Weisselberger.

01:15:41.500 We'd like to see this piece of evidence.

01:15:44.000 But apparently, they have all of the evidence on a laptop in the jury room.

01:15:47.680 The prosecutor, Paikara Legal, and Todd Blanche sat there with two members of the jury and

01:15:52.680 instructed them how to find everything.

01:15:54.860 So they have all of that.

01:15:56.420 What they would have to ask for in a written note is the judge's instructions again or

01:16:02.140 any testimony they want to hear again.

01:16:05.140 They have been in there for, I don't know, two hours.

01:16:08.580 They have not asked for anything or sent out any notes.

01:16:12.100 CNN is officially running a deliberation clock because this is their Super Bowl, even though

01:16:17.740 the ratings are in the toilet.

01:16:19.060 Notwithstanding Arthur's amazing analysis, you're the best thing that's happened to CNN

01:16:21.820 in years.

01:16:22.320 You're the only reason to tune in over there, my friend.

01:16:24.760 Great to see you both.

01:16:25.700 Guys, thanks for being here.

01:16:27.200 Thanks, man.

01:16:27.640 Thank you.

01:16:28.280 I'm heading there right now, Megan.

01:16:29.800 That's just for the record.

01:16:31.800 I'm going to 100 centers.

01:16:32.740 Good luck.

01:16:33.180 The number of eyeballs and ears that we'll be listening and watching and listening to

01:16:37.000 you will fall precipitously.

01:16:38.580 No, not CNN.

01:16:39.780 I'm going to the courthouse.

01:16:41.320 I have this right to the court.

01:16:43.020 That's where I'm going.

01:16:43.740 I'm going to see Uncle Harvey.

01:16:45.620 All right.

01:16:45.920 Text us if you hear anything.

01:16:47.020 And let us know if there's any action over there.

01:16:49.560 All right.

01:16:49.980 Thanks, Megan.

01:16:50.540 All right, guys.

01:16:52.260 Love you.

01:16:52.760 Thanks for coming on.

01:16:56.640 Thanks for listening to The Megan Kelly Show.

01:16:58.500 No BS, no agenda, and no fear.

The Megyn Kelly Show - May 29, 2024

Flimsy Case Against Trump Heads to Jury After Outrageous Prosecution Tactics, with Arthur Aidala and Mark Eiglarsh ｜ Ep. 804

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