Latest / Pod Save America / Trump Trial: "Jail Is on the Table"

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Trump Trial: "Jail Is on the Table" · Pod Save America

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Speaker 1: at cricket.com slash friends. Welcome to Pod Save America. I'm
1:23
Speaker 1: Jon Favreau.
1:24
Speaker 2: I'm Dan Pfeiffer.
1:25
Speaker 1: On today's show, the prosecution is close to wrapping up
1:27
Speaker 1: their case in Trump's criminal trial. We're suddenly only six
1:31
Speaker 1: weeks away from the first Biden-Trump debate, and RFK Jr.
1:36
Speaker 1: is whining about not being included in the action. Then later,
1:39
Speaker 1: we're joined once again by none other than Norm Eisen
1:42
Speaker 1: to talk about the case that the Manhattan prosecutors have built,
1:46
Speaker 1: what it's been like in the courtroom, and where the
1:48
Speaker 1: trial heads from here after another year. tense day with
1:52
Speaker 1: Michael Cohen on the stand. But first, before we get
1:55
Speaker 1: to all that, we are a day out from Joe
1:58
Speaker 1: Biden's surprise debate challenge to Donald Trump and the even
2:02
Speaker 1: bigger surprise of Trump almost immediately accepting the proposed dates, networks, hosts, rules,
2:10
Speaker 1: all wrapped up by the time we got our kids
2:11
Speaker 1: to school on Wednesday. They couldn't have waited until Thursday
2:15
Speaker 1: for the Thursday pod to give the first news to
2:18
Speaker 1: Jen and Tommy yesterday?
2:19
Speaker 2: It's been a big week for Tommy's family, so it's
2:21
Speaker 2: honestly the least the news gods could do.
2:23
Speaker 1: That is true. Of course, there was a little turbulence
2:26
Speaker 1: when Trump proposed a third presidential debate hosted by Fox News.
2:31
Speaker 1: And the Biden campaign hit back saying, quote, no more
2:34
Speaker 1: debate about debates. Maybe a little wishful thinking there. So
2:38
Speaker 1: we will talk about all the developments since Tommy and
2:41
Speaker 1: Jen talked about this on Wednesday. As of now, we're
2:43
Speaker 1: looking at presidential debates on June 27th and September 10th
2:47
Speaker 1: with a vice presidential debate in between the conventions. In studio,
2:51
Speaker 1: no audience, and the campaigns are negotiating directly over the terms.
2:56
Speaker 1: Fly on that wall. The first debate will be hosted
3:00
Speaker 1: by CNN in Atlanta, and we now know that the
3:02
Speaker 1: moderators for that debate will be Jake Tapper and Den
3:04
Speaker 1: of Ash. We don't know the location of the ABC
3:07
Speaker 1: debate yet, but the moderators will be David Muir and
3:10
Speaker 1: Lindsay Davis. CBS will host the vice presidential debate on
3:14
Speaker 1: either July 23rd or August 13th. They're still figuring out
3:18
Speaker 1: which date. And over on Fox News... They're taking all
3:21
Speaker 1: of this pretty well.
3:22
Speaker 3: What he's really trying to do here is ultimately, maybe
3:25
Speaker 3: he's really cowering away from any real debate. Either take
3:29
Speaker 3: my chosen liberal network with my chosen moderator, with all
3:33
Speaker 3: my rules, or I'm not gonna debate, secretly hoping that
3:36
Speaker 3: Donald Trump insists on basic fairness so they can duck
3:41
Speaker 3: and dodge and cower and hide and say, see, we
3:43
Speaker 3: tried to debate. Let's see, the American people, they deserve
3:48
Speaker 3: a fair debate. That means no fake Jake Tapper. Tapper
3:54
Speaker 3: is a radical left-wing partisan talk show host that masquerades
3:59
Speaker 3: as a journalist.
4:02
Speaker 1: Wow, that's surprising to anyone who's dealt with Jake Tapper.
4:05
Speaker 2: Also, a partisan talk show host masquerades as a journalist.
4:08
Speaker 2: A little on the nose there for the folks at
4:10
Speaker 2: Fox News. The horrors.
4:12
Speaker 1: I also like the accusation that Joe Biden, by challenging
4:16
Speaker 1: Donald Trump to debates... it's really just a strategy to
4:20
Speaker 1: avoid debating.
4:22
Speaker 2: If it was.
4:23
Speaker 4: Oops. Oops.
4:24
Speaker 1: Yeah, he fucked that one up.
4:25
Speaker 4: All right.
4:25
Speaker 1: So now that we've got two debates set, we have,
4:28
Speaker 1: of course, moved on to the even more important debate,
4:30
Speaker 1: which is who won the debate about the debates? The
4:36
Speaker 1: Biden team is saying Trump took their bait. Trump is saying, no, no, no.
4:40
Speaker 1: Biden took our bait. What do you think?
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Speaker 2: I mean, I think the whole thing is stupid. Was
4:46
Speaker 2: there anything more mind-numbingly stupid than the sort of competitive
4:51
Speaker 2: spin egged on by the most banal of political reporters.
4:53
Speaker 2: The whole thing is so stupid. But having said that,
4:56
Speaker 2: Joe Biden definitely won. I mean, I don't think it's
5:00
Speaker 2: that complicated. Joe Biden said on Wednesday morning that he
5:04
Speaker 2: wanted two debates, one in June, one in September. He
5:06
Speaker 2: wanted no audience. He wanted a set of rules that
5:09
Speaker 2: made it hard for Donald Trump to interrupt and cause chaos.
5:11
Speaker 2: And what did he get? Two debates, one in June,
5:14
Speaker 2: one in September, no studio audience and a set of
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Speaker 2: rules to make it harder, at least, for Donald Trump
5:18
Speaker 2: to interrupt and cause chaos. So Biden got what he wanted.
5:21
Speaker 2: This was on his terms. Ultimately, how he performs in
5:25
Speaker 2: the debate will decide whether this was a good idea
5:27
Speaker 2: or a bad idea. But his campaign decided they wanted
5:30
Speaker 2: to debate, and they wanted to debate early, and that's
5:32
Speaker 2: what they got. And so I think, like, I thought
5:35
Speaker 2: this was a very well-executed move on the Biden campaign, right?
5:39
Speaker 2: This is what they want. We can debate whether this
5:41
Speaker 2: is what they should want, but it is what they want,
5:43
Speaker 2: and they got what they wanted.
5:45
Speaker 1: Yeah, the Trump spin on this is they think they
5:48
Speaker 1: won because there was never even an understanding that there'd
5:51
Speaker 1: be debates, which is like, what did they think? Like,
5:55
Speaker 1: I think it would have been, we can talk about this,
5:56
Speaker 1: but I think it would have been very hard for
5:58
Speaker 1: Joe Biden to just like, no, I'm not debating Donald Trump.
6:00
Speaker 1: The Trump people also said, well, now that he's opened
6:04
Speaker 1: the door to debates and agreed to a couple, we're
6:06
Speaker 1: just going to keep pushing for more debates. But it's like,
6:08
Speaker 1: you were going to do that anyway. So like, I
6:11
Speaker 1: don't really understand their spin. So- Let's get to why
6:15
Speaker 1: Biden did this. Until recently, his team has seemed ambivalent
6:19
Speaker 1: about whether the president would debate Trump. Some Democrats, like
6:23
Speaker 1: Nancy Pelosi, for example, said that he shouldn't debate Trump.
6:27
Speaker 1: We learned that he probably would debate Trump when Howard
6:29
Speaker 1: Stern asked him and the president said yes. Why do
6:33
Speaker 1: you think the Biden folks ultimately decided that not only
6:37
Speaker 1: should the president debate, but come out first with this proposal?
6:41
Speaker 4: Well.
6:43
Speaker 2: You know, if you think back to the last New
6:47
Speaker 2: York Times-Siena battleground poll, it was six months ago, right?
6:49
Speaker 2: It was in November. And Trump was winning in all
6:52
Speaker 2: the states. And the argument at the time, which I
6:53
Speaker 2: think was pretty credible, was, sure, but the campaign had
6:56
Speaker 2: not started yet. Trump had not won the nomination. The
6:59
Speaker 2: primaries had not happened. The trial had not happened. Well,
7:02
Speaker 2: here we are six months later. Trump's won the nomination.
