Trump Heads to Tribal Council

But he's still running a few points behind Trump. with less than six months to go. We're going to talk about why. Sam Alito is in trouble for a second MAGA flag hanging at his second home. And later, former prosecutor Andrew Weissman stops by to give his take on the Manhattan trial as the case heads to the jury.

But first, we have an update on the infamous reality show star, who dominates all of our political discussions and will soon face judgment from a jury of his peers. Let's listen.

It's up to the players to leave their.

I threw up and went home.

I would just say that many people have argued that in a critical election year where democracy hangs in the balance, the best place for love would be on an island with no access to the.

And look, we are more than happy to hold down the fort until and if he gets back. We don't have not a lot going on. It's just a new baby in the Vitor household. A couple of pods to do, a little political news, a company to run. Other than that, we're good.

You have a relatively new baby? Yeah, you know, it's a chill time.

The full Ginsberg. I have spent more time.

That's what I'm doing. But you know what? He's probably sleeping in the forest right now somewhere. I don't know. Where do they sleep?

Yes. I'm getting yes from, we have some survivor fans. Uh, it's part of our pod fans. So when this, uh, when this started going around last night, this broke, there's. obviously, you could imagine there's a lot of activity in the crooked slack.

And, um, everyone was joking about all the, the comments on Twitter and everywhere else and the discord, and friends of the pod go sign up. But the comment of the night goes to our fearless pods of America, producer, Olivia Martinez, who said our IP, love it. You would have loved watching everyone react to you being on survivor.

Which, you know, that is, that is the toughest thing. He's just, he's, he's not here to see all the reaction, but, um, anyway, we're pulling for you, pal. We know you can do it. Good luck. Okay.

Back in America. Um, I presume you all remember the Republican presidential candidate who made it all the way to the final tribal council, this primary season. as a refresher. Here's some of Nikki Haley's toughest criticism of Donald Trump over the last year.

. He is unhinged. He is more diminished than he, than he was. If you don't know the value of our men and women in uniform, if you don't know the sacrifice that they go through, why should I, as a military spouse, and all our military families, trust you to know you're going to keep them out of harm's way. And it's a pattern of losing that everything he touches, he loses.

We saw it in 2018.

. We saw it in 2020.. We saw it in 2022.. How many more times do we have to go back to the same person and say, and then finally decide maybe he's the problem, because I know he's the problem. Of course, many of the same politicians who now publicly embrace Trump privately dread him.

They know what a disaster he's been and will continue to be for our party. They're just too afraid to say it out loud. Well, I'm not afraid to say the hard truth out loud. And what's that hard truth now, you may ask. So I will be voting for Trump.

Uh, Dan, why do you think she did it?

but she said a lot of this very similar stuff about Donald Trump in 2016, and then joined his cabinet. Voting for him is, frankly, the least she could do. And it, but it just, the reason this is gonna happen, because she is a Republican. She wants a future in Republican politics. So that doesn't necessarily mean that she will run for office again, although I'm sure she's diluted herself into thinking she may do that.

But if she does not vote, no matter what happens in 2024, if she does not vote for Donald Trump, it makes it very, very hard for her to have any sort of say in what happens with this party next, right? Running for something, being in charge of something, being on a board of a company run by Republicans, being in think tanks, just this is, this is the price of admission. And so this is what she was going to do. It is, it's just, it's very fitting with what we have seen from Nikki Cayley over her whole career. Other than this, like brief three month period of fleeting, uh, courage and integrity.

I mean, and I will say

Like, so I never, I never thought that she was going to like, endorse Joe Biden. I mostly thought this was going to happen. I did think there was a small chance she would just again, not say anything good or just not, or done the, like, you know, what we find annoying, but it was like the, I'm writing in, you know, Ronald Reagan or something like that. Like she could have, she could have done that too. It's just like, and it makes me think, let's just take the Paul, put the politics aside.

Let's say we're just too cynical about her political motives, which I don't think we're being too cynical. We're being generous, probably. Yes. As a thought exercise. Look, I do think she might, she might genuinely believe that she has more concerns about Joe Biden than Donald Trump.

