Your Guide to The People v. Trump

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: Hello and welcome to Opening Arguments. This is episode 1027. I'm Thomas Smith. That over there is Matt Cameron, real live lawyer. How you doing?

0:00:53 Matt: Had a real live great day in court. Thomas, I'm feeling fantastic. Fantastic, yeah. No, wear my newly tailored suit, had a great haircut today, my beard was looking just right, and also I won.

0:00:54 Thomas: Oh, really? Is that the bar for

0:01:05 Matt: Maybe not in that order, but it helps

0:01:06 Thomas: Having a good day in court? It was just like a good hair day?

0:01:09 Matt: When you look good doing it, you know? Never hurts.

0:01:10 Thomas: Yeah. Well, that's cool.

0:01:12 Matt: Some good energy today. So we're going to talk about some not -so -good days in court for Donald John Trump.

0:01:17 Thomas: That's what all we're getting on your good day. What did you win?

0:01:21 Matt: Well, I won residency for someone who's been here for 30 years, working very hard as a nurse. I felt very good about that. Yeah, don't want to talk too much about it, but we should just have a visa for people who've been nurses for 30 years, especially if they made it through COVID, but we don't, so we find creative ways to get them.

0:01:26 Thomas: Nice. Yeah. Yeah. So you won something that obviously should have already happened, but Hey, that's what the job is, I guess.

0:01:38 Thomas: No kidding. What a great way to start. That's awesome. Uh, now let's talk about, as you say, not that. This, um, is a promise to be the comprehensive guide to this trial and what to look for. I think pretty much everyone saw on Wednesday that we are making that adjustment, but I'll repeat it here just in case. To just needing to cover this trial and wanting to cover this trial, we're uh, going to, you borrow a little bit of time from the T3BE Weekly, uh, episode.

And so instead now you're getting basically three OAs in a week instead of two, because we're gonna cover the Trump trial and because of the timing of the transcripts, for uh Monday and Tuesday, they're off Wednesday, Monday and Tuesday. That transcript doesn't come out until Wednesday evening, evening, so we are going to switch it up. Instead of Monday, Wednesday, Friday, we'll be going Monday, Thursday, Friday because it, I mean, it's a little annoying, but it's just the best way to do this.

Unfortunately, due to the timing of the transcript. So, that was the announcement. If you missed it on last episode, so going to be super cool, but today we're going to set the of the roadmap for that coverage and what to look for. So that'll be after this break. Go to patreon.com/law if you want to avoid this commercial break, support us, get all kinds of goodies, Law'd Awful Movies, all that stuff, all

0:02:54 Thomas: Right, Matt, where do we begin? Yeah.

0:02:56 Matt: No, we're gonna be digging into these transcripts, as you said, for the next probably six or seven weeks. And I thought before we really start to go deep on this stuff and provide the kind of coverage that I don't think very many other people are going to be providing, I thought maybe we should step back and remind everybody what we're doing here, because this is an unusual case in many ways.

And we're going to be using a lot of names and referencing a lot of events and talking about a lot of things that I'm sure people have heard about over the last couple of years. But I just want to make sure you've got everything in one place.

I know that regular listeners and a lot of people that follow the Trump stuff are going to be familiar with some of this, but I'm also going to try to go a little deeper and get into some things that maybe you haven't heard about and make sure that we're all in the same place on this. So I want to talk a little bit about the sort of the ecosystem of the court.

I was thinking about that as I was sitting in court this morning because I don't get to go to court in person that much anymore. So much of our stuff is online now. And I just really enjoy being in court. And I was kind of looking around thinking about all the different things we need to explain about what's going on in this courtroom.

0:03:48 Thomas: Unreal.

0:03:48 Matt: So I thought it'd be good. We're going to get to the charges, but I thought I'd be to start with the people in the courtroom. First person I want to talk about is actually the court reporter, because I've got some beef right now with the court recorder, who, if you're listening, I don't know, maybe write me back. I don't know.

Sorry, I know like 1,500 people emailed you yesterday, but for some reason, after releasing a beautiful transcript on Monday night, which is just an easy PDF that anybody could download, swiftly replaced that with HTML pages, images, individual pages for each transcript page, which are just individual images that you have to download, which Is the worst possible way to do this for the public and for media and for anybody who wants to understand what's going on, and I have to think, you know, based on what I found on the way the court reporting system works, it doesn't sound that different from the way it works here in Massachusetts, where the court reporters get a decent salary and then they get to also sell the pages of the transcripts they get to sell Them separately along with the copies, so

0:04:19 Thomas: Really.

0:04:37 Thomas: Sell. Them.

0:04:39 Matt: They They have this little market over the things that the stenographers take down.

0:04:39 Thomas: So. What, like, I understand in this context that makes sense, but what does that make sense in a normal trial, like it, in any traffic court, I don't know, whatever, this normally would would be just

0:04:53 Matt: When you want to appeal, yeah, you're going to need that. Or if you want, try to file a post -conviction motion, and you're trying to go back and get that.

0:04:54 Thomas: You. Get nickel and dimed, huh? Wow.

0:05:00 Matt: Page, that's a pretty good deal. Plus, do this in Massachusetts, too. You get to charge for copies. And again, I don't begrudge them all of this. I'm just pretty sure it might have something to do with what happened on Monday. I mean, these people have to make a living. They work really hard. It's a hard job. I really don't want to say anything bad about court reporters. Please don't take it that way. I'm just a little concerned about the inaccessibility of these documents.

0:05:00 Thomas: Yeah. Yeah.

0:05:18 Matt: And I really, just obviously, as somebody who wants to analyze this trial carefully, but I will say that Opening Arguments listener Shad Riley wrote up a Python script. And it is absolute alchemy to me. I don't know how people do this stuff, but a Python manuscript that basically just scrapes the website and creates the PDF that we want. So he sent those to me, and I really appreciate that. I'm sorry he had to go to that effort, but it is a lifesaver, an absolute lifesaver. So we do have a transcript in front of us that is not that easy to get, thanks to Shad Riley. So again, one way or another, I hope that they start releasing these things in a proper format that we can use, but until then, we've got something. Thing. So let's talk about the judge. I don't know why I started The Court Reporter. I guess it's just my beef right now. But

0:05:17 Thomas: You're Really.

0:05:56 Matt: Kind of a weird one.

0:05:57 Thomas: Hot On this court Reporter. Yeah.

0:06:00 Matt: Marchan is, interesting, also from Queens, just like Donald Trump, the defendant, but really couldn't be more different from Donald Trump in so many different ways, starting with the fact that he seems like a really decent guy. That's a good place to start. But he's a Colombian immigrant. He came to the US at the age of six with his family. He's the youngest of six kids. And he's the first in his his family to go to college, and he's really made something out of himself.

He's had quite a career. Started with the Manhattan DA's office, I think, in '94, and has been in the law since then. Sort of the accounts when I was looking around, you kind of get a sense of people appearing in front of him and what people think about him. Overwhelmingly, people have a very good impression of Juan Marchan. And a quote here, actually, from a former Manhattan ADA who got to know him during a trial.

And he said, "But he's someone who reads every word on every page of every filing and every footnote, and then the cases you cite to him." Fidelity to the law and to getting it right lends to him this sort of moral purpose in what he's doing that makes it a joy to practice in front of him. Great. That's what you want to know about a judge is that he's reading what you're writing.

0:06:56 Thomas: How rare is that, Matt? Like, are there, uh, judges in your, uh, you know, I know you don't have to name names, but are there times when you're like, "Oh, great, I got this idiot, this sucks"? Yeah.

0:07:06 Matt: Not going to name any names, and I'm not going to be talking about anything that happened recently. But I will say that historically over time, immigration judges have been a political favor because they're pretty easy to appoint. I think we've talked about this before, but they're appointed by the attorney general. So over time we did sometimes have some immigration judges who knew nothing about immigration law.

