0:01

From fixer to foe, Michael Cohen takes

0:03

the stand. From

0:06

NPR, it's Trump's trials. I'm Scott

0:08

Detrow. This is a persecution. He

0:10

actually just stormed out of the

0:13

courtroom. Innocent

0:15

to have proven guilty in a court

0:18

of law. The

0:20

prosecution has just about wrapped up

0:22

its case this week with days

0:24

of testimony from the key witness,

0:27

Michael Cohen, former President Donald Trump's

0:29

one-time lawyer, fixer, gopher and enforcer.

0:32

Cohen spent the entire week on the

0:34

witness stand, first trying to connect

0:36

key dots for the prosecution, and

0:38

then undergoing intense hostile cross-examination from

0:40

Trump's legal team. Remember, Cohen is

0:42

at the center of this case

0:44

because it was Cohen who paid

0:47

off adult film actress Stormy Daniels

0:49

in 2016, and it

0:51

was Cohen who was reimbursed with

0:53

the alleged falsified documents in question.

0:56

And then it was also Cohen who later

0:58

turned on Trump after Cohen was raided by

1:00

the FBI in 2018. Ahead,

1:03

we will talk about what Cohen said,

1:05

whether it was enough for the prosecution's

1:07

case, and what comes next. I'll

1:09

be joined by NPR's reporter at the

1:11

trial, Jimena Bustillo, as well as Boston

1:13

University law professor Jed Sugarman. This

1:26

message comes from NPR sponsor Carvana. With

1:45

thousands of options under $20,000, plus

1:47

customizable financing terms and down payments

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as low as $0 down, it's

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fits your lifestyle. Visit carvana.com or

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download the app today. Terms and

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conditions may occur. apply. We

2:27

are back with NPR political reporter, Jimena Bustillo.

