We are over a month into former President Donald Trump’s historic criminal trial. The prosecution and defense have each presented their cases, and a Manhattan jury will soon decide whether Trump broke the law and interfered in the 2016 election by falsifying business records in an effort to cover up “hush money” payments to adult film actress Stormy Daniels.
What has it been like inside the courtroom? What can we expect next from each side in closing arguments?
Joining the show to discuss the trial and what comes next are seasoned legal reporters Terri Austin and Adam Klasfeld.
Terri is an experienced lawyer and legal analyst and Adam is a veteran reporter and Journalism Fellow at Just Security. They’ve both covered Trump’s New York trial from inside the courtroom since day one.
Show Notes:
We are over a month into former President Donald Trump’s historic criminal trial. The prosecution and defense have each presented their cases, and a Manhattan jury will soon decide whether Trump broke the law and interfered in the 2016 election by falsifying business records in an effort to cover up “hush money” payments to adult film actress Stormy Daniels.
What has it been like inside the courtroom? What can we expect next from each side in closing arguments?
Joining the show to discuss the trial and what comes next are seasoned legal reporters Terri Austin and Adam Klasfeld.
Terri is an experienced lawyer and legal analyst and Adam is a veteran reporter and Journalism Fellow at Just Security. They’ve both covered Trump’s New York trial from inside the courtroom since day one.
Show Notes:
Paras Shah: We are over a month into former President Donald Trump’s historic criminal trial. The prosecution and defense have each presented their cases, and a Manhattan jury will soon decide whether Trump broke the law and interfered in the 2016 election by falsifying business records in an effort to cover up “hush money” payments to adult film actress Stormy Daniels.
What has it been like inside the courtroom? What can we expect next from each side in closing arguments?
This is the Just Security Podcast. I’m your host, Paras Shah.
Joining the show to discuss the trial and what comes next are seasoned legal reporters Terri Austin and Adam Klasfeld.
Terri is an experienced lawyer and legal analyst and Adam is a veteran reporter and Journalism Fellow at Just Security. They’ve both covered Trump’s New York trial from inside the courtroom since day one.
Before we get started, just to give listeners a sense of timing, we’re recording this episode in the afternoon on Wednesday, May 22.
Adam, Terri, thank you so much for joining the show. I know it's been a very busy few weeks at 100 Center Street. And at this point in the case, we've had presentations from the defense and the prosecution. So, could you get us started by giving us your overall impressions of the case so far? And, Adam, let's start with you.
Adam Klasfeld: So, the defense case went by in a flash. Terri and I were both in the courtroom on the day and a half when it happened. It was, as folks know one kind of small witness who was there to essentially corroborate that certain phone calls were made, that there was a line during Michael Cohen's testimony in the state's case where Todd Blanch who's Trump's lead attorney, had been questioning him about Michael Cohen's phone calls to Robert Costello. And one of the lines was that he had 75 phone calls between him and Robert Costello. But we found out during this small defense witness, I was leading off the defense's case, that a lot of those calls were double counted. So the right out the gate, one of the first defense witnesses essentially undermined a point that was made during cross examination during the state's case. Then we had Robert Costello. And that was the most recent testimony that we had before everything wrapped. And we knew from well before this trial, there's a lot of history between Michael Cohen and Robert Costello, from the Muller investigation where you had the famous, “you are loved, you have friends in high places” email, where Robert Costello was trying to keep Michael Cohen from turning to the other side to cooperating with the Mueller investigation. And Robert Costello, to this day denies that that was the case. And in that denial of his testimony, it got severely undermined on cross examination when he was confronted with all of these emails, making clear that he was very concerned about former President Trump, about him turning against former President Trump. Now he was saying under oath that Michael, his only concern was Michael Cohen. It was at a time he was considering making Cohen his client. And so it was a very short defense case, and what they were trying to establish through Robert Costello, that, that Michael Cohen, was a wreck when he found out that he was under investigation, he was just trying to help Michael Cohen. But Michael Cohen just confessed to him that the entire Stormy Daniels situation was entirely his idea. He had no information on Trump.