And if she does, that to me is like a core part of the problem with so many of these Republican politicians, like your Christian new news and Nikki Haley's and all the rest. It's like they have either diluted themselves into thinking that mainstream democratic policy, which is what Joe Biden represents. He is a mainstream, moderate, democratic president. that that's more dangerous than a lunatic who may never leave the white house or, or they've diluted themselves into thinking, you know what? Donald Trump, he's not that bad.

He's bad, but he's not that, he's not that dangerous. But like. either way, it's like she has said basically the opposite throughout the course of the whole campaign. Yeah. Like, is she full of shit now, or was she?

Okay. Trump would side with a dictator who kills his opponents. Trump's going to side with a madman who's made no bones about the fact that he wants to destroy America. He's got my vote. He's got my vote.

It's just, it's unreal. So, even though she's been out of the race for a few months now, um, she's still getting, obviously, 15 to 20% of the vote in the Republican primaries. We still have Republican primaries, all primaries. They're still happening. Do you think her announcement makes it any harder to convince the Haley primary voters to vote for Biden?

No, never. There are people who are voting for Nikki Haley, but they are not Nikki Haley voters. If their two choices presented to them were Donald Trump and a tin of spam, spam would get like double digits. That's what it is. She is a imperfect vessel for anti-Trump sentiment.

So those voters are still available. We're not in a world like you were with Bernie Sanders, right? Those are Bernie Sanders voters who were voting for him, right? And what he said to them mattered. His endorsement of Hillary Clinton mattered.

When he came to Hillary Clinton, it mattered. Hillary Clinton voters. in 2008,, when he ran his primary, Nikki Haley, many of her voters couldn't pick her out of a lineup. That's not what this is. I just think, and so her endorsement of Trump doesn't mean that people are going to like move in mass.

Like, well, our leader, Nikki, said we must go. So we will go. It's not going to work that way. But I still think, and our friends in the bulwark so long with me at this point, that every time a Republican does this, it makes it easier for other Republicans to fall in line. So that's negative.

But those voters, those Haley voters that are still showing up, are still available to Joe Biden. They're still in his persuadable universe, no matter who Nikki Haley says she's going to vote for.

. And they still want to be Republicans, right? They still want to register Republicans. They still want to vote in a Republican primary. Because every time that Nikki Haley wins 15, 20% in these primaries, there's like, is this good news for Democrats?

Does Donald Trump have real problems with, you know, he's not getting 20% of the votes, stuff like that. And A, there's some who will just automatically go and vote for Donald Trump, like, much like Nikki Haley is now doing. There were probably in the open primaries, there will be a few Democrats who jumped in.

He has lost some of those people. And so that is, there's not a just assumption. they're going to vote for him again. He needs to get them.

He also claimed on Thursday he'll be able to get his pal, Vladimir Putin to release Wall Street Journal reporter Evan Gershkovich from prison, but only if Trump wins. Vote for me and Evan will come home, because I'm buddies with Vladimir Putin. And also outside his Manhattan criminal trial, Trump said that justice, Juan Marchand, hates him because the judge was born in Colombia, which really teed up the Thursday rally in the South Bronx. that was part of the campaign's outreach to Latino and black voters. The Biden campaign tried to pre-butt the rally with a new ad targeted at black voters.

Let's listen.

That is the stage of the campaign we're in. And so could it be a problem? Absolutely. Is it, we're going to see it like show up in the polls? No, no.

None of this is true. Uh, the report that Trump and Marjorie referring to is the DOJ's standard policy, limiting the use of force during searches. It was the same exact policy they, uh, use both at Mar-a-Lago and at Biden's home, same policy. So I guess, if Biden was just like, you know, he was authorizing the FBI to also assassinate him, I guess. And so I don't, you know, like you said, I'm sure most people will not hear about this.

It is dangerous, right? Telling your followers who have committed political violence in the past, remember January six, um, that the president, the government, has planned to assassinate you. Like it's pretty.

Like, how does Russia interpret that? Does that mean now that they're just going to wait because they think they can get something for him in, uh, next year, if Trump wins, right? So that means that he will stay in a dangerous situation, a Russian prison, for longer, because Trump can't keep his yap shut. What? accusing the Biden DOJ of trying to murder him is something that could very obviously lead to violence, as we have seen on so many occasions with the things Trump says.

