As week three of Donald Trump’s criminal trial wraps up in New York, Andrew Weissmann paints a first-hand picture of the scene—both outside and inside the courtroom — after attending on Thursday. Then, he and fellow MSNBC legal analyst Mary McCord recount the gist of Keith Davidson’s testimony and cross-examination. And Andrew and Mary answer listener questions about the trial.
For further reading: Here is the decision Andrew referenced of a 2020 order granting attorney fees between Stephanie Clifford and Donald J Trump. As he noted, page 20 is relevant.
Note: This is a rough transcript — please excuse any typos.
Andrew Weissmann: Hi, welcome back to “Prosecuting Donald Trump.” It is Friday, May 3rd. It is 10:09 a.m. and that means that the trial, the Friday trial, has started. It’s going to be sitting today until about 3:45. So we’ll be talking about what happened in the trial this week, as well as a gag order. But first, I’m Andrew Weissmann and I’m here with Mary McCord.
Mary McCord: Morning, Andrew.
Andrew Weissmann: How are you doing?
Mary McCord: I’m good. I’m excited for today because you were in court yesterday. And so, you know, usually you and I are cramming to read the transcripts after they come out and taking many of our impressions from the transcripts. But today we get to actually hear what it was like to be in the courtroom, what you observed, not only in the courtroom, but going to the courtroom in the morning and how the jurors seemed to be reacting to the testimony and all of that great color. And then, of course, we’ll talk a little bit about the second gag order contempt hearing —
Andrew Weissmann: Yeah.
Mary McCord: — that was yesterday morning as well. And we will today, we promise, get to some listener questions.
Andrew Weissmann: I know. Actually, it was hard to choose. But should we start with sort of what it’s like going down there?
Mary McCord: Yes. Yes. Did you stand in a long line?
Andrew Weissmann: Yeah. So just to give people a sense of the outside, this is outside the criminal courts in New York, which is this old building where tons of criminal matters are heard day in and day out. It’s a pretty ramshackle building. Outside of it, there are a whole series of courthouses. There’s civil courts. There’s a landlord tenant court. There’s the family court. And down the street, there’s sort of more highfalutin courts.
There’s the New York Supreme and the federal court is down the road. The federal court is where the Trump/E. Jean Carroll case was. In each of these courts now, you can be like, oh, that’s where this Trump case is. And that’s where the New York Supreme Court.
Mary McCord: There’ll be a tour sometime, right? There probably already is a tour in New York City. Here’s the court where Trump was tried for X. Here’s the court where Trump was tried for Y.
Andrew Weissmann: That’s a perfect segue. So there’s three lines in the square in front of the New York criminal courts. And the main bulk of that square is sort of cordoned off with metal police barricades in case there were people who wanted to protest. That’s the lion’s share is now cordoned off for that. And that was entirely empty, except for two people, which I’ll talk about in a second.
And then to the side of it are three lines. There’s a line for sort of people who have been pre-cleared. So it’s a lot of like lawyers who’ve gotten something called secure pass. Then there’s a line for the press and then there’s a line for the public. And so there were lots of lines very early. People are there. There’s also a line for pre-screened people for the actual courtroom where essentially, they sort of almost like auctioned off and designated certain seats for certain news organizations.
Mary McCord: Right. The press has designated seats. But what about the public?
Andrew Weissmann: So the public, I don’t know if there are any public seats in the actual courtroom. There are definitely public seats in the overflow room. But anyway, so I’m online on the press line because I’ve got my MSNBC badge. So your point about someday there’s going to be a tour. So I’m on the press line and the public is on the line right next to you. So a lot of those people recognize lots of people in the press. And it’s so funny because like now, because we both do so much MSNBC work, a lot of people were coming up to me.
And one of this very nice couple was like, oh, this is so great. We’re from out of town and we’re doing all these touristy things. And last night we went to see Hamilton. And today we’re going to the trial.
Mary McCord: That’s a touristy thing now, huh? Go to a trial.
Andrew Weissmann: I always like —
Mary McCord: I love it.
Andrew Weissmann: Okay.
Mary McCord: Boy, boy, have times changed.
Andrew Weissmann: Yes, exactly.
Mary McCord: We’re right up there ranking with Hamilton, though. Trump would be very proud, actually.
Andrew Weissmann: So then the other thing is someone commented, they said, you have more fans than Donald Trump. And what they meant by that was if you looked at the number of protesters and I’m putting that you can’t see it in air quotes, there were two people, two.
And as a native New Yorker, I can tell you those two people just struck me as sort of New York characters. Let me put it that way. And one of them, just to give you some flavor, was sort of an older man who looked fairly disheveled, who had a giant cross in one hand and a large cowbell in the other, and was sort of walking around the empty square that was designated for anyone who wanted to protest and like ringing his cowbell.
Mary McCord: So not really protesting, it sounds like. Just using the nice empty space.
Andrew Weissmann: Yeah, well, on his back, he did have, I mean, the only thing that suggested he was there for a purpose related to protesting was on his clothes was lettering that said three great presidents, Lincoln, JFK and Trump.
Mary McCord: Okay.
Andrew Weissmann: So there were sort of two people doing that. On the other hand, when I was at the trial and I came out from 12:00 to 1:00 to do coverage for MSNBC, all these tourists and people are there like cheering on and like —
Mary McCord: The press, I love it.
Andrew Weissmann: — wanting selfies. The contrast of what was going on was quite remarkable, but it certainly is incredibly peaceful. And the other thing which you would have appreciated, Mary, which you’ve seen in sort of high profile matters in D.C. and the D.C. courthouse is it was so well organized. And this huge array of New Yorkers who are court officers could not have been more efficient. And also nobody was officious.
