How did the side testify in your case?
Did you not want to take a stand?
Are you nervous about conviction?
Defendant Trump? They're passing an opportunity to engage the press
corps that's assembled for him.
But maybe he wasn't as interested in the question
about what was confirmed today.
He will not be testifying in his defense at this
trial,
as is his right. We are now,
as promised, joined by Andrew Weissman,
former FBI general counsel and a senior prosecutor in the
Miller probe.
Welcome, Andrew. Nice to be here.
Jury instructions are boring but important.
Agree totally. And we don't have it all set yet.
I like to be very clear with people.
We don't have them all.
When we get them, we'll be reading them and we
can kind of announce whether they seem really standard or
slanted any which way.
Let's start, though, with the wrangling over instructing on the
campaign
crime and the money. Tell me about that and what
you thought you heard.
Well, there,
there was one part that I thought was really interesting
and
good for the government. And it's that
the state, in order to make this a
felony, has three separate crimes that they're going to point
to,
to say if you committed this false business records but
with the intent,
just the intent to aid or conceal another crime,
you've got this felony. And they pointed to three separate
crimes,
one federal, two state. And one of the arguments was,
does the jury have to be unanimous
about which of the three.
In other words, if you have six saying it's this
one and three saying it's that one and three saying
it's that one,
is that sufficient or do they all have to be
12 saying it's this one?
And the judge says as long as it's unanimous that
at least that they all agree that at least one,
but they don't have to agree on the same one,
right. That it's sufficient, which is bad for Trump.
Bad for Trump. Can I make a crack comparison?
Yes. So if you're doing a crack prosecution,
but there's a possibility that the powder was illegal fentanyl,
you know, St. fentanyl instead of crack,
as long as you can get the jury on board
that this was illegal substance contraband,
right. You're good. And that's sort of the,
the analogy here. If you're going at a drug charge,
right, you don't get to say,
Oh no, you guys are split different crime.
Yes, I clearly have 12 people who think I committed
the crime,
but they're split on it if they are bundled together
like this.
Yeah, I mean that that that's an analogy there.
It's basically the the guess you said we're going to
be in the weeds and let's go Gardner,
the legal term is that it's methods and means.
In other words, the methods and means by which you
carry out a crime is not something that the jury
has to be unanimous about.
They have to be unanimous at what's called the elements
of a crime.
Every every crime has certain elements that either has to
be unanimity.
But this is a good ruling because there's just sort
of a smorgasbord of choices and and it's and you
do not have to have unanimity that I think was
really useful. And that reminds.
I think people have been following the trial that there
was so much emphasis on
what Trump's intent was in covering it up.
Right. Exactly. And so again if you want to be
as fair as possible and there's a defense that he
had these other legal reasons to cover it up
and you know court of public opinion people may judge
it.
Voters may judge it. The the Christian right
group of political Republicans used to judge that.
But that's separate here. The only thing is,
to your point, can they demonstrate in the jury instructions
demand that he's
doing this to cover up some other crime and if
they you're saying disagree on which crime,
that's OK, yeah. And the other to your point,
this came up and then the judge dealt with this
issue and the jury charge.
What if the what if the state proved that
50% of what Donald Trump was thinking was campaign
violation and 50% was Melania?
Personal. Real existential time and division.
OK. Or if it was
9010 Or you make up your own?
Yeah, hypotheticals in math. What is the law required?
Does it have to be
100% campaign or tax or or what if there's some
portion that he was thinking about just protecting his family.
And the law in New York which I and the
judge basically said this is that it does not require
the state to prove that it's
100% campaign which would be odd exactly.
And so the judge said no,
there has to be you can you can have dual
motives.
The state doesn't have to prove that.
The only reason that you were doing this now obviously.
Well let me jump in.
I mean, someone could have a big public facing job.
There's the CEO of a big company
and there's evidence that they
abused beat up on their their wife's,
let's say their motivation might be to avoid embarrassment and
also avoid the fact that they allegedly committed a crime
of battery,
right. The fact that they're also worried about losing their
job,
which is not legal or being embarrassed or being kicked
out of their Country Club.
That doesn't extinguish. And video 8.
Right. The illegal intent? No,
exactly. And so we'll know exactly what language the judge
is going to use on Thursday.
One of the things that Judge Marshawn,
who's just been spectacular, is doing is he's going to
make sure on Thursday that the public and also
all of the parties see exactly what he's going to
charge the jury.
Why is that important? Because as you and I know,
when you're then preparing your summation,
you want to know what what's the judge going to
say the law is so that you can address that
in terms of telling the jury,
This is why we have established the facts or in
the defense side.
This is why they haven't established it.
But you need to know what you're sort of shooting
against.
And so the judge is going to give that to
them with plenty of time to be able to prepare.
Yeah. And that'll be what I'm going to keep you
over over the next break.
But briefly, that's just a couple pages.
What we ultimately get, oh,
it should be, it should be long.
It's. How long do you think it'll be?
It could be like 30 pages of the jury instructions.
Yeah. Wow. It's. That's longer than I was thinking.
Yeah, it's. They're long because of the theory of this
case or in general.
In general, jury instructions are are long and,
you know, and then the judge sometimes will actually give
the actual charge the,
you know, print it out and give it and do
the checklist.
Yeah. Yeah. Less than two weeks before the presidential election,
Michael Cohen wired $130,000 to Stormy Daniels lawyer.
That payment was to hide damaging information from the voting
public.
The scheme violated New York election law.
That's the case as described by DA Bragg.
We're back with Andrew Weissmann.
We turned finally to two days of defense,
and they had a rough two days.
Here's one moment people have seen from what I called
the hot mess of this Giuliani ally Costello.
The judge says listen to question,
answer the question. We're dealing with a lawyer and former
prosecutor.
He It's worse when you break the rules and you
know them so well.
He says, well, can I say something please?
And that is kind of how he talked.
So I'm being fair. That's a decent reenactment,
Andrew And the judge says,
no, no, this is not a conversation.
He knew better. He still acted this way.
Was it a hot mess?
Did he hurt the defense effort?
And that, by the way,
that quote is maybe the least of it.
He said. He said twice to him visit the judge.
Cheat the witness. Outside the presence of the jury,
your conduct is contemptuous.
It is. He was a
huge mistake. It is better to not put on a
witness if you were the defense than to put on
a bad witness.
The jurors are going to be like you had a
defense and this was your defense.
Here is what I think the
state is going to argue and summation.
They're going to be saying.
You saw an obstruction scheme.
You saw it in black and white.
That was orchestrated by that man.
And they will point to Donald Trump.
And it was carried out by Bob Costello and Rudy
Giuliani.
And what was the goal?
To have Michael Cohen never take the stand.
You do not do that if you are innocent.
You do not do that if you are not worried
about Michael Cohen.
And so they will use it to show consciousness of
guilt.
They will use it to show that Donald Trump is
a ringleader and the head of this group,
and they will use it to sort of rehabilitate Michael
Cohen to say they knew exactly that he had the
goods.
I got 30 seconds left with you.
Is that case stronger with the defense having put him
on
the state's case ability to bloody it?
Yeah, absolutely. Yeah. This was a this was a huge
mistake.
I know some of the defense lawyers
cannot imagine this was their choice,
that they are too good
to be thinking so bad it looks like malpractice.
But maybe Trump forced them into it as a client.
You're saying, well the client can.
It's not forced it. The client what I make the.
Yeah, the demanded it exactly the same way that,
you know, I listening to Donald Trump say I wish
I could have testified.
Just to be clear, it's his choice.