I will say that has not been the case recently or even in the last years, but it has been frustrating in the past sometimes. And it's not necessarily their fault. They just took the job, but yeah, no, it's great to have what he's doing, knows the law, is ready to get in there and actually pay attention to what you're doing. And it keeps this thing on track, from what I can tell.

To this trial, which of course he's very well known for at this point, he also presided over the Allen Weisselberg trial, the CFO of the Trump Organization, who just pled guilty to perjury, I believe, again last month. He's doing some time at Rikers right now. And next month, if things don't go too far afield in this case, he'll be trying Steve Bannon for the fundraising scheme you might remember, and I can't wait to talk about that one. Do you remember the We Build the Wall fundraising scheme?

0:08:05 Thomas: Yeah.

0:08:05 Matt: Yeah.

0:08:05 Thomas: Wait.

0:08:06 Matt: That'll be a good one, that, uh, was pretty rank theft. Yeah, he'll, he's getting a Trump, uh, trifecta Here, getting Weisselberg, Bannon, and Trump, could be a good contrast to both Scott McAfee and Eileen Cannon, who are completely new. You know, it's just unfortunate that they're being tested this way in very public cases. But, you know, with Marchan, from what I've seen, too, are very experienced in what they're doing. We need to mention the defendant? I feel like we've all heard of the defendant. I think we're familiar.

0:08:10 Thomas: Wow. Wow. So Yeah, he's just some criminal. I don't know. Dime a dozen.

0:08:31 Matt: Yeah, I mean, we'll probably get to know him a little bit more through this trial. But some 77-year-old guy from Queens, from what I can tell, doesn't look tortured to sit through this case, as we learned last week.

0:08:33 Thomas: Yeah. Very active. Very active, the defendant.

0:08:41 Matt: Very active man. Side, we're going to be hearing some names. I just want to make sure that we are familiar with these people as we name drop them as we go through. So obviously we have Alvin Bragg, who actually brought the charges. He's got quite a story. Grew up in Harlem, Harvard degrees. Is generally very progressive and seems to be doing pretty well. He was elected in 2022 to replace Cyrus Vance, who of course had been the Manhattan D for a very long time.

0:09:02 Thomas: Has anyone called him the DEI Manhattan DA yet?

0:09:05 Matt: I'm sure. I don't even have to look that up. I'm absolutely certain that must have happened by now. Of course the NYPD doesn't like him because he's committed to trying to reduce incarceration. He's tried to eliminate cash bail, and he's doing the thing that most progressive prosecutors, or people who call themselves progressive prosecutors, that's another episode, doing by not prosecuting a list of low level misdemeanor offenses and keeping them out of court. It. Cyrus fans had a lot of the same policies, but as you said, it gets a little more attention because of the racial aspect here, unfortunately.

So Alvin Bragg is obviously going to be, he was in the courtroom, I believe, a couple of days of this trial so far, but he's obviously not going to be the one prosecuting it. He's got a small team for that. I just want to talk about some of them. We've got Matthew Colangelo, who just gave the opening, which we thought was pretty solid, pretty well constructed, 45 -minute opening statement. Already has some experience prosecuting the Trump Foundation in 2018. You might remember they were forced to dissolve. Worked for the New York Attorney General's office back then. And he's pretty well regarded, from what I can tell looking around. We've got Joshua Steinglass. He's going to be a major player in this as well. Was doing the direct exam this week of David Pecker. Has been an ADA for, I guess, since 1998, I've got here. Also worked on the Trump Org case from 2022, not the Trump Foundation.

It's very hard to keep track of all the different ways Trump entities have been prosecuted. But, you know, again, very experienced prosecutor. They're only putting people who know what they're doing on this case. Got Susan Hoffinger, a white-collar defense attorney turned prosecutor. We've got Christopher Conroy, a vet at the DA's office, who's been doing white-collar prosecution since '96. Got Rebecca Mangold, who has been specializing in financial misconduct for over a decade.

Catherine McCaw apparently involved in the prosecution of Anna Delvey, as you might remember from the Netflix miniseries Inventing Anna, the woman who completely made up her life and stole a bunch of money from people.

0:09:06 Thomas: Yeah. Yeah, Yeah. Yeah.

0:10:43 Thomas: I never watched

0:10:44 Matt: Pretty good story.

0:10:44 Thomas: That. But now, now that you say that, it's familiar. Okay. Interesting.

0:10:46 Matt: It's pretty entertaining. It's worth a watch. So, again, kind of a good conjury of prosecutors here. You would expect nothing less in this case.

0:10:47 Thomas: Yeah, yeah. A lot different than Georgia, where I doubt there's as much, like New York, there's gonna be a lot of experience where it's like, oh, I've heard of that. I've hear of that, you know, it kind of a big deal. Whereas Georgia, I don't know if maybe there would be, but like, it is not like we look at McAfee's other cases and are like, ah, yes, the famous, that thing, you know, interesting.

0:10:57 Matt: Yeah. Right. Totally. Yeah. Right. Even Fani Willis, who has prosecuted a couple of other high-profile cases. They're high-profile in Georgia. But, of course, in your high-profile case in Manhattan, it's going to be a different deal. So, defense. Let's look very quickly at the defense side. We already got to know Todd Blanche a little bit from his opening.

0:11:17 Thomas: Yeah. That, I didn't realize at the time when we were recording, I realized that when I was editing. So that that, is the guy that really kind of like, it seems like changed his life to, to support Trump or I don't know how much you want to talk about that, but that is really interesting. Um, I heard a little bit about it on a podcast. Can't Uh, tell whether he turned into some some true believer, or he's just like a clout of, well, this is a massive case. So I guess I'll do it. Also a funny thing where he was in charge of trying to find attorneys for Trump. And then he pulled a Dick Cheney and decided, well I found your man. It's me kind of thing.

0:11:53 Matt: Yeah. Cheney. Yeah. I'm the guy. That's fine.

0:11:57 Thomas: A comparison That I guess even he kind of made. Any comments on that? That like, what is that guy's deal?

0:11:58 Matt: Yep. That's a good question. The New York Times wrote an entire piece about what is this guy's deal? What's going on here?

0:12:04 Thomas: It's Called "What Is This Guy's Deal?" All

0:12:07 Matt: He made the rare, well, maybe this isn't so rare anymore. I don't know. But he went from being a New York Democrat to a registered Florida Republican. That is quite a descent, I have to say. And I have a quote here from that story. Some of Mr. Blanche's friends said they had perceived him to be a centrist, law and order Democrat, whose politics were not so at odds with Mr. Trump that his transition to voting as a Republican was especially jarring. He's maybe not that far afield. Maybe he actually was.

0:12:16 Thomas: Right, yeah.

0:12:29 Thomas: I Was Gonna say, if Someone Described Themselves, or I guess was described as a centrist, law and order Democrat, I'm like, okay, so Republican then? Is that I Didn't know That. All right, I I thought it was more of a shock, but uh, maybe not. Oh.

0:12:32 Matt: Right. Yeah. He never a lefty in any sense. But has defense experience, but my understanding is he's never actually tried a criminal case as defense counsel. He has plenty of experience as a prosecutor. Actually, I have here that he won the 2013 True American Hero award issued by the Federal Drug Agents Foundation. So I don't know if I'd put that on my LinkedIn, but that's on his LinkedIn. You know, he's a hero for the narcs. And represented Paul Manafort in the case that got him off for double jeopardy. You might remember the DA's office was trying to prosecute Manafort again a while back, and he was able to prove that that would have been double jeopardY based on the previous charges. It was too close. Also represented it is on some other Trump people. An interesting legal malpractice suit involving him I probably shouldn't talk about too much because that is still pending, but there are some interesting allegations there, including the fact that potentially he or someone in his firm signed client's name on a retainer agreement, which is pretty bad. That's

0:13:03 Thomas: God. Yikes. Oh, Like

0:13:36 Matt: Not a good thing to do.