2:29

Hey, Jimena. Hey, Scott. And Boston

2:31

University Law Professor, Jed Sugarman. Jed, thanks for coming

2:34

back. You're solely invited back because of your jury

2:36

pool joke from last week. I

2:41

appreciate that you like my legal analysis and

2:43

my humor. Let's

2:46

talk about Michael Cohen week and

2:49

more importantly, the clear conclusion of

2:51

the prosecution's case here. Jimena,

2:53

you've been covering the case every single day. You were

2:55

in the courtroom all week. What would you say the

2:58

big themes of the week were? Well,

3:00

the biggest theme also happened outside the

3:02

courtroom, which was all the guests and

3:04

quote unquote friends, as I've been calling

3:06

them, of Donald Trump that have been

3:08

coming in to support him. They

3:11

are not gag ordered and they made sure

3:13

to show that by hosting press conferences. Yeah,

3:15

this was this was a broad collection

3:17

of Republican officials, people

3:20

who clearly want to be Trump's

3:22

vice president, people who are congressional

3:24

leaders, all walks of high

3:26

profile Republicans, including House Speaker Mike Johnson, made

3:29

a point to come sit behind Trump at

3:31

court and talk outside the courtroom. This is

3:33

the fifth week that President Trump has been

3:35

in court for this sham

3:37

of a trial. There is literally no

3:39

branch of government that Michael Cohen is

3:41

not lied to. We're seeing today what

3:44

lengths the Democrat Party will go to

3:46

to try to rig or steal another

3:48

election. And these are significant people who

3:50

want to be in leadership in the Republican

3:53

Party, members of

3:55

the Florida delegation, which is Trump's

3:57

new home state and in

3:59

some instances. attorneys general of other states

4:01

which he has been citing as legal experts

4:03

coming in to support him. So

4:06

this was an interesting high-profile example of kind

4:08

of the dual-track presidential election that's taking place

4:10

here and this is impacting but let's shift

4:12

to what happened inside the courtroom. Jimena

4:16

Michael Cohen spent the entire week testifying

4:18

the the prosecution has said that that

4:20

he could likely be their last witness

4:22

either way he's definitely the last key

4:25

part of the case the prosecution is

4:27

making. Before we get into the

4:29

specifics of Cohen now that we've heard just

4:31

about all of the prosecution's case

4:34

can you summarize the argument that they're making to

4:36

the jury? The prosecution is wanting to

4:39

paint a picture that Trump knew

4:41

about a deal created to Silence

4:44

Adult film star Stormy Daniels about

4:46

an alleged story that she had

4:48

an affair with Trump and

4:51

she was going to come out with this ahead of

4:53

the 2016 election. The story

4:56

here is that Trump authorized

4:58

allegedly was involved with silencing

5:00

her and the negotiations behind

5:02

that and when he

5:04

paid Michael Cohen back for the

5:07

settlement agreement with Stormy Daniels he did

5:09

so in a way that concealed the

5:11

true nature of the payments by calling

5:13

them legal retainers the prosecution alleges that

5:15

they were not legal retainers and

5:18

that he did so in order to

5:20

influence the election results. So

5:22

how did Cohen's testimony play into that story

5:24

what gaps did it fill in this week?

5:27

So Cohen testified to various

5:29

alleged conversations that he had

5:31

had in person and on

5:33

the phone with Trump and

5:35

others that connected that that

5:37

bridge between what Trump

5:40

knew what he may have been involved

5:42

in and then the actual person that

5:44

carried out the deal on behalf of

5:46

him and so that was kind of

5:48

missing information that was needed was to

5:50

hear from Cohen himself we've been hearing

5:52

for weeks about Cohen playing this role

5:54

and now he finally got to take

5:56

the stand in front of the jars. When

6:00

we talked last week, you said that

6:02

the prosecution needed Cohen to tie everything

6:04

together to prove their case beyond a

6:06

reasonable doubt. Do you think he did

6:08

that? Well, with the caveat that

6:10

I was not in the courtroom and just

6:12

following the many

6:14

journalists' accounts of how the testimony went,

6:18

I'm concerned that they did not

6:21

establish clearly what they needed to

6:23

establish. It may not matter if

6:25

the jury just wants to buy

6:27

the proof of intent that

6:29

they could infer from the

6:31

long line of witnesses, but

6:34

it doesn't sound like there was

6:36

clarity for two key components that

6:39

I thought the prosecutors might draw out of

6:41

Cohen. Walk me through what those are,

6:43

because I'm thinking of what has kind of clearly been

6:45

laid out here. The catch

6:47

and kill stories seem to have

6:49

clearly been done to help his political campaign. I think

6:51

that's been pretty well established by the prosecution. There

6:54

was a real panic in October 2016 after

6:57

the Access Hollywood tape. The

6:59

payments are made to Stormy Daniels. Michael

7:02

Cohen is repaid in these

7:04

retainer fees over the following

7:06

year. What's missing here? So

7:09

I agree with all of that. And based

7:11

on that, I think there were some steps

7:14

the prosecutors could have taken to clarify

7:17

the case under New York State law. But

7:19

here is the concern I'm raising. I'm going to just

7:21

go into a little bit of detail, because this is

7:23

what's going to play out next week, is going word

7:25

by word through the statutes that

7:28

are the basis for this prosecution. You

7:30

have to first have a misdemeanor violation

7:34

of the falsifying business records. And to

7:36

prove that, you have to show

7:38

intent to defraud. And

7:41

there's a colloquial understanding of fraud,

7:43

but then the lawyers will

7:45

be arguing over what is the

7:47

fraud. And so the first problem here is

7:50

that the prosecutors keep talking about

7:52

election interference or election fraud.

7:55

There is no basis for election fraud

7:57

as the legal word in any of these cases.

8:00

steps here. So there is

8:02

just a timeline problem if what the prosecutors

8:04

are saying is that Donald Trump was trying

8:06

to defraud the public with

8:08

these documents, defraud the voters with these

8:10

documents, because none of these documents were

8:13

entered until 2017. You know, there

8:15

is a time-space continuum here on

8:18

this timeline. You can't defraud voters

8:20

with documents when

8:23

those voters are voting in November 2016

8:25

if those documents don't exist yet. So

8:27

the argument I was suggesting in my

8:29

New York Times essay... Yeah, this was

8:31

the op-ed that was skeptical of the

8:33

legal framework that the DA's office was

8:36

bringing to the case. That what the

8:38

crime of intent to defraud was, was

8:40

not the voters, but was of

8:42

state and federal enforcement authorities.