And so will that move the polls? No, but does it make America more dangerous? Yes. Is it another, yet another example of why he should not be allowed within a hundred million miles of the white house? Absolutely.

They hit the dictator stuff. I don't know. I thought that was just, that must be, that must be polling well with them. I guess the Biden people must see that that's polling. Well, maybe I think I would bet that.

Like this, like this, there is a, if you, if this ad we're running in another part of the country, it may not mean anything, but in New York, this is one of the biggest stories of the last 50 years and continues to be talked about this day because of Yusef Salam and his role in that. And his now has run the city council, but ultimately the message feels a lot like the message that Democrats have been using against Trump since the beginning of the 2016 campaign. that has not shown any impact. And in fact, the numbers with voters of color have gotten worse over time, not better. And so I'm not, I'd be interested to know what the strategy behind some of the specific mentions in there, maybe the dictator thing polls, but the calling out Trump, Trump's racism, should be called out.

It should always be called out, but that is, that is a necessary, but not sufficient argument to win, win over voters of any stripe. I think.

It cost of living, right? And Donald Trump wants to take away healthcare, wants them to pay more for prescriptions, pay higher taxes, just like he does white Americans, just as he does Latino Americans, Asian Americans. So I would imagine that they're going to probably make those arguments as the,

I was going to say like, I wonder, it'll obviously gets, it's going to get press attention, right? I mean, that's a, and, and it's New York, so it's going to get a lot of attention. Apparently the young Republican club and the various Republican organizations in New York city, which, by the way, we've talked about this before, but they're there as right wing as they get very a fascist adjacent. Um, they have been like working overtime, organizing like every Trump supporter they can find in New York to get to this event. So I wouldn't be surprised if it was a big crowd, but, um, yeah, it seems like, uh, it's, it, it's a smart thing to do.

It's like politics is about identity,

And basically the race hasn't moved, even though it's now late may. Trump is on trial and Biden is on the air in every swing state. Uh, this has unsurprisingly led to another round of punditry that I'm sure the Biden team is super excited about. lots of smiles in Wilmington overall last week. I'm sure, trigger warning.

We're about to mention Ezra Klein's latest column. in case any of you feel the need to skip ahead. You want to just skip right to the, uh, Sam Alito second flag. No, no worries. We're going to talk about Ezra Klein.

I thought it was interesting because Ezra offered seven theories about why Trump is currently ahead. One, the polls are wrong too. It's the media's fault. Three, it's a bad time to be an incumbent, for voters are angry about high prices and high interest rates. Five voters think Biden's too liberal.

Six voters think Biden's too old. and seven Democrats aren't defining Trump in the most effective way. Ezra doesn't believe every one of those headings, but that's sort of the theories that he threw out there, that are, that are being talked about. Um, and it's true. Those, those conversations are conversations about some combination of those theories are taking place among democratic operatives, activists, strategists, all trying to understand, uh, what is driving, uh, Trump's battleground advantage at this stage in the campaign.

Uh, what did you think of the piece and did any of those theories stand out to you?

The answer is no. It's a hard thing to explain. And I do appreciate that Ezra kind of knocked down some of the, what I think are the, the coping mechanisms that some Democrats have used. The idea that the polls are wrong. I mean, maybe they are, but there's no evidence of that.

And in the past, when the polls have been wrong presidential elections, they've been wrong in a way that's not good for.

What about a presidential? The last two presidentials, the polls have been off. Like you said, they have been overestimating democratic support, for Hillary Clinton and Joe Biden, not under, but who knows, maybe they could be off again. It's presidential races, different, different electorate, but the polls for Democrats, not named Biden are quite good right now. That's the challenge.

And so some of the same polls that are showing Joe Biden behind are showing Ruben Gallego, Tammy Baldwin, pick your Senate candidate, pick your governor ahead. And so that that's the challenge with the polls. again, though, polls, of course, could all be wrong. There could be a systemic error. That's something that has to with just Donald Trump and just Joe Biden, who knows, but I don't know if we should all hang our.