Everyone was just into making this as smooth and easy as possible. It was so professionally done. And even though the courthouse itself, as I said, is pretty decrepit in terms of the physical attributes, you just felt so proud of the legal system.
Mary McCord: The system.
Andrew Weissmann: And then the final thing just on color is Judge Merchan. So, you know, we were both reading cold transcripts and you obviously get a strong impression of his being an experienced judge. And we’ve talked about his sense of fairness in terms of how he handles things and he’s not just, you know, knee jerk, always ruling for the state or ruling against them. So I wish people could at least hear it if they couldn’t see it. I just wish it was more like the Supreme Court where there was a simultaneous audio.
Mary McCord: Yes.
Andrew Weissmann: I just want to give you a sense of his voice. He was so understated and so quiet and just very soft spoken. And, you know, you and I have been in front of so many different judges and there’s judges who can’t control the courtroom. There are judges who control the courtroom through being fairly bellicose. He clearly is in control because of sort of quiet power —
Mary McCord: Yeah.
Andrew Weissmann: — of the sense that he is the adult in the room. And it was just striking to me because I didn’t know what he was going to sound like. It’s the first thing you really hear. It was just a very impressive thing. And then, you know, I did get to hear Josh Steinglass do a lot of the direct examination of Keith Davidson. Emil Bove did the cross.
Mary McCord: Keith Davidson, for listeners, is Stormy Daniels and Karen McDougal’s attorney.
Andrew Weissmann: Yep. And he was on the stand and finished yesterday with cross and redirect. And Emil Bove, the lawyer who crossed it, did an excellent job, although we’ll talk about some strategy calls. I did also get to hear Todd Blanche. He argued the gag order. And I’m sorry to say this, but what you would read on the cold record is representative of what he sounded like. Admittedly, to be fair to him, he didn’t have a lot to work with.
Mary McCord: Right.
Andrew Weissmann: But he seemed so unsure of himself in his presentation style. And let me just contrast that, Mary. I’ve heard you speak in a variety of settings. Let me just put it this way. He’s no Mary McCord.
Mary McCord: Well, that’s very gracious of you. I was not in court, though, representing Mr. Trump. So he’s got a lot of pressure. But I think he has little to work with. And we’ll come to the gag order in this episode. I mean, he kind of felt to me like he was rehashing arguments, you know, he’s made before because that’s what he’s got.
Andrew Weissmann: Yeah. And also avoided the one that was the most troubling for the judge. He just didn’t address it. The judge had to sort of say, are you planning on addressing that? And you have to say something. I mean, you just have to have an argument. And, you know, and sometimes if you have to fall on your sword, you fall on your sword and maintain your credibility with respect to other aspects. But I was underwhelmed.
Mary McCord: Let’s get into that since we’re there and then we’ll come back to Keith Davidson’s testimony.
Andrew Weissmann: Yeah, yeah, yeah.
Mary McCord: So just to remind people, there was a hearing earlier this week on the first 10 alleged violations of the gag order. And the judge, I’m sorry, actually, that hearing was last week. The judge ruled this week right before we recorded on Tuesday and we were able to discuss that. And the judge, of course, found that nine out of the 10 incidents that the government had sought Mr. Trump to be held in contempt for violating the gag order on, nine of those were violations and fined Mr. Trump $1,000 each, which is the maximum under the New York law that you can find someone per violation.
And warned him that, you know, sometimes a fine is not sufficient, particularly when a person has wealth and that he would have to consider incarceration if the fine was insufficient to prevent further violations. What was heard yesterday morning were four more alleged violations of the gag order. However, these four alleged violations were alleged before the judge was able to give that warning to Mr. Trump. In other words, before he was able to say, hey, we may be looking at incarceration here.
So the prosecutors at the hearing yesterday were not asking for a sentence of jail time. They said he hadn’t been given that warning at the time of these violations. And so we’re not asking for that this time. And also, it would be very disruptive so we’re not asking for it. So they’re still asking just for the fines of $1,000 per violation.
I was a little surprised, though, by some of the reactions to some of the alleged violations. And in particular, we talked a little bit on Tuesday about how for the first time one of the alleged violations was not about Mr. Trump attacking a witness. It was actually about him saying something nice about a witness. And that was when he referred to Mr. Pecker as very nice. And of course, that was the government’s first witness, the former chief executive of American media.
And that sounded like things that you and I have heard him do before, particularly when you were doing, you know, your work as part of the Mueller investigation and the various prosecutions that resulted from that. And it was something that Trump would sort of famously do, say something nice about someone who he’s friends with or who’s worked with him. I think the expectation that that person was going to be on his side and testify favorably. And the judge at one point said he wasn’t too concerned about that. What was your take on that?
Andrew Weissmann: Yeah, I mean, the prosecutor said, look, this is a classic carrot and stick.
Mary McCord: Yeah.
Andrew Weissmann: I mean, he’s denigrating Michael Cohen. He is praising witnesses who he wants to curry favor to. I was surprised by that, too. I think that if the judge is trying to think of this in terms of I’m worried about witnesses who wouldn’t want to come forward, who will feel upset and afraid to come and tell the truth, I think he was looking at it through that lens. And so I agree with you that you could have a broader view, particularly since the order reads as the order reads. It doesn’t really separate the two.
Mary McCord: Yeah.
Andrew Weissmann: But again, I think this was the judge trying to bend over backwards to be fair in terms of what he’s really concerned about.
Mary McCord: And Mr. Pecker was not cowed. It didn’t seem like, you know, wasn’t impacted. But you’re right. Sometimes it has impact on other potential witnesses. And the judge even said that at a different point of the hearing.
Andrew Weissmann: Exactly.
Mary McCord: He’s like, I’m concerned about how other witnesses will be impacted by the things Mr. Trump said. So I was just a little surprised about that.
