It’s been another extraordinary week in Donald Trump’s New York criminal trial. MSNBC legal analysts Andrew Weissmann and Mary McCord explore the nature of Stormy Daniel’s testimony in depth, and why her credibility is less at issue than that of others who facilitated the hush payments to her. Then, they turn their prosecutorial expertise to understanding why the defense’s mistrial motion was denied by Judge Merchan. And lastly, Andrew and Mary detail what to glean from Judge Cannon’s indefinite postponement of the classified documents trial in Florida.
Note: This is a rough transcript — please excuse any typos.
Andrew Weissmann: Hi. Welcome back to “Prosecuting Donald Trump.” It’s Friday, May 10th. It is 10:10 a.m. I’m Andrew Weissmann. And I’m here with Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: So, tell us what we’re gonna talk about and then we’ll jump in. I’m like, I know, it’s like I’m already like racing. Yeah.
Mary McCord: We’re gonna talk about the trial in Manhattan. How about that?
Andrew Weissmann: Wait, I’m shocked.
Mary McCord: We will update people on what’s going on in the Mar-a-Lago case at the end, but most of this will be about the last few days of testimony and the mistrial motion. So, Andrew, once again, you were actually in court for at least most of the testimony yesterday. I know you weren’t in court for the mistrial motion because we were both on TV at the same time. And you were not in the courtroom when you were on TV, when the mistrial motion was being argued. So I know you —
Andrew Weissmann: I wasn’t?
Mary McCord: — were still in court.
Andrew Weissmann: I wasn’t?
Mary McCord: I saw you at the table with Nicolle Wallace.
Andrew Weissmann: Yeah. So people know what happens is we talked to the last time about sort of how you get there really early. But then during the lunch break, you run out, you talk about what happened, but then you jump in the subway, race up to 30 Rock to run onto set and start talking about it. Anyway, we’re gonna talk about the witnesses, obviously, mostly about Stormy Daniels. But then other witnesses, which are important.
Mary McCord: Yes.
Andrew Weissmann: And then we’re gonna talk about the mistrial motion and bring everyone up to speed. I know, Mary, you want to talk about how that works and what the legal standard is and what exactly is the judge deciding there. I have some thoughts also about like the strategy of what’s going on.
Mary McCord: But let’s start with Stormy Daniels. I know you weren’t there Tuesday, but we both read the transcript from Tuesday. And you were there yesterday and substantial part of the day with Stormy Daniels yesterday. And one of the things that Mr. Trump’s counsel said in the motion for the mistrial, which was based really on Stormy Daniels testimony, was there was a sure lot of sex elicited in a case about records. Was that’s your impression being in the courtroom?
Andrew Weissmann: Well, I’m gonna back up. I was really happy to be there because one of the things that when you’re reading a cold record, which is like when you’re an appellate lawyer you do, that you don’t get and that is a really important function of the jury and also of the trial lawyers is trying to get a sense of the witness and their credibility. Obviously, you can read a cold record, but it doesn’t really give you a flavor for how they’re doing, what’s the tone, what’s the cadence in the rhythm. So, all of that’s lost. I just wish this was televised or at least audio was available so people could hear it.
Mary McCord: And let me just add to that, because this is something you and I talked about last night. I mean, some of the things you can’t get you can’t get, whether there’s hesitation before a witness answers, or whether there’s hesitation in the middle of an answer, you can’t get the tone of voice or body language and sort of reactions, facial expressions, both from the question, or you can’t get the same sense too of how hard hitting are the questions versus things that might look hard hitting in black and white but were delivered calmly and casually in a way that wouldn’t seem like an attack.
You’re like, you don’t see that when you’re just reading the words on paper. You also don’t see how the jury is reacting, individual jurors, are they watching? I heard somebody comment it was like watching a tennis match yesterday like, you know, look at the witness, look at the attorney, look at the witness. You don’t see what Donald Trump’s doing. So it’s great to have the transcripts. But like you said, it’s not the same. And I think particularly when you’re judging credibility and that’s where I think I’m relying on transcripts and you actually saw Stormy Daniels. So we may have some different impressions about that.
Andrew Weissmann: Yeah. So I wanted to take us back to my first reaction because I was fascinated to have specially after hearing people talk about what it was like on Tuesday, where the reports were that she spoke very quickly on direct examination, that she didn’t do all that well on cross examination. And then, obviously, she had almost two days to wait ‘cause cross wasn’t finished on Tuesday, and there was a huge part of cross yesterday. And that’s difficult, I mean, for any witness to have that sort of hanging over your head and how was that gonna weigh on her.
So I was fascinated by that, but my first impression was, I went back to pages 143 and hundred 44 of the book I wrote about the Mueller investigation and people are probably going, what? Why were you hearing about the Mueller investigation? So what I recount there and, God, I still remember it.
In the summer of 2017, we started in basically in June of 2017. And shortly after we started, I was communicating with a defense lawyer for a bank. And we were looking at information involving Michael Cohen, where a bank had filed a report that involved a payment related to a Russian oligarch that had been received in an account related to Michael Cohen.
And the defense lawyer is sending us this report saying, I wanna give you a heads up because you’re gonna get it eventually. So I’m just gonna send it to you directly. And so, he does, and I pull it up in my email and I’m reading it. But the bottom half of the report relates to $130,000 payment by Michael Cohen to an account that at the time we didn’t understand what it was, but we did some quick Googling and we saw it was related to an adult film star, however you wanna describe it.
Mary McCord: Mm-hmm.
Andrew Weissmann: And I first see it, I bring in Jeannie Rhee because she’s sort of dealing with a Russian part of the investigation and we Google and we see that it’s related to something called Stormy Daniels, which we didn’t know what it was. And I remember we both were like, ugh, like just a sinking feeling.