We had a poll, a Bloomberg morning console poll, that had it tied in that state. But there is an internal logic to all of them, right? When you look at all the polls, it is, it's very clear that Trump is doing a little bit better nationally than he did before, with a certain set of number groups. And that's kind of consistent across all the polls. So whatever the margin is there, we kind of know where we are and it's not where we want to be, right?

It doesn't mean we can't get to a better place. That's where we are. I think we have massively overcomplicated this election in our head. Like if this was Joe Biden running against Nikki Haley, Marco Rubio, Ron DeSantis, you know, pick a random Republican, we wouldn't even bother trying to explain it. It'd be so obvious.

People aren't happy with the economy. They cite the economy, and inflation in particular, as the number one issue. deciding their vote in the New York times poll three times as many people pick that issue as any other issue. And Donald Trump has a 20 point advantage on the issue. Like that's it.

Like. that is the explanation. All the other things, as I mentioned, like, yes, it's Biden's age. Does that not help things? Absolutely.

Right. Is being an incumbent at a time of where people really want major change in our sense of the country, a problem? Absolutely. Is that fueled by people being mad about inflation? Absolutely.

But I think it's like the polls are telling us very clearly what the problem is. And we should, but it's because Donald Trump is such a unique and odious figure that we sort of have to complicate it in our head. It's people mad about the economy. They're mad about high prices. They're blaming the incumbent and they think the other guy is better.

And he has an advantage because he is not a blank slate to them. He happens to be the person who was in charge of the economy by pure chance when eggs.

and it's the media. And as we're talking about this, it's the media's fault. is one explanation that I seen a lot of Democrats, and media critics are glum on too. And, uh, you know, there's two flavors of this. One is the media is not adequately, uh, communicating to people the threat that Donald Trump poses.

Right. But just in terms of where the economy is, the complaint is that the media is not giving Joe Biden enough credit for all of the objectively good economic statistics out there. And there are many, right. Unemployment, low, uh, stock market doing great. Right.

So there's plenty of inflation has come down, but on the media and Ezra makes this point. And we cited this poll back when it came out as an NBC poll, Biden leads by 49 points among people who get most of their news from newspapers, 20 points among people who get most of their news from network television news, 10 points among people who get most of their news from digital news sites. Those like he is winning by huge margins. Those voters, where's Joe Biden losing? people who get most of their news from social media, from cable news.

Sure. Fox is a big part of that. Google, YouTube, and he's losing by the biggest margin of all among voters who don't follow political news at all. Trump is winning people who do not follow any political news. Do not look at the horrible headlines that the New York time has decided to run with, or, or some, you know, CNBC on the economy, 26 points.

Trump is winning those voters by. And I do think that the incumbent issue and the, uh, the economic issues are also tied together, because, you know, and as a sort of isn't as convinced about this, cause. he's like, well, you know, incumbent democratic governors are really popular right now. But I think that that's not a real apples to apples comparison with Joe Biden. I think the best apples to apples comparison is Joe Biden and other world leaders and other world leaders who are incumbents are very unpopular right now, much like Joe Biden.

And that's, it doesn't matter like what political persuasion they are, what party they are in their country. It's it's because they have all been incumbents. through the inflationary backlash. We got to COVID, to the pandemic. And so inflation didn't just hit the United States.

It hit everywhere. And every single, most incumbents all over the world are struggling with their popularity because of inflation. And that's not because the media told people that, like, you know, the, uh, didn't tell people that the economy was good enough. It's because prices are still high. And when you notice the prices are high, not just in the grocery store, but housing and, and cars, which are like two of the biggest purchases people make, that's going to annoy people.

It's just going to, you know, and like, I don't, I don't, I don't understand why it's a big mystery to people. Why so many voters are upset about the economy, but it seems to be, yeah. I mean, like several.

We are doing better than the rest of the world in terms of growth and inflation. And because of a lot of the decisions Joe Biden has made, the things he was able to accomplish, but that does not change the fact that people are still unhappy. And we are now at a point, we are less than six months before the election that this is the environment this election is going to take place in. Is this political environment, right? A few months ago, there was a sense that maybe the economy is feeling much better.