Andrew Weissmann: I was, too. I mean, the judge definitely gets that, you know, when you attack witnesses like Michael Cohen and Stormy Daniels, where he had said, look, I understand the problem of them using this as a sword and not a shield and I’m concerned. But you need to understand, I’m concerned about all witnesses, not just them.
But the only good argument the defense had, and I don’t mean good like successful, but a good faith argument was like essentially Michael Cohen doesn’t need this gag order —
Mary McCord: Right.
Andrew Weissmann: — because he’s using it as a sword. But the judge made it absolutely clear he is extremely concerned about the comments about the jury.
Mary McCord: Exactly.
Andrew Weissmann: And there was no response other than Todd Blanche saying, well, he didn’t attack a specific juror. He just attacked the entire jury. That is not a winning argument. And you understood it when the judge basically said, I understand your argument, meaning I understand how bad that argument is. But like, let’s move on. And that was one where the judge, the quiet control also was like, you know what? We’ve gone well past 10:00, which is when I promised the jury that we would start and so we’re now done.
Mary McCord: Yes.
Andrew Weissmann: And so the judge reserved decision on that. As I said, I was struck by the fact that Todd Blanche was clearly for most of this speaking to his client.
Mary McCord: Yes.
Andrew Weissmann: Even if you’re going to make an aside to that, you really do have to address something to the judge. You could see Donald Trump was very perturbed when Todd Blanche actually agreed with the judge on something. You could see that was like, we don’t do that.
Mary McCord: That’s so interesting because you were able to see that, right? The rest of us don’t get that from the transcript.
Andrew Weissmann: Yeah.
Mary McCord: You get reporters often saying that Mr. Trump is sitting there with his eyes closed, but that sometimes he reacts, so.
Andrew Weissmann: Yeah, well, that was one where it’s just like we don’t take any prisoners.
Mary McCord: Yeah.
Andrew Weissmann: It’s like so —
Mary McCord: Object to everything.
Andrew Weissmann: Exactly.
Mary McCord: Fight everything.
Andrew Weissmann: He reserved on that. Again, as we’ve talked about, I think he’s going to certainly find a violation with respect to the juror comment. I really wish he would say I’m going to sentence you on that later or impose some kind of monitor. I would say there’s one other piece, which is that Susan Necheles later in the day said, Judge, will you please advise us whether we can repost certain articles by conservative commentators? And we’d like to repost those, even though, by the way, in them there’s comments on the witnesses, for instance.
Mary McCord: Right.
Andrew Weissmann: And essentially asking for like a pre ruling.
Mary McCord: Permission. Yeah, exactly.
Andrew Weissmann: By the way, I was so happy to hear from her because she’s such a real lawyer and she’s tenacious and she’s aggressive, but all within the bounds of the rules. And look, what she was doing is it was pretty clear the judge was going to be like, I’m not going to start reviewing every single thing beforehand. But for the purposes of they’re going to want to appeal the gag order on some new ground, this gives them some argument, some fodder.
Mary McCord: New argument. Yep.
Andrew Weissmann: And so that’s why she did it. And he knew that. And he said, look, I’m not going to debate you. I’m not doing this, but you definitely can appeal it. She was respectful in trying to re-argue it and make her point. I just thought it was good lawyering. But he was like, I’m not going to pre-rule on all of that.
Mary McCord: Right.
Andrew Weissmann: And also, look, the order said what it said.
Mary McCord: That’s what he said. He said the order was clear. Yeah.
Andrew Weissmann: Yeah, exactly.
Mary McCord: Let’s take a break. And when we come back, we will turn to substance.
(ADVERTISEMENT)
Mary McCord: Welcome back. Now, Andrew, I’m excited to dig into the testimony from yesterday. Keith Davidson, of course, first went on the stand earlier in the week, and then there was the recess on Wednesday and he resumed his direct exam yesterday. That was finished. Then there was cross-exam and redirect and recross. And you were there for it all. So, again, Keith Davidson was the attorney for both Karen McDougal and Stormy Daniels at the time. And he’s really, I guess, the one who negotiated the payments to keep their stories squashed, keep their stories from being published.
And it sounded like particularly on cross, there was a, you know, there was a little bit of a mud fight, maybe one might say. I don’t know if you would characterize it that way.
Andrew Weissmann: Yeah.
Mary McCord: But we can start with direct, though. What were the points?
Andrew Weissmann: Yeah, let’s start with what happened yesterday. So Keith Davidson, in some ways he’s there, but it’s not like he’s needed, frankly, as a witness. I thought one interesting tack, because he’s sort of a hostile witness. My suspicions are he didn’t actually come in to be prepared by the DA.
Mary McCord: I got that sense when I read the transcript.
Andrew Weissmann: Yeah. It doesn’t read as fluidly as you would have. I mean, here’s an example that tipped me off. So, Mr. Davidson, Josh Steinglass asks, do you remember approximately when you first represented Ms. McDougal? Answer.
Mary McCord: Right.
Andrew Weissmann: Not offhand.
Mary McCord: Yeah.
Andrew Weissmann: Really?
Mary McCord: Did you do anything to prepare for this trial, right?
Andrew Weissmann: Trial of a former president? Like, are you kidding? Not offhand? If you had sat down and prepared, you would have, yes, I believe it was, like, whatever, 2015, 2016. I mean, there was just sort of a F-you attitude —
Mary McCord: Yeah. Yes.
Andrew Weissmann: You know it was a little bit pulling teeth. And so one of the strategies which I know I have resorted to, which I was very interested in seeing, is that yesterday for the end of direct examination, basically, Josh Steinglass lashed him to every e-mail, text and document. I mean, it was basically like, dude, you’re going to have to eat each of these because it’s in the record and you said it at the time.
