Consider This from NPR - Here are three possible outcomes in the Trump hush money trial

Episode Date: May 24, 2024

We bring you a special episode of Trump's Trials. Host Scott Detrow speaks with former Deputy Assistant Attorney General Harry Litman. Although Litman is convinced the jury will convict Trump in the New York hush money trial he also gives a rundown of other possible outcomes in the case.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey, it's Scott Detrow, and I'm here to share the latest episode of another podcast I host, Trump's Trials, where we have been closely following the New York hush money case. We'll be back on Sunday with another episode of Consider This, and be sure to check out Trump's Trials wherever you listen to podcasts as we cover the closing days of the hush money trial and the eventual verdict. Early next week, 12 New Yorkers will deliberate whether to make a former and maybe future president a convicted felon. From NPR, this is Trump's Trials. I'm Scott Detrow. We love Trump!

This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. After six weeks, 22 witnesses, and 15 days of testimony, the prosecution and defense have rested their cases in former President Donald Trump's criminal trial centered around hush money payments and the financial documents that allegedly covered them up. Closing arguments come Tuesday, and they'll cover what each side sees as the highlight to their case. For the prosecution, that could be National Enquirer publisher David Pecker testifying about the catch-and-kill scheme he allegedly carried out

with Trump and Trump's lawyer and fixer, Michael Cohen. They'll likely remind the jury of Stormy Daniels' detailed description of the alleged sexual encounter with Trump in 2006. And finally, they'll likely emphasize to the jury the heart of Cohen's testimony, that Trump knowingly committed fraud to conceal Daniel's claims of an affair, details that he feared would tank his 2016 presidential campaign. The defense? Well, they'll have one major goal in their closing argument, to discredit Cohen enough so that at least one juror doubts Trump's guilt. After all that, 12 New Yorkers will decide whether or not Trump is guilty and will do so in the context of a presidential election where Trump

and President Joe Biden are neck and neck in the polls. So what's it all mean? How do we look at this trial as a whole now that it's almost over? We will talk about it after the break with legal expert Harry Littman. And joining us now is former Deputy Assistant Attorney General Harry Littman. Harry, welcome back to the show. Thanks, Scott. Good to be here. A lot to talk about with you. But first, you have seen a lot of this in person yourself, and I want to start with what it was like in the courtroom, what your main observations were, and if anything really surprised you about this trial, seeing it in person compared to what you thought it would be.

Yeah, it was really interesting to be there, and to me, it was sort of a combination of banal and historic. It's just an old dilapidated courtroom on the 15th floor, and it's fairly small, and it seems sort of normal. But then you look to your left and 30 feet away, and I'd never seen him before, is Trump himself, who really is visually arresting. And then the most important thing is being able to observe the jury. And I did that really as intently as I could. They're a pretty fastidious bunch, kind of close to the vest. They're aware, I think, of the gravity of the case.

And then I guess I would count this as a surprise, since what you're asking. I do think the Trump lawyers are competent overall, but they really, I thought, flubbed a lot of big moments. And as a former trial lawyer, I sat there continually surprised that they didn't comply with sort of axiomatic practices. They asked repeatedly, as one good example, they asked questions they didn't know the answer to, and they were sort of scattershot, and it wasn't clean and crisp And that that contrast was apparent in some of the big witnesses with the DA that did that did do it by the book. You know, both sides have presented their cases now. We're waiting for closing arguments. How would you describe this trial so far, at least in three words, a strong prosecution narrative. And, uh, and if I had to do another three, it would be, I want to, I just want a fourth word prosecution narrative defense. No, I think what really is the most salient of what's going on, coming into closing, is that they've successfully told a tight story

that reinforces itself across all kinds of witnesses. And the defense, you know, you've got to play with the cards you're dealt, but they haven't done a counter-narrative. They're not required under the law but in my experience it's so much better to have a story a theory like you know and that's what an alibi is say or someone out there if you had to in a phrase capture what the defense closing is going to be or what their pitch to the jury is i think you'd be very hard pressed it It would be something like Michael Cohen's a liar, but that's just not enough to carry the day, I think, when there's such a strong story on the other side. I want to come back to your point that

you think the prosecution made a really strong case and told a really strong story in a moment, but we've really focused on the prosecution a lot strong story in a moment. But we've really focused on the prosecution a lot in this podcast because, you know, it had several, four plus weeks of witnesses. The defense came and went with its side before we could even tape our usual Saturday podcasts. When you think about the holes in the defense's arguments from your point of view, are you thinking about the fact that they only called two witnesses and one of those witnesses was pretty problematic on the stand? Or are you thinking more about how they cross-examined all of the witnesses throughout

the trial? Well, here's the main theme to me. In a normal case like this, even with a very prominent client, a prominent defense lawyer would say, sit down and shut up and let me handle this. We're in a different venue than you're familiar with. But by all accounts, Trump insisted on making key decisions, and they all seem really flawed to me. And so, for example, Dormy Daniels, their position is going to be that they didn't have sex at all. Totally unnecessary for the defense and such a heavy load to carry. Bob Costello, who they called. Why paying as close attention who Robert Costello was, what the point seemed to be of bringing him to, who at that point had taken over the Trump defense. And Cohen got the sense and the email traffic that we showed in court totally substantiated that Costello was playing a double game where he was trying to prevent Cohen from cooperating with authorities, which is straightforward obstruction.