7:04
Speaker 2: We had all the primaries. Trump has spent a month
7:06
Speaker 2: on trial in the media capital of the world. And
7:08
Speaker 2: the race is in the exact same place. It is
7:10
Speaker 2: still a referendum on Joe Biden. And for everything that's happened,
7:15
Speaker 2: the Biden campaign has not had the ability yet to
7:19
Speaker 2: focus the attention of the vast majority of voters who
7:22
Speaker 2: are not paying attention on Donald Trump, on the fact
7:24
Speaker 2: that this is a choice between those two men. And
7:26
Speaker 2: it's hard to think of a better way to do
7:28
Speaker 2: that than a, particularly in this fractionalized media environment, than
7:33
Speaker 2: a high profile must watch live television event where people
7:37
Speaker 2: will see Donald Trump, right? It is, I think they
7:40
Speaker 2: make him a conclusion. They have to shake up the
7:42
Speaker 2: dynamic here because this is moving very quickly like a
7:45
Speaker 2: referendum on the president. And at a time in which
7:48
Speaker 2: people are unhappy about the economy and cynical about government
7:50
Speaker 2: and three quarters of them think the country's going in
7:52
Speaker 2: the wrong direction, that's not the race you want to run.
7:53
Speaker 2: You want it to be a choice between two people.
7:55
Speaker 2: And they're trying to get to that as fast as possible.
7:58
Speaker 1: Yeah, I do think that the biggest challenge in this
8:01
Speaker 1: election is getting people's attention. It's almost the biggest challenge
8:04
Speaker 1: for anyone in any industry.
8:06
Speaker 2: For anyone in everything.
8:08
Speaker 1: Everything who wants to get, who needs to get people's attention.
8:10
Speaker 1: And historically- more people watch the debates than anything else.
8:16
Speaker 1: More than the convention speeches, more than anything else that
8:18
Speaker 1: happens in the campaign, the debates have traditionally had the
8:22
Speaker 1: highest ratings. So, you know, we're going to deal with
8:26
Speaker 1: so much just silly and downright stupid conversation and debate
8:30
Speaker 1: about the debates from now until they happen. But the
8:33
Speaker 1: debates themselves, like whatever happens, will be the moment where
8:38
Speaker 1: probably most people tune in. And for some people, it
8:42
Speaker 1: might be like the time that they tune in and
8:44
Speaker 1: see both of these candidates live on TV.
8:47
Speaker 4: Right.
8:47
Speaker 2: 70 million people watched the debates in 2020.
8:50
Speaker 4: Right.
8:50
Speaker 2: 80 million people watched in 2016.
8:52
Speaker 4: Yeah.
8:52
Speaker 1: And then that was that was fall and everyone was,
8:54
Speaker 1: you know, locked in their homes. But but still, that
8:58
Speaker 1: was that was a record. You called Biden's move a
9:01
Speaker 1: high risk strategy in the message box. Everyone go subscribe
9:04
Speaker 1: to the message box. What do you think? What do
9:06
Speaker 1: you think are some of the the risks of this approach? Well,
9:10
Speaker 1: I think a.
9:10
Speaker 2: Debate for anyone is a high-risk endeavor, right? Debating John
9:15
Speaker 2: McCain in 2008 was a massive risk for Barack Obama, right?
9:18
Speaker 2: A very new person, new on the political scene with
9:21
Speaker 2: real questions about whether he had the experience to handle
9:24
Speaker 2: the job. For Joe Biden, one, doing anything with Donald
9:27
Speaker 2: Trump is you're just automatically putting yourself in a situation
9:31
Speaker 2: where anything can happen, right? Just mass chaos where he
9:35
Speaker 2: can He tried to fight Joe Biden on stage. Everything's
9:38
Speaker 2: on the table, right? There is no set of things.
9:41
Speaker 1: He almost killed him last time.
9:42
Speaker 4: Yeah.
9:43
Speaker 1: I mean, he brought COVID.
9:44
Speaker 4: Like literally. Yes.
9:46
Speaker 2: He came infected with COVID and basically tried to spit
9:49
Speaker 2: at him, right? Like, oh, how does your water taste, Joe?
9:52
Speaker 2: It's very dangerous. So literally anything can happen. The other
9:56
Speaker 2: risk for Joe Biden here is that the press is
10:00
Speaker 2: going to cover this with a double standard, right? A
10:03
Speaker 2: single mistake from Joe Biden, if he were to do
10:06
Speaker 2: what he did at that sort of infamous post special
10:09
Speaker 2: counsel report press conference where he misspoke and said Mexico,
10:11
Speaker 2: but he meant Egypt, if he does that on the
10:13
Speaker 2: debate stage, that is going to be a five alarm fire.
10:16
Speaker 2: While at the same time, if Donald Trump said that
10:18
Speaker 2: gravity wasn't real on stage, people would be like, ha ha,
10:21
Speaker 2: there's Trump again, just being his old wacky self. And
10:23
Speaker 2: that's a hard dynamic.
10:24
Speaker 1: And also the next day, Mike Johnson would be like,
10:26
Speaker 1: we haven't seen gravity for real. We don't know. He
10:30
Speaker 1: could be correct. I think it could be a hoax.
10:32
Speaker 2: I've read my scripture front to back, and I've seen
10:34
Speaker 2: the word gravity once.
10:37
Speaker 1: Yeah, no, I guess I don't think that the Biden
10:40
Speaker 1: campaign really had another choice, or they did have another choice,
10:45
Speaker 1: but I think that that just declining to debate altogether
10:47
Speaker 1: is probably riskier.
10:49
Speaker 4: Yeah.
10:49
Speaker 2: I mean, there's sort of two ways to look at
10:52
Speaker 2: that conversation. One is it is an unfair situation that
10:57
Speaker 2: the way this will be covered and the way that
10:59
Speaker 2: sort of the public is viewing it because of how
11:01
Speaker 2: much questions about Biden's age have taken hold in a
11:04
Speaker 2: way for him in a way they haven't for Trump
11:06
Speaker 2: is that it's– and I think that's how a lot
11:09
Speaker 2: of pundits talk about it. They have to do it
11:10
Speaker 2: because this is going to be a live– nationally broadcast
11:14
Speaker 2: cognitive test. I don't think that's really why they had
11:17
Speaker 2: to do it. They have to do it because they
11:18
Speaker 2: need people to see Donald Trump. Most voters never, ever,
11:22
Speaker 2: ever see Donald Trump. Donald Trump, as you and I
11:24
Speaker 2: talked about, I think three days ago, went to Wildwood,
11:28
Speaker 2: New Jersey and act like a nut, said insane things
11:30
Speaker 2: for two hours, and no one who was going to
11:33
Speaker 2: decide this election saw one second of it.
11:37
Speaker 4: Nope.
11:37
Speaker 2: And the only way to, and you're not going to,
11:39
Speaker 2: and it's hard to reach people with ads. It's just,
11:41
Speaker 2: you got to do something really, really high profile. And
11:43
Speaker 2: I think, you know, Tommy and Jen talked about this
11:46
Speaker 2: a little bit on Wednesday, but they're all this idea
11:48
Speaker 2: that the Biden folks are there. They're in denial about
11:51
Speaker 2: how hard this race is, right? They're denying the polls
11:54
Speaker 2: and Joe Biden's citing a Marist poll, which shows them up.
11:56
Speaker 2: And it's like, well, you know what shows that they
11:58
Speaker 2: are not in denial of this, this move. This is
12:01
Speaker 2: a high variance strategy, right? When you think that when
12:04
Speaker 2: you believe is, I think they truly believe this is
12:06
Speaker 2: an incredibly close race where they're facing a lot of headwinds.
12:09
Speaker 2: You do things like this, right? You do a high
12:11
Speaker 2: risk maneuver because you cannot play it safe and win.
12:15
Speaker 2: And so I think they, I don't think they had
12:17
Speaker 2: a choice to do it. Um, and, but the way
12:22
Speaker 2: they've gone about, I think it's quite interesting, right? And
12:23
Speaker 2: the timing is interesting.
12:24
Speaker 4: Yeah.
12:25
Speaker 1: Let's talk about the timing. Cause that's, that's an area
12:27
Speaker 1: that Tommy and Jen didn't get into too much. Um,
12:30
Speaker 1: June 27th is in six weeks. It is the earliest
12:34
Speaker 1: first presidential debate ever. September would be the earliest last
12:38
Speaker 1: presidential debate ever. What are your thoughts on why Biden
12:42
Speaker 1: wanted this timing and also why Trump agreed?
12:47
Speaker 2: Well, let's start with Trump, right? Trump is so high
12:52
Speaker 2: on his own Fox News supply that he truly does
12:55
Speaker 2: believe that Joe Biden has dementia. The only way that
12:57
Speaker 2: he and the people around him have been able to
12:59
Speaker 2: rationalize Joe Biden's impressive State of the Union performance is
13:03
Speaker 2: to think he was on cocaine while doing it. And
13:06
Speaker 2: so in their mind, anytime Joe Biden is on stage,
13:10
Speaker 2: he is going to trip over his own two feet
13:12
Speaker 2: and hand the election to Trump. So any opportunity you
13:14
Speaker 2: can get to get him on stage, you take it.