So there were very, very few instances where Steinglass was asking him to do much other than reading and putting in simple context what was absolutely clear from the records. And the key import of this really still went to the David Pecker point, which is why you should care and also why this was clearly election interference. With the denouement being this statement by Keith Davidson on the evening of the 2016 election, where he texts Dylan Howard at the “National Enquirer” and says, essentially —
Mary McCord: Look what we’ve done.
Andrew Weissmann: — look what we’ve done. And Dylan Howard says, oh, my God. And there he was asked, what did you mean? And he said, because we understood that what we’d been doing, e.g. McDougal and Daniels, was in some measure to facilitate Donald Trump becoming president. So that it had nothing to do with Melania. It wasn’t divorced from that. That was the period that this was being focused on and why also it was clear that was the leverage and the reason that this all had, with respect to Daniels, was getting done post “Access Hollywood” and pre-election.
Mary McCord: Right.
Andrew Weissmann: And so that was sort of the key piece. The rest was sort of in the record and both sides sort of knew it because it’s with the pluses and minuses for both sides that we can talk about.
Mary McCord: One of the things that I thought was notable looking at the transcript is the prosecution quite willingly and purposely got into, you know, what I will say, sort of taking the sting out, like they weren’t afraid to go ahead and elicit from Mr. Davidson really kind of how much people don’t like Michael Cohen. How they don’t like to work with him.
Andrew Weissmann: Yeah.
Mary McCord: They don’t like to have to return his phone calls, how he’s aggressive, et cetera, et cetera. And some people might have thought, isn’t that odd because isn’t Michael Cohen going to be your star witness? But of course, as we discussed last episode, Michael Cohen comes with, I think we decided, you know, like a cargo container or an entire cargo ship worth of baggage. And you’ve got to bring that out so that you don’t look like you’re hiding something as the prosecution, like you’re putting this witness on a pedestal that he’s going to be the be all and the end all.
You’re going ahead and eliciting before he ever takes the stand. This is an imperfect witness and people didn’t necessarily like him so that the jurors are in that mindset by the time they hear from him. And that’s why the other thing that the prosecution is doing is trying to corroborate every single thing that Michael Cohen will say with text messages, e-mails, phone calls, recordings, other witnesses, right, everything to make the jurors be able to think, well, I maybe don’t really like this guy, but I believe him.
Andrew Weissmann: A second way that the sting was drawn out is and I think it’s really important for listeners to understand this because I don’t think it’s getting enough attention, is what is still a very open issue yet to be proved in the case and what is incontrovertible based on the documentary record. We’ve talked a lot about the motive of this was for the election. There’s no question that Donald Trump was aware of it with respect to Karen McDougall, but the charges relate to false business records and whether there were false business records in covering up this scheme, what was absolutely clear and brought out on direct examination of Davidson.
It also was underscored on cross is that as we talked about, the “National Inquirer” was no longer willing to be —
Mary McCord: Right.
Andrew Weissmann: — the bank because they were got stiffed essentially because their general counsel was like, we can’t take reimbursement. And so the Stormy Daniels transaction had to be handled differently and it was coming up and resurrected. It suddenly came to life because of “Access Hollywood.” It was not a story that anyone was interested in. And no one was interested in protecting Melania, for instance, until the “Access Hollywood” tape. And suddenly people are like, oh, we have to kill this.
And we also know that Donald Trump and Michael Cohen would have been super happy to not pay —
Mary McCord: Oh yes.
Andrew Weissmann: — this till after the election, because after the election, you might not have to pay at all because it doesn’t really matter whether he wins or loses. But that was the window of maximum leverage for Stormy Daniels and her lawyer, Keith Davidson. So they had to figure out a way who was going to pay because it wasn’t going to be the “National Inquirer.”
We also know from David Pecker that initially Donald Trump was not keen on paying any of this because his view was sort of like it all gets out. But he ultimately agreed to go forward with this with respect to the doorman and Karen McDougal. But ultimately, there’s an agreement to pay Stormy Daniels. But here’s the rub. The actual written agreement between Stormy Daniels and Essential Consulting, and there’s sort of a full agreement —
Mary McCord: Side agreement, right.
Andrew Weissmann: — and there’s a side letter with the actual names. So it’s clear this is with respect to Donald Trump. But the actual agreement has three signatures, not four. And there’s an open space for Donald Trump. And he does not ever sign it.
And the witness said, look, as far as I know, he didn’t sign it. But he also considered it to be a valid agreement. I’m going to come back to that in one moment. He doesn’t sign it. That’s not really fatal to the case. But if he had signed it, it would have been easier to show that he was aware of the agreement. He was aware of this effort to silence. But it’s not from putting his John Hancock on it.
So that is missing, as well as Michael Cohen does say to Keith Davidson, according to Keith Davidson, that Michael’s trying to put off payments and ultimately says, you know, I just have to do it by myself. And we know he does. He sort of makes the payment through Essential Consulting. So the remains is the issue to how do you show that Donald Trump was aware of this agreement? But just to be clear, the case is not about the signing of the agreement as long as there are false business records that were created to cover up this the scheme —
Mary McCord: That Donald Trump was aware of and participated in. Yes.
Andrew Weissmann: Exactly. So I actually think you’ll hear from the state. This is such a classic maneuver by criminals who are aware of how things could be used, which is they want front people and they want deniability.
Mary McCord: Yes.
Andrew Weissmann: So I could totally see why he wouldn’t sign it, because he’s like, you know what? They only want the money. It doesn’t really matter whether I sign it or not. But the defense has an opening there because of Michael Cohen saying I might have to just do this myself. And he does front the money himself. But you can also understand, given the time period, why that had to happen.