He came off as very unreliable because he swore up and down to the jury that he had no thought in his mind about former President Trump. It wasn't about Trump's interest it was about Michael Cohen's. And he got confronted again and again and again, because of that decision by the defense to put him on the stand from all of these emails that had been presumably sitting in a vault for years when the Muller team was looking into all of this, showing that in fact, he was very much as the emails we have seen earlier indicated, interested in this. So beyond the details of it, just to get a big picture view of what we've seen here, what we've seen is an enormous amount of evidence being presented before the jury of this alleged scheme to influence the 2016 election through the National Enquirer's parent company, AMI, where David Pecker started out the trial saying that he was going to be the eyes and ears of the Trump campaign. And I think for many months before the trial, all of us were looking to see this hush money case, but this case has turned out to be something much grander, and that it's a case about how there was a years-long scheme to find out what were the threats of the Trump campaign.
There were, David pecker said that he was on the lookout for women selling stories, that he was going to try to puff up Trump in stories in the National Enquirer, denigrate his rivals. We've seen lots of hit pieces in the National Enquirer about Trump's even primary rivals. And that the backstory to all of this a backstory to Stormy Daniels, to Karen McDougalls, to all to all of that was this effort to make sure that Trump wouldn't be surprised by October surprise that ultimately happened in the form of the Access Hollywood tape. So, what we've got was a there was the expectation of, oh, this is the hush money trial. This is the Stormy Daniels trial. And what we got was a much broader view. And with that, I'll turn that over to Terri, you know, who’s been in the courtroom every day as well, there's, I think that, you know, we both seen a, a case that has been presented in a different form than perhaps a lot of expectations were.
Terri Austin: Yeah, I mean, I think that's a great summary. I focused a lot on the prosecution's case, because that's mostly what we saw day in and day out over the several weeks of the trial. And they put on 20 witnesses, one who came on twice one of their paralegals. And overall, I think they have done an excellent job establishing what the indictment says, which is, there are 34 accounts here where he falsified these business records. We even have a chart that they introduced into evidence that shows the invoice, the voucher and the check, and the jury can take a look at that. So they have that clearly presented to the jury. And the fact that these records were falsified by Trump to influence the outcome of the election. And I think we've seen that through these various witnesses. They started with David Pecker, and David Pecker, of course, is the CEO of AMI, which is the company that owns the National Enquirer. And I think that was a good witness to start with, because it laid the foundation for what the prosecution was trying to show here. They're trying to demonstrate that there was this agreement that started back at that initial meeting in 2015, where they sat down with the National Enquirer and said, Trump was there and Pecker was there, Cohen was there. There was this agreement that they would do what they could to promote Donald Trump and to say negative things about the other candidates in order to get Trump elected. So it was a good witness. He had a lot of details. I think he stood up really well under cross examination. He was pretty unflappable, I would say even under a very rough cross examination.
And then I think the other witnesses that they put on, sort of bolstered everything they were trying to say. I think Gary Farrell was an excellent witness. He is someone that we haven't talked much about. He is the banker for Cohen. He was also able to talk about these payments as far as Stormy Daniels is concerned. And remember, there are three people here there's the doorman that was paid, there is Karen McDougall, who was paid and there is Stormy Daniels. And the first two were paid through AMI, and Stormy Daniels, of course, was paid through Michael Cohen and his companies that he established. And then the whole point was, how was Michael Cohen paid back? And this is what the prosecution focused on: these payments that were made over the course of the year there, and the fact that there were these 11 payments, that would have been 12, but January and February were paid together, and how it was not for legal services. And I think the prosecution established he did not do legal services for Donald Trump. What he was doing was making sure that Donald Trump was getting elected and saying and doing what he needed to do to get elected. And I think when Michael Cohen finally got on the stand, he did, I think, hold up extremely well under both direct and cross examination and that's what the prosecution needed. Of course, these documents are there, but they needed someone to say, the reasoning behind what happened. And the reasoning was Donald Trump was orchestrating all of this. He was a micromanager. He used a Sharpie, he made sure that he signed all of his documents. I mean, they even got a witness from, you know, a librarian who is talking about the fact that, you know, from these books, what he said in these books, and some of the quotes from the books about how he wanted to make sure that he would look at all of his documents himself, that he never gave that away to someone else. He made sure, and he advised other people that you are supposed to take a look at what you are doing. She was actually from, I think she was from Random House, if I'm not mistaken. She was one of one of the witnesses from a book publisher, her name was Sally Franklin. And we heard some quotes from the book. And I thought that was very effective. I never expected the prosecution to bring that type of witness. But they did. And I think it helped the jury to understand what type of person is Donald Trump? Because I think everyone recognized the fact he was not going to get up on that stand.
As much as he said, I'm getting on the stand. I think everyone that jury, the press in the room, I think we all knew that the defense was not going to put Trump on the stand. And the prosecution knew that too. So they had to have people to explain what type of person Donald Trump is. And by reading quotes, from his book excerpts from his books, it made it very clear that he's the type of person who doesn't spend a lot of money, he will go after you if you owe him money, you have to come to get him if he owes you money. And he watches his books very carefully. So I think that was established. And at the end of the day, as Adam said, I mean, I think the defense had a very short case. And I think it was a big mistake to bring Robert Costello. He himself has his own biases. And I think the jury recognized that Robert Costello was brought in to make Michael Cohen look bad. And I think the jury recognized the defense did not really have a defense, per se. And of course, under the law, you're not required to put on a defense. But that is exactly what the jury is looking for. The jury is looking to see if you are going to somehow defend yourself. And I think putting Michael Cohen on the direct case and having Robert Costello sort of confront what Cohen was saying, did not really put forth the defense for Donald Trump. I think it simply had two people talking against each other. And I think it nullified both testimonies to a certain extent. And I think the jury is going to walk away, honestly, believing Cohen more despite the fact that he's been convicted on several crimes, including perjury, I think. At this point in Michael Cohen's life, there's no reason to lie. At this point in his life, he has already served jail time. And I think he's more credible than he has been in the past. So I don't know what is going to happen as far as that jury is concerned. But I do think it's a smart jury, and that if they've listened to all the evidence thus far, they could very well convict Donald Trump.
Paras: So we've talked a little bit about how the defense didn't put on what we can clearly identify as a case, or a strong theory of this case. But how might they frame this in closing arguments?
Adam: So I think with closing arguments coming up, what we're likely going to hear from the defense is Michael Cohen, Michael Cohen, Michael Cohen. They put him on, they kept him under cross examination for three days, they brought out every lie he has ever told on a public record. And that was the reason why they you know, their defense case boiled down to: it was Michael Cohen. The first witness was who was Michael Cohen. How many times did Michael Cohen talk to Robert Costello? The second witness was Robert Costello, and to Terri's point, one of the most fascinating things about that, as they rattled off every misdeed that Michael Cohen committed, even after all of the perjury convictions, the fraud convictions, there were two buckets. There are the misdeeds that are related to Trump that he served time for, and that he, and those include the campaign finance violations that are very analogous to what we're talking about in this case. And also, the perjury convictions that have to do with the very pressure campaign that Robert Costello represents. In the other bucket, there are tax offenses that he seems somewhat unrepentant for, and there are other, he apparently said after turning over a new leaf to Congress, that “I would never accept a pardon.” And they drew out yes, he tried to get a pardon. So even amid all of that, they, one of the things that was remarkable throughout all this, and because I agree with Terri's analysis here: Cohen's misdeeds align, very frequently, with the prosecution’s theory of the case. And let me give one salient example, there's one headline that was generated over and over again: Michael Cohen admits stealing from the Trump Organization. Now, too, and yes, he did, quite dramatically on the witness stand. And if you believe that Michael Cohen stole from the Trump Organization, then you believe the prosecution's theory of the case. Because here's the theft that he lay it out: Michael Cohen said that he paid the charged for a reimbursement for Red Finch, it's an IT firm that helped rig online polls in Trump's favor, before he became a candidate.