8:45

That is not an argument that

8:47

I heard them develop in

8:50

the courtroom. It's hinted at barely in some

8:52

of their filings, but I have

8:54

not seen any sign that they've addressed this

8:56

of who was the target to defraud. And

8:58

just to be clear, New York

9:00

state courts require under the statute intent

9:02

to defraud needs a target. They've never

9:04

applied it to the general public or

9:07

anything as broad as the

9:09

electorate. Okay, so this is a good

9:11

point. The fraud,

9:13

and again, the key of the case is

9:15

how the payments were presented in business documents.

9:17

You're making

9:22

the argument, does this happen after the election? That's

9:24

exactly right. The documents that weren't made

9:26

until 2017 could not possibly

9:28

have been executed in

9:31

a way that would have affected voters

9:33

in 2016. The

9:35

prosecution is not about

9:38

the hush money payments in themselves.

9:40

The prosecution is about falsified

9:42

documents. Prosecutors have

9:45

seemed to not connect it

9:47

here, is how the actual

9:49

documents were themselves and

9:52

intended to fraud. There was a way for

9:54

them to do it, but I don't think they did it.

9:57

Like without going too far into fan fiction, like how

9:59

do you think? They could have

10:01

made that connection because we did hear testimony

10:03

about conversations between then President Trump and Michael

10:05

Cohen about the payments and that got a

10:07

lot of focus this week. That's

10:10

right. But the prosecution is on the basis

10:12

of these documents. What I said

10:14

in my New York Times essay is that it's

10:17

not the crime, it's the coverup. So

10:19

the documents as a coverup

10:22

were intended to defraud state

10:25

and federal agencies, state and federal

10:27

investigators in the future, not the

10:29

voters. So

10:31

the prosecutors may have one

10:33

last chance in closing

10:36

arguments to clarify this

10:38

intent to defraud. They've

10:41

left a very big door open for

10:43

the defense to actually walk,

10:45

just do just what I did is

10:47

walk through the statute that is the

10:49

basis. This is not prosecuting

10:51

Trump for a hush money payment. This

10:54

is prosecuting Trump for the

10:56

making these false,

10:58

false documents. The intent

11:00

to defraud has to be based on those false

11:02

documents. I don't think they've

11:04

connected the false documents themselves to

11:08

a story of an intent to defraud yet. So

11:11

that is a very big thing to listen to in

11:13

closing arguments, which we are almost certainly going to get

11:15

next week. In

11:17

the meantime, the defense tried to poke

11:19

a lot of holes through Cohen's testimony

11:21

during cross examination. What was the main

11:24

focus of that, which I should say

11:26

is continuing into Monday? The

11:28

defense came ready to

11:30

do what we knew they were

11:33

going to do, which was discredit

11:35

Michael Cohen, discredit his testimony right

11:37

now, and his testimonies before Cohen

11:39

has a criminal record perjure, which

11:41

is lying on the stand, lying

11:44

in front of Congress during congressional

11:46

hearings, lying during

11:48

previous courtroom testimonies and

11:50

lying during other pleas. And

11:53

so all of that was

11:56

dirty laundry that was already to

11:58

be aired, had already been and

12:00

was really confronted over the last few days.

12:03

And in that process, we got

12:05

into only a few

12:07

of the actual key arguments that

12:09

the prosecution was making in so

12:11

far. One was a

12:14

reference to a one minute and

12:16

36 second phone call that the

12:18

prosecution brought up on Tuesday. During

12:20

this phone call Cohen says that

12:23

he directly spoke with Trump about

12:25

quote the Stormy Daniels situation. Now

12:27

the defense, after laying out you

12:29

know hours of confronting Cohen's

12:32

own history of just not being truthful

12:35

on the stand, questioned whether

12:37

that was actually what was

12:39

talked about in that one minute and 36

12:41

second phone call. And it sounds really

12:44

minor but we spent a lot of time talking

12:46

about this phone call and whether

12:48

or not he was talking about a

12:50

completely different subject which at that time

12:52

Cohen had been receiving harassing phone calls.