And we go into Robert Mueller, and say, this is my term. I said, we have a blue dress problem referring back to the Bill Clinton issue. Look, we didn’t want anything salacious. We had a very defined remit, but we realized that we couldn’t ignore this information, and it was something that could potentially relate to federal campaign —
Mary McCord: Contributions.
Andrew Weissmann: — violations.
Mary McCord: Yes.
Andrew Weissmann: — by Michael Cohen. It could relate to false statements to a bank about —
Mary McCord: Right.
Andrew Weissmann: — the purpose of creating this account and thus leverage to get him to cooperate. So that was sort of the Genesis of all of this. We ultimately split the Michael Cohen case in two, and we kept sort of the directly Russian related piece and gave the, quote, “blue dress,” unquote —
Mary McCord: Right.
Andrew Weissmann: — pace of it to the U.S. attorney’s office —
Mary McCord: The U.S. attorney’s office, right?
Andrew Weissmann: — in New York.
Mary McCord: Yep. Mm-hmm.
Andrew Weissmann: And so that was the Genesis of all of this.
Mary McCord: Who ultimately prosecuted him.
Andrew Weissmann: Yes, exactly.
Mary McCord: Ultimately prosecuted him.
Andrew Weissmann: Yeah.
Mary McCord: So for our listeners who are young blue dress moment refers to Monica Lewinsky, an intern at the White House back during the Clinton administration, and a sexual encounter, which involved her wearing a blue dress, so there you go.
Andrew Weissmann: And saving it.
Mary McCord: Yes. And saving the blue dress that she wore, very important. So, all right. Back to Stormy Daniels. So, you are watching her yesterday.
Andrew Weissmann: Before we get into the details, I just wanted to give you sort of a big picture takeaway. There is cross examination that is hammer and tongs. It is a take note prisoners full on cross examination that we have not seen in this case so far. And I am not saying that to denigrate Susan Necheles at all.
Defense counsel makes choices about who they want to cross examine. But here’s the irrationality from my perspective of what’s going on. You have a legal plan of what is happening in a legal case and how you would defend a legal case. And you have a political plan of how things are operating in terms of this trial going on in the middle of sort of political season.
Stormy Daniels, as we’ve talked about, is an exhibit, whether she’s believed or not is not entirely but largely irrelevant. In other words, this is the story that according to the state would have been heard but for the hush money payments. I’m not saying it’s irrelevant, whether you believe it or not, but it is you don’t have to prove that she’s credible. You could imagine cross-examining David Pecker and Hope Hicks much more strongly because their testimony is so damning that you have to come up with something.
As a defense lawyer, you’re going to argue in summation about Pecker and Hicks, whereas Daniels, yes, you may wanna challenge it. But in terms of who are the more damaging witnesses, there was an irrationality, from my perspective, as to what was going on. And again, I’m not saying that it’s wrong to cross Stormy Daniels. It just the dichotomy was —
Mary McCord: yeah.
Andrew Weissmann: — fascinating to me that that was the person you go hammer and tongs, but not David pecker or Hope Hicks.
Mary McCord: And directly to that point on relevance, right? You know, I wanna remind everybody that this is a fraudulent business records case, right? It actually does not matter whether her story was true or false. If it was a false story and they paid her to keep quiet and then recorded those payments as legal expenses, that is still a fraudulent business record.
So to your point on the witnesses in many ways who are most damaging on the business record part are people like David Pecker, right? And —
Andrew Weissmann: Right.
Mary McCord: — Keith Davidson and even the people within Trump Organization who worked for Mr. Trump, who put invoices on top of checks and had him sign them and become comptroller who testified about how, you know, the notes, right? The notes we talked about in exhibits 35 and 36 last episode that explained what this was payment for, that is the much more critical testimony.
Here, the relevance of stormy Daniels and her credibility, and this is what the judge had ruled and what he ruled again, when he denied the mistrial motion, is that her story and whether her story is credited adds to the proof of intent and motive of Mr. Trump to be so worried about this story getting out just days before the election, that he would pay $130,000 to keep it hushed, to keep it squashed. And if it’s more believable, he’s gonna be more worried about it.
Now, if it was false, he might be worried about it, but he might thought, oh, I can rebut that easily. I’ve got this witness and that witness —
Andrew Weissmann: Right.
Mary McCord: — and all these people who would say this never happened. And I was never there. And so, the relevance is, wow, if it really did happen and he really was worried about it being revealed right before the election, he’s more motivated to try to have Michael Cohen make the hush money payment.
Andrew Weissmann: Yep, absolutely. That’s why it’s technically relevant, but it’s really not necessary. Remember, there are three parts to the catch and kill. There’s the doorman, there’s Karen McDougal and there’s Stormy Daniels. And the doorman story, everybody agrees, was false. I mean, the D.A. —
Mary McCord: Right.
Andrew Weissmann: — isn’t saying —
Mary McCord: Right.
Andrew Weissmann: — that’s true. And yet, that’s one that they wanted to catch and kill.
Mary McCord: And did catch and kill
Andrew Weissmann: Exactly. As the judge said in the mistrial argument at the end, you know, it’s not necessary for them to prove Stormy Daniels was credible, but it still is relevant for the reasons you said.
Mary McCord: So in terms of how she did to get back to that, I saw the defense making a number of points in a couple of ways. First, as to, you know, the basis for why she was trying to negotiate some deal over this story, there seemed, I thought, some effectiveness in the cross examination of sort of trying to pin her down and her seeming to have multiple motives.
So for example, she did say and she did testify that her agent came to her about making money on selling this story and they were shopping it so that it could be told. And at various times she testified that she wanted the story to be told. And also that, of course, she would be very interested in making money.