0:13:38 Thomas: Like A signature, signature.

0:13:39 Matt: Yes, that is one thing the clients are saying. They have a number of different things about the bills and other things. But again, I don't want to say too much. It's all allegations, And that seems to be pending. But he did leave, as I mentioned in a previous episode, the very large and very well-established law firm of Cadwalader, Wickersham, and Taft. And it is New York City's oldest law firm, founded in 1792. So he left that to set up his own practice, which so far has mostly just represented Donald Trump, Michael Cohen style. So that's our main guy. That's our lead, Todd Blanche. He seems to be pretty well respected, or at least he was before he took this on.

0:13:56 Thomas: Right. Yeah.

0:14:11 Matt: There are some questions now. And the tenor of his opening statement, honestly, I mean, you read it the other day, the way he's just like coming out and saying, "My client's innocent." And, you know, these are just a weird opening statement. I thought it was perfectly fine for a defense opening statement, but it was a little strange to keep talking about how he's innocent instead of just talking about what the state can or can't prove, but whatever. Got Susan Necklace, a former Brooklyn ADA, also to her website, she is known for her "rabbit out of the hat" results, is something I would not put on my website. But that's a quote, to be fair. That is a quote from a client. But yeah, exactly.

0:14:40 Thomas: Yeah. I mean, I guess that's like what you're in the market for if you're Trump, you terrible. I definitely did it and I should be found guilty. But can you do for me?

0:14:52 Matt: Well, that's what a good defense attorney is for, checking out her LinkedIn. Top thing, the top case that she has is pretty impressive. She Yeah.

0:14:54 Thomas: Yep. Rabbit V hat. No.

0:15:02 Matt: Got she dismissal of all charges against the former CFO of KPMG, the one of the large accounting firm. And according to this, it was the largest criminal tax fraud case in U.S. history. And from what I could tell, if you did it around 2005, 2006, you're probably just as well that you didn't.

0:15:06 Thomas: Oh, I almost went to work for KPMG out of business school. Would Uh, have been 2008 or nine. So maybe it would have Been.

0:15:20 Matt: They cleaned up, yeah. I also, I just wanted to mention, represented a famous mobster called Benny Eggs, which I think is a fantastic mob name.

0:15:28 Matt: It's up there with Polly Walnuts. So, yeah, seems like from what I can tell, very well regarded, and I'm sure she's going to be good. We haven't seen her in action yet. Has a partner named Emil Bove, who's also on board and over to white collar in 2022. find much about him except a quote from a local paper saying, he may not have been the best lacrosse player, but nobody worked as hard as he did from a classmate.

0:15:47 Thomas: Okay.

0:15:47 Matt: So not a good lacrosSE player.

0:15:47 Thomas: At lacrosse or other things?

0:15:50 Matt: Apparently other things. Things. And Then we've got Gedalya Stern, I don't know too much about, who is also a partner in, or at least with the firm, and has extensive federal and state criminal defense experience. So those are the names you're going to be hearing on both sides, that pretty much covers those players. We've got witnesses. And the interesting thing about the witnesses in this case is that the judge has allowed, I've never heard of this before, maybe this happens sometimes, but the not have to announce the order of its witnesses because the judge is so concerned about what Trump is going to do the night before, right, to try to intimidate whoever's going to be going next.

0:15:51 Thomas: Yeah. Huh. Oh, yeah. Wow. Yeah, wow.

0:16:21 Matt: So that's not a good sign about how the judge feels about you if he thinks it's too dangerous to release an actual ordered witness list. So we do actually, for the first time that I've heard of, we have surprise witnesses because we know who they are, but they're exactly their order. But you can also pretty predictably rely rely on what the order is going to be, because they're going to build their case from the foundation. And we saw in the opening statement from Matthew Colangelo what that is going to be how that foundation is going to work. And he's going to build up through the conspiracy and the cover up. And they're gonna get to Michael Cohen because he's obviously going to be the star witness.

I don't think I need to talk about Michael Cohen too much. Obviously, Trump fixer, alleged Trump lawyer, but mostly just kind of cleaning things up for Trump. He's very problematic witness, but he's also the star our witness in this case, because he was in the room when they were talking about these things. And he also happened to get a bunch of recordings of Trump talking about these things, we don't know exactly what's on those yet, we'll find out, that'll be exciting.

But, know, you we've already had David Pecker from American Media Go, he's obviously owns the National Enquirer and other outlets. And he's already explained, as of the time of this recording, in pretty good detail from what I've seen, how the catch and kill scheme worked that we'll talk about in a bit. But let's just talk about the other witnesses very quickly.

0:16:23 Thomas: No.

0:16:32 Thomas: Each more surprising than the last. Yeah!

0:17:28 Matt: We're one of the people that was caught and killed. Well, her story was. She's doing fine. A note here from the courtroom sketch artist. She actually was interviewed recently and said that she was watching Trump's face just when McDougal's name was mentioned, and that he kind of perked up and crossed his arms and got a little angry just hearing her name. So I don't think he's very happy about her testifying. Were together for about 10 months. Months. There's some there. Got Hope Hicks, of course, familiar Trump world character. And I think we all know about Hope Hicks, a Trump advisor, press secretary, somebody who was in the room for a lot of things. Her immediate response to January 6th when texting with a friend that afternoon was, all of us that didn't have jobs lined up will be perpetually unemployed. I am so mad and upset. We all look like domestic terrorists, which

0:17:33 Thomas: Yeah. Oh right, I remember that.

0:18:10 Matt: Is true, but kind of a strange response to the Capitol being invaded. Not going to get jobs anymore. We've got Jeffrey McConney, the controller of the Trump organization, who sent the payments to Cohen. Obviously, I have to show the chain of how these payments went down. Have got Keith Davidson, the lawyer who worked with Michael Cohen to get Stormy Daniels and Karen McDougal to sign off on these schemes. Website, I will just note, specializes in STD law.

0:18:32 Thomas: Interesting. It like if you give someone an STD and they sue you or something?

0:18:37 Matt: So Yeah. And my concern as a defense person when I'm reading this is he's saying that he represents people who are trying to make claims that they received, and I guess I should say STI, that's the better way to say it, received STIs, whether the person was aware or not, which seems pretty unfair. And I'm not sure that's legally sustainable, but moving on. He's done a bunch of different kinds of celebrity cases and are

0:18:55 Thomas: Celebrity STIs, huh? In like the the celebrities had an STI, or is it like celebrity STI is like, holy shit, he got chlamydia, wow, he defended chlamodia, that's a big get, that's a big client.

0:19:06 Matt: No. He mostly seems like a shakedown kind of lawyer, uh, like the kind of that Ray Donovan might be working for, if you're familiar with the Ray Donovan universe.

0:19:06 Thomas: Oh. Sorry, but That's Great, we'll say that's an amazing reference, yeah.

0:19:14 Matt: Yeah. Uh, For somebody that will be, yeah, um, a lot of dads out there, they'll appreciate that. So Kellyanne Conway, not confirmed, may or may not be involved. And was around for some of this stuff, but she did meet with prosecutors, probably no witness. Then Dylan Howard was mentioned. He was the editor of the National Enquirer. He's already mentioned actually in David Pecker's testimony. Is apparently not well, and he lives in Australia at this point. And I don't think his testimony is important enough necessarily to be involved, but he was obviously responsible a lot of lot of this catch and kill stuff and taking direction from Pecker. So those are pretty much the witnesses we can expect to hear from. We're going to get into their testimony as we get through them, but I just wanted to give you the dramatis personae there.

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0:21:29 Matt: So charges. Let's talk just a little bit about what these actual charges are. Now, you and I talked about this back on Serious Inquiries only a little more than a year ago, back before we knew everything about the charges, and what we had in front of us at the time was the indictment and statement of facts. But there was a very important piece missing that I want to talk about. So let's just start though, very basically, with the idea that we have 34 felony counts of falsifying business records in, right, just 34 pieces of paper, just could have been blank pages for all that matters.

0:21:54 Thomas: Just just 34 pieces of paper though I have pieces of paper what if I were charged for this matt for the grace of god yeah

0:22:02 Matt: Just So, 34 counts of falsifying business records in the first degree. So let me just explain what that means under New York Penal Law 175.10 and what we're actually looking at here. So a person is guilty of falsifying Business Records in the First Degree when he commits the crime of falsifying Business Records in the Second Degree. So we have to back up for a minute and ask, what is falsifying Business Records in the Second Degree under New York Penal Law 175-05?

And that is essentially just falsifying business records with intent to defraud by making a false entry, by destroying something, by omitting something, by preventing something from being entered in a business record. So second degree falsifying business records is a class A misdemeanor. And obviously, Alvin Bragg was not going to mess around charging Donald J. Trump with a misd demeanor. So they had to get this into a felony status. Way that you do that is by charging it as a first degree offense.

And what makes it a first -degree offense is when you're trying to commit falsifying a business records of the second degree that I just mentioned. And when the intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. So that's the real thing at the center of this case, because I think it's not going to be very hard for the prosecution to prove that business records were falsified. They're going to have to prove that there was intent to defraud.

Part, I think, just showing that, I mean, they're already getting started about sort of why they were falsified by getting into this catch and kill scheme, the National Enquirer. Gonna move through and talk about everything to do with Michael Cohen and the deals he was making with these people to get their silence and why they would have motivation to falsify these business records, given that the most recent in these involving Stormy Daniels was three weeks before the election. The question becomes, and the question we had a year ago is, what is the other crime that you're intending to do when you're intenting to defraud?

0:23:46 Matt: So again, you don't have to prove beyond a reasonable doubt that you had committed another crime, just that you have an intent, that it looks like an intent of some kind to commit another crime. And items that we're looking at here in this case are 11 invoices submitted by Michael Cohen, which were entered into business records, and they reference a retainer agreement, which didn't exist. Now, Michael Cohen of course was not retained to do anything, hardly ever, and

0:23:46 Thomas: I don'T THINK HE WAS MUCH OF A LAWYER MATT I THINK He WAS MORE OF A YOU KNOW THEY CALL HIM A FIXER HE HAPPENED TO ALSO HAVE A LIKE LICENSE I SHORT OF THAT I DIDN'T SEE HIM DO MUCH UH YOU KNOW ARGUMENT MUCH such parsing of various statutes and such drawing

0:24:21 Matt: Mentioned this before, but when they were doing the privilege review for Michael Cohen's office, his entire law office after it was... And remember, there's a search warrant on his law office, which is extremely unreasonable. Yeah. I think the judge found that something like 2% of everything in his law office was privileged, which was not a good sign. You're probably not really practicing law at that point.

0:24:26 Thomas: That's right the taint team yeah like what percent like if they did that to you what percentage of things would be privileged

0:24:39 Matt: Yeah. Mean, I have some personal tax records lying around. That's, yeah, that's about it. I think pretty much everything else in my office is going to be not. No, I do practice law, though.

0:24:49 Thomas: A good sign that's if they rated my recording studio here and they They found that like 1 % of all things was for podcasts. Be like, I guess I'm not a podcaster. I don't know what I'm doing here. Okay.

0:24:59 Matt: Yeah. What is this guy up to? Yeah. Before we go on. And just because I don't want to assume that people are familiar with the facts. I don'T want to drag out the facts of this case. But let me just talk about the items. Then I'll explain how they fit into the facts." So those invoicing were submitted, and then they returned with checks stapled to them Over the course of 2017, he received one check for $34 ,000 a month, and it was repayment that we'll talk about. But the checks themselves, the 11 checks, are part of those 34 counts. Only nine of those 11 were signed by Trump. Others were signed by trustees, but they're all going in there. And then there are 12 fraudulent ledger entries in the Trump Revocable Trust, which holds his assets. So that is what these counts are. And these counts, of course, just being different instances of how you violated the statute statute and falsifying business records.

0:25:02 Thomas: Yeah.

0:25:44 Thomas: He's still on the hook for the ones that trustees signed. It's not as though that got him out of jail free. Okay. Good.

0:25:47 Matt: Because It's at his direction. It is using a scheme that he was well familiar with.

0:25:50 Thomas: Yeah. That's just a good example of you like, can't just like trick the law. Well, I just, I didn't sign it. You know, it's like, yeah, but you know. Come on.

0:25:58 Matt: Yeah. No, no, you're in charge. We know there are meetings. There's, there's tapes, like there's, you know, there's going to be plenty to show that, you knew what you're doing. Just to show very quickly what the facts are that they intend to prove. And we know this from the opening statement. We know this form their statement of facts already, which I just reviewed again. Know that Donald Trump had a longstanding personal and business relationship with David Pecker, the owner of the National Enquirer.

And Pecker testified about it just this week. I haven't had time to read all that testimony yet, but I know more or less what he said. Part of that, Michael Cohen this deal with Pecker as the presidential election was looming. Trump obviously announced in June 2015, and they're kind of trying to go around and clean up things that might become come issues.

And they made this deal that National Enquirer would do something in the industry that's known as catch and kill, where they would get the exclusive rights to a story and then never publish it. So it's just as good as basically getting someone to sign an NDA, but in kind of a fancier way that looks a lot more legit. So the first story they caught and killed, and we're going to hear from this witness. I didn't mention this actually as a witness. Dino Sajudin, I'm not really sure, but he's a doorman who

0:26:00 Thomas: Yeah. Yeah.

0:26:56 Matt: Had a story, which may or may not be true, about some kind of love child. It doesn't matter. That's not really that important to the case.

0:27:00 Thomas: Heard a report that it is confirmed is not true. So, yeah.

0:27:03 Matt: Yeah. I mean, I feel like we would know by now if that were true, that'd be a big story if you had another kid out there. You know, there's a $30,000 deal and his story was held with an NDA until after the election. McDougal, who I just mentioned as a possible witness, you know that 10-month affair with Trump was paid $150,000 and

0:27:06 Thomas: Yeah, I about Michael Cohen being the star witness and it being like, well, he's not a great witness. I would, if I were Trump's defense attorney, and Karen, and anyone like Karen McDougal got up, I'd just be like him, that guy over there. There so you sorry you you that got you 10 months, it wasn't just like you know, Stormy Daniels, it seemed like it was kind of like a more or less a one-time thing, it might have been a couple times, but 10 months and a fair, that guy, your honor, I rest my case. Oh so

0:27:32 Matt: Yeah.

0:27:46 Matt: ,000 from the National Enquirer, which is an enormous amount of money to pay for a story, allegedly to get two magazine covers and a series of fitness articles, because that's where we go to get our fitness news, the NationalEnquirer.

0:27:57 Thomas: That's like the fake bullshit they said they were paying for when really it was just to not gotcha

0:27:59 Matt: Yeah, the consideration. Yeah. Furious silence. Yeah? Yeah. Yeah. And Michael Cohen recorded Trump talking about how to pay her off. So apparently there's going to be a great recording coming out about this. Don't, I know why Michael Cohen is recording this, open question there. Maybe we'll find out from his testimony. But he set up a shell company called Resolution Consultants LLC, just to pay off, not to be confused with Essential Consultants, LLC, which is what he set out to pay of Stormy Daniels. So he's got a pattern of setting up these fake consultant things

0:28:02 Thomas: Oh wow all right what a genius plan no one ever saw through it buddy I

0:28:26 Matt: Yeah yeah Essential consultants, um, Stormy Daniels came forward around the time that the Access Hollywood tape breaks, which of course is, you know, about a month before the election. And I don't know if you remember, I'm sure everybody more or less remembers the fervor around the Access Hollywood tape and

0:28:41 Thomas: Do and it's the one of the most interesting, depressing things in the world. Yep.

0:28:46 Matt: The media was circling, that's what I was thinking about when I was thinking about you know, there was like a Trump death watch at that point, they were assuming he was going to quit.

0:28:47 Thomas: Yep the and republicans it is crazy, everybody thought he was done, like like Republicans thought he was done. That, I don't know how it happened, but that was really the turning point, that was a big turning point. And there's been a a lot of, oh, okay, it's all fine, we can just do whatever now. Like that was, you know, we had almost gotten there. There was a lot OF crap Trump had done and said that was just like, no one has previously, no candidate had been allowed to do that or say that and survive. But from crazy. If you look back how key that point in time was, um,

0:28:54 Matt: Yeah. Yeah, yeah. Yeah I mean, if you remember Gary Hart, right, to resign ever getting on a boat with a woman at

0:29:25 Thomas: Don't, but I remember other old people talking about Gary Hart.

0:29:29 Matt: Right, I'm going to sound really old, the more I talk about this, but it just seems like we're we're in new territory at this point, Trump has really the window in for all of this, but let's just play this out as a thought experiment. If on top of the Excess Hollywood tape, like a week later, you had an adult film actress coming forward to say that she'd had an affair while Melania was pregnant with Donald Trump, have doubled down? Would it have been worse? Hard to know.

0:29:33 Thomas: Yeah. Oh,

0:29:49 Matt: But we'll never know. I think so too.

0:29:45 Thomas: Man. I think so. I mean, it was so close to begin with that already there are many different ways on both sides, both Hillary and Trump, like many different things that had they gone a different way, had some decisions been made, had some, Comey you speeches not been made that could have turned it. And I really think that if in that critical time when many Republicans were like, like, all right, good. We're kind of done with this asshole. If Um, that had also heard about that really, uh, to family values story, I think that would have been, you know, would it have made a difference for everybody? Probably not. But like there would have been marginal Republicans who decided like, I am not supporting this. And I really think that would have made the difference. I think it's very possible this could have changed the election. I think it is more than possible in my opinion, take it for what it's worth, but I think think it's probable this would have changed the outcome.

0:30:27 Matt: Yeah. I want to think so. I wants to think that there's enough decency in of this. And again, I know that you and I don't care that much about, obviously, personal morality. People can do what they're going to do. Right. Yeah, we hate decency. For public figures and people running for president, I think we're allowed to have basic standards about these things, especially when there's cover-ups. The thing, of course, with Stormy Daniels, AMI becomes aware of this. The National Enquirer notifies Cohen, as they had agreed that they would. And Trump's immediate response was, just stall. Stall as long as you can, so we'll never have to pay her, because it doesn't matter if it comes after the election and I win.

0:30:44 Thomas: We're pretty indecent Yeah, that's That is incredible. If he now don't exactly remember this entirely, Matt, us, if he had just paid the bill, would we be here? So

0:31:09 Matt: Yeah. That was actually a patron question. I want to address a few patron questions. So let's talk about this one right now, because we had some great questions from patrons when we put up the request on Wednesday for what we could talk about today, and of questions about this trial. Of them from... Let Patron Maria Kladacki, I hope I'm pronouncing your name right, asks, I was thinking along the lines of the New York Times article, which we'll talk about by the end, it just does not seem to be a basis for election interference.

Suppose Trump Had paid out of his own pocket, no records, no nothing, just a bank transaction from his own personal account to Daniels. Where was the crime? So yes, Maria, in that case, if he had had just paid out of his own pocket, potentially maybe arguably that would have been okay because it's okay to pay somebody off to shut up, uh, is that not a crime necessarily? Um, he didn't want to do that, he didn't want to have a direct payment where it could be linked to him, and arguably that could still be a campaign finance violation. Um.

0:31:23 Thomas: Funny Yeah.

0:31:40 Thomas: Huh.

0:32:03 Thomas: Yeah. Um, I have heard analysis along the lines of, well, that is you making a contribution to your own campaign because that, I mean, you can try to argue, nah, it's just a personal thing, you know? And it's like, well that's, um, weird timing though. Like weird timing for it to be just a personal thing that this affair, when did it happen again?

0:32:10 Matt: Your Campaign, yeah, yeah. Yeah. Right. Let Daniels' first claim, she had the affair in 2006.

0:32:25 Thomas: It's hard to argue that this is merely personal when all of a sudden claims from 2006, and perhaps a little bit after that, uh, relevant again. Why? Because the election. And so you actually aren't allowed to just make contributions to your own campaign with no paper trail, because even though as broken as our entire campaign finances and all those rules are, what it's trying to do and what, and what it does to some extent is make sure that voters have information like that. Voters Like ought, to know if you've done that.

0:32:28 Matt: Right. Yeah, right, right. Yes, my original answer was just that, generally speaking, obviously paying somebody off is not a crime. Yes, the timing here. Now, one of his better defenses is that I wasn't thinking about the campaign. I was just thinking about my family. And I just wanted to protect Melania. And for personal reasons, the embarrassment to spare myself of having this information out there. But like you said, the timing, three weeks before an election, it's hard to miss. So that's a good one, Maria. So you're you trying to get a defense to this first degree charge of falsification of business records, you can try to say that I was not falsifying these records for any other purpose, any other illegal purpose. We're going to talk about some of the potential illegal purposes you might have had, but just doing it to protect your family and protect your reputation is not necessarily an alien.

0:33:08 Thomas: Yep.

0:33:21 Thomas: That a defense that still works here or are we kind of past that point?

0:33:41 Thomas: Well, okay. This is interesting. I've just had some thoughts that don't I know if they're interesting. Sorry to slow you down. But On one hand, he's not being charged with campaign finance violations, right? So the needs to defend himself against is falsifying business records. I guess if he could prove they weren't falsified, that obviously be great. That would pretty much end the whole thing right if he was like, "Nope, they're not false." But secondarily, it seems like if he can prove they they were falsified but not to to commit another crime, which would I be something. But thinking, does it even matter then? I'm not sure the question of was it for the campaign or was it for me personally, I'm not sure that matters there, does it?

0:33:46 Matt: No?

0:34:16 Matt: At that point, you've got second-degree falsification. So you've just, at that point, if they can find that you did it with intent to defraud, even if it wasn't for another crime, then you still have a lesser included offense.

0:34:24 Thomas: I don't think the fact that he's saying he made the payments themselves for personal reasons rather than for campaign reasons, I don't don't think that applies to whether or not he falsified records because, okay, the argument to be made that the payments could have been for personal things, like I will entertain the argument that, like, no, it was because embarrassment, blah, blah, blah, I don't believe it, but okay, I see that argument. But covering up the payments by falsifying records, that part I find it hard to believe you could argue, "Well, I had to do that part because of my family and not for the campaign."

0:34:57 Matt: Right. Because millennia and specs are ledgers. I don't buy that at all.

0:34:57 Thomas: Yeah. That doesn't So that that's where I'm getting it like I don't I almost don't think that's I could be wrong. I want to check with you. Like, I don't really see how that's relevant anymore, right?

0:35:01 Matt: Yeah, of course. Of course. Right, right. Yeah. Yeah. No, you can still put it in front of the jury and kind of create as much doubt as you can. But obviously, there's consciousness of guilt. And that's a big issue. And the defense, the prosecution was saying in their opening, like the fact that, he you was trying to put Stormy Daniels off off until after the election. That tells you all you need to know, I right? Mean, that's, It's clearly a campaign issue, you know. And there is one other reason that we know that this is a campaign finance violation, and that's because in 2018 AMI already signed a non-prosecution agreement that protected them from criminal charges because the FEC had already found that was a campaign finance violation.

0:35:23 Thomas: So funny

0:35:39 Matt: So it's kind of right there.

0:35:39 Thomas: Is a pretty easy way to answer that? Yeah, that signed and not that isn't complicated. Does it, like, the fact that they signed a non-prosecution, that is that admitting guilt, or well

0:35:43 Matt: That somebody thought so. It's just like with the Boeing thing where they just had to stay out of trouble for a while, but I believe that it It actually ended up with David Pecker ended up having to testify because of that non -prosecution agreement. I think that was conditional. So that's how we get to this testimony this week.

0:36:04 Thomas: That seems pretty pretty significant. Yeah.

0:36:06 Matt: Yeah, I thought so. Just something to consider when we're hearing about how this isn't actually a campaign finance violation. Let's talk about how the payments worked very quickly because that is the crucial part of all of this. We know, I think Michael Cohen took out a personal loan from his home equity line of credit to pay off Stormy Daniels because he just felt so badly for his boss and he was so attached to Trump. He just wanted the goodness of his heart, did something without Trump knowing about it, obviously was right.

0:36:22 Thomas: Is yeah and again in Melania, I'm sure would notice if he just paid it a different way because it's all for personal reasons yeah but

0:36:36 Matt: Yeah, of course. Yeah. He pays $130,000 to Daniels for this deal. And she signs the NDA and things go the way they're supposed to go. And then later, after the election, CFO, Allen Weisselberg, now at Rikers, and Michael Cohen met with Trump to talk about how they were going to do the repayment. Because obviously, even though Trump doesn't repay almost anybody around him, he's going to have to repay Michael Cohen. So the total amount they work out is $420,000. And the defense is making a big thing about this in their opening statement about how, well, look, there wasn't a directory reimbursement. There's... there's all kinds of other stuff going in, right? So there's $130,000 for Stormy Daniels. There's $50,000 from money that he already owed him for something to do with payments to an IT firm, just totally unrelated to this.

0:37:18 Thomas: It's probably another crime. I bet I'm just saying that's me that's my speculator there's no way it's just like, "Oh, and and also, Mr. Trump, I bought you some IT equipment" just for the office.

0:37:20 Matt: Yeah, probably some other criminal thing. Yeah, it's fair guess. Yeah, right. I don't think he's setting up, just setting up an extra network, you know, on the weekend. I don't t know.

0:37:32 Thomas: Yeah. His hobby is actually home networking. That's weird.

0:37:36 Matt: Yeah. Yeah. Then the CFO, Allen Weisselberg, suggested that they double that. So we're up to $180,000, $130,000 plus $50,000. And they suggested they double this to $360,000 so that Cohen could claim it as income on his taxes. Now we're getting into criminal territory because you're talking about tax problems. So because it was a reimbursement, but they wanted to hide the fact it was reimbursement. So they could just say it was like some payment for some retainer that didn't exist. And then, of course, he's gonna have to pay taxes on all of that. And there's estimating that's about half of all of it. So they throw in a $60,000 bonus so that he can still come out okay.

0:38:06 Thomas: Oh, I see. I see, I

0:38:08 Matt: So that comes out to $420 ,000. And actually a handwritten note about the agreement, the deal they reached here, apparently that will come in. They agreed to 12 payments of $35,000, the last of which was made in December 2017. As I said, Trump signed nine of those 11 checks personally. So the business records central to this case are checks, the invoices, and the ledger entries.

0:38:08 Thomas: See.

0:38:27 Thomas: Boy, Matt, those sound falsified as hell.

0:38:30 Matt: They are, because there was no retainer agreement. Nobody says there is a retainer agreement, and these are going down as legal services. Yes, if you're pretending that something was legal services for the purpose of paying somebody off, at that point, you have absolutely falsified. There's no other reason that you're trying to do this. This is a conspiracy and a cover -up, as the DA said at the beginning of his opening statement. Then turns to, what are the other crimes? And that was something the Trump team was very eager to know.

It's something you and I wanted to know when we were doing serious inquiries only a year ago, because we didn't have the actual statement. And so they filed for something we've talked about before. They requested a bill of particulars in which the DA's office would lay out exactly what the other crimes were. And to this, saying they didn't actually have to tell them, which I thought was pretty offensive, honestly, because you're saying that somebody was intending to commit other crimes, and then they come back and say, well, we don't have to telling you what of their crimes are, we'll wait till

0:38:32 Thomas: Yeah. Yeah.

0:38:56 Thomas: Fair enough. Yeah.

0:39:20 Thomas: Yeah.

0:39:20 Matt: Trial. We'll let you know.

0:39:20 Thomas: I think they should have to tell him.

0:39:21 Matt: They absolutely have to. But they did this kind of weird thing in their response, I went back and read today, where they said, you know, you're not entitled to this, but just to be nice, we will let you know what we think. I don't like that kind of attitude from DAs. Just tell us what you're trying to do here. So the other crimes they're alleging, and I think that they're going to get one of these to stick. There's New York state election law, and that is a conspiracy to promote or prevent an election, so just to interfere with election essentially. New York tax law, I think this is probably the weakest of them, New York Tax Law 1801A3, which

0:39:31 Thomas: Yeah.

0:39:49 Thomas: Question on the New York thing. Does it matter that it was a federal election?

0:39:53 Matt: Matter that it was a federal election, the judge has already found that. So, election is an election. York tax law 1801A3, which is just tax fraud. And I thought there was an interesting detail because obviously Michael Cohen was involved in this scheme, and Trump directed this scheme to put down all this income as legal services when it was just money to help in a cover-up scheme.

0:39:59 Thomas: Sure. Yeah.

0:40:10 Matt: And, you see, there's a lot of money in this tax fraud, but there's also a lot I found an interesting note here that it doesn't actually matter if in this tax fraud if the state benefits from it, from your false return.

0:40:16 Thomas: I was going to ask that because it's like, well, if he's declaring more income, is it really a crime?

0:40:18 Matt: They made money off him. Yeah. So, I mean, the DA's office is in the position of having to argue to the jury that Michael Cohen paid more taxes than he had to, and what a fraudster.

0:40:31 Thomas: Yeah. But on the other hand, I feel like that when you think about it for a few seconds, I feel that makes sense because Because what if you were money laundering? You know, it's like, oh, no, I'm just paying you more money. It's like. Well, what if the purpose of that was to clean up some money for, you know, a drug cartel or something? It's, like, it doesn't really matter that, yes, you're paying more money to the IRS. That doesn't get you out of what you're doing.

0:40:40 Matt: Sure, yeah, right.

0:40:52 Matt: Has been the case in a lot of, because falsifying business records, as you might imagine, is a pretty popular crime in Manhattan, and all the companies that are there. So there There were a number of other cases involving these kinds of things, including political campaigns of kickbacks and other things being disguised this way. DA's office was trying to allege, and I thought this was absurd, and so did the judge. Trying to get kind of a circular, Ouroboros kind of argument. They were trying to say that the crime that he was intending to commit was falsification of business records.

0:40:58 Thomas: Yeah. Yeah.

0:41:17 Matt: 17510, the same offense.

0:41:18 Thomas: Yeah. I don't like that.