12:55

And the phone call wasn't with Trump,

12:57

it was with Trump's bodyguard. Cohen

13:00

maintains that he called Trump's bodyguard,

13:02

talked about the harassing calls and

13:04

also in that time period asked

13:06

to be passed the phone on

13:09

to Trump and you know made an

13:11

acknowledgement about the Stormy Daniels situation and

13:13

that was it. But Todd

13:16

Blanche, Trump's lawyer, really focused on that

13:18

one minute and 36 seconds just cast

13:20

doubt on like do you really remember

13:22

what happened in that one phone call?

13:26

Jed did that stick out to you? Yeah

13:28

it did. When I read reports of it it

13:31

was a moment. It just seems like

13:33

after a while you know the jury has been sitting

13:35

there for a long time there were lots of reports

13:38

that the jurors were nodding through a lot of Cohen's

13:40

testimony. I think

13:43

this is sort of you know day

13:46

to day detail. It seems to me

13:48

that there's if the jurors

13:50

wanted to believe Cohen they've got plenty of reason

13:52

to. I don't think

13:54

this is going to probably affect the jury

13:57

in any significant way. Are there

13:59

diminished returns? There's an exceptionally long cases

14:01

like this. This wasn't that long. There

14:03

are lots of cases. I mean this

14:05

upcoming cases if they ever happened, classified

14:07

documents and respect their losses. Trials the

14:09

go on longer than this. But there's

14:12

a I think of a second problem

14:14

that I just want to identify which

14:16

is earth, the clarity of intense and

14:18

I think this is something that I

14:20

was imagining that the prosecutors could elicit

14:22

from Cohen and it doesn't really sound

14:24

like they did. One of the key

14:26

lines that Cohen testified about was the

14:28

Trump wanted to make. This go away

14:30

and it seemed like a lot of

14:33

people have interpreted the make This Go

14:35

Away as as Trump's intense related the

14:37

campaign in the prosecutors need to show

14:40

more than that. I think they need

14:42

to so more than just that it

14:44

is was campaign related. They have to

14:47

prove a crime that was being covered

14:49

up by these documents and under Federal

14:51

Election law to make this a crime.

14:54

Or they have to prove that Trump

14:56

and knowingly and willfully. Violated.

14:58

The Federal Election Campaign Act and

15:00

I don't think that anything that

15:03

Cohen said showed that level of

15:05

knowledge or willfulness. This is different

15:07

from knowing that it was campaign

15:09

related. They also have to prove

15:11

that he knew it was a

15:13

violation of the Federal Election Campaign

15:16

exploit. Beyond a reasonable doubt, And

15:19

given what Judge Marshawn has said

15:21

earlier about the proof of this

15:23

case it bit they have to

15:25

show criminal conduct so there are

15:27

very. Technical wrinkles that the prosecutors

15:30

could to get in this case

15:32

with out intense, but I'd be

15:35

skeptical about whether that would

15:37

either stand up from Judge

15:39

Merson at the stage and

15:41

jury instructions, or whether that would

15:43

be upheld on appeal. Certain.

15:45

Amount of the prosecution's our

15:48

side took up for four

15:50

weeks. And. i will

15:52

bleed a little into monday it

15:54

seems like ah the defense has

15:56

indicated that that their presentation might

15:58

be very very They might call

16:01

one witness such as a handful of

16:03

witnesses. What do we know about what

16:05

the defense is going to be doing

16:07

next week? Not a

16:09

whole lot. They have said that they're still deliberating

16:11

what it is that they're going to do, but

16:13

they have said that it won't take long. That's

16:16

why Judge Juan Marzhan said that closing statements

16:18

could come as soon as Tuesday, because

16:20

even if we get through Cohen Monday morning,

16:22

the defense vowed to be pretty

16:25

short. We know that

16:27

there might be some sort of expert

16:29

witness brought forward, if they do, in

16:31

any way. That could be

16:33

on Monday. And still

16:35

up in the air whether or not

16:38

Donald Trump himself would testify. At the

16:40

very beginning of this trial, he vowed

16:42

that he would. But that was before

16:44

prosecutors won the right to question him

16:47

about a lot of his other legal

16:49

troubles and particularly other trials in New

16:51

York City, which would

16:54

paint him in also very poor

16:56

light and would probably not be

16:58

beneficial for him to testify himself.

17:01

So who's to say in that front,

17:03

but it does seem like it will be quick

17:05

regardless. Jed, what are the

17:07

legal pros and cons of Trump testifying? There's

17:10

legal pros and cons, and then there's just knowing

17:12

who the witness is. There's

17:15

no way that the defense counsel wants

17:17

to put Trump on the stand because

17:19

he's so unpredictable. At this

17:21

point, I think they

17:23

probably see that there are sufficient

17:25

gaps in the prosecutor's case, and

17:28

putting Trump on the stand could only give

17:30

prosecutors the chance to close those gaps. There

17:33

are many reasons, good reasons, not to put Trump

17:35

on the stand. Last question for both of you.

17:37

If you could get inside the brains of these

17:40

jurors, what's the first thing you would want to know?

17:42

Ximena, I'll start with you. How

17:45

they're keeping track of everything, that is

17:47

just what I want to know. Because

17:49

even in the courtroom in the overflow

17:51

room amongst us journalists that have been

17:53

keeping a lot of notes, even journalists

17:55

more experienced than I that have been

17:57

tracking All these cases. The

18:00

last eight years and times the timeline

18:02

gets a little jumbled and a little

18:04

confusing and you know I wanna know

18:06

how people who have not been tracking

18:08

this at all and might be hearing

18:11

about it for the absolute first time

18:13

with are digesting this and keeping track

18:15

of the time ones and the characters

18:17

that at this point we sometimes is

18:19

referred to by first name on the

18:21

stand. Jed. Same

18:23

question to you: a grad to do

18:25

the magic power to get inside. The

18:28

jurors heard what are you going to

18:30

use of forests and this is less

18:32

about my law background and just maybe

18:34

more but my interest in psychology. I'm

18:36

interested in what is yours, that about

18:38

sex and privacy. Oh I. I think

18:40

the strategy here was to use a

18:42

Stormy Daniels and those details as a

18:44

way of scandalized thing and and and

18:46

and showing how damaging this testimony could

18:49

have been. That may be what you

18:51

know of many Americans. Think about. This

18:53

case, I think it's many New Yorkers

18:55

who are on this Juri and we

18:57

have no way of knowing that from

18:59

I think the questionnaires but you know

19:01

I think there's also reaction May be

19:04

going back to Bill Clinton and Monica

19:06

Lewinsky about the importance of privacy of

19:08

sex was and and many Manhattanites care

19:10

a lot about that. There's a possibility

19:12

the some zero thought it was is

19:14

way too much and Stormy Daniels testimony

19:17

they have backfired with them and if

19:19

they think that politicians have a right

19:21

to I like other Americans, To engage

19:23

in non disclosure agreements to protect their

19:25

privacy, some of them is still be

19:28

wondering what was the crime here in

19:30

his business Documents: Do voters have a

19:32

right to hear this? Or do politicians

19:34

have the rights to privacy like all

19:37

other Americans do? I don't know what

19:39

the right answer is, but I think

19:41

that might determine more about this results

19:43

than any legal argument. With. All.

19:46

Those jurors will be deliberating pretty soon and

19:48

we will Will will talk about it when

19:51

they reach a decision. Or for now though,

19:53

Boston University Law Professor Judge Sediment thanks again

19:55

for joining us. Thanks for having me. And.

19:58

Take you to Npr Political. Thank you,

20:00

Scott. We'll

20:02

be back next week with another episode of

20:05

Trump's Trials. Thanks to our supporters

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Podcasts. This show is

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20:29

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