13:16
Speaker 2: If Biden wants to debate 50 times, you debate 50
13:18
Speaker 2: times because in their mind, every single one is a
13:21
Speaker 2: net negative. Now, I'm sure in Trump's mind, he'd prefer,
13:24
Speaker 2: if he really think there will be some campaign-ending gaffe there,
13:27
Speaker 2: you'd prefer that to happen in mid-October than mid-June. But
13:31
Speaker 2: he saw the opportunity. He took it. He wants the debates.
13:35
Speaker 2: He'll take these debates. I think they probably do think
13:37
Speaker 2: they might be able to bully Biden into more at
13:39
Speaker 2: some later stage. So take the money on the table
13:41
Speaker 2: and go, which is a very Trumpian approach to all things.
13:44
Speaker 2: For Biden, the timing makes sense on two fronts. One,
13:51
Speaker 2: Get the choice in front of voters now. Don't wait
13:53
Speaker 2: until October. Right now, right? And I think they have
13:56
Speaker 2: reasonable belief, based on their understanding of the media environment,
14:00
Speaker 2: that the conventions are not going to mean what they
14:02
Speaker 2: did before. You're not going to capture the nation's attention.
14:05
Speaker 2: The nation's not going to tune in and see Donald
14:06
Speaker 2: Trump give a convention speech. And that convention speech, based
14:09
Speaker 2: on how Trump has performed in high leverage moments in
14:12
Speaker 2: this campaign, might be kind of normal, right? He may not.
14:16
Speaker 2: That's on his terms. And so start it now. Get
14:19
Speaker 2: it happening now. And then on the back end, if
14:22
Speaker 2: you think the debates are high risk and something may
14:24
Speaker 2: go wrong, have that happen in September, early September, not
14:28
Speaker 2: late October. And also don't spend October in debate camp.
14:33
Speaker 2: Like Biden was not– like we know this from 2012.
14:35
Speaker 2: We have to do three debates starting in late September
14:40
Speaker 2: through mid-October. You hardly campaign because you have to– especially
14:43
Speaker 2: for the incumbent president who– has to prepare for the debate, campaign,
14:47
Speaker 2: and lead the free world at the same time. Do
14:49
Speaker 2: that in September so you can be on the trail
14:51
Speaker 2: in October. So I think that makes sense for him.
14:54
Speaker 1: And guess who was incredibly angry about every campaign event
14:57
Speaker 1: he had to do while preparing for the debates and
15:00
Speaker 1: running the free world? Barack Obama.
15:02
Speaker 4: Yes.
15:03
Speaker 1: Because it'd be like a long, long day of debate
15:05
Speaker 1: prep and he'd be like, okay, you just got to
15:07
Speaker 1: go do this rally event for a quick hour. He's like,
15:09
Speaker 1: are you kidding me?
15:11
Speaker 2: Or more likely like, sir, I know you got in
15:15
Speaker 2: at 1 a.m. from Wisconsin last night, but we're going
15:20
Speaker 2: to need you to record this video for this conference.
15:24
Speaker 2: That went over very well, too.
15:26
Speaker 4: Yeah.
15:26
Speaker 1: I think it's interesting about the timing that traditionally, we've
15:29
Speaker 1: talked about this before, the first presidential debate that an
15:32
Speaker 1: incumbent president participates in, they tend to not do well. Certainly,
15:36
Speaker 1: Barack Obama did not do well in his. This has
15:38
Speaker 1: been throughout history. This has been a trend. And If
15:41
Speaker 1: Biden should falter in that first debate in June, he's
15:45
Speaker 1: got the convention to sort of have a reset. And
15:48
Speaker 1: then he's got like he's got a couple of months
15:50
Speaker 1: between that and September.
15:52
Speaker 4: Right.
15:53
Speaker 1: So there is some time to sort of shake off
15:55
Speaker 1: the first debate. It's also an interesting timing because we'll
15:58
Speaker 1: probably have a verdict in Manhattan by then. Almost surely
16:02
Speaker 1: we'll have a verdict in Manhattan by then. The immunity
16:04
Speaker 1: case will be decided by then. We'll know whether we're
16:07
Speaker 1: going to get a trial there going forward. So it
16:10
Speaker 1: is a good time to have Donald Trump on television
16:13
Speaker 1: and confront him to get people's attention. I think the
16:16
Speaker 1: only thing I wonder about is, would you want, if
16:19
Speaker 1: things are going well or by the time, say Biden
16:22
Speaker 1: does great in both these debates and we're all breathing
16:25
Speaker 1: easily and now we're heading into late September, October, and
16:29
Speaker 1: now no one's paying attention anymore and the polls start
16:32
Speaker 1: going back to this stasis that we've been in and
16:34
Speaker 1: it's close, then do you not have any more big
16:37
Speaker 1: moments to capture people's attention before election day if you
16:40
Speaker 1: need them?
16:41
Speaker 2: When you're the incumbent president, you really only have your
16:43
Speaker 2: convention speech in the three debates. In this case, it's
16:45
Speaker 2: your convention speech in two debates. If you're the challenger,
16:47
Speaker 2: you have your convention speech, your VP announcement, and then
16:50
Speaker 2: the debates. And so we will head into the final
16:55
Speaker 2: stretch of this campaign with no trump cards for either
16:58
Speaker 2: candidate to play. And that pun was quasi-intended. And so, yeah,
17:05
Speaker 2: there's definitely risk. There is risk in that. So it's,
17:09
Speaker 2: what if the debates go poorly and you want to
17:11
Speaker 2: change the dynamic the other way? You don't have another debate.
17:14
Speaker 2: Will Trump give you another debate if you wanted one,
17:16
Speaker 2: if you're doing well?
17:17
Speaker 4: We are in an election.
17:21
Speaker 2: In a highly polarized country with a totally fucked up
17:23
Speaker 2: political system that gives undue weight to the other side
17:26
Speaker 2: in an electoral college with the fate of democracy. There's
17:29
Speaker 2: no obvious risk-free choice here. They're all kind of shitty.
17:33
Speaker 2: So that's sort of where we are. And the thing
17:35
Speaker 2: that I think is impressive for the Biden team is
17:37
Speaker 2: they decided what was in their interest, and then they
17:40
Speaker 2: went out and achieved that within like three hours. And
17:43
Speaker 2: that's impressive. That is a win for their campaign tactically.
17:46
Speaker 2: And now it's just What happens next is you have
17:50
Speaker 2: to execute the plan you came up with.
17:52
Speaker 1: Do you think there's truth to the rumor that they
17:55
Speaker 1: chose June 27th for the debate because it is right
17:59
Speaker 1: between our Pod Save America live show in Brooklyn, which
18:03
Speaker 1: is June 26th, and our Pod Save America live show
18:06
Speaker 1: in Boston, which is June 28th?
18:09
Speaker 2: Do you think it's because, I mean, why do I
18:11
Speaker 2: have to do this for every time? Is it because
18:13
Speaker 2: June 25th is the release day of Democracy or Else?
18:15
Speaker 4: There it is.
18:16
Speaker 1: You're the best hype man for Democracy R Us, Dan.
18:18
Speaker 2: Thank you.
18:19
Speaker 1: You're the best hype man.
18:20
Speaker 4: Yes.
18:21
Speaker 2: I mean, talk about a book tour there.
18:26
Speaker 1: We don't have anything about the debates in the book.
18:27
Speaker 4: Sorry.
18:28
Speaker 1: We'll have plenty to talk about. Plenty to talk about.
18:30
Speaker 1: It'll be in the paperback, people. I got a pit
18:44
Speaker 1: in my stomach when I thought about how much prep
18:47
Speaker 1: the Biden team will have to squeeze in over the
18:49
Speaker 1: next six weeks. What do you think Joe Biden and
18:53
Speaker 1: Ron Klain, who's going to lead the debate prep team,
18:56
Speaker 1: what do you think they're going to focus on? And
18:59
Speaker 1: what do you think they want to get out of
19:00
Speaker 1: this debate? Obviously, winning, I get that. But what's the message?
19:04
Speaker 1: What do you think the message they really want to
19:06
Speaker 1: drive in this debate is?
19:08
Speaker 2: I think a lot of the prep is going to
19:09
Speaker 2: be less about message and more about how to prepare
19:14
Speaker 2: for all the various things Donald Trump can do, right?
19:17
Speaker 2: It's just so unpredictable. Like you're going to have to
19:21
Speaker 2: figure out what do you do with his lies? Do
19:23
Speaker 2: you rebut all of them? If you rebut all of them,
19:26
Speaker 2: you'll never get on offense, right? You'll just be doing that.
19:29
Speaker 2: How do you respond when he says something entirely gross
19:33
Speaker 2: and disgusting about Hunter to try to provoke you? And
19:36
Speaker 2: so just navigating that is going to be a huge
19:39
Speaker 2: part of the prep. And then what traps can you
19:43
Speaker 2: set for Trump to set him off to show the country,
19:46
Speaker 2: to remind the country, frankly, about what an unhinged, unfit,
19:51
Speaker 2: erratic con man that he is? How can you do that?
19:55
Speaker 2: And so it is an incredibly complicated... I mean, it's
20:01
Speaker 2: ironic it's this complicated to debate a simpleton, but it
20:05
Speaker 2: is in this case.
20:06
Speaker 4: Yeah.
20:07
Speaker 1: And I also think they'll probably want to prepare for
20:10
Speaker 1: what you mentioned about Trump's convention speech potentially is that
20:13
Speaker 1: he could show up and just be normal Trump, which
20:17
Speaker 1: I know is hard for all of us to believe.
20:19
Speaker 1: But if you're the Trump team, you think, okay, people
20:23
Speaker 1: aren't happy with Joe Biden. And what they're nervous about
20:26
Speaker 1: with our candidate is that he's a just complete unhinged
20:30
Speaker 1: lunatic who says things that make people like roll their
20:34
Speaker 1: eyes and not want to deal with him for another
20:36
Speaker 1: four years and all that kind of stuff. So if
20:38
Speaker 1: he just shows up, And in every answer talks about
20:42
Speaker 1: Joe Biden's record and starts complaining about inflation and complains
20:45
Speaker 1: about immigration, complains about this and just keeps just hammering
20:49
Speaker 1: him and making this a referendum on Joe Biden, keeping
20:52
Speaker 1: this election a referendum on Joe Biden and doesn't seem crazy,
20:56
Speaker 1: then I've won the debate. And so I wonder for Biden, like,
20:59
Speaker 1: I think that Biden probably will want to drive the
21:01
Speaker 1: choice more than anything. And he'll then and, you know,
21:05
Speaker 1: there'll be plenty of specific policies they'll talk about and
21:07
Speaker 1: everything else. But I really think it's I'm going to
21:09
Speaker 1: fight for you. Trump's only going to fight for Trump.
21:12
Speaker 1: And like he's just he's got to get that across.
21:15
Speaker 1: And if he can, he can leave that debate with
21:17
Speaker 1: people thinking like, you know, Trump said all kinds of
21:19
Speaker 1: crazy stuff to him. Trump tried to get under his skin.
21:22
Speaker 1: Trump tried to do all these outrageous things. But Joe
21:25
Speaker 1: Biden was just like, here's what I want to do
21:27
Speaker 1: for you. Here's what I have been doing for you.
21:28
Speaker 1: Here's who I'm going to fight for. And this guy,
21:31
Speaker 1: either he was just convicted or he's running for all
21:35
Speaker 1: these reasons that only have to do with himself, revenge,
21:38
Speaker 1: whatever else it may be. I do think that's probably
21:40
Speaker 1: the core of what I would focus on.
21:44
Speaker 2: It's going to be challenging, I think, because I think
21:47
Speaker 2: what you want out of this is to avoid making it,
21:49
Speaker 2: for Biden's sake, to avoid making it about himself. And
21:52
Speaker 2: there is sometimes in the And I know it's in jest,
21:56
Speaker 2: so I don't take it too seriously. Like the make
21:57
Speaker 2: my day, pal, this you Donald stuff, which makes it
22:00
Speaker 2: like about his anger at Trump as opposed to his
22:05
Speaker 2: anger on behalf of the American people because of what
22:06
Speaker 2: Trump has done and will do to them if he's reelected.
22:09
Speaker 2: And that's going to be really hard because Biden is
22:11
Speaker 2: a prideful, prideful guy. And Trump is very good at
22:16
Speaker 2: doing things that are– and Trump's mere presence on the
22:20
Speaker 2: public stage morally offends Joe Biden as it should. There
22:25
Speaker 2: was righteous anger about that.
22:27
Speaker 1: Join the club.
22:28
Speaker 4: Right.
22:29
Speaker 2: But it's going to have to be suppressed in a way.
22:31
Speaker 2: Because if this is just like two old white guys
22:34
Speaker 2: yelling at each other, that's not going to help Joe
22:36
Speaker 2: Biden as much as we need it to, is my guess.
22:38
Speaker 4: Yeah.
22:39
Speaker 1: And I think it is hard too, because I know
22:41
Speaker 1: that some of the mistakes that Obama made in that
22:43
Speaker 1: first debate is what incumbent presidents often make is Romney
22:48
Speaker 1: goes after his record. And then when you're the president,
22:50
Speaker 1: you're like, defensive about your record, you know, and Joe
22:54
Speaker 1: Biden's been known to be like that. And so is
22:55
Speaker 1: Barack Obama. Like, that's just natural.
22:57
Speaker 2: Every president, right? George Bush in that first debate.
22:59
Speaker 4: Yep. Right.
22:59
Speaker 1: And so I think they're going to like the amount
23:02
Speaker 1: of time that Biden has defending himself needs to be
23:05
Speaker 1: like minimal, quick, and then just like turn around and
23:08
Speaker 1: punch back.
23:09
Speaker 2: You know, the other interesting thing about this dynamic is
23:12
Speaker 2: normally the advantage the challenger has is they went through
23:15
Speaker 2: 37 primary debates.
23:17
Speaker 1: Oh, yeah.
23:18
Speaker 2: And the incumbent has not debated since the last general
23:20
Speaker 2: election debate four years prior. But Trump and Biden have
23:24
Speaker 2: gone the same amount of time without debating.
23:27
Speaker 1: That's true.
23:27
Speaker 2: That's interesting.
23:28
Speaker 4: Yeah.
23:29
Speaker 1: So Trump could be a little stale. There's one other
23:31
Speaker 1: big debate factor we haven't talked about yet, and that's
23:33
Speaker 1: the possible participation of RFK Jr. So reporting suggests that
23:37
Speaker 1: one reason both campaigns decided to ditch the commission on
23:41
Speaker 1: presidential debates and just do it themselves was because the
23:44
Speaker 1: commission may have included RFK Jr., which neither campaign wanted.
23:48
Speaker 1: But CNN says RFK can be on the stage if
23:52
Speaker 1: he gets to 15 percent in four high quality national
23:56
Speaker 1: polls and has secured ballot access in enough states to
24:00
Speaker 1: actually win 270 electoral votes. Kennedy has responded by accusing
24:05
Speaker 1: Trump and Biden of colluding to exclude him. And he
24:08
Speaker 1: has claimed that he will meet those qualifications in time.
24:12
Speaker 1: And it's worth noting that his running mate, Nicole Shanahan,
24:15
Speaker 1: just pledged another $ 8 million of her own money to
24:17
Speaker 1: the campaign. So that could help push his numbers up
24:20
Speaker 1: with ads and fund more ballot petitioning. She also had
24:23
Speaker 1: a kind of funny line at a fundraiser this week
24:26
Speaker 1: where she made the announcement saying, hey, right now we're
24:28
Speaker 1: in third place, but we can win. I'm proof. I
24:31
Speaker 1: was in third place behind Aaron Rodgers and Hulk Hogan.
24:35
Speaker 2: It wasn't Jesse Ventura anyway.
24:36
Speaker 1: I was going to say it was... Did I miss
24:39
Speaker 1: a news cycle?
24:41
Speaker 2: No, I think she did, unfortunately.
24:42
Speaker 1: All right. First of all, do you believe RFK Jr.
24:48
Speaker 1: 's spin that he'll meet the thresholds?
24:50
Speaker 2: I don't know how he can meet the threshold by June.
24:53
Speaker 2: He's actually doing... I was initially incredibly skeptical that he
24:57
Speaker 2: had any chance of getting on the ballot in states
24:59
Speaker 2: adding up to 270 electoral votes, but he actually is
25:03
Speaker 2: doing much better. I thought there was a report in
25:04
Speaker 2: Politico a couple of days ago that They have had
25:07
Speaker 2: real success getting the requisite signatures in New York and Texas.
25:10
Speaker 2: And he's already on the ballot in California because they
25:12
Speaker 2: used a sketchy third-party loophole to get on the ballot.
25:15
Speaker 2: So that right there gets you to 122. All the
25:18
Speaker 2: other states that.
25:19
Speaker 1: I did the math, Dan. He's on the ballot in
25:22
Speaker 1: six states, the total 125 electoral votes. They say that
25:26
Speaker 1: they have the signatures to qualify in another eight states.
25:30
Speaker 1: That adds up to 187 electoral votes altogether. So he
25:35
Speaker 1: is 83 electoral votes short between now and June that
25:39
Speaker 1: you have to get, which is not, it's not nothing,
25:41
Speaker 1: but it's not like, who knows?
25:43
Speaker 2: Six weeks. It's six weeks. I think six weeks would
25:45
Speaker 2: be very hard. Now, could they get there by September?
25:48
Speaker 4: Maybe.
25:48
Speaker 2: I don't know. I also think that 15% is a
25:52
Speaker 2: number he has not hit in any poll.
25:54
Speaker 1: Yeah, no, he hit 15 in CNN's April poll and
25:59
Speaker 1: Quinnipiac's April poll, and that's it. Just two polls, he
26:02
Speaker 1: hit 15%, and then no other polls, he had 15%
26:05
Speaker 1: and the average on 538 is 10%.
26:07
Speaker 2: Yeah. And so I think it'd be a stretch for
26:10
Speaker 2: him to meet both those qualifications, certainly by June and
26:13
Speaker 2: even by September.
26:15
Speaker 1: I do wonder if this will help him, like he'll
26:19
Speaker 1: now use this as a way to get more ballot signatures.
26:24
Speaker 1: But to do this, he'd also have to get more attention.
26:26
Speaker 1: And again, attention, hard to get, even if you're RFK Jr.
26:30
Speaker 1: running around saying crazy things. Maybe he'll drop a lot
26:34
Speaker 1: of money on another national ad and try to tell everyone,
26:38
Speaker 1: even if you're not with me, even if you're not
26:39
Speaker 1: for me yet, at least get me on the debate stage.
26:42
Speaker 1: I wonder if that could work.
26:44
Speaker 2: I mean, this is a sad statement on the state
26:47
Speaker 2: of the American media ecosystem, but it's almost impossible to
26:49
Speaker 2: reach voters at scale outside of football season.
26:52
Speaker 4: Yeah. Yeah.
26:52
Speaker 2: There aren't enough people watching any singular event to actually
26:55
Speaker 2: do it.
26:55
Speaker 1: I was just trying to think. I'm like, what's happening
26:57
Speaker 1: between now and both debates that he could really, I
26:59
Speaker 1: guess in the convention.
27:00
Speaker 2: The Olympics. The Olympics in August is one. But even then,
27:03
Speaker 2: those individual events don't have massive ratings like the football
27:06
Speaker 2: games do. We reach in tens of millions of people
27:08
Speaker 2: at a time.
27:09
Speaker 1: So Trump went on Truth Social this morning to attack
27:12
Speaker 1: Biden for not wanting RFK Jr. On the debate stage,
27:16
Speaker 1: Trump is now calling RFK Jr. just Jr. That's his new,
27:20
Speaker 1: his truth nickname for RFK Jr., And he also wrote,
27:23
Speaker 1: I don't care if Junios joins the debate. J-U-N-I-O-S apostrophe?
27:30
Speaker 1: He used the apostrophe twice? I don't understand. But that
27:34
Speaker 1: his polling numbers are very low. He's not properly qualified
27:36
Speaker 1: in the States and he seems to be on a
27:37
Speaker 1: downward path. Biden got a shouted question about debating RFK.
27:41
Speaker 1: He just laughed it off. Who do you think is
27:43
Speaker 1: more nervous here, Biden or Trump, that RFK Jr. is
27:45
Speaker 1: going to end up on that debate stage?
27:47
Speaker 2: I think they should both be nervous for probably the
27:49
Speaker 2: same amount of nervous for very different reasons. Um, Now,
27:52
Speaker 2: we saw this in the New York Times poll that
27:54
Speaker 2: RFK Jr. was basically taking equal from both sides. So
27:57
Speaker 2: he's not necessarily a spoiler. If you are Biden, you
28:02
Speaker 2: don't want RFK Jr. up there because you want the
28:03
Speaker 2: focus to be all on Trump, right? You just divided
28:06
Speaker 2: Trump's time by a large fraction because RFK Jr. will
28:09
Speaker 2: be speaking. So that's less Trump. That's bad for Biden. Also,
28:12
Speaker 2: you have someone with the last name Kennedy who has
28:16
Speaker 2: some environmental credentials based on work earlier in his life.
28:20
Speaker 2: who might be going after Joe Biden, right, from the
28:22
Speaker 2: left on some issues. And that's not good for Joe Biden.
28:25
Speaker 2: If you're Trump, here you have a anti-vaccine conspiracy theorist
28:30
Speaker 2: who was supportive of January 6th with some real MAGA
28:35
Speaker 2: vibes coming after you. And the voters he takes from
28:39
Speaker 2: Trump are people who are often, some of them are
28:43
Speaker 2: MAGA voters, but a lot of them are disenchanted Democrats
28:46
Speaker 2: who had left Biden right, and went to RFK Jr.
28:50
Speaker 2: Or they profile demographically like the voters that Biden has
28:53
Speaker 2: been losing. More working class, more black and Latino, younger.
28:59
Speaker 2: And so it serves neither of their interests to have
29:01
Speaker 2: RFK Jr. on that stage because Trump also wants all
29:03
Speaker 2: the focus on Biden. In his mind, the more minutes
29:05
Speaker 2: Biden speaks, the more likely he is to say something
29:07
Speaker 2: that he can weaponize as evidence of unfitness for the presidency.
29:12
Speaker 2: And I guess the same is true for Biden, right?
29:14
Speaker 2: He wants Trump to talk the whole time so that
29:15
Speaker 2: people can see that.
29:17
Speaker 1: Yeah, that makes sense. All right, before we hear from
29:19
Speaker 1: Norm Eisen, we got a few quick housekeeping notes. If
29:22
Speaker 1: you are ready to make a real difference in the campaign,
29:25
Speaker 1: please sign up for Vote Save America's 2024 volunteer program,
29:30
Speaker 1: organize or else. There's still time. The very first training
29:33
Speaker 1: call is this Monday, May 20th at 8 p.m. Eastern,
29:37
Speaker 1: starring Dan Pfeiffer himself.
29:40
Speaker 2: That's right.
29:40
Speaker 1: How exciting. Dan, I'm a Team West co-captain. You're a
29:44
Speaker 1: Team East co-captain. Is this some kind of illicit effort
29:47
Speaker 1: to get your team a head start? Like, what's going
29:50
Speaker 1: on here?
29:50
Speaker 2: No, it's a sincere effort to help motivate people to
29:53
Speaker 2: save democracy. And Shanique asked me to do it when
29:55
Speaker 2: Shanique asked me to do things, I do them.
29:56
Speaker 1: When's the Team West kickoff? No one's told me that.
29:59
Speaker 1: I got, you know, I got my, my co-captain isn't even,
30:02
Speaker 1: isn't even around.
30:04
Speaker 2: Yes, he immediately got, as soon as he found out
30:07
Speaker 2: he was on your team, he took off.
30:11
Speaker 1: On the call, Dan and everyone else will be talking
30:13
Speaker 1: about messaging and relational organizing. And this is VSA's words here.
30:19
Speaker 1: Descarifying phone banking to make volunteering as easy and effective
30:22
Speaker 1: as possible. Look, phone banking can be scary. I tend
30:25
Speaker 1: to like it now, but it's every once in a
30:27
Speaker 1: while I can get, you know, you're like, what am
30:29
Speaker 1: I going to say if I actually get someone? Because
30:31
Speaker 1: you get a lot of hangups and then you get
30:33
Speaker 1: someone and then you freeze. You know what? The VSA
30:37
Speaker 1: volunteers and organizers, they're going to help you out. They're
30:39
Speaker 1: going to make it feel easy, fun. So check it out.
30:43
Speaker 1: So far, over 5,300 volunteers have signed up to maximize
30:47
Speaker 1: their impact. But we still need you to get involved.
30:49
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30:54
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30:57
Speaker 2: This message has been paid for by Vote Save America.
30:59
Speaker 2: You can learn more at votesaveamerica.com. This ad has not
31:01
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31:04
Speaker 1: When we come back, Norm Eisen. Back by popular demand,
31:20
Speaker 1: the man who is braving Judge Mershon's infamously chilly and
31:23
Speaker 1: fart-infested courtroom as a legal analyst for CNN, also author
31:27
Speaker 1: of the excellent book Trying Trump, our old friend Norm Eisen. Norm,
31:32
Speaker 1: welcome back.
31:33
Speaker 4: Thank you for having me back, guys. I'm excited to
31:36
Speaker 4: talk about what was today one of the most momentous
31:41
Speaker 4: days in the trial.
31:43
Speaker 2: Oh, wow.
31:44
Speaker 4: Okay.
31:45
Speaker 1: Well, let's just start there because I always try to,
31:49
Speaker 1: while I'm doing all my other work, half follow the
31:51
Speaker 1: trial on Twitter. And usually I get a good sense
31:53
Speaker 1: of what's going on. But today it was like really
31:56
Speaker 1: tough to dissect everything. So this was the cross-examination of
32:00
Speaker 1: Michael Cohen. How did it go?
32:03
Speaker 4: It was a mixed bag. There was a lot of flailing,
32:10
Speaker 4: but there were a couple punches that landed, including one
32:16
Speaker 4: right on Cohen's chin, but didn't knock him down. He
32:21
Speaker 4: stayed on his feet. He came back strong in the afternoon.
32:25
Speaker 2: What was the punch?
32:26
Speaker 4: At the end, Trump's defense lawyer, Todd Blanch, has been
32:31
Speaker 4: pilloried for his poor performance. And he came out today
32:38
Speaker 4: with a very weak start. He got better, but then
32:42
Speaker 4: he saved his best material for right before the lunch break.
32:48
Speaker 4: And Cohen had testified about a short call to Trump's
32:53
Speaker 4: bodyguard Keith Schiller in October, 2016, when Cohen said, I
32:59
Speaker 4: called Schiller, he handed the phone to Trump, and I
33:03
Speaker 4: communicated that the Stormy Daniels deal was done. It's a
33:08
Speaker 4: pivotal call, but what he hadn't testified about on direct
33:14
Speaker 4: was that there was another series of calls to Schiller
33:18
Speaker 4: that day about a campaign of harassing phone calls And
33:24
Speaker 4: Blanche was able to rock Cohen a little bit by saying, look,
33:32
Speaker 4: how could you have packed into a call of less
33:35
Speaker 4: than two minutes the update about Stormy Daniels and also
33:39
Speaker 4: a discussion with Schiller about all this other stuff? That
33:42
Speaker 4: call must have really, and he yelled, he was carrying on,
33:45
Speaker 4: that call must have really been about the harassment and
33:50
Speaker 4: you're making up the Stormy stuff. But Cohen, to his credit,
33:54
Speaker 4: he was surprised. It really, the prosecution had not properly
33:58
Speaker 4: prepared him for that line of cross-examination, but he did
34:03
Speaker 4: stand his ground. And in the end, he said, that's
34:06
Speaker 4: what happened. I did not lie. Blanche tried to shake
34:11
Speaker 4: him up by carrying on repeated objections. The objections were sustained.
34:17
Speaker 4: And that was the only real punch on the chin
34:22
Speaker 4: that Blanche landed today.
34:25
Speaker 1: The big question going into the Cohen testimony was, is
34:28
Speaker 1: the jury going to find Michael Cohen credible? We're not
34:31
Speaker 1: going to know that for a little while, but obviously
34:33
Speaker 1: the jury doesn't have to like him, they just have
34:35
Speaker 1: to believe him or at least believe what he's saying
34:38
Speaker 1: with regard to the charges at hand. Do you think
34:43
Speaker 1: the defense effectively undermined his credibility with relation to the
34:48
Speaker 1: actual criminal charges and the stormy payment? Or do you
34:53
Speaker 1: think that he was still a good witness for the prosecution?
34:57
Speaker 4: My belief, we'll find out when we get the verdict,
35:01
Speaker 4: is that The defense rocked him. There were a couple
35:04
Speaker 4: of other moments where they were effective. But it was
35:08
Speaker 4: not enough to shake what had been a very strong
35:12
Speaker 4: direct examination, a very credible presentation. I felt that in
35:18
Speaker 4: multiple points. And today also, Cohen really bonds with the jury.
35:23
Speaker 4: They put down their writing implements. They listen to him.
35:26
Speaker 4: He turns and he talks to them. My own conclusion
35:33
Speaker 4: is that there was proof beyond a reasonable doubt going
35:37
Speaker 4: into today and that coming out of today, the prosecution
35:43
Speaker 4: still has proven their case, but it's closer than it
35:46
Speaker 4: was after the first day of cross. Part of the
35:51
Speaker 4: reason that I think the prosecution is hanging in there
35:54
Speaker 4: is because there's so much corroboration. You don't have to
35:59
Speaker 4: believe Cohen on this one minute and 30 second phone
36:04
Speaker 4: call to believe former President Trump is guilty. There's a
36:09
Speaker 4: pile of evidence showing that there was a conspiracy to
36:13
Speaker 4: make illegal campaign finance and tax acts. I think the
36:20
Speaker 4: prosecution is still there, but it's definitely closer now than
36:25
Speaker 4: it was when we finished court on Tuesday.
36:29
Speaker 2: Now, this is a question in which we have no
36:30
Speaker 2: personal interest, but how damaging do you think the quotes
36:34
Speaker 2: from Michael Cohen's podcast were to his credibility?
36:38
Speaker 4: Not damaging. The principal function, they played him out loud,
36:43
Speaker 4: two of them out loud in court, is to show
36:46
Speaker 4: that there's another side to Michael Cohen because on his podcast,
36:51
Speaker 4: and I've been on his podcast, on his podcast, he's
36:57
Speaker 4: much more exercised and colorful and vigorous and emotional than
37:03
Speaker 4: and much more critical of the former president. Whereas in court,
37:07
Speaker 4: he's been much more buttoned down, calm. He's kept his cool.
37:12
Speaker 4: He's clearly presented. And that is a side of his
37:18
Speaker 4: personality as well. So I don't think the content affected
37:24
Speaker 4: his credibility at all.
37:26
Speaker 1: Two things that I've been wondering about, Norm. The first is,
37:30
Speaker 1: Wondering about what happens with former Trump Organization CFO slash
37:35
Speaker 1: current inmate Allen Weisselberg, who neither the prosecution or defense
37:40
Speaker 1: has called. Why do you think that is, considering he
37:44
Speaker 1: plays such a pivotal role in the alleged scheme? And
37:48
Speaker 1: how big of an impact do you think his absence
37:50
Speaker 1: will have on the case?
37:52
Speaker 4: We've moved on past the possibility of calling Weisselberg. Nobody's
37:57
Speaker 4: talking about it anymore. The prosecution doesn't want him because
38:01
Speaker 4: the case has come in well. He just pled guilty
38:05
Speaker 4: to perjury in the AG civil fraud case, and he's
38:11
Speaker 4: an unreliable witness. The defense doesn't want him because they
38:14
Speaker 4: don't know what he's going to say. He could blow
38:16
Speaker 4: up the former president in explaining those notes. So the
38:21
Speaker 4: prosecution wanted to explain to the jury where he was
38:24
Speaker 4: by introducing a document. Judge Mershon is so fair. If
38:28
Speaker 4: people could sit in that courtroom, they would understand Trump's
38:34
Speaker 4: lies about a biased judge. He wouldn't give the prosecution
38:37
Speaker 4: that document that they wanted to put in the evidence.
38:40
Speaker 4: But we've all moved on. I think there's more than
38:43
Speaker 4: enough evidence. And I don't think the jury is going
38:46
Speaker 4: to be stopped by the absence of Allen Weisselberg.
38:52
Speaker 1: OK, yeah, I was just wondering, because like. They've heard
38:55
Speaker 1: his name now a whole bunch of times in the trial.
38:57
Speaker 1: They've seen his handwriting on documents. He was in these meetings.
39:00
Speaker 1: So I was just wondering if like, does the judge
39:02
Speaker 1: give them certain instructions on like what to do about
39:06
Speaker 1: Weisselberg or if they have questions on that?
39:08
Speaker 4: There is such a thing as a missing witness instruction.
39:13
Speaker 4: But you only get that, and it allows the jury
39:17
Speaker 4: to draw an inference that if one of the parties
39:19
Speaker 4: has control of a witness and doesn't produce that witness
39:23
Speaker 4: who seems to have information, that the information would be bad.
39:27
Speaker 4: It's not dispositive, but it's a thumb on the scale.
39:31
Speaker 4: The problem is, it's not clear to me that either
39:35
Speaker 4: one of the parties here would be entitled to a
39:38
Speaker 4: missing witness instruction because the prosecution certainly doesn't control Allen Weisselberg.
39:45
Speaker 4: He doesn't work for them. He no longer works for
39:51
Speaker 4: the defense. He does have a separation agreement. That's the
39:56
Speaker 4: document that the prosecution wanted to put in evidence. The
39:59
Speaker 4: judge wouldn't let him. The jury may be curious, but
40:03
Speaker 4: this is not a jury that's going to complain, oh, gosh,
40:06
Speaker 4: we didn't get enough evidence. It's been a long trial.
40:09
Speaker 4: It's packed with evidence. People have talked about Weisselberg. That's
40:13
Speaker 4: not going to be the deciding question here. It's going
40:15
Speaker 4: to be how well did Cohen hold up on cross?
40:18
Speaker 4: How well is he rehabilitated? But I really think he
40:22
Speaker 4: held in there, and I believe him. So it's a
40:28
Speaker 4: question now of where the jury lands. Not the whole jury, guys.
40:32
Speaker 4: Trump is not playing for acquittal here. He's not gonna
40:35
Speaker 4: be acquitted. He's hoping for one or two rogue jurors.
40:41
Speaker 4: I actually brought my jury consultant to court with me
40:44
Speaker 4: one day to analyze the jury. Is there a potential
40:50
Speaker 4: for a hung jury here? Usually, you need two alienated jurors.
40:56
Speaker 4: You're looking for two jurors who are kind of winking
40:59
Speaker 4: and smiling at Trump or who seem bored or angry
41:03
Speaker 4: or hostile to the prosecution. I haven't seen that, and
41:09
Speaker 4: neither did my jury experts. So I think the prosecution
41:16
Speaker 4: is on track, but you never know. They were harder
41:18
Speaker 4: to read once Blanche really started going after Cohen, Hammer,
41:22
Speaker 4: and Tongs.
41:24
Speaker 1: So the other thing I needed clarification on, does the
41:28
Speaker 1: prosecution need to prove that Trump knew that making the
41:33
Speaker 1: payment to Stormy Daniels was a campaign finance violation or
41:37
Speaker 1: just prove that he made the payment himself and that
41:42
Speaker 1: like whether in his mind, obviously it was the intent
41:46
Speaker 1: was to hide that fact from the voters and hide
41:49
Speaker 1: the scandal from the voters. But does he have to
41:51
Speaker 1: know that it was a campaign finance crime?
41:54
Speaker 4: Unlike when the two of you were my clients and
41:56
Speaker 4: I taught you all the rules, we had a session
42:01
Speaker 4: where we went through all the rules. A defendant does
42:07
Speaker 4: not need to understand all the elements of FICA, the
42:14
Speaker 4: federal election law that is alleged to have been violated here,
42:19
Speaker 4: to be convicted. If you think about it, you could
42:21
Speaker 4: never get a white collar conviction unless the defendant went
42:25
Speaker 4: to law school. What you have to show is criminal intent.
42:32
Speaker 4: You don't even need to prove the elements here. You
42:34
Speaker 4: just have to show that the documents were violated to
42:37
Speaker 4: cover up, or the documents were falsified to cover up
42:43
Speaker 4: the intent to violate another crime. And I think that
42:49
Speaker 4: Cohen has, if the jury believes him, and I think
42:53
Speaker 4: they will, that Cohen has established Trump had that criminal
42:58
Speaker 4: intent You can infer it from the fact that he
43:01
Speaker 4: wanted these large benefits from AMI starting at a Trump
43:08
Speaker 4: Tower meeting in 2015 to benefit the campaign all the
43:13
Speaker 4: way through to the end of the scheme where he
43:15
Speaker 4: tried to cover it up. Look, the reality is You
43:19
Speaker 4: don't need to be a campaign finance genius to understand
43:23
Speaker 4: that the campaign finance limits are $ 2, 400, and this was
43:27
Speaker 4: a $ 130, 000 payment by Michael Cohen to benefit the campaign.
43:32
Speaker 4: So I think the proof of intent is there.
43:35
Speaker 2: So, Norm, as you have pointed out, the prosecution's case
43:38
Speaker 2: is coming in well. I think that's the right term
43:40
Speaker 2: of art here. But that's only half the equation. What
43:43
Speaker 2: do you expect from the defense? How would you go
43:44
Speaker 2: about poking holes in the prosecution's case if you were
43:46
Speaker 2: defending Trump? Which I know is something that's impossible to imagine,
43:49
Speaker 2: but just indulge me.
43:51
Speaker 4: You know, I actually was, for most of my career,
43:58
Speaker 4: a criminal defense lawyer. And I never wanted to be
44:04
Speaker 4: a prosecutor because of my.
44:08
Speaker 4: Attitudes towards some of the structural biases in the criminal
44:13
Speaker 4: justice system. And one of my former law firm colleagues,
44:19
Speaker 4: John Lauro, is defending Trump now. He's one of his
44:23
Speaker 4: defense lawyers. If I were defending Trump, I would put
44:33
Speaker 4: on an alternative case, which it doesn't seem like they're
44:37
Speaker 4: gonna do here. that Donald Trump was not.
44:42
Speaker 1: Are you in the courtroom? Are you at the courthouse?
44:44
Speaker 4: I'm in my office. I share an office with George
44:47
Speaker 4: Conway and I rented an office together. We temporarily.
44:50
Speaker 2: He's podcasting right out of sight.
44:52
Speaker 4: There's a sitcom in the making. It's America's most anti-Trump
44:59
Speaker 4: law firm, Conway and Eisenberg. If I were defending Trump,
45:03
Speaker 4: I would emphasize the extremely steep burden that the prosecution
45:10
Speaker 4: has to make. I would do what they're going to
45:13
Speaker 4: do with Cohen, that if you don't believe Cohen, the
45:18
Speaker 4: prosecution didn't make their case because he's the only one
45:21
Speaker 4: who has direct intent evidence. What Trump was thinking during
45:27
Speaker 4: the Stormy Daniels payment, what Trump was thinking during the
45:31
Speaker 4: falsification of documents to cover up that allegedly illegal campaign contribution.
45:39
Speaker 4: I would argue the plausibility of an alternative motive, and
45:44
Speaker 4: we heard a little bit about this at the end
45:46
Speaker 4: of court today, I think it went over most people's heads,
45:50
Speaker 4: the irrespective test. You have to show that the payment
45:54
Speaker 4: to Stormy Daniels would not have been made but for
46:00
Speaker 4: the campaign and say, look, you heard from Hope Hicks
46:07
Speaker 4: and Madeleine Westerhout that Donald Trump cared about not embarrassing
46:14
Speaker 4: his family. At a minimum, the proof establishes that that
46:19
Speaker 4: was the cause, one of the causes of the payment.
46:23
Speaker 4: So they haven't cleared that irrespective test that hurdle and
46:29
Speaker 4: offering that alternative explanation. Third, I would say, fortunately, by
46:35
Speaker 4: the way, I don't think Todd Blanch is a listener
46:38
Speaker 4: to Pod Save America because I'm laying out his closing
46:41
Speaker 4: argument for him. Let's hope.
46:44
Speaker 1: Fingers crossed.
46:45
Speaker 4: Third, I would point to the fact that the prosecution
46:50
Speaker 4: has an extraordinarily steep burden to meet these complicated legal tests.
46:59
Speaker 4: And we heard about this today in court. Also, they
47:02
Speaker 4: started talking about the instructions to the jury. I would
47:07
Speaker 4: argue the law and say, you know, you can't put
47:10
Speaker 4: these pieces together. They just haven't gotten there. It would
47:14
Speaker 4: be better if there was an alternative case that would
47:18
Speaker 4: come in. Oh, I know the last point I would make.
47:21
Speaker 4: The last point I would make is, look, Trump was
47:24
Speaker 4: very busy with the presidential campaign and then very busy
47:28
Speaker 4: with the White House. Cohen was a rogue operator. And again,
47:32
Speaker 4: I would point to Hope Hicks saying disparaging things about Cohen.
47:38
Speaker 4: He was desperate for Trump's approval. He did this on
47:41
Speaker 4: his own. If you don't believe his stories, then you
47:46
Speaker 4: haven't got a case here. So that's the third element
47:49
Speaker 4: is Cohen went rogue. The problem with that argument is
47:55
Speaker 4: that the evidence doesn't support any of that. So I
48:01
Speaker 4: think they have most of the jury and we'll see
48:05
Speaker 4: what happens with, now we're gonna move into a phase
48:08
Speaker 4: where we're gonna see the jury instructions. How is the
48:11
Speaker 4: law gonna be described to this jury? That will make
48:14
Speaker 4: it easier or more difficult for the prosecution and the
48:19
Speaker 4: defense to make their respective arguments.
48:22
Speaker 1: Do you expect the defense to call any witnesses themselves?
48:27
Speaker 4: They're considering two groups of witness. One is some rebuttal witnesses.