0:41:19 Matt: You're falsifying business records for the crime of falsifying businesses. No, just so they're not allowed to argue that one.

0:41:24 Thomas: Yeah. So, you can't. Even if it's, different business. They're trying to, like. Get credit for, like... Well, he's falsifying these business records in order to falsify these other ones or something. Yeah. It still feels... Yeah, I don't like that.

0:41:32 Matt: Yeah, no, it's just a little much, a little much. Then the final one that was a little more contentious was whether it was a violation of the Federal Election Campaign Act, 52 U.S.C. 30101. And of course, that limits individual contributions to, I think, $2,700. And obviously, we're talking about $130,000. So this was, as we were just discussing, no doubt, a campaign expense. It's something the campaign, if they were doing it by the book, should have paid for because it benefited them greatly. And so that was an open question.

But apparently the DA's office, from the filings that I saw, especially in this responsibility in particular, as they went through, and also in their response to the motion to dismiss, and they gave any number of instances in which other judges have found that federal violations count under the statute, is pretty open-ended, and it just says that as long as you're intending to commit some other crime, and there have been any number of instances where crimes from other jurisdictions have been the intended crime.

So I think they've got something here between these three offenses. All they have to do is get the jury to believe beyond a reasonable doubt that they were trying to either commit a crime involving New York election law, federal election law, or New York tax law. And I

0:41:34 Thomas: Yeah.

0:41:49 Thomas: Yeah, you only

0:42:36 Matt: Think one of those.

0:42:36 Thomas: Need like one and you only need correct me if I'm wrong. It's not like he needs to be convicted of those.

0:42:38 Matt: Yeah. Nope.

0:42:42 Thomas: They're not doing that, right? It's just like, does do the evidence show that Trump was falsifying business records in order to commit at least of these? Or,

0:42:44 Matt: Nope. Have to prove the elements of this offense that they're alleging he's trying to commit. They just have to say he had the intent to do this crime. Right.

0:42:55 Thomas: Okay, you say this crime, though. Does it have to be a specific one? That's kind of what I'm getting at. Is it to be, hey, if you think he was trying to do any of this, any one of these, we're good, right?

0:42:57 Matt: Yeah, right. That's right. We win. Yep. That is why I think this is actually a pretty strong case, because I think that you could easily find that any one of those was in play, if not all of them.

0:43:05 Thomas: Okay, cool. Yeah. Yeah. And you know, I I'm don't remember exactly how we talked about this on SIO over a year ago, but I will say, I think I'm on the record of being a little annoyed at all the discourse around how that is kind of a weak case. That was kind of an unprofitable business records to whatever. It's like, when you explained it to me, it seemed pretty strong. I don't know. It seemed like, yeah, he's doing that. He definitely did that. That is what he did. So I'm, I think we're we're finally past that. It seems to me, let me know if you disagree, but it does seem like now that we're actually seeing the trial and seeing it happen, people are like, oh, well, I guess, yeah, this is He a, this, did do it. It's just so annoying.

0:43:43 Matt: No, it's got bones. Yeah, there's something here. I mean,

0:43:46 Thomas: All the minimization of Trump stuff that, all the ways we're, we're constantly like fighting ourselves on the, on I guess I would say like the media, you know, should he even really be, uh, charged with this? Yes, he did it. So yeah, I don't get get it anyway sure.

0:43:59 Matt: Yeah. At least let the jury take a look at this, because I Think it's well worth considering. I mean, even today, few in the New York Times, there was a guest essay from Jed Sugarman, who's been on this program before, who was saying that he really believes this whole thing is an embarrassment. It shouldn't have been brought. And I have to tell you, I don't have time. I guess I could pick this apart a little bit, but I did. Don't think he's really matching the headline that he's got here. I think he's not really backing up what he's saying about this being an embarrassment because he's throwing out, yeah, unfortunately, in this piece.

0:44:01 Thomas: Sugarman.

0:44:26 Matt: On again if he wants to talk about it. But I the New York Times just wanted somebody to write a piece that said this case is weak just so they could have it out there. And because it's honestly, and we did have a couple of patrons ask if we could talk about this piece. And I will just say in passing, basically, that he is addressing a number of things that Judge Marchand, I think, already pretty effectively addressed as not. And that Marchand couldn't be overturned and appeal. But one of Sugarman's main arguments and one of the main arguments I've kept hearing is that this is a novel use of the statute. And first of all, it's not exactly because it has been used for political campaigns before and for federal election relations before, I believe. Also, yeah, I never had a presidential candidate who paid off a porn star in New York City before. So, that's just not happened. So

0:44:23 Thomas: Oh, I bet yeah yeah oh Interesting. That's So frustrating, yeah.

0:45:09 Thomas: And I'm sure when, uh, or whoever, you know, passed new drug laws to crack down, there'd be the same argument when is there's the first, probably, African-American defendant, hey, this is new, we haven't used this, he's free to go. I'm sure that's how, how that goes. It's just so much special pleading for Trump. It's been the story of his entire presidency and after and before. It's like I'm so tired of the rules not applying to him.

0:45:16 Matt: Yeah. Yeah, yeah, yeah.

0:45:30 Thomas: That sucks. I'd almost want to do a lot of awful New Times opinions.

0:45:35 Thomas: Genuinely, I almost kind of want to. We'll see if we want to break that down any further.

0:45:39 Matt: Yeah, we're not going to have the time, but I really don't think that this piece holds up if you actually put it together with the findings from the court and also even just some basic misunderstandings here where he's saying that it should be limited to state election law when, Newark state election law still, as the judge found, and as it pretty clearly states, involves the purpose of electing any individual to any party position or nominating or electing an individual to a federal, state, or local office. So it's still, even if state election laws still cover federal stuff. There's also some argument about the next thing I was going to talk about, which is the intent to defraud. And the intent of defrauding the statute is extremely broad. You don't have to be intending to defrag anybody in particular. It's people be co in 86 found that intent to defraud anyone is sufficient. And the theory here, of course, being that he was intending to defrag the American voters, uh, yeah, right.

0:46:04 Thomas: Pretty clear.

0:46:24 Thomas: It's not like he'd have to name the voters. Specifically, Thomas Smith in California. For you know, it's like, yeah. Okay, that's trying to defraud some vague group of people or something, yeah.

0:46:31 Matt: Yeah. Yeah. That's just, you're trying to get people to vote for you. And I think that that is perfectly fine. Um, again, it is a novel use, but these are novel circumstances as Trump constantly.

0:46:34 Thomas: Oh. He's free to go, Matt, it's new, he can go, he's he's fine, guys.

0:46:43 Matt: Yeah, that's right. Never done this before. Yep. Yep. He's

0:46:46 Thomas: I didn't know. All I have to do is think of a new crime, and I'm free to go, yeah.

0:46:46 Matt: Always doing that. That. So, yeah, just do it a new way. Yeah, basically the charges here. I do think that they're holding up. I think that there's, no, there's going to be issues on appeal because there's always going to be issues on appeal if And when Trump is convicted of this, because it is a novel use, because there's gonna be a number of things they have to prove. To But I think that this will be a conviction, and I'm pretty sure it'll stick. Uh, but let's talk about what to look for as we're going through the rest of this case.

And we're gonna be going deep on all these people, of course. But as I said, and as we know, Michael Cohen is going to be the star. He's going to be the one that the prosecution has to bring in. Now, he's already pled guilty to lying in front of Congress, and he's admitted that he's lied in other proceedings. They're going to have to set him up because he's not a great witness. He is very easy to cross -examine. He got a lot of impeachment on him. But he's also bringing a lot of documentary evidence.

0:46:53 Thomas: Yeah. Sure.