But moreover, that's a kind of crappy lawyer, especially once Cohen is served a search warrant and law enforcement is looking at him. That's who he was for the prosecution, someone who shows that Trump is trying to keep Cohen from cooperating. For the defense, I think he's just a guy who Trump, in Trump's Manichean world, they're a loyalist and non-loyalist. He's still a loyal guy. And I think he wanted to use Costello to say, hey, Michael Cohen's a liar. So we've got closing arguments on Tuesday, and then there's jury instructions. And you and many others have said that jury instructions are particularly important in this case.

Can you explain why that is? Sure, and particularly tricky. So the falsifying business records, which most people understand is what it's about. There are, you know, 34 pieces of paper that stated things that aren't true, basically that they were paying Cohen for legal services rather than reimbursing him for hush money. That's a misdemeanor under New York law. However, it becomes a felony and it's charged as a felony when you do it with the intent to further another crime. And where it gets really tricky here is that the DA has not specified what the other crime is, but rather given a menu of three possibilities. But each of the possibilities is imperfect. And it's just kind of a funky situation to tell the jury, but he will

tell them this. You don't have to agree. You know, the U4 can think it's felony A, U4B, and U4C. And also there's a very slippery intent standard where you don't have to complete the crime. It's not even beyond a reasonable doubt. It's just your intent in doing the underlying thing, which you show beyond a reasonable doubt, was to further this other crime. So it's something that either a jury could kind of get lost in and have trouble kind of holding on to, or more worrisome, I think, is there are a couple of lawyers on the jury and they could really take it super seriously and kind of, you know, walk it through to an endpoint and find in very legalistic reasons that they haven't quite made that case for the felony. It's a tricky issue to get the misdemeanor up to a felony. You have said that you think the prosecution made a pretty clear case, but why

isn't it a flaw in the case that they're making if they can't clearly say this was the initial crime? Something they could have done nine months ago when they brought the case is bottom line on this one rather than keeping it loose. There are strategic reasons they didn't. But when I say they did, you know, this isn't part of their charge, as it were, for persuading a jury of the evidence. What they've done a good job on is, you know, start from the beginning with a meeting in August 2015 and show that there was a real plan to scuttle bad stories about him, and then they come out. Just the soup-to-nuts, coherent story of always trying to protect his candidacy and Stormy Daniels in the wake of Access Hollywood being so clearly about that.

And I guess the other aspect they did very well in 20 different ways is show the implausibility that he would have done this unknowingly. So that's what I mean. That was what they had to prove to the jury. If there's a tricky legal issue there, that's part of the cards there. They're down. So again, we're waiting for closing arguments. We're waiting for jury instructions. We're waiting for a verdict. But just kind of thinking ahead a little bit, can we do a little bit of a decision tree? And can you tell us what happens next under each outcome? If he's found guilty, what happens next? When do we know what the sentence will be? What could the sentence be? It'll take a few months. There'll be a pre-sentence report. A lot of defendants don't get time for this kind of crime. But I think that given the aggravating factors and what Merchan will see is dishonesty, I expect it'll be a few months. That's all it would be. At that point, he would move Trump for bail pending appeal. Let me stay out while I take this up on appeal, which would take a couple of years or 18 months, and Merchan will grant it. So no chance, as I see it, he's actually incarcerated before November.

What about a hung jury? Is there a chance we could do this entire trial over again? You know, there is, and that I think the prosecution will want to do it, but the real question is, will they do it immediately before November? I don't think they will, mainly because even if you could do it logistically, I think for both Bragg and Merchan to bite off another sort of three months in the middle of elections and conventions and homestretch and be subject to that charge of really interfering with the election the way Trump puts it, I think they will not want to own. So I think they will retry it, but not until after the election. And of course, once the election happens, all bets are off. And then a not guilty verdict, obviously, that would have enormous political implications

that we would talk about. But legally, does anything happen next? Or is that it? Trump walks out of the courtroom and that's it? Yeah, legally, it's a double jeopardy clause for, you know, you are a free person. My concern or my observation is he might take a hung jury and essentially play it as a victory, and then it'll be a war of words in the media. It shouldn't play that way, but it easily could. But an acquittal, the chances of which I put at zero, would in fact be the absolute end of the line, and that's the guarantee of the Constitution. Taking of other high-profile trials of my lifetime, and I can't forget the fact that O.J. Simpson's jury took about four hours to reach a verdict. Do you have a sense of how long

deliberations could take for a case like this? So to me, you wouldn't expect anything until end of day Thursday, say, and that would be quick. Friday afternoon to me is the sort of pivot point where one would expect, you know, that would be the sort of over-under for me when you get a verdict. And even if it went into the next week, I don't think you'd be biting your nails and saying this is a hung jury until, say, Monday or Tuesday. But if I'm betting just one time, it would be Friday afternoon. Harry Littman, first person observer to former President Trump's trial over the past six weeks and legal expert, thanks so much for joining us again. A pleasure to be there and a pleasure to be here.

We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple podcasts. This show is produced by Tyler Bartleman, edited by Adam Rainey, Krishna Dev Kalamar and Steve Drummond. Our executive producers are Beth Donovan and Sam Yenigan. Eric Maripoti is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR.