With Michael Cohen testifying in the New York criminal trial this week, MSNBC legal analysts Andrew Weissmann and Mary McCord take stock of the style and the substance of the assertions made by Trump’s former lawyer and ‘fixer’. Andrew was in the courtroom for the first day of Michael Cohen’s testimony and shares some first-person impressions as the prosecution continues to lay out the case. And they answer some listener questions on absent witnesses and the Speedy Trial Act.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello, and welcome back to “Prosecuting Donald Trump.” It is Tuesday, May 14th at 10:10, which by the way, I think we’re doing pretty well because I think 10:10 seems to be our witching hour for —
Mary McCord: Yeah, I was thinking that too.
Andrew Weissmann: Yeah. You know, there’s like a famous radio station here, which is “1010 Wins.” And its big thing is like you get the news like every 10 minutes. And it’s like a really great hit of like, here’s the news, here’s the weather, here’s the traffic. So —
Mary McCord: That’s Andrew Weissman talking and I’m Mary McCord.
Andrew Weissmann: Oh yeah. But we are going to talk about Michael Cohen’s direct examination, which was all day yesterday. And there are lots of different facets of it. I know, Mary, you want to talk a lot about all the sort of corroborating evidence that was used and how that sort of worked in. And then we’re going to talk about some issues that you and I see going forward, not just for cross, but we really have an eye now on both of us thinking about how the summations are going to go and some open issues that we want to see, like how it gets dealt with. So we’re going to address those as well.
Mary McCord: But first, Andrew, last night was the Webby Awards, the ceremony in New York City. I was unable to make it up primarily because I am today leaving for Ireland. So all you listeners, I’m going to be schlepping my microphone and my headphones to Ireland so that I can keep up with my podcast responsibilities. But so I couldn’t make it up. But you were there repping for us. So was it great?
Andrew Weissmann: So this is because the “Prosecuting Donald Trump” podcast is going international.
Mary McCord: Yes. Right. Although this is not the first.
Andrew Weissmann: I know.
Mary McCord: You’ve recorded from Italy. I’ve recorded from England.
Andrew Weissmann: Mary, have a fantastic trip.
Mary McCord: Thank you.
Andrew Weissmann: It’s just sounds wonderful. And it’s a great family celebration. So it’s wonderful. So, yes, I did go to the Webby’s and it was at this wonderful old bank building and it was just jam packed. And it’s such a wild group of people because there’s not just podcasts, it’s for all sorts of different web things. And, you know, we won two Webby’s because thanks to our listeners, we also won the sort of popular vote and we won the judges vote. So that was great.
And one thing we didn’t get to do, which we’re going to do right now, is the Webby’s has something which I think is really a great — I’m going to call it a gimmick, but it’s really kind of lovely, which is acceptance speeches are five words or less. And that’s such a great miniature haiku model.
Mary McCord: I was going to say reminds me of a haiku.
Andrew Weissmann: Yeah. So, Mary, you and I have been workshopping and I have been workshopping on Twitter, our five word acceptance speech, which —
Mary McCord: Drumroll.
Andrew Weissmann: Exactly, which we are, actually, I’m going to unveil now because it didn’t get unveiled yesterday. And it is guilty beyond a reasonable doubt.
Mary McCord: Ba-bam. All right. Well, we’ll see if you’re right. We’ll see if you’re right.
Andrew Weissmann: Yes. Okay.
Mary McCord: So let’s —
Andrew Weissmann: Yeah.
Mary McCord: Let’s just jump here. Before we lean on you because you were in court again yesterday. So you had that sort of front row seat to Michael Cohen’s direct examination. I just want to kind of help listeners understand how he fits in now to what they’ve been hearing, because there are days where we didn’t talk about every single witness because there were witnesses that were sort of technical witnesses and what we call custodians of records.
So we’re talking about, for example, last Friday, there was a witness from AT&T. There was a witness from Verizon. These people are talking about how cell phone records are actually kept and how landline records are kept and how when they get a subpoena, they can prepare things that they can provide to the requesting party. In this case, of course, it was the D.A.’s office who had subpoenaed cell phone records.
We heard several days ago from the person who had done the forensic extraction of Michael Cohen’s two cell phones that he had consensually given to the D.A.’s office. We also heard evidence about e-mails and how the e-mails were extracted. All of those things. These are all the kind of like building block witnesses that lead to support the witness testimony, not just of Michael Cohen, of other witnesses, but it really came through yesterday with respect to Michael Cohen. And I’ll give one example and then I want to hear your take on his testimony more generally.
So every time that Michael Cohen was asked about a phone call he had either with Donald Trump or with Allen Weisselberg or with Keith Davidson or with David Pecker or with Hope Hicks, every time he would talk about a phone call, what did the people put up on the screen? The cell phone records that showed the date and time of that phone call from which phone number to which phone number and it was able to corroborate him talking about that phone call.
Every time he talked about a text message, that text message up on the screen. So that’s the results of what you’re able to do once you’ve built that foundation to get in that evidence. And then, you know, we’ve talked so much about the need to corroborate Michael Cohen. And these are just bits of corroboration because it at least shows he’s not making up phone calls. Now, you can argue about whether the substance is what he said, but there they are on the cell phone records.
So I think people don’t sometimes realize what it takes to put together a case like this and make sure it’s all buttoned up so that when your witness testifies, you can get all of that stuff in.
Andrew Weissmann: I totally agree with you. I’m going to give an example of that that I thought was really useful. On October 8th, 2016, when the “Access Hollywood” tape comes out, you not only have Michael Cohen talking about his conversations with David Pecker and then his conversations with Donald Trump and the reaction, but they show first a call with David Pecker and then moments later a call with Donald Trump and not like eight second calls. I mean, lengthy calls.
Mary McCord: Yeah.
Andrew Weissmann: And I mean, what do you think they’re talking about?
Mary McCord: Right.
Andrew Weissmann: There’s no reason for them not to be talking about that. The same thing happens after Michael Cohen is thinking about opening and using Essential Consulting to pay the money and they’ve been trying not to pay the money to Stormy Daniels —
Mary McCord: Right.
Andrew Weissmann: — because they’re hoping per Donald Trump that if it’s after the election, you don’t have to pay at all. And you have two phone calls with Donald Trump at the time just before he actually goes and funds Essential Consulting to send the wire out.
Mary McCord: And it’s so funny because I have these in my notes that I took on my phone, the page of the transcript.
Andrew Weissmann: It’s so funny.
Mary McCord: October 26, open Essential Consultants —
Andrew Weissmann: Right.
Mary McCord: — and made the transfer, two calls to Trump to authorize. They’re in my notes.
Andrew Weissmann: You know what? We’re trial lawyers.
Mary McCord: Yeah, I know.
Andrew Weissmann: And so it really is that. So, I did want to comment on a choice here. And this actually is sort of bringing people into sort of the weeds and trial strategy. There are different ways to use those phone records. And here the prosecutors decided to use it at the same time as the witness so that he almost is like it’s like a mini summation. It’s simultaneous corroboration of him as he’s talking.
That’s an interesting choice and I don’t think it’s the wrong one here. But a lot of times what you will do is have the witness just talk about what he remembers and maybe something he wrote. But if there are phone records, you haven’t shown them to the witness and they come in through a different witness and they’re independent. And then in summation, you talk about, look, the witness is giving you their best recollection. They have not seen all this stuff. We have not shown it to them and look how it aligns.
Mary McCord: Yeah.
Andrew Weissmann: And it also allows you to put dates and times and know exactly where it got things right and wrong. But the independence of the evidence becomes a separate argument that what he’s saying is accurate about the Weisselberg notes because, well, he was there when they were created. But look at the Jeff McConney notes. And so you wouldn’t show him the Jeff McConney notes. Those are sort of —
Mary McCord: And they didn’t. But they did show him the Weisselberg notes.
Andrew Weissmann: Yes. Yes.
Mary McCord: Exhibit 35 plays a role yesterday. Yes.
Andrew Weissmann: Exactly. And that’s one because he says, I was there.
Mary McCord: I was there.
Andrew Weissmann: And by the way, the other handwritten notes just go back to our episode on Exhibits 35 and 36 is that he says, oh, I was there and the other side is that’s Allen Weisselberg’s handwriting. And he’s asked, do you recognize? And he goes, well, I recognize it, but also, I was there when he wrote it.
Mary McCord: Right. And we’ll come back to this because I think this was a really important part of his testimony yesterday, how it came to be that way of paying him back.
Andrew Weissmann: Yes.
Mary McCord: So, but let’s get to some big picture reactions because there’s more than just the story of the Stormy Daniels payments. You get a flavor, I think, of Michael Cohen. And I will tell you, even though I’m stuck with a black and white transcript, you are in the courtroom, at least with respect to what I read and granted, this is direct examination. This is the easy part.
The hard part is going to come on cross for Michael Cohen. I thought it came in remarkably smooth and coherent and straightforward and no drama. I thought it was just like very chronological and logical. You know, I thought it came in really well.
Andrew Weissmann: I generally agree. I would give Michael Cohen an A. I do have some issues as to the presentation, and I’ll talk about that in a second. But let me give you first my biggest takeaway. Maybe it comes across in the cold record. But being there, it was so palpable and I thought somewhat moving. And it also was explanatory. So with all that buildup.
Mary McCord: Yes.
Andrew Weissmann: In the beginning of his testimony, he’s asked about sort of how he ended up working for Donald Trump. And he had done some work for him when he was in private practice at Phillip Nizer. And then he is meeting with Trump and he gets this offer and he never actually even goes physically back to the law firm.
Mary McCord: Yes, that was remarkable to me.
Andrew Weissmann: Yeah.
Mary McCord: Like he had his stuff there. He’d been there for years.
Andrew Weissmann: And they just send people and take it.
Mary McCord: To pack up his, yeah.
Andrew Weissmann: And he’s describing what the work life is there and how much it’s a big family. And you got a sense of an enormous loyalty and how much you respected Donald Trump and said you would go in and report things to him. And he was a micromanager and you and he said Donald Trump would say, that’s great or that’s fantastic. And Susan Hoffinger asked, how did it make you feel? And he said, it made me feel like I was on top of the world.
And that’s the kind of thing that is not scripted. It was so emotional. And later, when he talks about his bonus having been cut and not being invited to D.C. and how hurt he felt and how he was angry and hurt. And he said, even just for my ego, he said, no, I didn’t want to.
Mary McCord: He said a couple of times it was just my ego. Yeah.
Andrew Weissmann: He said, I knew I wasn’t going to be chief of staff. I’m not qualified to be chief of staff, but I wanted to just have it be public that I was being considered.
Mary McCord: Yeah, I wanted my name to be considered.
Andrew Weissmann: Is it just for my ego and it helped to me explain where we are now in terms of how this is a very broken relationship that had been close. And you just got the sense that what we’re seeing now and the times that you say, well, why is Michael Cohen acting out? Why is he still posting? You just got the sense that he’s still hurt and he is so identified with him.
So just on a personal level, it’s something I’ve seen before when I put on underlings who are now testifying against a boss, that it is a complicated relationship.
Mary McCord: Yeah.
Andrew Weissmann: And I thought it really helped understand that sort of what’s going on is not perfidy. It’s not that this is a guy who’s just venal and untrustworthy, but it was really coming out of the sense of lack of loyalty to him after he felt like he had been so loyal to Trump.
Mary McCord: Yeah. Now, that is something that the defense will try to take advantage of and turn to its advantage, right.
Andrew Weissmann: Absolutely.
Mary McCord: They will try to argue that, you know, that’s why now he’s so biased against Trump and also argue that maybe that’s a reason why you just on your own made this decision to pay hush money and paid it out of your own account after taking a home equity line of credit just because you idolized him and you wanted to do things for him. And I think they’ll try to really use that.
Andrew Weissmann: On that theme that you raised. The fact that he did a tape recording of his own boss of Donald Trump —
Mary McCord: Yes. Yes.
Andrew Weissmann: — will be used to say. And so you were willing to do something, even though you explained that you were doing the tape to ultimately help Donald Trump to explain to David Pecker.
Mary McCord: David Pecker.
Andrew Weissmann: You still made a tape of your boss and meaning you were —
Mary McCord: Without him knowing.
Andrew Weissmann: Exactly. Meaning you were willing to do things behind his back. You’re going to hear that on cross. And so that will feed into the didn’t you do this on your own? Michael Cohen sort of preempted that in a question by saying, did you tell Donald Trump about the $130,000? He said, well, of course I did. Not just because that’s the rules, like you have to tell him everything. The reason I told him is I wanted to get paid back. So if you want to get paid back, you have to tell him.
Mary McCord: Yes, of course.
Andrew Weissmann: Yes.
Mary McCord: So one of the other things and I think this showed like you’re right, he idolized the man, but he also throughout his entire testimony. This had to have come up at least 10 times, which is he was Trump’s personal attorney, special counsel to Donald Trump. He wasn’t part of the general counsel’s office at the Trump organization. And so what he did is he tried to protect Donald Trump and he did whatever Donald Trump needed him to do.
And even before Karen McDougal or Stormy Daniels, that would include, as he talked about, it’s sometimes lying for Donald Trump, sometimes billing people for him when there were things that were not good press, calling up and threatening the press to sue them, all of these kind of things. And then, of course, we come up through the doorman story and Karen McDougal story and Stormy Daniels story.
And every time he would do something for Trump, he would go tell Trump what he did. And oftentimes, if he was successful in accomplishing whatever he was supposed to be accomplishing, he would get that reaction you talked about. That’s great. That’s fantastic. And every time he was asked sort of why did you do that? He would say two things. One, so Trump would know I had taken care of it. And two, so I would get credit for it.
It came up over and over and over again. I always went straight to Trump to tell him it was handled. I’d taken care of it and to get credit for it. Another way that Michael Cohen phrased it, and he phrased it using this exact term in his testimony, was when explaining why he did things, he said for the benefit of Mr. Trump. And, you know, that just, again, brings back the sort of the transactional nature of everything in Trump world with his own personal attorney, with his staff, with his family members. I feel like everything is very, very transactional.
Andrew Weissmann: Transactional, but also going back to my point about I felt great.
Mary McCord: Oh, yeah.
Andrew Weissmann: It’s transactional in that I wanted my boss’s approval.
Mary McCord: It’s like a kid going to their dad, right, and saying, Dad, I made a home run today.
Andrew Weissmann: Yeah, of course you would tell him like you were anxious. My analogy before I heard all of this was like a dog with a pheasant in its mouth. I mean —
Mary McCord: Look what I did for you.
Andrew Weissmann: Exactly. And I want that approval. And that, I think, really explains why we’re seeing his current activity and it’s wrong to think of it as vengeance as opposed to why can’t I have that approval anymore? Sort of what’s happened. And it’s a real sense of hurt being the motivator.
Mary McCord: Yeah.
Andrew Weissmann: And I have to say, I think people don’t really understand when you’re a prosecutor and you’re dealing with cooperating witnesses like this, you do have to sort of understand them and help them work through all of that. A lot of people think being a cooperating witness is easy, but it is difficult. The way I think of it is none of us likes looking in a mirror at all of our foibles and then having to be candid with ourselves. We all live with pipe dreams —
Mary McCord: Oh, yes.
Andrew Weissmann: — to borrow a phrase from Eugene O’Neill. And when you’re a cooperator, you don’t have that luxury anymore. And you not only have to come to terms with it and be candid about it, but then you have to do it in public.
Mary McCord: Yep, yep. And just to be clear, yes, he’s cooperating with government, but he is not trying to get a lower sentence for anything.
Andrew Weissmann: Yes, he’s done.
Mary McCord: He has already served times. He is there under subpoena and he made that clear. And he is cooperative, but he’s not sort of our classic cooperator. And today, I think we’ll get to some of the additional baggage that we didn’t get to yesterday in direct exam and then probably move on to cross-ex. Some of that could be happening right now as we speak. But let’s go to break and then come back and dig in a little bit more the actual substance of, you know, we have a flavor of him now, the substance of how he walked the jury through the story.
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Andrew Weissmann: So, Mary, welcome back. I wanted to comment something about Susan Hoffinger, who was the prosecutor who did the direct examination and still doing it as we speak. One thing she did is she was using a lot of leading questions.
Mary McCord: Yes, I noticed that.
Andrew Weissmann: Like it seemed like 90 percent of the questions were leading. It was also clear that she certainly knows how to use non-leading questions. I think she was concerned about giving more structure to the direct examination, not having Michael Cohen go off on tangents —
Mary McCord: Right.
Andrew Weissmann: Keep it very focused. I’ve never heard someone so often say to a witness, can you just briefly tell us when it’s a major witness about conversations?
Mary McCord: Right. Yes.
Andrew Weissmann: Can you just briefly tell us this? And when you do a lot of leading questions, sometimes it’s useful because you can be leading with respect to a time frame. Like, I’d like to direct your attention to October 2016. That’s not really leading. You’re allowed to sort of give that.
Mary McCord: This is framing it. Framing the —
Andrew Weissmann: Yeah, but this went on like and is it fair to say, blah, blah, blah, that’s a leading question. And so this happened, didn’t it? That’s a leading question as opposed to tell us what happened in the conversation.
Mary McCord: What happened next?
Andrew Weissmann: Right. What happened next is a classic non-leading question. I suspected that that was going on because in prep, he is a witness who needed structure.
Mary McCord: Corral.
Andrew Weissmann: Exactly. And here’s a downside of doing that, which is credibility is a huge part of this in terms of on the key conversations, will they believe him? At some point, the jurors need to hear his voice.
Mary McCord: Yes.
Andrew Weissmann: They need to hear his explanation in his own words, in his own terms. And the more you are leading, the less opportunity the jury has for that. And so I do think one thing that may happen, and again, it was with Susan Hoffinger, is what happened with Stormy Daniels, which is I thought the direct was a little choppy and a little stilted. And Stormy Daniels was much more humanized and understandable and herself on cross examination, which I’m sure Susan Necheles would not like to hear, but you know, she did better on cross. And I think in some ways it’s because she could just give more fulsome answers.
So Michael Cohen is a lawyer. He is capable of giving those explanations without as much leading. So just as a technical matter, again, I wasn’t there for the internal prep and I assume there’s a very good reason for why this is happening.
Mary McCord: Yeah.
Andrew Weissmann: But it is something that I’m a little concerned. Well, if it’s something that was really needed, it’ll be interesting to see how it happens on cross.
Mary McCord: There also, for those who don’t know, prosecutors, anyone on direct, anyone doing direct examination of their own witness is not supposed to ask leading questions.
Andrew Weissmann: Oh, yeah.
Mary McCord: Leading questions are questions that suggest the answer to that question. And it’s something that is subject to objection. And there were some objections. And when it was a leading question, they were generally sustained. But there weren’t a lot of objections, honestly.
Andrew Weissmann: I know. I was surprised.
Mary McCord: And I think that they made a decision, a calculated decision not to object to a lot of these. And it could be, honestly, because they didn’t want Michael Cohen going off on tangents, meaning the defense didn’t want it and kind of appreciated keeping him reined in and may have also thought the point you just made, that this looks like she’s telling him what to say. And they’ll argue that. But there were for as many leading question as there were, there were very few objections.
Andrew Weissmann: Let’s talk about substance.
Mary McCord: Yes.
Andrew Weissmann: I want to give a quick take on something that I think is so remarkable that it’s not like front page news. Once again, Michael Cohen repeated something we know from David Pecker, that the catch and kill scheme with the “National Enquirer” was not just catch and kill, it was also disseminating false stories.
Mary McCord: Right.
Andrew Weissmann: And he said, we got from the “National Enquirer” before the stories went out.
Mary McCord: Yes.
Andrew Weissmann: We got the headlines in the stories and I commented on them and I made suggestions. And examples of that were the Ted Cruz story about his father.
Mary McCord: Exactly.
Andrew Weissmann: Marco Rubio.
Mary McCord: Marco Rubio.
Andrew Weissmann: And Hillary Clinton being essentially, you know, having this mysterious illness. All of that was fronted to them because there was an alignment between the “National Enquirer” and a political campaign. And so it’s really important to remember that there were two parts to the agreement, not just catch and kill, but also this other part. And all of this was being kept secret, not just the catch and kill.
Mary McCord: Right.
Andrew Weissmann: All of it was being kept secret. And so the payments had that effect of actually keeping this entire scheme. And I just kept thinking if I were a juror, I’d be like, what the hell? This is outrageous. I mean, you want to talk about defrauding the electorate.
Mary McCord: Yeah. Well, right, which was the opening theme of this, right? And on that note, that somewhat related to that is Michael Cohen gives an explanation of the recorded conversation with Donald Trump, the one we were just talking about earlier, which had some things in it when I listened to it, when it was played last week that I was a little bit confused about because there were references to during the conversation.
This is not about Stormy Daniels. This is when Michael Cohen is talking with Trump about the payments to Karen McDougal, the $150,000 payment and basically how they need to pay back David Pecker and AMI for making that payment to Karen McDougal. And there was a reference in that recording to what if he gets hit by a truck? Yeah. Yeah. Should we pay cash? No, no, no. That’s not how we’ll do it. We’ll pay by check.
And then, of course, the recording gets cut off because, as Michael Cohen explained, an incoming call happened and of course, we saw a cell phone record. But I kept thinking, what are they talking about what if he gets hit by a truck? Well, Cohen explained this.
Andrew Weissmann: Was it a truck or a bus?
Mary McCord: A bus. I put truck in my notes, but I might have put truck and might be bus. One of the two. We’re not going to be defaming anybody here, either a bus or a truck. Anyway, the point is, I’m like, who’s getting hit by a truck or a bus and why?
Andrew Weissmann: Right, right.
Mary McCord: As Michael Cohen explained, part of reason I think he was pushing that we need to pay back David Pecker is not only because of this Karen McDougal story and to actually transfer her life rights to the story to Trump or to Michael Cohen or the Trump Organization.
Andrew Weissmann: Or a new LLC.
Mary McCord: Well, the new LLC to keep it away from Trump, right.
Andrew Weissmann: Right. Right.
Mary McCord: I mean, effectively, Trump. But yes, pointedly, it’s to keep it without a Trump name on it. That’s why it was going to be this new LLC, like you said. But also because they had learned that there was some file that AMI had that “National Inquirer” had with all kinds of like stories about Trump that they thought some of which were derogatory. And essentially what Michael Cohen was saying is we need to pay this also so that we’ve got some protection to get rid of those stories in the file, because what if something happens to David Pecker? Like what if he gets hit by a bus or a truck and the next person doesn’t know we’ve got this deal?
Andrew Weissmann: It’s like J. Edgar Hoover with like files on people and they were concerned about how do we get our FBI file so we can’t be extorted if there’s a new head of the “National Enquirer.” And it also just, you know, that’s where these little details, they just fit.
Mary McCord: Yes.
Andrew Weissmann: People have analogized it to, you know, giant jigsaw puzzle and all these little pieces sort of fit together and you see connective tissue. I wanted to talk about, I mean, obviously, Michael Cohen gave direct testimony about things that you just knew had to have happened, but now you hear that they did happen.
Mary McCord: Right.
Andrew Weissmann: Where, of course, he basically was like everything was run by Donald Trump. And he constantly was saying, thanks, get it done, like move forward —
Mary McCord: And talk to him multiple times a day, always by cell phone or in person or landline, because Mr. Trump did not use e-mail because —
Andrew Weissmann: People go down for that.
Mary McCord: Right.
Andrew Weissmann: So that I thought was so mob related.
Mary McCord: Yes.
Andrew Weissmann: And Michael Cohen said that Donald Trump did not use e-mail. He explains that Donald Trump told him that people go down. That was the expression for using e-mails. It’s why he did not sign the nondisclosure agreement with Stormy Daniels, because the whole point was to keep his name off as much as possible.
Mary McCord: Right.
Andrew Weissmann: This was to give him plausible deniability, what I now view as implausible deniability. But that’s why he didn’t sign things. That’s why they use Signal, an app that’s encrypted —
Mary McCord: Encrypted.
Andrew Weissmann: — and hard to break into. It was completely reminiscent of what Don McGahn recounted when Don McGahn being the first White House counsel for Donald Trump. And when he was taking notes, Donald Trump berated him and said, why are you taking notes?
Mary McCord: Right.
Andrew Weissmann: And he said, because I’m a good lawyer. And Donald Trump said, well, Roy Cohn didn’t take notes. And he’s a good lawyer. Of course, Roy Cohn is —
Mary McCord: Disbarred.
Andrew Weissmann: Yes. I mean, he might have been a good lawyer —
Mary McCord: Effective.
Andrew Weissmann: — effective lawyer, but he was also completely unethical.
Mary McCord: Unethical.
Andrew Weissmann: But I thought it was very useful that what we’re seeing play out in court is that defense that Donald Trump was thinking at the time —
Mary McCord: Yes.
Andrew Weissmann: — which is I need to be protected and isolated from direct evidence so there isn’t a paper trail that I can attack the direct evidence against me by saying, oh, you can’t trust Michael Cohen because I did a crime with him. So he’s a criminal. I mean, this is the failsafe of I can’t be convicted because I don’t put anything in writing —
Mary McCord: Right.
Andrew Weissmann: — and the people I’m doing the crimes with is a criminal. So you can’t ever use their testimony. And so that runs into a bit of a problem when it comes to David Pecker and Hope Hicks who provide information. But it does explain for the jury the absence of a certain written records directly —
Mary McCord: Yes.
Andrew Weissmann: — from Donald Trump. But they have to overcome the lack of a signature. And that’s where I thought Michael Cohen sort of explaining that was a good example of you knew it, but you wanted to hear it.
Mary McCord: Yeah, that’s right, because we’ve been building up toward it. But because of the way the prosecution presented the case and didn’t like make him first, everything, so much of what he says is already corroborated that I think it makes it more believable, right, than if you put him on first. So I think that was quite strategic.
Andrew Weissmann: Yeah, actually there, you know, I’ve made some comments about Susan Hoffinger, but I have to say in terms of the structure of the case, I just think it’s perfect.
Mary McCord: I do too, I agree.
Andrew Weissmann: I’m not saying it’s a perfect case.
Mary McCord: No.
Andrew Weissmann: I’m just saying, again, thinking about how they structured when things would happen, what we used to call, Mary, you and I would call an order of proof.
Mary McCord: That’s right.
Andrew Weissmann: And so before you present a trial, you would put together an order of proof about when certain witnesses get called and when certain hard evidence gets put in and through which witness will hard evidence come in, because you have to have witnesses who can authenticate and there’s all sorts of rules about how to do that.
Mary McCord: Yeah.
Andrew Weissmann: So you have an order of proof for a trial. And here, again, thinking technically, I think that order of proof was masterful.
Mary McCord: Yeah, I agree. And, you know, sometimes you’ve got a masterful plan and you’ve got a witness who just does it, you know, like. Yeah. So sometimes, like here they have —
Andrew Weissmann: I don’t know what you’re talking about, Mary. That never happened to me.
Mary McCord: Here they’ve got good cooperation from everybody in terms of coming on the day that they want them and the judge not saying like when they broke early on Friday, sorry, we’re not going to break it one or two. You’re going to have to fill your time. You’re going to have to put a witness on regardless of whether you want to or not. Like I’ve been in trials where it’s like, I don’t care. And I’m like, well, your honor, I don’t want to go out of order because my next witness is going to be so-and-so and that person can’t come to tomorrow and the judge like tough cookies. You’ve got to put a witness on and you put the next person you got in the witness room on. So it’s worked out really well for them.
Okay, I do want to talk about some of the key points here with respect to Stormy Daniels. You were there. And of course, there was a lot of testimony from Michael Cohen about learning on October 8th about Stormy Daniels trying to sell the story. He learned that from Dylan Howard. And then, of course, he goes to Donald Trump and tells Trump about it. And remember, at this point, Cohen has already testified about what so many other witnesses, including Hope Hicks, had testified about, which is that when the “Access Hollywood” tape broke, this was seen as a big, big deal.
They had to go into serious damage control. Michael Cohen described it as catastrophic that plus then learning about Stormy Daniels. So reading Michael Cohen’s testimony really did sound like everyone was scrambling, like he’s trying to go on TV shows and everything else. Reach out to the press to squash things. Hope Hicks is doing damage control on her end, et cetera. But he does talk about going to Trump and Trump telling him, get with Weisselberg and figure it out. Just pay it. Like those are his exact words. Just pay it.
So therein leads to, I think, the core of the fraudulent business records, what we’re really on trial for, right? And you were in the room and Michael Cohen walks through his meeting with Weisselberg. And that’s when Exhibit 35 is so critical. You want to talk about this? I mean, Weisselberg basically said, bring me the proof that you made this payment. This is, of course, after Cohen has already made the payment.
Andrew Weissmann: Right. So that is why Exhibit 35 is on the First Republic bank statement that shows the wire to Keith Davidson, the lawyer for Stormy Daniels. So it’s not like a piece of scratch paper and it’s not like you can sit there, gee, I wonder what Allen Weisselberg’s notations are about. It just happens to be the banking statement.
Mary McCord: On the bank statement.
Andrew Weissmann: Right. So he explained that and explained the calculations. And he confirmed that he wrote the side on the right, that Allen Weisselberg wrote the side on the left. And critically, after they did that, they went in and ran it by and talked to Donald Trump together.
Mary McCord: Together.
Andrew Weissmann: Is this a good time to talk, Mary, about Allen Weisselberg and the sort of missing witness issue? Because this is so many times that he has come up as a central figure and that Michael Cohen said everyone talked to him about any penny that was being spent at Trump organization because he’s the chief financial officer. And of course, he’s not a witness. Where is he? We know the jury doesn’t know, but we know he’s in jail for the second time at Rikers Island serving his second four month sentence.
Mary McCord: There’s so much more to say about this. So let’s take a break because we’re at that time.
Andrew Weissmann: Okay.
Mary McCord: And then we’ll come back and we’ll dig in.
Andrew Weissmann: The cliffhanger. It’s a cliffhanger.
Mary McCord: That’s right. Yeah. Everyone has to wait through the break. And so the question for the break is, will the jury learn anything about the financial relationship of Allen Weisselberg to Donald Trump, the Trump organization and where he is and why he’s not a witness?
Mary McCord: Why he’s not there.
Andrew Weissmann: How is the jury going to learn, if at all, what we all know? Is that going to come before the jury?
Mary McCord: Yeah.
Andrew Weissmann: Let’s take a break.
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Mary McCord: Okay, Andrew, we left everyone on the edge of the cliff about why is Allen Weisselberg not testifying and is the jury going to hear anything about that? Now, there was some discussion that the jury did not hear about this both on Friday afternoon and yesterday morning before trial started when the government wanted to enter into evidence Allen Weisselberg severance agreement, his agreement, you know, when he left the Trump organization.
And they wanted to introduce that because it basically explains that he’s committed to essentially, I mean, I’m paraphrasing here, never say bad things about Donald Trump. I mean, it really kind of keeps him beholden to Donald Trump, according to the severance agreement.
Andrew Weissmann: I just wanted to say the severance agreement is for $2 million paid —
Mary McCord: Exactly.
Andrew Weissmann: — paid out over time. And it’s not all been paid out. And the severance agreement requires him to not say derogatory things, as you said, Mary, and to not cooperate, which, by the way, is void for public policy.
Mary McCord: Yes.
Andrew Weissmann: That’s not a provision that you can have in a severance agreement. And then finally, though, it did say, of course, if he’s subpoenaed, he has to comply with a subpoena. So it doesn’t preclude somebody like the D.A. subpoenaing him.
Mary McCord: Or somebody like Donald Trump.
Andrew Weissmann: Exactly. And so the state wanted to put it in to explain his absence.
Mary McCord: Right.
Andrew Weissmann: And the judge ruled to explain his absence, the severance agreement doesn’t do that because he could always be subpoenaed.
Mary McCord: That’s right.
Andrew Weissmann: And so it’s not really coming in for anything that’s a fact that’s relevant to the trial. And so I’m not letting it in for the purposes of just the severance agreement explaining his absence. And I think that the D.A. needs to go back to the judge on a different point. I think it is important to explain his absence to the jury. A matter of fact, I think it’s really important that they understand why Weisselberg is not there.
And I also think it’s really important for them to explain Weisselberg’s relationship to Trump and the Trump organization. And that’s what the second one is, what it is relevant to.
Mary McCord: Right.
Andrew Weissmann: In fact, all of his financial payments, the fact that he still got a payment for like this $2 million still being paid out to prove up his loyalty to him and Trump’s loyalty both ways.
Mary McCord: Right.
Andrew Weissmann: And that should be the argument, not his absence. And I think I’d be surprised if they don’t go back to him on that theory. And the judge almost kind of opened the door to that theory by saying, you’re not presenting this for a fact that sort of moves the case forward —
Mary McCord: Right.
Andrew Weissmann: — in terms of a relevant fact.
Mary McCord: Which is why he ultimately denied it, right?
Andrew Weissmann: Right. Exactly. So I think there’s that. But do you think there’s something, Mary, that I think as an appellate lawyer and a trial lawyer, you might be really good to explain, which is this idea of a missing witness instruction, which sort of helps for a jury to understand a lot of times in trials, there are witnesses who seem like they could come. And like Dylan Howard, who worked with David Pecker, there was some explanation of he’s in Australia with some purported spinal injury. I just say purported because we don’t —
Mary McCord: Don’t have any details.
Andrew Weissmann: — really know what it is. But that would sort of at least give some explanation for why he’s not at the trial. But with respect to Weisselberg, the jury is going to be left going, well, why isn’t he a witness?
Mary McCord: Yes. And the discussion on Friday involved both the D.A. and Mr. Trump’s attorneys and Mr. Trump’s attorney saying repeatedly, this is very, very complicated. The reason Allen Weisselberg isn’t here is very, very complicated and admitting government could subpoena him, but they haven’t. Defense could subpoena them, but they haven’t. Neither side has. And I think this is really interesting because the judge, to your point, he didn’t just reject things on the grounds of relevance. He waited until yesterday morning and he barely spoke about this.
But he says, you know, I’ve had an opportunity to review that separation agreement in general and the release issue that came up on Friday. It would come in as a record, but I’m not going to allow it in. It seems to me that this would be used to justify an explanation for why somebody is not here. But it doesn’t prove any element of the offense. It doesn’t move the ball in any way in satisfying the burden of proof.
So he at least for this point rejects that argument that I think you were trying to make that they need it for that. So I think they’re going to have to rephrase it a different way. And of course, the defense doesn’t want that to come in because that would, you know, reflect some consciousness of guilt or concern on Mr. Trump for entering into an agreement to pay such an enormous amount of money, in part to basically keep Mr. Weisselberg quiet. And so I think I agree. I don’t think we’ve seen the last of that argument. And I think this may come up again later.
But it’s complicated here where neither party apparently really wants him to testify. And so to get back to the question you posed about this concept of missing witness and what’s known as the missing witness rule is that ordinarily you really can’t get into why witnesses aren’t there. But there is a particular time when you can and you can not only get into it, you can actually get an instruction against a party that an inference could be drawn that the witness would be unfavorable to the party.
But that’s only in a circumstance where it’s peculiarly and that’s the word used generally, at least in the federal rules, peculiarly within the power of, let’s say, the government attorney to produce that witness who could give material testimony. If that’s the case and if the witness is not called by the government, then failure of the government to call that witness might justify an inference that his or her testimony would have been unfavorable to the government.
And sometimes if those criteria are met, the defense can ask for the jury to be instructed that they can actually draw an unfavorable inference that if the witness had been there, he would have testified against the government. So here we’re in a weird posture, right? He’s not peculiarly within the power of the government because either party could subpoena him.
Andrew Weissmann: Right, right. So one thing I have gotten from a judge is an instruction that says you are not to speculate about why certain witnesses are not here. It’s sort of not your province and you should not worry about it and it should not enter your deliberations and you cannot hold it against either side.
Mary McCord: Right.
Andrew Weissmann: And it’s a way of sort of saying, look, they’re unavailable. Just base it on the case here. I think that that instruction does need to be given.
Mary McCord: I agree.
Andrew Weissmann: I actually think that the state can be more forward leaning on, as I said, in explaining the enormous loyalty.
Mary McCord: A separate argument about relevance, right. Not about why he’s not here, but a separate argument about relevance. I agree.
Andrew Weissmann: Exactly. I want to be able to argue this to Judge McCord.
Mary McCord: Yeah.
Andrew Weissmann: So, you know, we have a listener question that is really the same issue, but related to Keith Schiller, who there was testimony from both Stormy Daniels and many others about his being sort of the body man and very close to Donald Trump, both when he was candidate Trump, when he was at the Trump org, but also sat outside of the Oval Office, according to witness Madeleine Westerhout.
So the question is from Barry in Toronto. Welcome, Canadian listeners. So here’s the question. Why no bodyguard testimony? I believe testimony was given that a bodyguard brought Ms. Daniels to Mr. Trump’s room and the same or another bodyguard stood outside. It was actually the same bodyguard.
Mary McCord: The same.
Andrew Weissmann: Stood outside the door, Keith Schiller. It’s unclear to me why a subpoena wasn’t issued to the bodyguards, which, in my opinion, would support Ms. Daniels’ argument that she actually went to Mr. Trump’s room for the dinner that never transpired. If you remember, she said, I was invited for dinner and never got anything to eat. So that’s a very similar situation where both sides would be able to call him. With Mr. Schiller, it is possible that the prosecution did try to interview him, did try and put him in the grand jury. But I could see his taking the Fifth Amendment.
Mary McCord: Yes.
Andrew Weissmann: I’m just speculating here and saying I’m not going to testify. I think he probably would have a valid ground to assert the Fifth Amendment. You only need to believe in good faith that a truthful answer would tend to incriminate you.
Mary McCord: And there has to be some reasonable prospect that you could then be investigated, prosecuted.
Andrew Weissmann: Yeah.
Mary McCord: Yeah.
Andrew Weissmann: And again, without casting any aspersions on Mr. Schiller, I think that he would have a valid ground to do that and it would be a constitutional right. And at that point, if you’re a prosecutor, you have to ask yourself, would I be willing to immunize him? And do I have such a great amount of proof that I could prosecute him? And one, they may not have enough proof, but two, they could decide we really don’t want to immunize him.
Mary McCord: Right.
Andrew Weissmann: Also, if you immunize somebody, you may be buying a pig in a poke, meaning you have no idea whether they’re going to say and they could just hop in the grand jury and lie through their teeth. And then what are you going to hold them to in terms of being able to prove that it’s a lie?
Mary McCord: Right.
Andrew Weissmann: Now, sometimes you do have that and you decide, you know what, I’m going to immunize them because when you’re immunized, you still can be prosecuted if you lie.
Mary McCord: Right. Proof of lying is a whole other thing, right, proof of perjury.
Andrew Weissmann: It’s hard.
Mary McCord: Yeah.
Andrew Weissmann: Right. So I think that explains it’s not like this is somebody you can just subpoena and they’re just going to be like, hey, let me just tell you the truth about what happened.
Mary McCord: And, you know, it’s interesting because I think of Keith Schiller based on how other witnesses have described him. And those include witnesses like Madeleine Westerhout, you know how close he was. Remember, he’s the one that the checks were getting sent to his personal address —
Andrew Weissmann: Yes.
Mary McCord: — the checks for Mr. Trump. And then he was taking them to the White House for Mr. Trump to sign. These are the checks that were going to Michael Cohen, but they were being sent to Keith Schiller to bring to Mr. Trump to sign them so they could get them to Michael Cohen. You know, that’s how close he was.
He was also the one, as this listener says, who originally, according to Stormy Daniels testimony, said Mr. Trump would like to have dinner with you and arrange for them to come up. And then there he was standing outside of the apartment and stayed there. So I think of him very much like a Walt Nauta, right. And Keith Schiller did, in fact, leave the White House at one point. And Madeleine Westerhout talked about that in her testimony. And he’s been replaced over time with other people.
But ultimately, that other person became Walt Nauta, the valet they usually call him, who, to your point about criminal culpability, totally unrelated to this case, of course. But who is indicted with Donald Trump for the Mar-a-Lago alleged obstruction of justice? Walt Nauta. So when you are that close to a person, I think this shows a couple of things. Walt Nauta has been loyal to Trump. That’s partly why he’s on the other side of the V right now, meaning United States of America v.
Andrew Weissmann: U.S. versus.
Mary McCord: Yeah, and you know, his knowledge of things, not just knowledge, but his actual, as alleged, obstruction of justice, but through various means, got him into trouble. So these kind of people in these kind of positions can have a lot of knowledge, but you don’t know that they’re going to actually tell the truth if you do put them in, to your point.
Andrew Weissmann: Should we go to another question that we have from listeners? And it’s so nice to be able to integrate them with our discussion because we’ve gotten such great questions.
Mary McCord: Yes. Okay, this one is from Alice in Minnesota, and she says, you mentioned the Speedy Trial Act and said that it is in the public interest for cases to move along. Is there any mechanism that citizens could use to exert influence in this regard? Now, Alice is talking about, of course, the Mar-a-Lago case, the case where we spoke last week about Judge Cannon issuing a new scheduling order, saying she’s not even going to set a trial date until all of the outstanding motions have been resolved. And she’s setting new scheduling order for some of those motions.
And she specifically, as we talked about at our episode last week, she specifically said, I’m finding that it’s in the interest of justice to continue to toll the Speedy Trial Act. Now, Speedy Trial Act gets tolled for pending motions anyway, so I’d have to sit down there and do the complicated math to figure out how many days are left in the Speedy Trial Act. But to the listener’s point, it’s right.
There’s a Speedy Trial Clause in the U.S. Constitution that is about the rights of a defendant in a criminal case to have a speedy trial. There is also a Speedy Trial Act, which is a statute, a provision of law passed by Congress that provides much more explicitly what the deadlines are, what can toll those deadlines, that kind of thing. That is a statutory requirement, not a constitutional requirement.
The constitutional requirement is a much lengthier period of time, frankly, before a defendant’s rights would be violated. But the statute is the one that has got the multiple purposes here, right? The purpose to protect a defendant is right to a speedy trial, but to also protect the public’s interest in a right to a speedy trial. All of that said —
Andrew Weissmann: Can I just say it’s also related to the D.C. federal case in that it’s a reason that Jack Smith can say we’re not talking just about Donald Trump’s right to a speedy trial under the congressional statute, the Speedy Trial Act. The public has a right to a speedy trial and that’s a reason that you need to be acting quickly. We talked a lot about this.
Mary McCord: If and when the case comes back from the Supreme Court.
Andrew Weissmann: Exactly.
Mary McCord: Yes.
Andrew Weissmann: And so this is such a great question, which we’re about to tee back up to you as our appellate lawyer, which is, can the public have standing if it’s a right that they have under the statute? Can they go to court and say, judge, I want my right?
Mary McCord: In a word, no.
Andrew Weissmann: Mary, why can’t Alice from Minnesota say, hey, if they just gave me this right to a speedy trial, why can’t I file something in court saying I want my right? Or is there no remedy for this right that the public can assert?
Mary McCord: There is no remedy that the public can assert. However, remember that the prosecutor, in this case, a federal prosecutor, whether we’re talking about Mar-a-Lago case or the January 6th related case in Washington, D.C., the prosecutor is a representative of the United States, is the representative of the public interest. Now, that doesn’t mean we have a public in the United States that always agrees on everything, right?
There’s a part of our public that doesn’t think this case should have ever been brought. And in every criminal case, there’s probably some people in the public that don’t think it should be brought. But what the law recognizes is that it’s the United States who is tasked with representing that public interest.
If there were a case where a judge felt strongly that the federal prosecutor was not acting in the public interest, in other words, was conflicted, if there’s some sort of situation where a judge actually has reason to believe that the prosecutor is not acting in the interest of the public, a judge could actually appoint a lawyer to take up that position and make that argument to the court. That’s going to be extremely rare in this circumstance.
Andrew Weissmann: Yeah. And just so Alice understands, because a lot of times the law is disappointing, it’s that the courts don’t basically just say, hey, if the right is so dispersed that basically anybody could bring it. Sometimes the answer is that means no one can bring it.
Mary McCord: Right.
Andrew Weissmann: That it’s not just like just because you’re a taxpayer, just because like you’re the public, you suddenly can bring a case that you need to have a more substantial interest. By the way, we could get into the weeds because the Supreme Court has been so inconsistent about standing and who has the right to go forward.
Mary McCord: That’s right.
Andrew Weissmann: But in this area, you’re totally right. I mean, just in terms of the critical issue is that could the public come in and say it? The answer is, what is that phrase? Snowballs chance in hell.
Mary McCord: Right. That’s right. But, you know, on this point, I was trying to come up with a good hypothetical here. You know, there are times and this happened back under the Trump administration when the attorney general, Bill Barr, directed the Department of Justice to drop its case against Michael Flynn, who had been close to Mr. Trump, still is. He’s out there every day pitching Trump’s propaganda currently. And the judge did not think this sounded quite right.
Michael Flynn had already pleaded guilty not once but twice. And it seemed very much in the public interest to continue that prosecution. And the judge appointed an attorney to take up essentially the position that the government was not advocating for a position against dropping that case.
So you could see that’s the kind of situation where a judge could say, government, you don’t seem to be on the up and up here advocating for the public. I’m going to appoint somebody else.
Andrew Weissmann: But very, very, rare —
Mary McCord: Very, very rarely.
Andrew Weissmann: — for that to happen.
Mary McCord: Very rarely. Yeah.
Andrew Weissmann: So let’s wrap because we are both going to be then deep in the weeds following the trial today, where direct examination of Michael Cohen is going to conclude and cross-examination, which is really, you know, the crucible that’s used in our criminal justice system to test credibility. And obviously there’s a huge amount of ammunition. Todd Blanche, the lead lawyer for Donald Trump, is going to be doing that cross-examination, and that will definitely be starting today.
Just so everyone knows, the trial is today, Tuesday. The court does not sit on Wednesday. So the cross-examination will continue on Thursday. And this week, Friday, the court is not sitting because the judge has granted Donald Trump’s request to be able to attend the graduation of his son, Barron.
Mary McCord: That’s right.
Andrew Weissmann: Reports are that he is also attending a fundraiser. But as long as he does both, that’s fine.
Mary McCord: If he does the fundraiser and not the graduation, I think he’ll be in trouble with the judge, but yes.
Andrew Weissmann: Yeah. So I don’t think that’s going to happen. So in case you hear reports about him doing a fundraiser that’s not in and of itself improper if he is going to the graduation. But that’s why it’s not sitting on Friday. So it’s a short week. And so it’s pretty clear Michael Cohen’s cross-examination and a redirect, I think, is likely to take the rest of the week. And then we’ll see if there’s a defense case of any length and then I’ll go to summations, right?
Mary McCord: Yeah.
Andrew Weissmann: Talk to you Friday.
Mary McCord: Yes. Looking forward.
Andrew Weissmann: As the trial continues, Mary and I will bring you new episodes twice a week. So we’ll be back this Friday and keep you up to speed. I will be hosting a special edition of “Prosecuting Donald Trump” on MSNBC next week. It’s called “Witness to History” and will feature personal stories from the likes of Rachel Maddow, Joy Reid and others about what it’s like inside the courtroom. We wanted to give people a sense of the color that we try to do here on this podcast. Stay tuned for that. It’s going to be next week.
Also on that special, we are going to be taking questions from you. So if you’d like to have your questions answered on the TV special, all you have to do is submit your questions again to prosecutingdonaldtrumpquestions@nbcuni.com and put on there in the subject line TV special. Thank you so much from Mary and me for listening. We’ll have another episode for you this Friday.
This show is produced by the wonderful Vicki Vergolina, our associate producers Janmaris Perez, who’s also wonderful, and everyone I’m going to talk about is wonderful and has done a great job. And they’re all Webby winners along with us. So our audio engineer today is Katie Lau. Our head of audio production is the terrific Bryson Barnes. The sensational Aisha Turner is the executive producer for MSNBC Audio, and the inimitable Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series. Mary, have a wonderful trip. See you back stateside and look forward to talking to you across the pond.