And Michael Cohen paid, the expense was $50,000. Michael Cohen paid $20,000 In a small brown paper bag, and didn't, and essentially pocketed the rest. And that was part of the reimbursement that he claimed. But here's the thing. Team Trump said at the beginning of trial, and throughout the trial, there are no reimbursements. It's all legal fees, it was all proper on the books lawyering. And they placed a hard bet on that. It's going to be very hard for them to convince a jury that Michael Cohen is an admitted thief. And by the way, he was, that was a valid expense that we gave him, he was just our lawyer doing legal work. There's, and so, In that and in many other instances, the very things that they're attacking Michael Cohen with are the very things that support the prosecution's theory of the case. Now, why is he after being, after rattling off misdeed after misdeed more credible than Robert Costello, who is not a convicted perjurer? Who has not gone to prison? Because where his testimony is flatly contradicted by the evidence, by this email after email after email, is against the narrative that the defense is saying that, Oh, he was a lawyer who was just solely committed to Michael Cohen. And we're seeing in black and white, that that's not the case. So the defense summations are going to be: dirty up Michael Cohen, don't pay attention to where his story aligns with a broader theory of the case, they're going to say that everything he got paid back was reimbursements for valid legal fees. And by the way, he's also a thief. Now the government's theory of the case in the government's summation is going to be: focusing on the details of, and it's going to be much more than Michael Cohen, because he is so often perceived as the star witness and because he's so core to the defense's theory of the case, we tend to focus a lot on him.
But the government is going to point out Hope Hicks, who is a loyalist who was, who wept on the witness stand. You know, she was crying for a long period of time after and we don't know why she cried. But we know that she did cry, after delivering very damaging testimony about Trump, saying Trump's cover story that Michael Cohen paid back Stormy Daniels out of the goodness of his heart didn't wash with her because Michael Cohen was what was more selfish than that. He wasn't someone who is going to you know, just go out and do something entirely not self-interested. You can consider that testimony derogatory to Michael Cohen but again, in a way that supports the government's theory of the case. So they're going to talk about Hope Hicks, they’re going to talk about metal Madeleine Westerhout, who in a very memorable moment, Terri was talking earlier about Trump's own books showing how cheap he is. There was a moment during Westerhout ‘s testimony where they showed the White House staff looking for a Tiffany photo frame for Donald Trump's mother. And they showed him penny pinching over that, like “Oh, can we get a photo frame for Trump's mother?” Will this be too expensive for this billionaire?” Will the jury believe that if he's penny pinching over the photo frame for his late mother, that he's not going to pay close attention to the $420,000 reimbursement that these falsified records are based on under the prosecution's theory of the case. And one thing that they're probably going to do, I imagine, is show that incredible handwritten note. And this one piece of evidence is probably the most powerful piece of documentary evidence in the case of Allen Weisselberg’s handwritten notes on the very bank statement of the shell company, where Michael Cohen paid Stormy Daniels’ lawyer. And it laid out the system, this very convoluted system for paying back Michael Cohen for $130,000 debt. And then a $50,000 expense grossed up to $360,000, with a bonus paid out in 12 months. And it's all written down in the hand of another Trump loyalists. So I imagine the government's case will hang on that.
Paras: What are the pitfalls that we might see for the prosecution? They've told this very compelling story with 20 witnesses and documents. Where are the risks for them?
Terri: The biggest risk for the prosecution is that they cannot get inside of Donald Trump's head and convince the jury what his intent was, was he intending to break the law? One thing I find very interesting is that now the defense is trying to say he has been relying on advice of counsel, the judge is not going to allow that based on what we heard during the arguments for the jury instructions. But having the mindset be an important part for the prosecution, I think is going to be one of the hard issues that they're going to have to face. And they're going to have to talk about that during summation. And I think the way they face that issue is to show from other people what Donald Trump was thinking at the time that these invoices and checks and vouchers were being established. And I think a crucial part of their case is going to be the testimony that that jury heard from his own people, we didn't hear from Alan Weisselberg. And Adam was just mentioning that piece of paper that Allen wrote on when he was talking about how are we going to make these payments to Michael Cohen, reimbursing him for what we have paid to Stormy Daniels. But they were able to show Jeff McConney was the controller of the Trump Organization. He was on the stand. I thought he was extremely effective. And he knew all about those checks and invoices and ledgers, and he testified to that. And I think the jury had to believe him. And then right after Jeff McConney came on, they put on Deborah Tarasoff, and she is the woman who actually carried this out on behalf of the organization. She's the accounts payable person, she's the person who works for Jeff McConney. Jeff McCarney works for Allen Weisselberg.
So you have the three people who are very involved in what's going on with these checks. And they are not doing this on their own. They are doing it, and they testified that they were doing it, on behalf of Donald Trump. This is what Donald Trump wanted. This is what he needed. This is what he said. So I do think that the most difficult part for the prosecution is establishing what was in Trump's head, but I think they've done an excellent job of doing that by having these individuals testify. Even Madeleine Westerhout I mean, she is also a huge Trump supporter. She had to testify also as to what was going on. What was her role? How was she involved with the checks? And where did the checks go? So, I mean, I do also think one thing I will say, about Westerhout, she like Hope Hicks cried on the stand. And I thought that, I looked at the jury when this was happening, I thought that was very effective. Here's someone who was fired by Trump because she revealed a confidential piece of information about his daughter and his relationship with his daughter. And even though she was fired by Trump, she still had the utmost respect and love and admiration for Trump. And I think several people came across like that, including Hope Hicks.
And that's probably another area where I think the prosecution is going to have a difficult time or at least a more difficult time. Having witnesses who, even though Trump has harmed them in ways, there's still no matter what extremely devoted. His own secretary, you know, is, you know, somewhat devoted, I mean, everyone who came on that stand, even though they were prosecution witnesses, you knew for a fact that they had a lot of devotion towards him, and were hesitant to say anything negative about him. So I think the prosecution is going to have to overcome that. And I actually think that they have, and I think in summation, they're gonna probably bring that out and tell you, look, these are people who are part of the Trump Organization, and they've all told you the same story. Why would all these people lie? And if you don't believe Michael Cohen, it's okay. Because we have Jeff McConney, we have Deborah Tarasoff. We have, you know, all these other people who have said the exact same thing, so you have to believe them.
Paras: You mentioned jury instructions. And for listeners who aren't familiar, give us an overview of what jury instructions are and why they will be important in this case?
Adam: So over the course of the prosecution and defense case, we've built the factual record. Testimony is evidence, emails are evidence, the text messages are evidence. There have been audio recordings, including the famous, now famous, recording that Michael Cohen made of Trump talking about the Karen McDougal payment, where Trump muttered at one point “pay in cash”, referencing quite clearly the $150,000 hush money and the entire system for it. All of this is evidence, the instructions are the law. And they, what the jury instructions do, are match the facts, give a guide for the jury to apply that factual record, and enormous factual record at this point, to the law of the case, because at the end of the day, what they will have to decide is whether Donald Trump falsified 34 business records with an intent to commit another crime. And the government is allowed three theories: those series are violation of federal law, FICA, violation of state election law, and tax fraud; that if there is an intention to deceive tax authorities by grossing up, Michael Cohen's payment may be claiming falsely that there were legal retention rather than payoffs at issue here, that that can elevate that to a felony. And so the judge, this will bring out many contentious legal issues, one of which
Terri just mentioned, which is causation. At the heart of this is how do we know that Donald Trump caused these records to be falsified? He's gonna say: “Well, I wasn't in the loop. There are other people in the Trump Organization that were responsible for it. No one told me about this.” Under the law, of falsification of business records, you can violate that statute by making or causing to be made a falsified record. And there was a really interesting controversy that happened during arguments for it. And it's why the parties for the prosecution and the defense, both fight very vigorously to get the right instructions for their side. Because one of the things where Trump's lawyers actually succeeded, was saying, “wait a minute, we can't have a causation through accessory liability, all of a sudden, Trump is causing some other causer.” And though the judge hasn't ruled on this, the judge leaned and appeared pretty sympathetic to Trump's defense team on that point. So the prosecution might have a higher burden to show either with direct or circumstantial evidence that well, you know, that everyone has told you that Trump was in the loop about everything. He knew how much he was paying for a frame for a photograph of his late mother, you know, that he paid $420,000 for it, that he knows that he's going to account for that $420,000. He's not going to let it go to all the people who are his subordinates. And juries care about this. I'll just tell a quick anecdote on this. One of the first cases that I ever covered was an embassy bombing cases, a terrorism case. One of the first former Guantanamo detainees to be tried in a civilian court over two bombings in East Africa in the late 1990s. His name was Ahmed Ghailani. And a key issue in that case, was the concept called conscious avoidance.