Other times she said she wanted the story to not be told as a matter of her personal safety and security and the security of her young daughter and her family. And so that was what was most important to her. And I think there is an inconsistency there, although it can somewhat be rationalized that, yes, she first was trying to sell the story.
But honestly, a better option for her was get the money, but have the story be, you know, not told. But I did think there was an inconsistency there that in the black and white record came out. You know, I don’t know how that resonated with the jury, and I think that might have actually been on the day you weren’t there. I think that maybe mostly came out on Tuesday, but you can tell me if it was yesterday.
Andrew Weissmann: Yeah. There was spillover to Thursday also.
Mary McCord: Yeah. Then what happened Thursday, I thought, was very different and this was really pushing Stormy Daniels hard on what were perceived to be inconsistencies between the story she has previously told in different interviews, going back to 2007, 2011, and then much more recently CNN interview with Anderson Cooper and other interviews she did, they were really pushing her on details she left out that she then testified about it at trial and suggesting that she’s making up these details, and in particular details about suggesting that this was maybe a coerced or a forced sexual encounter and not purely consensual.
Then there was, I think, some denigration of the witness, basically, you’re a porn star, how could you have been surprised to see a man in his underwear when you came out of the bathroom and Donald Trump allegedly was sitting there with his underwear. That wouldn’t surprise you, would you? As though because somebody has been in an adult film, they just have sex with everyone they encounter. And I thought that might be perceived as really kind of an unfair and, frankly, an elitist attack on somebody. So I thought yesterday’s might have been perceived differently than Tuesday’s cross examination.
Andrew Weissmann: Yeah. And I’m not trying to say this is how a jury will take it. And in some ways, I’m not the right person because I’ve seen so many trials. So a lot of the shtick that’s done, I know a shtick, the sort of like, didn’t you rehearse your testimony with the prosecutors and the witnesses, like I didn’t rehearse. You know, yes, they prepared me. I mean, it’s like, those are sort of standard stock things that happen. So, it just a false flat in my ears. I actually was like, I can’t believe Susan Necheles is resorting to that.
Mary McCord: Doing that, yeah.
Andrew Weissmann: But on the other hand, it’s like the jurors haven’t been through this before.
Mary McCord: No, right.
Andrew Weissmann: So, you know, they don’t have that. I thought the strength of the cross was on the money part to show that she was trying to make money off this. There’s a little bit of a webbed foot problem, like it’s sort of, you know, you’re guilty, but I have a webbed foot. It’s like, who cares? Yeah, she was definitely trying to make money on it.
Mary McCord: Yeah.
Andrew Weissmann: But it’s like they could be true when she was making money on it versus it’s false and she was making money on it. It’s like it doesn’t go to falsity. I do think with the inconsistencies, it’s hard to know how it landed. This happens a lot with the defense cross, which is you have a lot of different irons in the fire and some of it doesn’t work. And when it doesn’t work, the problem is that if you put too much stress on that in front of the jury, it looks like you’re playing a game and you’re trying to just catch the witness as opposed to like really getting at the truth.
And so, I actually thought there could have been a better redirect on that. I think when you use a prior inconsistent statement, it really needs to be directly contrary, and there really needs to be almost no explanation for it, other than you changed your story and you better have a good answer for it. I think it could have been teased out more and redirect what was really going on. It was said on redirect, but it could have been flushed out, which is it’s really, I think, unfair because there was nothing that was terribly inconsistent. The judge actually remarked on this —
Mary McCord: He did.
Andrew Weissmann: — later in the day, and said, he didn’t think any of this was inconsistent.
Mary McCord: Or not a new story. They were trying to argue, this is a completely different account. And he’s like, hmm, no.
Andrew Weissmann: And just, you know, sometimes she caught Susan Necheles like trying to do that, saying you tell me where I said that. And in fact, she didn’t say it. So that’s like a terrible position if you’re a defense council to get caught doing that. Let me just give you an example of why I think it’s unfair. You give an interview to Anderson Cooper, you sit down with him for like two hours, they play seven minutes.
Mary McCord: They choose what to use. Right.
Andrew Weissmann: And they choose it.
Mary McCord: Print media, too, yeah.
Andrew Weissmann: Right.
Mary McCord: Exactly. Right.
Andrew Weissmann: And so, on redirect, they pointed out that one of the stories actually said on it, this is excerpted, like —
Mary McCord: Right.
Andrew Weissmann: — we edited it. Like you as the interviewee, don’t get to edit it.
Mary McCord: Yep. This has happened to me multiple times when I read —
Andrew Weissmann: Exactly.
Mary McCord: — the newspaper wrote and I’m like —
Andrew Weissmann: Right.
Mary McCord: — wait a minute, you left out the thing I said before that and the thing I said after that.
Andrew Weissmann: And then also getting cross on like what happens on TV and you and I do a lot of TV, that’s sort of haiku, you know?
Mary McCord: Yeah.
Andrew Weissmann: Like the idea like, oh, wait, you didn’t flush out every jot and tittle is like, no frigging kidding.
Mary McCord: Yep. Yeah. She was on for eight hours, right? Like you don’t have eight hours.
Andrew Weissmann: It’s not the “Prosecuting Donald Trump” podcast —
Mary McCord: Yeah.
Andrew Weissmann: — as you know, where I talk on and on and on and on. So I wouldn’t be able to make that argument because you’d be like, oh, trust me, there’s nothing left to —
Mary McCord: He would’ve added it.
Andrew Weissmann: Yeah.
Mary McCord: If he had something to say, he would have added it.
Andrew Weissmann: Right. Exactly. So there was just an unreality to that and the fact that journalists are sitting there covering this and they know that’s unfair. I just wanted to say one thing that I thought was that you kind of needed to be there to understand how smart and thoughtful and careful she was on the stand as a witness on Thursday, and I can’t speak it to Tuesday. At one point, there was sort of a discussion about this idea of, you’re just sort of saying that Donald Trump sort of forced you essentially, and sort of talking about what happened in the room. And she said, no.
Mary McCord: Right.
Andrew Weissmann: It was so good. She says, no. The worst thing that Donald Trump did about that encounter is lie about it. Everything else that happened is my fault. It was my insecurity.
Mary McCord: Right.
Andrew Weissmann: It’s on me that that happened.
Mary McCord: Right.
Andrew Weissmann: It was so powerful when she said that, that she was blaming herself. It had all sorts of resonance to the Me Too movement.
Mary McCord: Mm-hmm.
Andrew Weissmann: She may be too tough on herself and the way she characterized it, but she was not blaming him at all.
Mary McCord: Yeah.
Andrew Weissmann: It was very powerful on cross. And in many ways, cross humanized her and gave the jury a chance to really see her as a full person and to see her intelligence and thoughtfulness. And I also think another part of the same cross is, well, you are a powerful woman. You seem very sure of yourself. You’ve been providing for your family, blah, blah, blah, et cetera, you know, perfectly fine thing. And she says, so you’re a strong woman. She goes, I’m a stronger woman now.
Mary McCord: Right. She was 27 at the time.
Andrew Weissmann: Exactly.
Mary McCord: Right. Yeah.
Andrew Weissmann: And when you were there, you really thought of somebody who’s had a difficult life who is smart and has been reflective about her life and thinking about what she’s been through.
Mary McCord: Yeah.
Andrew Weissmann: And also someone said, well, don’t you think she was coached and prepared? Well, of course, she’s prepared. But those are not questions you can prepare someone for and those are not answers you get prepared for. It was just a very real moment —
Mary McCord: Yeah.
Andrew Weissmann: — is the way it struck me.
Mary McCord: To the first example you gave, I think, she, frankly, remedied the prejudice that —
Andrew Weissmann: Totally.
Mary McCord: — Donald Trump and his team are trying to argue is justification for a mistrial because she made clear, no, I wasn’t forced. This was consensual. No, he didn’t stand in my way. He didn’t put his hands on me and forced me down. Absolutely not. I wasn’t drugged. I wasn’t on alcohol. I just was insecure and didn’t say anything and did it. And so what they’re so worried about, which is exactly what we’ll come back and talk to, uh, after the break is something I think she largely fixed on cross.
Andrew Weissmann: Yeah. So let’s take a break and come back and talk about the mistrial motion, and then we’ll talk about the other witnesses —
Mary McCord: Yep.
Andrew Weissmann: — yesterday because in many ways, Mary, you and I keep saying this it’s the boring witnesses. Stormy Daniels gets all of the media attention. And I’m not blaming the media, but it’s like there’s a lot that happened yesterday with other witnesses who were a lot dollar that are more significant
So let’s take a break and we’ll come right back.
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Andrew Weissmann: So Mary, let’s talk about the mistrial motion where it’s a little bit out of order. The mistrial motion was made at the end of the day yesterday.
Mary McCord: Yeah.
Andrew Weissmann: So I was not in the courtroom, by the way. We talked about this last time that the judge —
Mary McCord: Yeah.
Andrew Weissmann: — is very even keeled, very soft spoken, very quiet. Lawrence O’Donnell, who was there, told me and then he covered this last night on his show. He said, oh, my God. I mean, it was dramatic because of the change in tone.
Mary McCord: Yeah.
Andrew Weissmann: He was angry.
Mary McCord: Yeah.
Andrew Weissmann: And it showed.
Mary McCord: Yeah. And the reason it was out of order is because Todd Blanche, after they finished the cross examination of Stormy Daniel said, I do have a mistrial motion to make. I also want to argue that the gag order should be lifted. And I also wanna argue that Karen McDougal’s testimony should be precluded.
Do you want me to do it now or later? He is very, very careful about not wasting the jury’s time. And he’s like, what we’ll do is we’ll break at four and you can make your arguments at four and we’re gonna bring the jury back in. And I really appreciate this because I’ve sometimes been in front of judges who don’t seem to care that much about the jury’s time.
Andrew Weissmann: What?
Mary McCord: Yeah. You know, they have other things they could be doing, like going to work or taking care of their kids. And if they’re sitting there and not even listening to testimony, they’re back in the jury room waiting for hours, I think that’s really a disservice and, frankly, almost abusive.
Andrew Weissmann: By the way, in Brooklyn, the ethos of the courthouse where I grew up as a prosecutor was not a minute is wasted —
Mary McCord: Yeah.
Andrew Weissmann: — of the jury time.
Mary McCord: Good.
Andrew Weissmann: And if you, as a prosecutor, are responsible for that delay, like the judges come down on you like a ton of bricks.
Mary McCord: Yeah. I think it should be.
Andrew Weissmann: Everyone understood when the jury is ready, you better be ready.
Mary McCord: You’re going.
Andrew Weissmann: Exactly, not wasting any time. Okay, Mary. So let’s talk about the mistrial motion.
Mary McCord: That’s exactly where I was gonna go. I’m like before we get into the arguments, let me talk about it because we keep throwing this out mistrial. So there is actually a rule and this is in federal court, this is in every state court, but the New York rule says that on the motion of a defendant, when there occurs during the trial an error or legal defect in the proceedings or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial, that’s when a court may declare a mistrial. So we are usually talking about something that is so prejudiced.
So it’s like sometimes a witness will blurt out something that has already been ruled by the court that can’t come in because it’s more prejudicial than probative or it’s utterly irrelevant and simply paints the person in a bad light. And the defense will say, I have to have a mistrial because there’s nothing I can do to sort of put that milk back in the bottle.
There’s nothing. And a court will sometimes agree. There are also mistrial declared where prosecution has, you know, failed to turn over some important information and that comes out at trial. And the defense says, well, I didn’t have that in advance. I couldn’t prepare on this. I can’t possibly represent my client. And sometimes there’ll be a mistrial on those grants.
So here, the argument was that Stormy Daniel’s testimony, and will get into this in a minute, was more prejudicial than probative and deprived Mr. Trump of a fair trial. Now, some people say, well, is that something that’s appealable? It is after a conviction. It’s not appealable in the middle of trial, but it is something that assuming there is a conviction. If there’s not, then, of course, the case is over. There’s an acquittal and there’s no need for an appeal. Or if it’s a hung jury, there would be the opportunity for a retrial. But if there’s a conviction, it is something that can be appealed that the trial court should have granted that mistrial.
And it is a reviewed though for abuse of discretion. And that’s a pretty deferential standard to the trial judge who’s sitting there observing the witnesses doing all the things the appellate court can’t do, right? The appellate court is stuck with the black and white written transcript, which we’ve just been talking about, which doesn’t allow the appellate court to make nearly the same assessment about how testimony would be perceived in the court. And the trial judge is in a much better position to do that. And that’s why that rule is so deferential.
So that’s what a mistrial is, Now, yesterday, of course, Todd Blanche, as we’ve already alluded to, was really making the argument that Stormy Daniels came in and gave a completely different story than what she’s ever given before. And essentially, that’s unfair to Mr. Trump. She essentially was claiming that she was forced that this was non-consensual, that she was scared, et cetera, and that’s a completely new story and there’s no way we can remedy that.
Andrew Weissmann: And some of the details were salacious. Sorry, I know this is usually a PG show. But that he did not use a condom. But the state said that sort of related to the conversations before in the room where it was all about Donald Trump asking her about, you know, is there testing?
Mary McCord: How does the business work? Yeah.
Andrew Weissmann: Essentially very involved, but also like, are you concerned about your safety? Are you concerned about diseases, et cetera? And Stormy Daniels saying, no, I’ve always tested clean. It’s been very safe, et cetera. So the arguments they put in context.
Mary McCord: She said the adult film company she worked for was one of the only ones that was required condoms to be used. And that’s why she went to work for Wicked Pictures. So that’s, like you say, the context was directly about condoms.
Andrew Weissmann: Can I just make one comment before we get to what the judge did, which is that I wanna make sure people understand what defense lawyers often do. And again, I don’t mean this to denigrate them. They have a job to do, which is they’re operating on different planes. And sometimes you might, as a trial strategy, want something to come in or know something’s gonna come in and you’re thinking about how you’re gonna use it in the case and to attack the state’s case.
But you’re also thinking about, well, if there’s a conviction, how do I sort of create as much appellate issues and how do I sort of think about the record. So that a lot of times you’ll be saying, I wanna mistrial and this is really bad. So that you’re creating the record if there’s a conviction, as you said, that you have an appeal issue. But you’re also thinking, you know, it’s not so bad that this comes in because I can use it.
Mary McCord: Yeah.
Andrew Weissmann: So you you’re operating in different planes and you’re thinking about the appeal possibility, but also how you’re gonna use something. That, by the way, was my take of what’s going on here. But Mary, what did the judge do with all of this?
Mary McCord: I thought this was so smart of the judge because this was the second time that Trump’s attorneys moved from mistrial. They did it on Tuesday. He denied it then. And then they renewed it again yesterday. And he said, you know, following your motion on Tuesday, I went back to chambers, right?
I pulled out my decisions on the motions in limine before trial, where I had ruled that Stormy Daniels testimony could come in because it was relevant to proving Donald Trump’s intent and motive in authorizing this hush money payment and reimbursing Michael Cohen for the hush money payment.
Then he also had gone back and looked at what Trump’s lawyers had said in opening statement and made it clear, directing them to the pages of the transcript, where they denied an open statement, that there was any sexual encounter with Stormy Daniels. And you know, basically said you opened the door to all of this in your opening statement. And so the prosecution, the people had to have the opportunity to prove this up based on how you opened the door to it.
And then he went on and this was really where I assume his voice maybe was sharper. He mentioned how various objections, almost every objection made, he had sustained and where the defense had asked for testimony to be stricken from the record he had agreed to that.
But then he says, yet for some unexplained reason, which I still don’t understand, there was no objection to certain testimony, which was later used in the motion for mistrial on Tuesday and is again being used today. And he gave as an example, the mention of the condom. He says, I agree that shouldn’t have come out. I wish those questions hadn’t been asked. And I wish those answers hadn’t been given. But for the life of me, I don’t know why Ms. Necheles didn’t object.
And he went on and on with examples of things that there are things he said, I sort of interjected myself and objected —
Andrew Weissmann: Right.
Mary McCord: — and told the witness to go on. And essentially, you know, this is on you. Don’t come in here now complaining that this was so prejudicial. And what a mistrial means to be clear is the case is over and has to restart again with a new jury all the way back from the beginning with the witnesses recalled. You know, don’t come in here now, arguing that this is so prejudicial that I have to declare a mistrial when you sat on your hands through much of the testimony that you’re now complaining about.
Andrew Weissmann: And very much said, you opened the door that when you in opening said, Stormy Daniels essentially is a liar, this didn’t happen, that that allows the state to shore up her credibility.
Mary McCord: Right.
Andrew Weissmann: Even though they don’t have to prove that she’s credible, they’re entitled to try and prove it as part of the case. So I’m gonna tell you two concerns they have. One is that I didn’t think that it’s necessary the wisest strategy to blame counsel.
Mary McCord: Tee up an ineffective assistance of counsel motion?