Mary McCord: Right. But these are things like you say, this is why the government first elicited this, because they knew this is something that the defense counsel would pounce on in cross-examination and they needed to give Keith Davidson a chance to sort of set this up so that it can be explained. And like you said, there are explanations. But of course, it’s the job of the good defense counsel to say, yeah, but you don’t have to believe those explanations.
All of this supports our argument that Trump had nothing to do with this. This was Michael Cohen going off and being rogue. And Michael Cohen loved Donald Trump. He would do anything for Donald Trump. And he made a decision to pay this off and he got a home equity line, et cetera. He took a lot of questions to do it. But I think that’s what defense counsel essentially was trying to do with this cross-examination.
Andrew Weissmann: So can I point something out from and this is something that my colleague and our friend Ryan Goodman has sort of stressed to me. If you remember, Trump is going to want to say this all was being done by Michael Cohen. And if you remember in opening, Todd Blanche said, because the worst part for the defense is the reimbursement.
Mary McCord: That’s right.
Andrew Weissmann: And he says they’re not reimbursements.
Mary McCord: Payment for legal expenses.
Andrew Weissmann: Exactly. But here’s the problem with that, because the reimbursements, if they can show their reimbursements and they’re false, the game over because it doesn’t matter whether he signed. It doesn’t matter where you even knew at the time.
Mary McCord: That’s right.
Andrew Weissmann: And we’re going to get to some tape recordings that came in. But let me just read to you something. There was litigation later between Stormy Daniels and Donald Trump in California related to this agreement. And in that litigation, there’s lots and lots of information that comes out. But let me just read to you from page 20 of the judge’s decision in favor of Stormy Daniels.
Mary McCord: And just to be clear, this is when she wanted to get out from her agreement to not disclose the relationship that she had.
Andrew Weissmann: Exactly. And the issue is, remember, there’s only three signatures, not four.
Mary McCord: Right.
Andrew Weissmann: So technically, is that a binding agreement because not everyone’s fully signed? But let me point out, without getting into those niceties, in the course of the litigation, this is what the judge says on page 20. I’m just going to quote. “Thus, in their June 1, 2018, opposition brief filed in this action, essential consulting and defendant. Defendant is Donald Trump. Essential consulting and defendant. Here’s the money part. Admitted that defendant reimbursed essential consulting for essential consulting’s $130,000 payment to plaintiff.”
Mary McCord: Wow. Okay.
Andrew Weissmann: Who’s the plaintiff?
Mary McCord: Stormy Daniels.
Andrew Weissmann: Exactly. And then it says, which was paid in consideration for plaintiff’s promises not to disclose confidential information pertaining to David Dennison. David Dennison being the pseudonym that was used for Donald Trump. Again, there’s absolutely clear evidence of that, not just witness testimony, but it’s in the side agreement.
Mary McCord: The side agreement, right. Side letter.
Andrew Weissmann: Exactly. And then, by the way, the decision cites to where that is, like where the defendant and Essential Consulting admitted that in their opposition brief that they reimbursed. So you can be sure that the thing that I read, not the judge’s decision, but I think the underlying admissions will be read to the jury.
Mary McCord: Yes.
Andrew Weissmann: And so the defense has to explain. They don’t have to do anything, sorry, but they will feel an obligation —
Mary McCord: Right. They will want to explain.
Andrew Weissmann: — explain how they could say in opening, it’s not a reimbursement. When they were trying to win their case against Stormy Daniels, they said it was a reimbursement. And this is where, you know, as Amy Berman Jackson like to say —
Mary McCord: Judge on the D.C. District Court.
Andrew Weissmann: — facts matter.
Mary McCord: Yep.
Andrew Weissmann: By the way, in show notes, we can put a link to that decision that I just read to you. And again, it’s on page 20. But anyway, Mary, I’ve been talking too much. Why don’t we talk about the cross? What was your reaction? Sort of what was the key to you? How would you approach cross? What do you think they were trying to accomplish?
Mary McCord: I mean, I do think he did some damage. That is Emil Bove. Is that how you pronounce it?
Andrew Weissmann: It is. It’s Emil Bove.
Mary McCord: I thought that he did do some damage in terms of pointing out the things we’ve just been discussing, that, you know, meaning Keith Davidson’s, all of his conversations were with Michael Cohen and David Pecker and Stormy Daniels and her manager, Gina Rodriguez, I think, but never Donald Trump. And so whatever he knows about Donald Trump approving of this agreement, knowing about this agreement, all of that either comes from his assumptions or from things Michael Cohen said to him.
I mean, that’s the real key here. And I think he could have done it shorter and more crisply and just like rammed home those points. And I would have thought that was a pretty effective cross. I think it’s still there. But, you know, he asked a lot of questions and he really wanted to make a second argument besides that one.
That argument was basically he wanted to suggest to the jury that Keith Davidson’s whole business is really a business of extorting celebrities, Donald Trump being a celebrity, for money when, you know, people come forward with threats that they will expose negative information about those celebrities.
So he went through lots of examples, Charlie Sheen and Lindsay Lohan and Hulk Hogan, and he even used the word extortion —
Andrew Weissmann: Over and over again.
Mary McCord: Yes. Over and over and over again to try to suggest that this was just a big shakedown of Donald Trump and that none of this was true and none of it happened. I don’t think, well, you tell me. You were sitting there. How did the jury react to that? Because my view is there’s no way they couldn’t at least have that in their mind. Wow, there’s something here. I mean, ultimately, that doesn’t matter to the key charges here, which are the falsification of the business records, right.
But it’s a distraction and it’s something that, you know, I think he made the calculus that this might put some doubt in the jury’s head and make them think more favorably about Mr. Trump. And to a certain extent, I’m sure he was playing to his client.
Andrew Weissmann: I don’t know how the jury took it. As you said, extortion, which, by the way, Davidson pushed back on.
Mary McCord: Yes.