Because the defense, the defense in that case was “Ahmed Ghailani was an errand boy for hardened terrorists, he didn't know what he was doing when he was acquiring these materials for these other people.” And so the conscious avoidance charge was that at some point, he must have known what is going on, and you are guilty if you bury your head in the sand. And I mentioned this anecdote because it came up in deliberations. Jurors sent a note to the judge that was so fine tuned to legal question on conscious avoidance of the judge said, they're listening. I've been considering this legal issue, even before this trial began. He was charged with more than 250 counts and convicted on one conspiracy charge that sent him to jail for the rest of his life. And you can bet that they thought, yes, he knew on some level about this scheme. But they felt that he had consciously avoided that knowledge, to the point where they wouldn't convict him of murder, but they'd convict him of the conspiracy. So when the parties wrangle these legal issues on causation, on accessory liability, it sounds obscure, but these are the things historic cases are made on.
Terri: Well, I think those are some excellent points on what might happen in this case. And I loved the anecdote that Adam just gave, because it does bring home the fact that these charges are very important. And the judge made a point of saying to the defense at one point, “if you bring in a legal expert, the prosecution is going to have to bring in a legal expert, and I am going to give the law and I do not want there to be any confusion. So if in fact, defense, you do bring this legal expert, all he can talk about is generalities, because it is not going to conflict with what I am going to tell this jury.” So overall, I feel as though the judge understands, and both parties understand that what he gives is the final word and what he gives, and only what he gives, is what the jury is supposed to be considering. I do think that there were a couple of instances when they were making their arguments, and I mentioned it before, but Bove, Emil Bove, the attorney, obviously for Donald Trump, would not sit down and this was a big issue for Bove. And a big issue for Trump. In fact, he talked about it in the hallway, this advice of counsel and I thought it was very interesting. We don't have the charges yet. But we know where the judge is leaning because he said to Beauvais in no uncertain terms: “You're not going to be getting this charge, that Donald Trump was relying on advice of counsel because it has come up so much.”
And the judge actually mentioned a decision that he made early on, back in February, that the defense was going to have to determine if they were going to rely on that defense. It's an actual defense and if in fact, they were able to get that, the judge charge on that. And then the judge said, well, you know, relying on advice of counsel morphed into presence of counsel, which then morphed into something else called involvement of counsel, and the judge was very upset about it. And Bove would not stop talking about it. And you better believe that the judge is not going to allow the defense to go ahead and argue that now at this point, because it has changed so many times. So there are issues like that, that I think are very critical to the case. And the judge has already made up his mind as to that. There was another issue on intent, where the defense was trying very hard to get some additional language into the charges to make it a little bit more difficult for the prosecution to sort of prove their case, it wasn't just willful, it was intentional. And to have that language sort of beefed up. And I think the judge is thinking about exactly how he wants to do the wording. He's got to, you know, walk a very fine line, he doesn't ever want to have anything reversed on appeal. So I think he's going to try to accept some of the language that the defense has given, and some of the language that the prosecution has given, just to make sure that he is considering both sides. But all in all, just listening to the arguments. We didn't have the draft charges. But listening to the arguments, I think the judge is going to try to go by the standard instructions to the extent that he can. And I think, from what we heard in the courtroom, I think the judge is leaning more towards what the prosecution was asking for. The last thing I'll mention, because I thought this was interesting. The defense was also trying to get the judge to say as a matter of law, certain facts that the judge said, “so are you saying you want me to determine as a matter of law that AMI didn't break the law?”