48:35
Speaker 4: They've been referred to. They're going to be short. We
48:39
Speaker 4: don't know what they're going to come in and say.
48:41
Speaker 4: They're probably individuals who are being called to establish very
48:46
Speaker 4: particular points that aren't yet in evidence. The defense tried
48:50
Speaker 4: to get what they needed on cross-examination so they can
48:53
Speaker 4: make something like my three-part argument. The case falls apart
48:57
Speaker 4: if you don't believe Cohen. The extremely steep legal hurdle
49:03
Speaker 4: is not met here. This was a rogue actor who's
49:06
Speaker 4: making up a story to to cover for his own wrongdoing.
49:11
Speaker 4: Then the other group is a class of one, Donald Trump.
49:16
Speaker 4: And they talked about him today at the end of court,
49:19
Speaker 4: Is Donald Trump going to testify? I said, we have
49:22
Speaker 4: not made up our mind. It is the moment of
49:24
Speaker 4: truth for whether or not Trump testifies. I am extremely
49:31
Speaker 4: dubious that he's going to get up there on the
49:33
Speaker 4: stand and open himself up to cross-examination. I mean, if
49:37
Speaker 4: we had that one intense and a couple semi-intense moments
49:41
Speaker 4: today where Cohen was rocked, but ultimately I thought stood
49:45
Speaker 4: his ground. I've never seen a case that's decided by
49:49
Speaker 4: a single moment where a witness, a bit of a struggle,
49:54
Speaker 4: and then finds his footing again. If that is the
50:00
Speaker 4: cross-examination of Michael Cohen, can you imagine the cross-examination of
50:04
Speaker 4: Donald Trump? And they're ready for that. They're laying in
50:07
Speaker 4: wait for him. I don't think Trump is gonna testify.
50:11
Speaker 4: I think he would harm himself, both on the liability phase,
50:18
Speaker 4: the guilt phase that we're in now, but on sentencing,
50:21
Speaker 4: because if the judge determines that Donald Trump got on
50:24
Speaker 4: the stand and lied to him and his jurors, he's
50:28
Speaker 4: gonna hold that against him on sentencing. And we have
50:31
Speaker 4: a very, if Donald Trump is convicted, you know, we
50:36
Speaker 4: have a very unusual set of circumstances. The judge has
50:42
Speaker 4: already talked about is, you know, whether he's gonna jail
50:47
Speaker 4: Trump for another act of contempt. So the judge is
50:52
Speaker 4: really gonna have to wrestle with sentencing. I do think
50:56
Speaker 4: a jail sentence is on the table if Donald Trump
50:58
Speaker 4: is convicted.
50:59
Speaker 2: How long?
51:01
Speaker 4: Well, the courthouse, there's a lot of, you know, 100
51:06
Speaker 4: center street experts, like the New York people who spend
51:10
Speaker 4: their entire professional lives, first usually as prosecutors, DA's office,
51:15
Speaker 4: then as defense lawyers in this courthouse. The smart money,
51:19
Speaker 4: I talked to a bunch of them for my book
51:21
Speaker 4: and for a New York Times op-ed based on the book.
51:25
Speaker 4: The consensus seems to be if he gets sentenced, it
51:29
Speaker 4: will be less than a year, probably somewhere in the
51:32
Speaker 4: six month range, just because A jail sentence is unusual.
51:36
Speaker 4: I looked at 10,000 of these falsifying business record cases.
51:40
Speaker 4: You get jail about 10% of the time. But it's unusual.
51:45
Speaker 4: On the other hand, if Trump is convicted, this will
51:47
Speaker 4: be the most serious FBR, falsifying business records case, in
51:52
Speaker 4: the history of the state of New York. So it
51:54
Speaker 4: seems like it should be up there in that 10%.
51:57
Speaker 4: He gets on the stand and lies. He really worsens
52:01
Speaker 4: his position on sentencing.
52:04
Speaker 2: Just a huge FBR case.
52:07
Speaker 4: You know, there's no pod FBR, right?
52:14
Speaker 1: Can you imagine how much fun the prosecution has had
52:17
Speaker 1: preparing for the slim possibility that Donald Trump would take
52:21
Speaker 1: the stand?
52:22
Speaker 4: One of the hardest things to do as a lawyer
52:26
Speaker 4: is to prepare for contingencies that are extremely unlikely to
52:31
Speaker 4: come to pass. because on the one hand, you're telling yourself, oh,
52:36
Speaker 4: you've got to work hard. It might happen. On the
52:38
Speaker 4: other hand, you're telling yourself, there's no effing way Donald
52:41
Speaker 4: Trump is getting on the stand for this cross-examination. But yes,
52:46
Speaker 4: I'm sure they mocked it. One of the prosecutors probably
52:49
Speaker 4: played Donald Trump, and they had a good time that day.
52:55
Speaker 1: Last question before we let you go. Last time you
52:58
Speaker 1: were on You said if the Supreme Court delays the
53:01
Speaker 1: immunity case past May 20th, then it's probably going to
53:05
Speaker 1: be too hard to have a trial before the election.
53:07
Speaker 1: We're talking on May 16th. Do you have any hope
53:11
Speaker 1: that we'll get the right decision in the next couple
53:13
Speaker 1: of days?
53:14
Speaker 4: Monday is complicity day. Look, they are already outrageously... delaying
53:25
Speaker 4: this case. We should be finishing the D.C. case. There
53:30
Speaker 4: is no immunity to send SEAL Team 6 to assassinate
53:34
Speaker 4: a political opponent. It's nuts. Jack Smith shouldn't have agreed
53:39
Speaker 4: to the stay in the case. The Supreme Court certainly
53:42
Speaker 4: should not have done this outrageous delay. Every day is
53:47
Speaker 4: that this D.C. case, and Alvin Bragg had said, I'll
53:50
Speaker 4: give preference to the D.C. case. It was supposed to
53:53
Speaker 4: start March 5th. So in a sense, every day since
53:57
Speaker 4: March 5th has been a complicity day, but May 20th
54:02
Speaker 4: is a marker because that is the space from oral
54:08
Speaker 4: argument in this case to Monday, May 20th is the
54:12
Speaker 4: same amount of time that they took from oral argument
54:15
Speaker 4: to a decision in the 14th Amendment case. That's the benchmark.
54:19
Speaker 4: I will say that even if we don't get a
54:22
Speaker 4: trial in the DC case, we may very well get
54:28
Speaker 4: as a backup, I would even say it's likely we
54:31
Speaker 4: get as a consolation prize, a mini trial. Because the
54:37
Speaker 4: Supreme Court, they're not gonna say that Trump can order
54:45
Speaker 4: is immune from political assassinations, because if they make a
54:48
Speaker 4: decision he doesn't like, he'll send SEAL Team 6 to them.
54:53
Speaker 4: So they're going to say, if they decide, they're going
54:56
Speaker 4: to say, well, here's the test. We're not deciding these facts.
55:00
Speaker 4: We're remanding it to Judge Chutkan. Then she's going to
55:03
Speaker 4: have to have discovery and a hearing. Is he immune
55:06
Speaker 4: or not? She's going to find he's not immune. There'll
55:08
Speaker 4: be witnesses. There'll be evidence. There'll be a mini trial.
55:12
Speaker 4: If that comes on top of a verdict in this
55:15
Speaker 4: case on the 2016 election interference through the hush money
55:19
Speaker 4: payment to maybe change the outcome of the election and
55:22
Speaker 4: covering it up, that represents some degree of accountability. But
55:28
Speaker 4: we should never lose sight of the outrageousness of the
55:32
Speaker 4: fact that we're not almost done or done with the
55:36
Speaker 4: 2020 election interference case in D.C. Or at least it
55:40
Speaker 4: should be getting queued up to begin after within a
55:43
Speaker 4: couple of weeks after we finish this trial for 2016
55:46
Speaker 4: election interference here on Center Street in Manhattan.
55:52
Speaker 1: What a world.
55:53
Speaker 2: What a world, Norm.
55:54
Speaker 1: Thank you, Norm Heisen, for joining us as always. And
55:58
Speaker 1: keep us updated. And good luck out there at the trial.
56:01
Speaker 4: Thanks, Fabs. Thanks, Dan.
56:08
Speaker 1: Thanks to Norm for joining us again today. Everyone have
56:11
Speaker 1: a fantastic weekend and, uh, we will be back with
56:14
Speaker 1: a new episode for you on Tuesday. It'll be me
56:18
Speaker 1: and Tommy's going to be back and Dan's going to
56:20
Speaker 1: be here in studio. What a fun episode. Come join us.
56:23
Speaker 2: Wild times for living. Bye everyone.
56:25
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