Andrew Weissmann: And then it became the word extraction. And frankly, Davidson was right to say, no, this is just part of a civil settlement and this is the consideration.
Mary McCord: It’s a contract.
Andrew Weissmann: They agree not to speak. You pay consideration. They’re NDAs, nondisclosure agreements all the time. And this is one where it’s kind of everyone’s right.
Mary McCord: Right.
Andrew Weissmann: I mean, that’s not really extortion. That’s what a civil case is.
Mary McCord: Right.
Andrew Weissmann: It’s like someone has a case, as long as they’re bringing it in good faith —
Mary McCord: Yeah.
Andrew Weissmann: — that’s what a case is. You can’t really call a civil case extortion. But I think it was done to sort of be a pox in all your houses and to feel sympathy for him —
Mary McCord: Right. Yes.
Andrew Weissmann: — in that, oh, you know, this is what was going on and these are bottom feeders. I mean, I don’t fault the defense for trying to make that argument and appeal to the jury’s emotions rather than their head and be like, you know, these people are sort of scummy. And what did you expect him to do? It was a little strange to me that they decided to go hammer and tongs on Keith Davidson and not David Pecker. I mean, David Pecker —
Mary McCord: Yeah.
Andrew Weissmann: — admitted on the stand that he had an agreement with Donald Trump to engage in intentional defamation.
Mary McCord: Yes, right.
Andrew Weissmann: I mean, remember, this isn’t just a catch and kill. This is also a dissemination of false information about your adversaries and a catch and kill —
Mary McCord: Yeah.
Andrew Weissmann: — for the purposes of changing the electoral votes. I mean, remember, Keith Davidson is on paper saying, oh, my God, essentially, what have we done here?
Mary McCord: Right.
Andrew Weissmann: So it was just an interesting strategy that they didn’t do that with David Pecker, which certainly makes you think they probably had more to worry about with respect to what David Pecker knows with respect to Donald Trump. I thought it was another —
Mary McCord: Because they do know each other and have known each other for decades. So, you’re right.
Andrew Weissmann: Yes. And I had direct information about —
Mary McCord: Yeah.
Andrew Weissmann: — you know, he had direct dealings with him.
Mary McCord: Right.
Andrew Weissmann: So, you know, I thought it was sort of a lot of drama. And it’s the first time in the case there was that kind of drama. So obviously everyone sort of perked up and everyone sort of wanted to cover it. But it isn’t really relevant other than as this distraction. I did want to point out an amusing part of the direct that, again, is a little bit of a factoid. But it does show that the state wasn’t trying to present Keith Davidson as some paragon of virtue. They understood who he was. They understand who he is. They understand who David Pecker is and they understand who they are in the world.
You know, these are not their choices of witnesses. These are the witnesses who came because of the facts. When the Stormy Daniels information comes public, there are two statements that are written initially by Mr. Davidson. The first one says sent by Stormy Daniels. I want to clear things up. There was no romantic sexual relationship.
Mary McCord: Sexual and/or romantic relationship, I believe, is what it said.
Andrew Weissmann: That’s the second one, I think.
Mary McCord: Okay. Right.
Andrew Weissmann: But anyway, it doesn’t matter. The key words are romantic, sexual and relationship. And then later there’s a second denial saying, I just want to make it clear there’s no sexual relationship. And so, Josh Steinglass, it’s one of the rare moments yesterday where he asked him to speak beyond the document to sort of open-ended question. Remember, I said he was trying to tether him. And it was such a wonderful question. He basically says, how would you sort of assess that in terms of truthfulness?
Mary McCord: Right.
Andrew Weissmann: Which is such a great question because there’s no bad answer to that. And Mr. Davidson, with respect to the first iteration, which is romantic sexual relationship, says, well, a very technical reading of that technically is that it’s truthful. And Josh Steinglass says, so could you just walk us through how that actually works? And he says, well, no one ever alleged that this was a romantic relationship, which got a general laugh. And ultimately, Mr. Steinglass said, so what you’re really saying is it was cleverly misleading, obviously.
But then later, the next statement is essentially no sexual relationship. And he has to say, because the romantic part is now deleted, is not there. So he says, well, no one would say it was a relationship.
Mary McCord: Relationship, right.
Andrew Weissmann: It was just a one-night stand.
Mary McCord: Yeah. But he didn’t say one night stand, but that’s what we all took that to mean, right? No relationship, no ongoing relationship.
Andrew Weissmann: So, you know, it was all intended to mislead. And so it was clear who you were dealing with. But to be fair, I mean, Mr. Davidson had a point, which was it was clearly intended to be misleading. But he also is a lawyer and he’s trying to make sure she’s not in violation of the agreement.
Mary McCord: Of the agreement.
Andrew Weissmann: And so I have to say, this is why lawyers get bad names.
Mary McCord: That’s what I was just going to say. What I hate about this is like, oh, my God, it just plays into your parsing words in ways that the normal person would think are ridiculous.
Andrew Weissmann: Well, it’s because also we’re as former federal prosecutors, we know that there are some statutes that say you cannot make a false or misleading statement —
Mary McCord: That’s right.
Andrew Weissmann: As long as it’s intentional. You can’t make an intentionally false or an intentionally misleading statement.
Mary McCord: This was certainly intentional.
Andrew Weissmann: Well, it was certainly intentionally misleading, even though it was technically accurate.
Mary McCord: There’s an argument it was technically.
Andrew Weissmann: Exactly. I would say an argument that if you were to bring a criminal case, for instance, you’d be like, okay, that’s an argument. But it was an interesting component. Okay so let’s take another break and then go to some of the next witness who was on the stand, who’s still on the stand this morning, who introduced two interesting tape recordings. One we knew about, one new one. And then we’re going to get to listener questions.
Mary McCord: Great.