I mean, it was those types of requests that the defense was making that I thought were a bit on the outrageous side. And clearly, the judge also thought that those requests were on the outrageous side. And in fact, the prosecution, Steinglass got up and said, well, I don't remember if the word was that sort of outrageous or ridiculous. But Steinglass actually had to point out how ridiculous it was for the defense to be asking the judge to rule as a matter of law that one party did or did not break the law. So I think it was interesting, but at the end of the day, it's going to be Judge Merchan’s rule of law that really applies to this case.
Adam: Absolutely. And Merchan is such a measured, unflappable, and very fair, I mean, I agree with Terri entirely that it does seem that the prosecution is scoring a couple of very important victories on the jury selection, including on unlawful means where the jury doesn't have to necessarily, you know, some jurors could find that the intent to defraud was tax fraud, federal election, there doesn't need to be a piecemeal, because that's the way the falsification of business records statute has always worked. And then he handed the defense some victories, but what he does, he's very no nonsense. And that moment that you mentioned, there was also, it brought to mind when Todd Blanche tried to have him declare as a matter of law in the motion to dismiss the case, that Michael Cohen can't be believed, take that out of the hands of the jury, just aside as a matter of law, you can't believe Michael Cohen.
There are moments where Justice Merchan dresses you down, you know you must have done something wrong because he is so even tempered. And that led to one of those incredible and crazy moments of the case where he actually cleared the courtroom because the sole substantive defense witness, Robert Costello, was audibly complaining about his ruling saying geez, shooting him side eye and trying to finally stare him down, and he had to clear the courtroom to briefly dress him down. So it's very interesting to see these characters in the course of a trial that you get to get a sense of the judge, and I'm sure the jury got a sense of the judge. And one might wonder how that played to see a witness, acting so disrespectfully in front of their judge.
Terri: Yeah, no, I just want to underscore what you're saying. I mean, you couldn't have said it any better Adam. I mean, the fact that here is the judge, one of the most measured judges I've ever seen. And when you hear him say something like, and this is what he said to Robert Costello, when Robert Costello said “geez”, and “ridiculous” and, you know, mumbled under his breath, we heard the judge say, “Excuse me, excuse me?” And the jury heard that. And it was just so shocking to hear the judge say that you knew, and that jury knew, that Costello was really being disrespectful and pushing him to a point where, even someone as even tempered as Judge Merchan, had to say something to that witness.
I thought it was obviously one of the highlights of the trial. There have been some really big moments. But I just wanted to underscore that because it kind of shocked me when I heard the judge say that, and then go on further to admonish the witness outside of the presence of the jury, and then to further admonish the witness outside the presence of everyone. So that I've never seen done before. I don't know, Adam, if you've seen that before, I've never seen that happen.
Adam: No. And so that's, you know, combined a total of a lot of years in courtrooms. And I’ve spoken to a lot of people, and everyone I’ve spoken to, to a combined total of decades of experience seeing these proceedings, as ever seen anything like that.
Paras: We're running short on time. And as we've gone through this, there's clearly so much to track. There's the facts, the law, the jury instructions, the closing arguments. I wonder if each of you, if you had to boil it down to one or two trends or things to watch in the coming days, what would it be?