People were feeling better about it. We were going to be sort of on an upswing as the election happened. Maybe that could still happen, but we can't assume that, right? We should assume that this is what it's going to look like six months from now. We have to have strategies that account for that.

That was a wild list. Yes, I sent you the list. You should check it out. It really runs against what a lot of people think and really fascinating numbers. on Taylor Swift.

We talked about a whole bunch of different polls. The other thing we did talk about is we had a lot of questions from people who were basically looking at the New York Times poll, this poll that we just talked about, saying, is it all over? Are we screwed? Panic, panic, panic. I made my best case for why Democrats should have optimism going forward, a realistic sense of optimism, but this went through what the numbers say about what the path forward looks for Democrats and why Joe Biden has a very clear path to win this race.

Maybe a narrow path, but it is a very clear path. That's what you should check out.

Like we have agency to you, say this all the time. And again, I'm going to get, this is my second organic plug. This is what we're doing on the wilderness this season, uh, is that hopefully all of you listening, first of all, hopefully you've all signed up at vote, save america.com slash 2024 and are going to go to talk to voters. and you know, you'll get lists of voters to talk to from the campaign, whether it's texting on the phone or knocking on doors, but also one of the most effective ways of persuading people is to persuade the people in your life, because those are the people who trust you most. And so what we're going to do is go through each sort of demographic group of voters that Biden needs to win over, or at least, as, like, you know, on the edge of the, the, the winning 2020 coalition, and talk to you about what the most effective messages are to actually persuade them, um, based on, you know, a lot of focus groups and polling that a lot of really smart strategists and pollsters are doing all the time.

That's just not getting out to most people. So that's what we're going to do, because I think, you know, we can give all the advice we want to the Biden campaign. There's only so much we can control. It's going to be up to Joe Biden. It's not.

absolve us of the responsibility to do whatever we can to save democracy and talk to as many people as we can, because, uh, you know, it's a future that we're going to all have to live through, much longer, probably, than Joe Biden and Donald Trump. So it's like, well, and our kids, right? Like our kids, will live through it longer than I will. I hope. Okay.

All right. Just move on. It's like transition to the next topic. It's just not like. so much of this is through the lens of like, I want to punish Joe Biden.

or Joe Biden fucked up this election cause he did this, or I'm out, or even I don't want, I want to punish Donald Trump or whatever. It's really not about them. It's about us. It is about us and our future. And it's, but the people, you know, and the future, they're going to have to, so get out there and, uh, and get working.

and, uh, you know, well, hopefully we can help with the wilderness. Hopefully the polar coaster can help, and, uh, and also vote, save America can help as well. So, all right, before we get to Andrew Weissman's take on the end of Trump's criminal trial, we need to talk about the news that Supreme court justice, Samuel Alito got caught again, flying a different January 6th related flag at another one of his homes. I have to laugh, because what else are you going to do? This flag is called the appeal to heaven flag that appears to have been flying in front of his New Jersey vacation house last summer.

The flag dates back to the revolutionary war and, uh, for Tommy and the other philosophy nerds out there, it invokes John Locke's theory of revolution against unjust government. Just a little fun fact for you, but the equally relevant context is that multiple January 6th riders waved it, waved this flag at Trump. Stop the steel speech. And during the siege of the Capitol, uh, it's also been used by right-wing militias and Christian nationalists and now a Supreme court justice. So no comment on, uh, on the latest freak flag from, uh, Sam Alito or his wife, Martha Ann, or the Supreme court.

What do you think? Like, is there, is there anything else Congress can do, or anyone in a position of authority, or are we just, should there be an investigation? or is this just like something to keep in mind? as we're talking people about their vote choice in November? I think we should investigate it.

Absolutely. Let's have a hearing about it, right? Dick Durbin doesn't seem too, uh, too high on that. Dick Durbin's like, yeah, it's crazy. It's awful, but I don't know.

I don't know what hearing is going to get us.

Young Sam Alito. Maybe we get Ginny and Martha Ann, just to make sure that there's more women on the court. They'll be, they're,

They're.

We want 30 year old people who can fly flags. Oh my God. It's unbelievable. Um, all right, before we get to, uh, Andrew Weissman, two quick things. You may have heard the news that, uh, British prime minister Rishi Sunak called a snap election for July 4th that will determine whether labor can win control after 14 years of conservative party rule.