(ADVERTISEMENT)
Andrew Weissmann: Mary, take us through the two tape recordings, the one that we knew about and particularly the new one. What do you make of those?
Mary McCord: Sure. Well, the first one, you know, it was more, I think, impactful just to sort of hear the tape, because this is a conversation between Mr. Cohen and Mr. Trump that’s about the payment to Karen McDougal. And this is something that the upshot of this or the verbiage used in this is something that was actually in the statement of facts that the district attorney filed a year ago when he first indicted the case. So we were aware of this. And so this was about hearing Mr. Trump’s reaction. So let’s hear it.
(BEGIN AUDIO CLIP)
Michael Cohen: And I’ve spoken to Allen Weisselberg about how to set the whole thing up with —
Donald Trump: So, what are we going to pay for this? 150?
Michael Cohen: –funding. Yes. And it’s all the stuff.
Donald Trump: Yes, I was thinking about that
Michael Cohen: All the stuff. Because — here, you never know where that company — you never know what he’s going to be.
Donald Trump: Maybe he gets hit by a truck
Michael Cohen: Correct. So, I’m all over that. And I spoke to Allen about it, when it comes time for the financing which will be–
Donald Trump: Listen. What financing?
Michael Cohen: We’ll have to pay.
Donald Trump: So I’ll pay with cash.
Michael Cohen: No, no, no, no, no. I got — no, no, no.
(END AUDIO CLIP)
Mary McCord: Sometimes I think it’s a little bit hard to hear Trump in that particular recording just because I think Michael Cohen was recording and he was closer to the microphone on his phone. But, you know, clearly aware of the payments, 150, and tries to suggest cash and Michael Cohen says, no, no, no, no, no. And the final word that kind of gets cut off there is check.
But to the extent that there’s any argument that Donald Trump didn’t know about these payments to Karen McDougal, didn’t realize what was happening with AMI and David Pecker because this all comes up with, you know, taking care of that thing, that information involving our friend David. I mean, this makes it pretty clear he’s aware of that. And that is going to be so useful to the argument that he’s also aware of Stormy Daniels.
Andrew Weissmann: Yeah. And he’s not saying what an innocent person would say, which is, what are you talking about.
Mary McCord: Yes. What are you talking about?
Andrew Weissmann: Instead, he’s saying, let’s pay in cash.
Mary McCord: Yes.
Andrew Weissmann: I mean, let’s pay in cash because he’s thinking that’s a way to avoid any record.
Mary McCord: No record.
Andrew Weissmann: And that’s why he didn’t sign that agreement. He wants deniability.
Mary McCord: Yes.
Andrew Weissmann: And that, by the way, is the first time the jury heard Donald Trump’s voice in the trial.
Mary McCord: And Michael Cohen’s, I think, right?
Andrew Weissmann: Oh, yeah, that’s true. I think that’s true. So let’s go to the second tape, which is a new one. And this is between Michael Cohen and Mr. Davidson. Again, it is recorded by Michael Cohen. And this came in through a witness from the D.A.’s office saying that this was extracted from Michael Cohen’s phone. And they don’t have to rely on Michael Cohen to say this is what it is. You have an independent witness saying this is something that the FBI seized from Michael Cohen and then we extracted it from the phone. So this is why you know it’s they’re independent of Michael Cohen. So let’s play that tape.
(BEGIN AUDIO CLIP)
Michael Cohen: Nobody’s thinking about Michael. You know what I’m saying. And despite what, like, for example, you know, what the earlier conversation, you know, and who else would do that for somebody? Who else?
Keith Davidson: Yeah.
Michael Cohen: I did.
Keith Davidson: Yeah.
Michael Cohen: Because I care about the guy.
Keith Davidson: Right.
Michael Cohen: And I wasn’t going to play penny wise, pound foolish.
Keith Davidson: Right.
Michael Cohen: Right. And I’m sitting there and I’m saying to myself, what about me?
Keith Davidson: Yeah.
Michael Cohen: What about me? And I can’t even tell you how many times he said to me, you know, I hate the fact that we did it. And my comment to him was, but every person that you’ve spoken to told you it was the right move.
Keith Davidson: All right.
(END AUDIO CLIP)
Mary McCord: All right, so what’s your reaction to that one, Andrew? I feel like this one is I mean, obviously, it’s one we didn’t know about. I think it’s useful to the prosecution. I also think that there are ways that the defense can try to use this as well. I won’t say a double edged sword, but you can make arguments both ways, I think, based on this.
Andrew Weissmann: Yeah, I mean, what I like about this tape is so many things. One, Michael Cohen isn’t going to be tape recording if he thought the reaction he was going to hear was, what are you talking about? In other words, it’s just the fact of making the tape is because you expect that you’re going to hear corroboration, not someone going, what are you talking about? You never told me Donald Trump knew about this.
Second, it’s not exactly what you would expect of somebody who’s falsely implicating Donald Trump to say, you know, he didn’t really want to do this. Like he had doubts about whether this is the right strategy. Also has a ring of truth about it. It’s a little bit like David Pecker, who said that initially Donald Trump’s reaction to the whole payment scheme was, you know, it all comes out, is it really worth doing?
And then finally, there is this tantalizing suggestion at the end, which is when Mr. Cohen says every person that you’ve spoken to told you it was the right move.
Mary McCord: Right. That’s the best part for the government, I think.
Andrew Weissmann: I think that’s one where you are waiting to see whether the state has any of those witnesses, any of those people. And remember, Hope Hicks is supposed to be a witness. She was the communications director.
Mary McCord: Right.
Andrew Weissmann: So she would understand. And she’s already been talked about as being aware of the Karen McDougal scheme. And so it’ll be interesting to see what she has to say about what she learned about this when she was in the White House and whether this is the right move. Because remember, the testimony from David Pecker was that Hope Hicks and Sarah Huckabee Sanders were both aware. And the right move was to essentially catch and kill.
Mary McCord: Yep, squash it, right?
Andrew Weissmann: What did you make, Mary?
Mary McCord: So I think that’s right. And I think that’s one of the most significant pieces of this. And I agree with everything you say. I also think if I put on my what if I were defending him hat, I could make an argument. This is all Michael Cohen. I love that guy. I did this for that guy. Right. And that could fit into their argument that this is just Michael Cohen, who worships Donald Trump, doing this on his own without Donald Trump’s approval. And in fact, saying, I wish it hadn’t happened.
You know, they’ll try to spin it, I think, to be useful for them. I think it’s an interesting conversation that they had. Again, well past when all of it is not contemporaneous with when the payments were being made. So we’ll see how —
Andrew Weissmann: Mary, should we go to listener questions?
Mary McCord: Yes, yes, yes do.
Andrew Weissmann: Because we never, ever do that. Mary, can I ask you the first question?
Mary McCord: Sure.
Andrew Weissmann: And it comes from a listener in Anchorage, Alaska. Thank you so much for sending it in. And the question is, I am curious if the recent gag order violations issued by Justice Merchan, which found Donald Trump in violation of the laws of New York, could trigger other violations related to Mr. Trump’s conditions of bail and release in his other cases. That’s a perfect question for you, Mary.
Mary McCord: It is.
Andrew Weissmann: So how does it affect, for instance, in D.C. and Florida and Georgia?
Mary McCord: So a standard condition of pretrial release in any criminal case, and I’ve never seen one that doesn’t have this condition, is don’t commit any other crimes. While you are on release pending trial, don’t commit crimes.
Andrew Weissmann: Shocking.
Mary McCord: Yeah.
Andrew Weissmann: Shocking. Usually not a hard thing to comply with.
Mary McCord: Mary McCord: Exactly. And so people picked up on the fact that this is considered criminal contempt and that the judge found that the government had proven beyond a reasonable doubt that Donald Trump is a contemnor. He had violated the gag order nine different times and therefore was subject to a criminal penalty of a fine or incarceration.
However, my understanding, based on those who practice in New York and know New York law, is that this is not actually considered a criminal conviction in a way that would violate these conditions of release in D.C. and in Georgia and in Florida, that this is a civil proceeding. It’s criminal contempt for violating a order of the court in that civil proceeding.
And I think the reason it’s called criminal contempt is because one of the penalties is incarceration. And it’s not civil if a penalty is incarceration. That’s criminal. But it is nevertheless not considered a criminal conviction in a way that would trigger detention because of violations of his release order in the other cases. Anything I missed on that that you’re understanding, too?
Andrew Weissmann: Yeah, yeah, yeah. It’s this hybrid.
Mary McCord: Yes, hybrid. I think the courts have even called it a hybrid. Okay, shall I give you the next one?
Andrew Weissmann: Sure. But I may punt it to you if it’s too tricky.
Mary McCord: Okay. This one is, what if Trump’s business had simply recorded in their annotations for the payments to the lawyer catch and kill as opposed to legal expenses? Then that would not be falsifying business records. What campaign law would apply here and why would that be illegal?
Andrew Weissmann: That is such a great question. I actually think and I don’t know, Mary, if you agree or disagree, but the crime here is false business records. It’s a felony because of the intent to engage in various underlying pieces, one of them being election fraud under New York law. But if the business records had been accurate and said this is reimbursement for the catch and kill scheme, that’s not a false business record. And they could have done it.
Now, the listener might ask, well, then why didn’t they do it? Well, they didn’t do it because the whole idea was to keep this secret. So they don’t want to have records that say we’re engaged in a catch and kill scheme very much for the same reason that Keith Davidson said. It’s really typical in these nondisclosure agreements to use pseudonyms and to have like this side deal that says who the names really are because you don’t want documentation of what you’re up to.
So the whole point was to keep this secret from the electorate. And so you don’t want to create a paper trail that says this is what’s going on. And those then become business records of the company with lots of people being able to see it and to know what’s going on. So, yes, they could have created true business records and then they wouldn’t have been able to be charged with false business records. But there’s a reason they didn’t do that.
Mary McCord: That’s absolutely right. Now, it is possible that might have violated the other laws, right? Because if it’s Michael Cohen who has paid this money to catch and kill Stormy Daniels story, that might violate New York election law. It might violate campaign finance laws, federal campaigns finance laws. In fact, we know that Michael Cohen did plead guilty to federal campaign finance laws because these payments were made in order to essentially provide a benefit to a candidate for office.
And they were in violation of federal law that applies to those. So there’s those kind of things that might still be prosecutable. The things that, frankly, are the underlying offenses here that the allegations are Mr. Trump had intent to conceal these underlying offenses, including New York election law, federal campaign finance law, and tax crimes as well.
Andrew Weissmann: Okay. Mary, so look forward to the weekend off.
Mary McCord: This time it really is the weekend coming up. Yes, good job.
Andrew Weissmann: Okay, I recognize it’s Friday. I’ve been saying that every day. I’m like, oh, my God, is it Friday?
Mary McCord: It feels like Friday. It should be Friday.
Andrew Weissmann: So we’ll certainly be covering what happened today. And I can’t wait to talk to you again about it. And this time, have a great Friday and weekend and see you at the beginning of next week.
Mary McCord: Absolutely. You, too.
Andrew Weissmann: As the trial continues, Mary and I will bring you new episodes twice a week to keep you up to speed. And we want to continue to answer your questions as they come in. To send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@nbcuni.com. Thanks so much for listening. We’ll have another episode for you on Tuesday.
This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Paul Robert Mounsey is our audio engineer. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And 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.