0:47:09 Thomas: I Yeah. That's been my thought this entire time. I'm right again. It's one of these like media narratives that I feel like people love. Well, he's a liar. He's going to be a compromised witness. Okay. Well, all the paper backs him up though. So what, why are we even, if I were the prosecution, I feel like that would be a big emphasis. Evidence. I don't even need you to believe this guy. I don't need you like this guy or trust him. He has got evidence though. That's what's important.

0:47:45 Matt: There's Yeah.

0:47:55 Matt: Recordings of Trump talking about why he did this. So we haven't heard him yet, but I mean, I assume they're probably pretty good. So all He has to say is, "Yeah, that's my voice on that recording and that's Donald Trump talking to me." And just listen to it and see what you think. Of course, just sort of judging from the roadmap, which is what any good opening statement is that the prosecution gave us the other day, they're going to be sort of laying the groundwork as they did already with Pecker to show you the conspiracy, to show all the the different people involved to show you just how conscious they were of what they were doing when they were trying to keep these stories out of the press.

0:47:58 Thomas: Yeah. And Another point. The crime, which is like a conspiracy and defraud, all the stuff you've talked about, it's not like the witness against Trump is going to be Nelson Mandela. You going to be someone else who is willing to do this with him. I don't know what you would expect.

0:48:35 Matt: No. It turns out that's any major prosecution where you're involved, where you have compromised witnesses, where you've people who have participated in the prosecution that were previously working for the defendant, they're never going to be great people. That's just, they'll always going to compromise one way or another. So that's just not really a surprise. Unlike some of these cases, he's never actually killed anybody that we know of. So got that going for him. The other major question, obviously, the real question through all of this is how is the DA going to prove Trump's intent?

Because we may or may not hear from the defendant. I still don't think we will. I don't Think it'd be a good idea at all for him to testify, as we talked about last time. What evidence can they bring in to show that he knew exactly what was going on, that he understood this. I'm hoping those recordings are probably going to show quite a lot. The fact that he was having these meetings, that they have these annotated notes, statements that show that they were sort of working out this scheme with Michael Cohen. You have to know that something's going on.

You can't just say that I'm the guy who signs the checks, which is sort of what the defense seemed to be suggesting in their opening. So I think that they're going to have plenty of ways that they can show intent, but that's something to look for, is all the different ways they're gonna bring that out in testimony.

But, you know, all the way through, as you're reading and thinking about this testimony, money, we have to it through the lens of the two things the prosecution really has to prove, which is intentional falsification, which I think is going to be pretty easy, and

0:49:12 Thomas: Yeah. Yeah,

0:49:49 Matt: Then the intent to commit, aid, or conceal violating federal election law, state election law or tax fraud. So everything the prosecution is putting on is going go toward those points. Where we're at with that. I want to answer.

0:49:59 Thomas: Just does not seem particularly difficult to me. Now, obviously, there's the very, very significant fly in the ointment of of a frigging jury. So it seems to me, my from all this, and me if I'm wrong, give me your thoughts, is it's going to be way more about, is there some closet Trump supporter in there? Even just somebody who's an idiot. Then it just seems, yeah, I know I'm on the left. I know that I'm biased against Trump, but I don't even know if I would put it that way. I just just think I have a clear view of Trump or I try to, and he definitely did this. Like the evidence is super duper clear. So what do you think? Is it pretty much more about like making bulletproofing this for a jury of Trump's peers?

0:50:08 Matt: Yeah. Yeah, and keeping it as simple as possible, keeping it on rails and making sure that you just get straight through your points and don't confuse them and don't allow the defense to confuse them. But yeah, no, we could have one stubborn holdout. We could have somebody for their own personal reasons who decides to just throw it. That's always a possibility with a jury. We will see. Wanted to answer a couple of quick questions from patrons since we got to quite a few of these, but

0:50:58 Thomas: All right. Right. This is from Xavier Branch, who asks, asks, this is a question about strategy. Could Blanch and Co. Do a strategy of, yes, he falsified business records, but the felony enhancement is bogus? Or can he maintain innocence on the charges while still challenging the felony advancement? Feel like he's not going to have much of a choice about it. It just seems so rock solid, open and shut that these business records are falsified that I feel like he's, he's gonna have to do something like that, right?

0:51:28 Matt: Well, as a defense attorney, you never want to fully concede. And I think Xavier's question is like, do you concede it and then just move on or you just continue to claim innocence and everything? Thing. And there's an interesting question here that I had that I did some thinking about. I talked to Casey about actually just before we recorded, just to make sure that I was on this. And, you know, there's a lesser included here because you do have first and second degree falsification. And I just double checked about how lesser included are handled in New York to be sure that I wasn't too far off here.

But because Xavier's real question here is, is it possible that you could end up with just falsifying business records in the first a second degree only? You said, it's no doubt he falsified things, but the question becomes the intent to defraud because that's the real central point in that charge. If they're able to prove some kind of intent to defRAWD, but jury doesn't buy that it was to commit any other kind of offense, then judge, if he thought the evidence could point that way under section 300.50 of the New York criminal procedure, judge could actually put in the other lesser included. He could include it as something the jury could find

0:51:28 Thomas: Yeah. Yeah, sure, yeah. Right.

0:52:01 Thomas: Second

0:52:24 Matt: As a backup. That's something that, you in most jurisdictions you get to instruct on. Potentially that if you can't find the greater offense, that you can find this lesser included offense. And the judge thinks there's no way that it could be supported, I don't know that would happen. But yeah, so that is a possibility.

0:52:24 Thomas: That'd Be peanuts.

0:52:35 Matt: You could end up, it would be a misdemeanor. It'd be very disappointing in this case.

0:52:35 Thomas: Though. Right. Yeah.

0:52:38 Matt: I'm not usually rooting for people to be convicted of felonies, but here we are. Quick question from Fort Teaser. The criminal case requires a unanimous jury for a guilty verdict, right? Was the civil trial of E. Jean Carroll a simple majority, slash do we know how large the majority was? In New York, both have to be unanimous, so that's an easy answer.

0:52:38 Thomas: Oh.

0:52:55 Matt: Easy enough.

0:52:55 Thomas: Okay, which Sucks, but yeah, I think that's Kind of For The best But We've

0:52:58 Matt: That's What We have to get Um, Yeah, the overview, that's to The bigger picture that I want to be able to have, uh, because I know we're going to start to get on the weeds in this stuff the way we have with Fanny Willis, and I know that, you know, I don't want to get lost with things, I want to refer back to these basic points when we can, but I don't want to have to rehash everything every time either, so we have this convenient guide, but

0:53:13 Thomas: Right, Matt, so that was such a good breakdown, thank you so much, and now we're going to do something a little special for patrons only, we're going to do some acting. We're going to get into this. We're going to read a fun part of the transcript that is Trump's shameless lawyer trying to argue that reposts or whatever are not endorsements. And it's hilarious. So patreon.com/ Law Law If you'd like to hear that extended cut and got a lot of material here that we're, we're never going to have time to go through the entire transcripts on the show. So that might, might be something fun that we start doing is a patron only extra, you know, read these transcripts for fun, places where Matt, I know you're going to identify that, average that person might miss on the average. Person is probably not reading this transcript, but, but that'll be a lot of fun.

0:53:34 Matt: It's Quite An argument.

0:53:56 Matt: Even you saw in the headlines, maybe you want to hear more about how it went in court. We'll give you that opportunity.

0:54:00 Thomas: It. So we're going gonna get into character. We're gonna, okay. I've got spread some money around, do a Scrooge McDuck, uh, dive through it. I got to get in the character of this asshole lawyer. And, for patrons, we'll see you very soon for a very dramatic, effective reading, the likes of which you've never heard. And for everybody else, we will see you for Monday's episode. Can't wait.

0:54:21 Matt: Is out of session oh

0:54:22 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.