So this is what I was talking about. Rishi Sunak, he's, uh, you know, he's a right-wing politician, very unpopular, very, very unpopular. We're still not in the predictions business, but, uh, here at crooked, but that would certainly make for a happy independence day. Our friends, Nisha and Coco have recorded a special episode of pod. save the UK to break down why this election is so critical and what we should expect from the next six weeks of campaigning.

Listen in the pod, save the UK feed available wherever you get your podcasts. Also, this Saturday marks one month until the release of the book that love it. Tommy and I wrote. democracy, or else how to save America in 10 easy steps, democracy, or else as a guide for anyone who wants to get involved in the 2024 election and all of the elections that come after, if there are any, it's a quick read, we made it easy with, for you with, uh, you've got lots of jokes, illustrations. There's some jokes, by the way, this is a plug for the book.

There's some jokes that are, I cannot believe, made it into the book. They're that crazy. I would buy the book just to, just to read some of these.

Dan, yeah, Dan tried. I tried. So, you know, the, I'll tell you the person who wouldn't let the jokes be taken out. Well, he could be at a tribal council right now. We don't know.

But anyway, I just got the hard cut. The hardcover came yesterday. It's a, it's a good feeling, right? Yeah, it's great. It was like, wow.

And you know what? It feels, it feels thin enough for people like me who don't read a lot of books, that it wasn't intimidating, which is even easier. That's good. So we are getting closer and closer to our pre-order goal in hopes of landing on the New York Times bestseller list, which will in turn help more folks discover the book and get inspired to get off the sidelines and get involved. And also, again, we don't want Kristi Noem and her fucking dog killer book beating us.

We don't want whatever else. I don't know whether right-wing loonies are out there with books, but we don't want them at the top of the New York Times bestseller list. We want Democracy or Else up there. You don't want me.

Democracy or Else is out June 25th, but you can pre-order now at cricket.

com slash books or wherever books are sold. When we come back, Andrew Weissman.

This week in Donald Trump's Manhattan election interference trial, the prosecution and defense rested their cases. Summations will happen next week after the Memorial Day break. And here, to guarantee us that Donald Trump will be held accountable and justice will be served, is friend of the pod and former prosecutor, Andrew Weissman, host of the excellent MSNBC podcast, Prosecuting Donald Trump. Andrew, welcome back. Nice to be here.

I'll see if I can.

You really are both of you. All right. So we know the jury won't start deliberating until next week. Uh, but before they can deliberate, the judge needs to give them jury instructions, uh, which the lawyers are supposed to, uh, get from the judge any moment now, maybe by the end of today, which is Thursday. Can you talk about what jury instructions are, why they're so critical and what we know so far about the jury instructions for this case, based on sort of some of the arguments we heard, um, when the, uh, the lawyers were going over the, um, the, uh, potential instructions with the judge.

And what it is is both sides are trying to, uh, convince the judge to recount the law in the way that's most favorable to their position. So let me just give you an example from this case. Um, a lot of people have talked about, well, there's different and, and, uh, different and slightly conflicting testimony about what's Donald Trump doing? this? because he was concerned about the 2016 election.

And that's why he was engaged in this sort of catching kill scheme, or was he concerned about the reaction of Melania? Well, the law actually answers that, um, because, um, if the judge instructs that, you 100% have to show that he was only thinking about the campaign, then that's a really hard standard. And that's, that's what the defense would want. Um, and what the DA wants is something that says, you know what, you can have dual motives, by the way, that is the law. Um, so that's, that is what I expect.

We're going to find out either, you know, late today or certainly early tomorrow from the judge. So that's why the law matters, because it tells the jury what it is they would need to find, uh, beyond a reasonable doubt in.

And obviously it is important. Um, and obviously around the edges, they're little things, but I don't expect any surprises. And, you know, this is when, first of all, the DA isn't going to have brought this case if he wasn't confident in just settled middle of the road law being given. And, um, even when you see the DA asking for certain things or the defense asking for certain things, the judge is pretty clear from the oral argument he heard that he's going to go with standard jury instructions. You know, every court has standard jury instructions.