Adam: In the coming days? Well, we're going to hear summations, we're going to hear that we're going to be on pins and needles with the rest of the world to find out what the resolution of this in deliberations we might get guides to what the jury is thinking. If there are notes that are read aloud in the courtroom, if we see what pieces of evidence have intrigued the jurors, or if there's a point of law that they're wrestling with, I would just talk about, just hit pause for a moment to let sink in the historic weight of what we're watching. This is the first criminal trial of a former president and we're about to get a verdict. Will a former president of the United States become a felon for the first time? And if will he become a felon 34 times over? What will be the historic weight of that moment? I would have people take a moment to process the kind of complexities of the legal issues that Terri and I have been discussing throughout; the type of evidence that has come in, the type of things that people have grappled with, on both sides, and the measured nature of the rulings. Because if there's a conviction I think both of us, I don't I don't make a lot of predictions, but I think Terri and I would probably be on safe ground if she were to agree with me on this: Trump would say that any true conviction is “Oh, it's just a New York jury. It's a New York jury.” Listen to the legal process, listen to the nuances that everyone has grappled with, and the fights over issues like accessory liability, causation. Look at how Trump has won certain things throughout the trial. The jury has not seen the Access Hollywood tape, they have not heard about accusations about of sexual assault against him, that were arguably one of the reasons he was so anxious to smother this Stormy Daniels scandal, because there were all these scandals brewing at once, and he wanted it to go away.
And that's the government's theory of the case. This has been, not a proceeding, not the type of trial you can fit in a tidy box of, “oh, it's liberal New York.” He has gotten vigorous due process. If he is convicted, he will have many avenues of appeal that will likely stretch for years. And if he is acquitted, that is also another part of the process. It is a testament to that. So that's what I'm looking for. And that's, I guess, what I'm feeling, thinking over, and experiencing as we move to this next phase of finding out the end point of all that we have reported on.
Terri: I think what I'm thinking about at this juncture now that both sides have rested, and the jury has a week. I think we have to look at this jury, and whether or not something will happen between now and when we have closing arguments and instructions. So far, so great, these 12 jurors, you have to hand it to them, the entire time they have been focused, they are taking notes, I have not seen one of them fall asleep. I can't express enough how amazing this jury is. It's a really smart jury too, we have two lawyers on the jury, we have someone in finance, we have an engineer, we have an educator, we have someone in technology. This is a bright jury, and they are paying attention.
The real question I have now that we have this one week in between the end of the cases and the closing, and the charges, and the deliberation, is: what will happen, and whether or not the defense is going to try to take advantage of that. Are they going to say on appeal that, you know, this was too long? And of course the jury was influenced? Or are we going to find out that one of the jurors posted something? Or I mean, I'm just a little bit worried. We've held on so long, and so well, I'm just a little bit worried. We haven't lost a single juror. And that is unusual, we have the 12 plus the 6, so we have the 18. But I am a little worried that between now and the end, you know something could happen. Because it's such a long amount of time, it's a holiday, we have jurors who are going to be visiting family, the family probably knows that they're on a jury, maybe they know they're on this particular case. And I am really hoping that they listen to the instructions that the judge has given every single time: that they avoid any sort of media, that they don't run into anyone, that no one talks to them about the case. And that we are able to keep the 12 or at least to, if we lose one, to have a couple of alternates come in, I'm really hoping that the power of this jury maintains itself until the very end.
Their job is critical, and I think that's one of the reasons the judge has allowed them to go early, a day or two, because someone has an appointment. The role of the jury is something that they did not ask for, and they are giving their time. And I think the judge has been very respectful. And I know some people have asked why hasn't the judge just said no, you can't go, you have to come. We're going to finish this this week. I think it's important that he gives them the time that they need. And you know, I hope that they can make it through this holiday without any sort of issues coming up. So that's what I think about between now and the end of the trial that everybody can just hang in there.
Paras: Terri, Adam, thanks so much for joining the show and for being eyewitnesses to history in covering this unprecedented trial. We really appreciate all your expertise and analysis. Thanks again.
Terri: Thank you so much, Paras, it's been great.
Adam: Thank you, Paras.
Paras: This episode was hosted and produced by me, Paras Shah, with help from Audrey Balliette.
Special thanks to Terri Austin and Adam Klasfeld. You can read all of Just Security’s coverage of the Trump trials, including Adam’s analysis, on our website.
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