Andrew Weissmann: Yes.
Mary McCord: Yes.
Andrew Weissmann: So this is what Mary and I are talking about is that the constitution guarantees the defendant effective assistance of counsel. And when a judge says you’ve been doing a terrible job, essentially, that raises that issue of why did they do this. And you know, it’s gonna be really hard with a trial team with Susan Necheles and two former federal prosecutors to say that reaches the ineffective assistance of counsel argument, you know, standard.
Mary McCord: Yep.
Andrew Weissmann: But you know, it raises that issue of, you know, why didn’t you object. It’s on you, not on me. I thought he was better to say you opened the door to it. Also I’m not sure I would’ve ruled that I didn’t want these details to come in.
And so, I think reasonable minds can differ, but the reason is once the door was opened, and this was an issue, the issue of what the public would’ve heard in October of 2016, what he would’ve had a motive to want to suppress the details would matter. The more salacious it is, the more he would have a motive to make sure it doesn’t come out. With a doorman story that we’ve been talking about, that was about having an illegitimate child.
And I also feel like with respect to a mistrial, let’s just beg grown ups about it. I think it’s infantilizing the jury. I mean, do you really think a jury is going to like convict even though they think there’s not proof beyond a reasonable doubt because of what Stormy Daniels says about whether he wore a condom or not? I mean, there really wasn’t anything that was so graphic. And as you said, I think the most that they could complain about was any sort of suggestion on direct that this was not entirely consensual.
Mary McCord: Yes.
Andrew Weissmann: I think that is the one area I would’ve been concerned about, but that got cleaned up —
Mary McCord: Got cleaned up.
Andrew Weissmann: — on cross when the witness directly said, I am not saying that. It’s on me.
Mary McCord: That’s right.
Andrew Weissmann: There can be an instruction on that as well.
Mary McCord: That’s right.
Andrew Weissmann: And so I’m not sure I totally agreed with the judge. And I just wanna make it clear. I’m not saying he’s wrong.
Mary McCord: These are discretion. Like you say —
Andrew Weissmann: Exactly.
Mary McCord: — these are discretionary decisions and there is that counter. And I think that’s also in large reason why, you know, he denied them mistrial, right? Even though —
Andrew Weissmann: Yeah.
Mary McCord: — those details had came out, he didn’t see them as being more prejudice than probative. Okay. So let’s talk briefly before the break about some of the other testimony, because there was other testimony from people in the White House and people of the Trump Organization, again on sort of how checks get sent down there and how they’re signed. And it continued to fill in the details of that process, which we’ve talked about before. But some of the other testimony we haven’t talked about at all came from different book publishers who were involved —
Andrew Weissmann: Yes.
Mary McCord: — who were able to actually read into the record, excerpts, from various of Donald Trump’s different books. And this means reading into the record, things that he said. And the prosecution, you know, made the point as the author, even if there was a co-author, and in fact, some cases, the co-author was one of his employees who sat right outside of his office in Trump Towers, still the author themselves has to sign off on the book and everything in the book and is responsible for what’s in the book. And these are things that really corroborate the story here.
Just a few examples on Tuesday, folks from Penguin Random House, who had published a couple of his books, talked about things that got to how meticulous Trump is about details on invoices and only paying things that he’s checked, you know?
Andrew Weissmann: Sign the checks yourself, like —
Mary McCord: Yes.
Andrew Weissmann: — even if other people can sign, sign the checks yourself. Why? Because if they know that you are signing, they’re less likely to screw you.
Mary McCord: Yeah. I mean, here’s his words for words, every dollar counts in business, and for that matter, every dime. Penny pinching, you bet, I’m all for it. As I said before, I always sign my checks so I know where my money’s going. In the same spirit, I also always try to read my bills to make sure I’m not being overcharged.
And he did this kind of on and on and on. There’s many, many examples. He also talked about really how vicious he is about going after people who he perceives to have wronged him. For many years, I’ve said that if someone screws you, screw them back. When someone hurts you, you just go after them as viciously and as violently as you can, like it says in the Bible, an eye for an eye.
Andrew Weissmann: That’s an attribute you really want in a president.
Mary McCord: Yeah.
Andrew Weissmann: In case people didn’t understand ‘cause you can see me, that was said facetious.
Mary McCord: Facetiously. I think by now listeners probably know you well enough. And then there was another witness yesterday from a different publishing company —
Andrew Weissmann: HarperCollins.
Mary McCord: — HarperCollins, right. Tracey Menzies. And you were there for that. She had —
Andrew Weissmann: Yep.
Mary McCord: — some choice examples as well. I value loyalty above everything else.
Andrew Weissmann: And you know who is an example of a wonderful loyal employee? Allen Weisselberg.
Mary McCord: Yes, who’s sitting in jail right now because of Donald Trump.
Andrew Weissmann: Mark my words, we’re going to hear that in summation from the state because Allen Weisselberg knew about the scheme and the cover-up scheme. And so Donald Trump has to say, but he never told me. I’m not gonna do another mini summation.
Mary McCord: Right.
Andrew Weissmann: But it makes no sense. And the fact that he’s a loyal employee makes it even less likely that he would’ve kept it to himself.
Mary McCord: Yep.
Andrew Weissmann: So there was just wonderful piece about Keith Schiller, little tiny piece, and these little details that I just love in trials. Stormy Daniel says outside of the hotel suite where she had sex with the former president. Keith Schiller was there, the bodyguard. She talks about Keith Schiller asking her to essentially come have dinner with Donald Trump and says like my thought of them as a unit one for one.
Well then, this lower level employee from the White House basically says Keith Schiller went to the White House and sat right outside the Oval Office. And the checks and invoices that were sent down to the White House for signing, they weren’t sent to the White House. The personal checks and invoices were sent to Keith Schiller’s personal home.