And I think that's what he's going to give here. So I'm not that concerned about the edges, cause the main part of the law, I think, will be pretty clear. I'm a little concerned about their two lawyers on the jury. So, you know, that, that could lead to sort of hyper technical, not to denigrate lawyers, but you know, that's what we do. We sort of overanalyze things.

Uh, so I'm more worried about that than the actual charge that the judge gives. We haven't covered the defense case much.

I don't know, but I, I, I, I know that that could not ever have come from the defense lawyers. Uh, you do not call Robert Costello. If you're an, if you're a trial lawyer, um, it, I know, Susan necklace, she's excellent. Uh, uh, and she just wouldn't do that. Okay.

But to answer your question, what were they hoping to get? Um, if Robert Costello had presented himself differently, um, and you know, in my view, sort of here at more credible, he was there to say that Michael Cohen sort of swore up one side and down the other, that he had no information about Donald Trump, uh, paying, uh, stormy Daniels at the time, that essentially this all fabricated and that he had a huge incentive to say something, because I, Robert Costello, told him that this could go away if you essentially could use Donald Trump as a meal ticket. Um, and so I think those were the two things that, that, um, if believed, would help undermine Michael Cohen's credibility. Um, and so I think that's why that would be the reason to call him. There are many, many, many reasons not to, I think we saw some of those in action.

Yes. Would.

Um, you know, he obviously could have said, uh, I never had this, you know, this famous phone call on October 24th where, uh, Michael Cohen says, I keep, Schiller got a call and I, and I handed over to the president, then candidate Trump. Uh, and he could say that didn't happen. He could say stormy Daniels, um, you know, stormy Daniels said he was outside the room. He, actually, he was the one who invited her to, to dinner, the dinner where she didn't get dinner. Um, says, Keith Schiller is the one who invited me.

He was outside the door. Keith Schiller could have said, you know, he, what, that didn't happen. Um, we don't know the reason, uh, why they didn't call him and instead they chose Costello. You know, my own two cents is if, if the best they had was Costello, it makes you think Schiller must've been even worse. Um, which, by the way, it's hard to imagine.

just, just, you know, the problem with Costello was not just his demeanor and what he was doing on the stand and the sort of disrespect and the outbursts and the jury seeing all of that. Um, and there's someone of his misogynistic tone and cracked to Susan Hoffinger, the DA, who was asking questions. Um, but also he had all these black and white emails that made it absolutely clear that he was doing this on the part of Rudy Giuliani and the, um, and the president of the United States, exactly what Michael Cohen had said. So he sort of had two huge problems.

Like, what are the most important?

And you just start immediately going into closing argument. So one of the things just to pick up on Costello is, one of the things I think you have to do is, I think he is so much affirmative proof, uh, that you want to make sure that the jury doesn't do what I think they're. sometimes a juror has an inclination to say, Oh, that's the defense case. I don't believe that it was bad. And they move it aside as if it's not a proof that they can use affirmatively in their case.

Uh, and I think you definitely want to, that's a small point, but you want to make sure that you've integrated it in and actually just say that to the jury. Um, I think there, there sort of two big things. Um, I think that, uh, they need to make sure that the jury is looking at all of the proof together. Uh, at, because in every trial, what happens is the prosecution wants to make sure that the jury is thinking about all of it, that, and the unlikely nature of, of the defense position that all of these things could be happening. Um, and the defense wants to sort of isolate pieces of proof and like, look at a little leaf and say, well, that leaf is in a tree and that leaf is in a tree.

Um, and so, you know, the strength of the governance case. here is the constellation of witnesses and documents. And then the arguments that how does Alan Weisselberg and Michael Cohen know about the scheme and not tell Donald Trump, what would be the possible argument for that to, and then to walk through all of that. Um, the second thing I would do is I would almost isolate Michael Cohen and talk about the whole case before you even get to Michael Cohen. And in some ways, the way that the case was structured, the order of proof, makes that really easy.

And I think it was deliberate that they're going to say, let's look at all the proof before you even get to Michael Cohen and how strong the case is. And then here's icing that you have from him. And having followed the case as closely as you have, what do you think the defense argument will be? Michael Cohen is indispensable to a conviction and no one in this room would possibly in a million years, say, even if you say, you know what, I think he seems like I sort of believe him on certain things. No one would ever say that he is proof beyond a reasonable doubt.

And they called him because they knew they needed it. And he has some, he provides pieces that they need. Um, he provides the piece about the direct knowledge of Donald Trump to the false business records. Um, and there's a reason that he was there. And that is why you need to acquit.

I mean, there's, um, you know, he is obviously a very fallible witness. I think this, the state just will flip that and say, the reason he is all of these things you're hearing about him being such a louse, um, is why he would never, in a million years, fork over $130,000 of his own money out of the goodness of his heart, as Hope Hicks said. And so I think you're going to see a lot of sort of, you know, flipping of the script on that, um, by the state, which goes, by. the way, the way it works in the state court is the defense goes first,

So.

They could ask to hear some testimony back. Uh, and with respect to each of the 34 counts, for each count, there is a verdict. It takes 12 on each count to convict. It takes 12 on each count to acquit. You can't have an acquittal without all 12..

You can't have a conviction without all 12.

. And if you're somewhere in between, it's called a hung jury. Sometimes a jury sends out a note and says, we just can't reach a verdict. And the judge sends them back saying, you know, do your best, give it the old college. try.

You can also have what's called a split verdict, where they reach a verdict of acquittal on some, a conviction on some, or an acquittal on some, and a hung jury on some, or a conviction on some, you know, mix and match. One of the things to keep an eye out, uh, one of the ways that I think you could have a split verdict here is the checks that Donald Trump himself signed versus the ones that his, uh, sons signed. And so the first 10 of the 34 counts are not ones that Donald Trump himself signed. So you could have this very nerve wracking moment where the first 10 counts are not guilty, but that doesn't mean that's going to be not guilty for all 34, because the test will be count 11, whether on that one. So that's, you know, cause I could see a jury saying, you know what, maybe we'll give him the ones where he didn't personally sign, because that way we can't, you know, each check was that there, the, the false invoice was attached to it, that he could easily see that it was fake.

Um, and you could see them thinking, okay, I'm going to convict on those,

. Oh yeah. Like shit show. Yeah. That's the legal term.

It seems.

I was the most pessimistic person. Um, and every single note that a jury would come out with, I would read it with the, trying to figure out the most disadvantageous view. I'd be like, Oh my God, we've lost. Even with notes that were unbelievably favorable. Like, you know, in order to convict, is it enough if we found two counts against him?

I mean, this is, it's like, there's so many things in this case that are unknowns. If, if this was a normal case, if it didn't involve a former president, where I'm concerned about the jury, unconsciously thinking that there has to be more proof, uh, and more direct proof, even though circumstantial proof is, is just as good as direct proof, um, under the law. But I could see some jurors thinking that I could also imagine, having been in high profile matters, that there's, there's will be a juror who doesn't want to deliberate, uh, who, you know, has a strong view one way or the other, but if it was a normal case and I was assessing this as a prosecutor, saying, should I bring the case? I would think, oh, this is an incredibly strong case. I mean, I was, I was surprised how strong this case was.

Um, uh, from the moment it started with David Pecker, I thought, okay, David Pecker was an incredibly good witness for the state and answered the question, which I think a lot of us had, which is why bring this case? I was like, okay, you have, you have, okay, maybe it's a down scale media outlet, but you have this media outlet with a secret agreement, to help a political candidate, um, both by catching and killing and disseminating intentionally false stories about his adversaries. I was like, okay, if I were a juror, I'd be like,

And he thought that after that date, it would be very, very difficult to have, uh, have a case before the election. Do you think the window has closed for a case before the election on, uh, on the January 6th charges?

Yeah. I mean, I thought it had closed just in the.

Everyone check out prosecuting Donald Trump, uh, with, uh, Andrew and Mary McCord. And, uh, thanks again for, for joining us and have a good one. Thanks so much.

Thanks to Andrew Weissman for joining the show. Everyone have a fantastic weekend. And, uh, I think we are off on Monday cause it's Memorial day, but then, you know, just a million pods we'll have from, from us, because we're here. Bye everyone. Before we.

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