Mary McCord: Right.
Andrew Weissmann: So it was just the confluence of just having her with Stormy Daniels and getting crossed on Keith Schiller and suddenly he pops up again —
Mary McCord: Yep.
Andrew Weissmann: — and she just happens to know how close they are. It was just these, these little details that just deepen the proof and deepen the corroboration.
Mary McCord: It’s the puzzle pieces all coming together. And then in summation to the extent the jury missed any of those connections, that’s when they’ll be made.
Andrew Weissmann: Yep.
Mary McCord: Okay. Shall we take a quick break and then come back and turn our attention to Mar-a-Lago, and even for a minute, the Georgia case and let people know what’s going on there.
Andrew Weissmann: Okay.
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Andrew Weissmann: So, Mary, why don’t we head down south and why don’t you tell us what’s not happening in the Mar-a-Lago case?
Mary McCord: Trial. A trial is not happening for the foreseeable future —
Andrew Weissmann: Yeah.
Mary McCord: — in the Mar-a-Lago case. As folks may recall, there was a trial date that had been set for May 20th. After various different delays, the judge had said she would determine whether that trial date needed to be rescheduled at a hearing on March 1st, which, yes, March 1st was more than two months ago. At the hearing on March 1st, she did not make a decision about the trial date. And I think here we are almost to May 20th, she felt like it’s time. She better say something about the trial date.
So in the course of setting a new schedule for motions, and we talked a little bit last episode about the defense seeking a delay in its CIPA Section 5, filing as well as its Notice of Expert Testimony, she didn’t specifically say whether she was ruling based on their motion, but is saying because of so many still pending motions to be heard and so many things yet to be filed, she was issuing a new schedule.
Mind you, many motions of which she could have ruled on, but hasn’t ruled on. But because of all these things still pending, she’s issuing a new schedule and determining that a finalization of the trial date at this juncture, and I’m reading, before resolution of the myriad and interconnected pretrial and CIPA issues remaining in forthcoming would be imprudent and inconsistent with the court’s duty to fully and fairly consider the various pending pretrial motions before the court critical CIPA issues and additional pretrial and trial preparations necessary to present this case to the jury.
She therefore did what’s called vacate the May 20th trial date, which means it’s now off the schedule, and said, I’m not gonna even set a new date ‘till we get through all of the motions in my new scheduling order, which will not be until July 22nd. So is it still theoretically possible she could set a date? Yes, it’s theoretically possible. But, you know, we have now had substantial delays in pre-trial motions, including the CIPA proceedings, that continue to make it more unlikely, I think, that we will actually see a trial date before the election. That’s an understatement.
Andrew Weissmann: I mean, I’m trying not to be triggered. These are words you will never really hear me say —
Mary McCord: Yes.
Andrew Weissmann: The less said, the better.
Mary McCord: Let’s get straight to what we know everyone’s asking though. Can Jack Smith now go seek to have her removed from the case?
Andrew Weissmann: I’ve gotten that question a million times.
Mary McCord: Not really.
Andrew Weissmann: Mary, what’s the answer?
Mary McCord: No, no. Not on a scheduling order, right? I mean, scheduling is at her discretion. And as we’ve said before, there’s only a few times that the government can take an appeal before trial. If she issues an adverse ruling on one of these CIPA proceedings, Classified Information Procedures Act, that law allows the government to go up on appeal.
Anything else the government wants to do or if she, you know, suppresses evidence, the government can appeal that. But other things, scheduling things, you know, issuing weird rulings where she’s saying I’m denying this motion to dismiss without prejudice for it to be renewed again at trial, these are things that can’t really be taken up on appeal.
And if Jack Smith were to go up to the 11th Circuit, he would’ve to do it on a writ of mandamus and show that what she had done was so clear and indisputably wrong, that it should be reversed. And by the way, 11th Circuit, would you please remove her from this case because we think she’s biased against us? That is a very, very steep hill to climb. Jack Smith absolutely does not want to do that and get told no.
So I think that we are not at that point. I know lots and lots of people think she’s really biased for the former president and that may well be the case. But she also seems to be very, very inexperienced, does not really know what she’s doing, particularly when it comes to CIPA proceedings and how to manage a case like this. And that is not enough to be recused, right? It’s really got to be this appearance of partiality for recusal and that’s somewhat tough to make, I think.
Andrew Weissmann: So, Mary, you know what I feel like? I feel like when I teach first year law students, in some ways, I felt like the scales were falling from their eyes about like, are you kidding? And I’m sure a lot of our listeners are like, that’s the law. Well, first of all, Mary, what you just said is the law. And I understand that people could be like, that can’t be. There should be a way. But maybe to put it in context, the law is very steep to just remove a judge because you don’t wanna have the parties just seeking to remove a judge —
Mary McCord: Right.
Andrew Weissmann: — just because they don’t like what the judge did. And one side or the other, usually doesn’t like what the judge is doing. And so, the standards are very high for that and all sorts of benefits are given. And there aren’t a lot of checks in the system for that. And the same way, there are not a lot of checks in the system for the Supreme Court sitting on an immunity case —
Mary McCord: Right.
Andrew Weissmann: — that, you know, we’re still waiting for.
Mary McCord: Right.
Andrew Weissmann: So that’s a long way of saying, Mar-a-Lago, Generalisimo Franco is still dead is the bottom line there. Georgia?
Mary McCord: Yeah. So, you know, kind of dead too for the time being.
Andrew Weissmann: For now.
Mary McCord: For now. For the time being. Yeah.
Andrew Weissmann: For now.
Mary McCord: It’s not dead dead, and neither is Mar-a-Lago not dead dead for the time being.
Andrew Weissmann: Well, the slight difference, the Mar-a-Lago case, if Donald Trump becomes president, will be dead.
Mary McCord: Right.
Andrew Weissmann: Georgia not.
Mary McCord: But he is not president yet.
Andrew Weissmann: Exactly.
Mary McCord: He is not.
Andrew Weissmann: Exactly. I said if, big if.
Mary McCord: Yes, yes.
Andrew Weissmann: Right.
Mary McCord: Absolutely. Okay. So, in Georgia, what has happened now is that the appellate court there has agreed to take up the appeal that Mr. Trump and his co-defendants brought to appeal the denial of the motion to disqualify Fanni Willis. The trial judge there said, I’m giving you a choice, Fani Willis, either you can get rid of Nathan Wade, the special prosecutor, based on what he thought was an appearance of a conflict, even though he ruled there was no actual conflict.
You can either get rid of Nathan Wade or he can resign or you and your team can recuse from the case. She, of course, chose the former. Nathan Wade resigned. And Donald Trump and others appealed the decision that she could then remain on the case.
Now, the judge, when he made that ruling and said you can take this up on appeal, said, I am not going to stay this case and —
Andrew Weissmann: Right.
Mary McCord: — refuse to decide any pretrial matters while you’re up on appeal. I’ll still decide them. So the fact that the Georgia appellate court decided to take it does not mean everything’s gonna grind to a halt necessarily. And so far, the defendants have not gone back to Judge McAfee to ask for a stay nor have they gone to the court of appeals to ask for a stay.
Andrew Weissmann: The case is still going forward in terms of motions and discovery and all that. It’s not like the D.C. federal case where there is a stay and that has really —
Mary McCord: Right.
Andrew Weissmann: — put a full stop to that case moving forward until the Supreme Court decides.
Mary McCord: All of that said, there’s no trial date in the Georgia case —
Andrew Weissmann: Yeah.
Mary McCord: — either.
Andrew Weissmann: Exactly.
Mary McCord: And there hasn’t been one set. So we have three cases with no trial dates.
Andrew Weissmann: Yeah. I mean, do you know that the trial date in the D.C. federal case was gonna be March 4th?
Mary McCord: Yes, it was.
Andrew Weissmann: And there’s a good chance that, we’re on May 10th, we could have a verdict by now if this had gone forward.
Mary McCord: Yes, that’s right.
Andrew Weissmann: I do have a piece of good news sort of hot off the presses —
Mary McCord: Mm-hmm.
Andrew Weissmann: — that remember Steve Bannon?
Mary McCord: Yes.
Andrew Weissmann: He was convicted of criminal contempt in the D.C. District Court. He was sentenced to four months in prison, but he was allowed to stay out and not surrender because he had an appeal pending. That appeal was just denied unanimously by the D.C. circuit. The Court of Appeals —
Mary McCord: Yes.
Andrew Weissmann: — also said, no, his appeal is not meritorious. And so, presumably, he will seek either rehearing en banc or he will would just have whole circuit hear it. That seems like a fat chance.
Mary McCord: Yes. Yes.
Andrew Weissmann: And then he might ask the Supreme Court to hear it. I would hope that there would be no way, like they have enough on their plate.
Mary McCord: Mm-hmm.
Andrew Weissmann: But he’s gonna do that to try and delay —
Mary McCord: Yes.
Andrew Weissmann: — his surrender.
Mary McCord: By surrender, meaning go to jail?
Andrew Weissmann: Yeah.
Mary McCord: Go to prison.
Andrew Weissmann: Exactly. That is legal jargon —
Mary McCord: Yeah.
Andrew Weissmann: — for like you’re going off to the hoosegow. So, Mary, today in the New York case, there’s definitely witnesses that are more prosaic. We’re gonna have a lot more documents, but I’m sure we’re gonna wanna talk about this on our episode on Tuesday. And then we do anticipate, we haven’t heard this from the prosecution, that Michael Cohen is going to be testifying next week, and the kind of makes sense.
Mary McCord: Yes. It’s kind of time.
Andrew Weissmann: Yeah. Because there’s so much. We’ve talked about the edifice that’s been created and the structure, not just for corroborating him, but independently proving the case. So that a lot of, I think, what people will hear is maybe filling in details, but is kind of like, yeah, I knew this was what the story was. But now, I’m just hearing it directly. And he will be, again, another sort of cat to the press, little bit like Stormy Daniels, except that his story is gonna be directly relevant to the case in the sense that his believability.
Mary McCord: Yes. I mean, he’s a critical witness.
Andrew Weissmann: Yeah. You know what?
Mary McCord: Yeah. Let’s save that.
Andrew Weissmann: This is gonna be interesting.
Mary McCord: Yeah.
Andrew Weissmann: Because we may have a different take.
Mary McCord: Mm-hmm.
Andrew Weissmann: So, okay. Let’s wait to see what he says. This is great. Stay tuned for an episode where it’s possible Mary and I may not be in violent agreement.
Mary McCord: Let me just say I think he’s more important than Stormy Daniels as a witness.
Andrew Weissmann: Okay. Okay. Damn.
Mary McCord: Like they could have done this case without her. Yeah.
Andrew Weissmann: Okay.
Mary McCord: Okay.
Andrew Weissmann: Okay. I’m in violent agreement on that.
Mary McCord: Yeah. Okay.
Andrew Weissmann: So Mary, wait, this is one where I get to say have a great weekend and I think I’ve got my timing correct.
Mary McCord: Yes, it is the weekend.
Andrew Weissmann: Okay. Have a great weekend.
Mary McCord: And Happy Mother’s Day to all the mothers out there.
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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. With additional production support from Max Jacobs. Bob Mallory is our audio engineer. Our head of audio production as 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 podcast and please follow the series.