Legal AF by MeidasTouch - Trump has WORST DAY in Court Yet as Jack Smith gets CLOSER

Episode Date: May 4, 2023

The midweek edition of the top rated legal and political podcast Legal AF is back for another hard-hitting look at the most consequential developments at the intersection of law and politics. On this special midweek’s edition, anchors national trial attorney Michael Popok and former top Manhattan DA prosecutor Karen Friedman Agnifilo discuss: 1. Developments in the E Jean Carroll case against Trump, including Trump’s motion for mistrial and failure to appear in court; 2. Updates in the Manhattan DA’s prosecution of Trump, including whether the court will enter a gag order and limits on Trump’s ability to handle and comment on evidence; and 3. whether Jack Smith has already made certain charging/indictment decisions in his federal criminal investigation of Trump, and so much more. DEALS FROM OUR SPONSORS! AURA FRAMES: Head to https://AURAframes.com/LEGALAF and use code LEGALAF to get up to $30-off plus free shipping on their best-selling frames! GREENCHEF: Head to https://GreenChef.com/LegalAF60 and use code LEGALAF60 to get 60% off and Free Shipping! HIGHLAND TITLES: Use the discount code LEGALAF to get 20% off at https://HighlandTitles.com SUPPORT THE SHOW: Shop LEGAL AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/meidastouch Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 American Psyop: https://pod.link/1652143101 Burn the Boats: https://pod.link/1485464343 Majority 54: https://pod.link/1309354521 Political Beatdown: https://pod.link/1669634407 Lights On with Jessica Denson: https://pod.link/1676844320 Learn more about your ad choices. Visit megaphone.fm/adchoices

Jack Smith continues to wrap up his 4 or so grand jury criminal investigations of Donald Trump and his inner circle to make his charging decision and recommendation which will come first, Mar-a-Lago, mail fraud conspiracy on fundraising or January 6 interference with election and the peaceful transfer of power. We have a new round of proceedings in Trump's 34 count criminal trial brought by the Manhattan DA's office, culminating in a hearing this week. Will Joe Takapina survive or be disqualified because of his former representation of Stormy Daniels, while the Manhattan DA's office prevailed in its efforts to keep discovery and evidence produced to the defense out of Trump's hands, and more importantly, out of his social media and rallying cries.

Finally, we update you on the E. Jean Carroll case against Donald Trump in the Southern District of New York Federal Court. We predicted a mistrial motion early on by the defense, and we got one. But what was the basis and what did the court do with it? And just how is her case and witnesses doing in the courtroom with a six male and three female jury through day five? Especially now the Trump has announced that he will not appear at all providing a permanent empty chair at trial to the plaintiff.

All this and so much more, so much more, we don't even know because we don't rehearse or script any of it. On the midweek edition of the leading legal and political podcast Legal a f on the Midas touch network with your midweek co-anchors and practicing trial lawyers Michael Pope-Pock and Karen Friedman Knifalo. Hi Karen. Hi. How are you? I'm doing great. You're at a remote location to be not named, but I'm glad you're with us. Thank you for doing that today And we can dive right in because we got a lot to talk about. How you doing, first of all? I'm doing great. This whole work from anywhere remote is just freed up so many people to be able

to do so much. Yeah, it used to be so different, right? Yeah. And now we're going to get in in the chat tonight. We're going to get of course comments about my painting behind me and your artwork in the room of your choice and all of that. But that's not why people come to legal a after talk about what you and I are wearing or not wearing. Where are my glasses? Where are yours? How big are they? All that. They come, they come for that, but they stay for the legal and political analysis and at that corner of law and politics that you and I occupy. And so let's get right in. Let's talk about your old office for those that are just joining as followers or listeners

or watchers, Karen Friedman, Nifola, former number two in the Manhattan DA's office. She would be running the prosecution of Donald Trump right now under Alvin Bragg, if she was Alvin Bragg's right hand person. So she's got that insider view for her long time prosecutor and she'll do it from that perspective. I often do it from a defense lawyer perspective having not been a prosecutor. And together we reach recommendations, conclusions and analysis. Sometimes we agree.

Sometimes we don't agree. The best part is when we don't agree respectfully. And we'll see what happens today. We don't, sometimes we don't agree. The best part is when we don't agree respectfully. And we'll see what happens today. We don't know. We don't practice. We don't rehearse. We'll dive right in. So let me set the stage and then I'll turn it over to you about what is going on with the motion practice in the Manhattan district attorney's 34 count criminal prosecution of Donald Trump for crimes related to business record fraud prosecution of Donald Trump for crimes related to business record fraud, tax evasion, and other things arising out of the hush money payoff of stormy Daniels, so that you wouldn't go public with the affairs is too romantic to the sex act that she participated in with

Donald Trump at some point while he was married and on the campaign trail. And we now have in front of Judge Mershon, who was the presiding judge over this case. It's a presiding judge over a lot of cases involving Donald Trump. He was also the presiding judge as our regular listeners and followers know on the 17 count conviction of all things Trump organization for tax fraud, many of the same players and defense lawyers involved again, but we have two major issues. I want you to talk about with our with our with our fans here are listeners and followers.

One, the your old office brought a motion for protective order to stop Donald Trump from having direct access without babysitting supervision of his lawyers to the evidence that has been provided to the defense that's required for due process and other constitutional protections. They want him to be not left alone with the documents citing tomorrow, logo and his sticky fingers there. And they don't want him commenting on social media in public rallies about witnesses, about transcripts that are provided, about witness that's provided, the grand jury

transcript and the rest. Moving towards sort of a quasi-gag order thing that we'll talk about. And Rashon having to balance as a judge, first amendment rights of a presidential candidate against what the legitimate goals of the Manhattan DA. That's topic one, topic two is Joe Takapina. We're going to talk about, we have two segments that are going to be attached by Joe Takapina. Joe Takapina got a phone call apparently from Stormy Daniels at some point to when he was looking for when she was looking for representation. So there the bad DA is raised with the judge and the judge is holding an evidentiary hearing about whether Joe Tech Peena can continue as the lawyer for Donald Trump in this case

based on that interaction. And then we'll talk of course talk about Joe Tech Peena in the later segment about E. Jean Carroll. What is going on in Judge Mershans courtroom tomorrow, Karen? Well, let's talk a little bit about that protective order. So if you, so just really quick to update everybody on New York discovery rules and what that is and what that means is essentially New York

has what we call open file discovery, meaning your entire file minus a few things like work, attorney work product, but all documents related to a case have to be turned over to the defense in pretty short order right after a arrangement. It's about 45 days from the time of a arrangement. So, so a case like this is going to have mountains of evidence that will have to be turned over to the defense. And that's what we call discovery is all of that information. And if you recall when Donald Trump was

a rain before Judge Morshan, the prosecutor said that we are working on an agreed upon protective order to negotiate with the Trumpslers how we will manage this discovery because really what the interest of the court will be and the prosecution will be, is that this case will be tried in court not in the trial, not in the court of public opinion, which is what Donald Trump likes to do. And so in anticipation of that, because it could taint potential jurors, it could impact the case in ways that are inappropriate, the prosecutor said, oh, we're in the process

of working out a protective order. And we think we're going to be able to work that out with the defense. And I think if you remember, I said to order and we think we're going to be able to work that out with the defense. And I think if you remember, I said to you, oh, we're going to be back in court, way before the adjourn date of November, because there is no way they are going to agree, because Trump's lawyers do nothing but abstract, abstract, abstract. So that, to me, was ridiculous to even think that they would agree.

And sure enough, here we are. Here we are in a situation where the prosecutor is requesting a protective order that would mean, sure, Trump and your lawyers have access to everything. We want to turn everything over. But you can't, Trump, we don't trust you, all a Mara logo. So you don't get to look at it except when you're with

your lawyers. So they have to babysit you essentially. And on top of that, you can't use this or discuss it in the public realm. And this is not uncommon. In fact, my husband just tried a big case in the federal courts and the Eastern District involving a big financial fraud case. And they had such exactly this protective order. The defense was not permitted to, the defendant was not permitted to review the any discovery by the federal prosecutors except in the lawyer's office.

And it was, you know, a big challenge because it was during COVID and there was all these lockdowns. And so it was a huge logistical challenge, but it didn't matter. It's a very serious thing for the government. And so it is done in certain cases. And this is the type of case where it's going to be done.

And of course, who doesn't like this? The media organizations, they don't like it because they want to have access to the materials, right? Every lawyer, every armchair lawyer under the sun wants to try this case. And they want to analyze the documents and they want to, you know, try this case from their office and then comment on it. And obviously, again, that, that can impact and infect a criminal prosecution because there is no witness testimony

under oath on cross-examination. These are just documents out of context, but you will have every single lawyer, myself included and you included, will go through all of these documents with fine tooth common, we'll say, hey, what about this, What about this? Oh, my God, this looks terrible. How is this going to work out? And so

to and that will impact, you know, that that is essentially trying the case in the court of public opinion, and that will impact a potential future trial and a future, a future jury. And so a bunch of media organizations, including NBC, ABC everybody, they basically filed a motion asking the court not to limit the public availability and say that they oppose this protective order. And guess who signed this motion with the media organizations. Who? You are, you are my favorite former, no, the former guy, TFG. He signed it, of course, because he does, he wants to be able to try this in the court

of public opinion. I mean, because think about it, he will have access to this, so will his lawyers. So there's really one reason, one reason only for him to want this to go out in the public. It's because he wants to, he must to impact the future jury. To to that point, I mean, in their filings, and this was filed by Todd Blanche, the late arriving new crime, many lawyers that late arrived for Donald Trump. This one came in just before the arrangement that we covered, but a well-respected guy represented Manifort in the past successfully in front of the same office and on a matter in front of the same office. Susan

Neckless, who's a well-respected criminal defense lawyer in town? She was on the losing end of the 17 count criminal conviction by the jury that your old office brought against Donald Trump's organization, so that there you have that. And then Joe Takapino, you know, I always joke with is busy, you know, filling out his coloring book during most of these hearings, but seems to want to stay in the case. They're very public in their filings. They said that, well, the, the Manhattan DA's office gets to talk about things that happen in the grand jury, which I don't think is true. Calvin Brown, Alvin Brack gets to stand at a podium and talk about things, which is not true. Michael Cohen, he did one time, Michael Cohen gets to quote unquote, incessantly talk about everything.

And you'll you'll respond to that. Well, that one is true. And so why doesn't Donald Trump, who is the, and this is their words, not mine, the leading Republican candidate for president, I would have put it a different way, the leading candidate for the Republican nomination, but the leading Republican candidate for president, he has a First Amendment, right? A right that the judge acknowledged during the arrangement that he was going to have to balance first amendment rights because the issue of gag order sort of got touched on if

you remember Karen at the arrangement and the judge said, I'm not ready to gag anybody right now and I'm sensitive to the first amendment. And the way I read the motion from your old office is it's court sort of a quasi protective

order slash gag order because it is asking the judge to enter an order that Donald Trump cannot comment on the evidence that is being turned over in discovery to him. In the public domain, in social media, at his rallies and all the things we know, he's itching to do. It's a gag order. And that's going to be the hearing, believe on Thursday and we'll cover it off the weekend. So I'm sure you've been involved with plenty of high profile matters where the

judges had a way this, but this is as we often say when people say put him in jail, lock him up, why are they treating him any differently? Because he's the ex president of the United States and he's a current candidate for office. And so there are considerations that have to be weighed. How do you think this is going to play out? Knowing now both sides, knowing what both sides filed and the media, how do you think? What do you think the result should be with Judge Mershund? What it should be or what it will be. I think it should be, I think the prosecutor should win because I really do think it should be, I think the prosecutor should win because I really do think the sanctity of the criminal justice process and keeping this as a trial in court and not in the court of public

opinion is important. No matter what you think of Donald Trump, he's entitled to a fair trial and so is the government and so let the chips fall where they may. But for that reason, I think that's what they should do. And again, I think that there are many examples of cases where this type of protective order is in place. The trickier part of this, though, is the media. And the media has a first amendment right to access this information. That's the trickier question, and that's a harder bar, I think, to... It's much easier to say to Donald, to, I think, the defendant, and his, you know, the protective order vis-a-vis the defendant and his lawyers, because he does get to see all of this.

He does get to prepare for his own defense. I do think that is is an easier call. I think the call of the media having access is going to be a trickier one from Rashan. So we'll see. I mean, look, he closed the arrangement, right? He closed the arrangement and, you know, to a limited group of people and he kept it so there weren't any cameras. It wasn't live-streamed. It was you know print reporters who were allowed to be in there and And we didn't hear anything for like 45 minutes if you remember we were saying oh my god What's going on because an arrangement doesn't take this long?

You know, we knew something something was going on because an arraignment doesn't take this long. We knew something was going on in there. So he has so far balanced things and limited it to keep. So we'll see how he's going to figure out a way to balance this. He might, what he might do is, I don't know, he might, I don't know actually, I don't know, I don't know how, because every time I come up with a compromise, I argue with myself in my head. So I have a lot of people like that part. People like to hear the, somebody wrote on social media, we like when Karen takes contrary in positions on things. I'm trying to use myself.

I'm like taking a position in my head and then I'm arguing with myself in my head and I'm like, no, that's not going to work. We're sausage make here. I agree with you that this judge has been very thoughtful and ponderous about the decision making. He's trying to thread this needle and be even guiltilded and balanced and how he treats both sides. And as we reported, we were getting reporting from reporters in the room in real time,

but there was always a little bit of a delay. Then we had those Midas touch cameras, which Lord knows how the brothers figured out a way to get cameras down there about him his coming and going. But it's not just gonna, I agree with you. It's gonna be some compromised position. I don't think the Manhattan DA is going to get everything that they asked for.

Supervision of documents, yes. Some limitation on the commentary, yes. And how he, and how he, because he's also said, don't do things that incite civil disobedience or unrest. And he's worried about that too. And we see Donald Trump all the time telling his followers, his magap people to pick up pitchforks and torches and points them in a direction. There is the monster, go after the monster, and the monster being democracy and Democrats.

So he's sensitive to that. The judge has read everything. Manhattan DA did a good job of putting together a lot of the evidence of Trump's misconduct. What he will do if he gets this material judge is obvious. Here's what he's done in the past. The counter argument to that from necklace and Todd Blanche, if I read their papers correctly, let me just see if I had it, was he has a right, and this is the rub. This is where the judge is going to have to, as you said, be thoughtful as he's always

been about at the balance. They say he has a right to respond to the voting public, right, to respond and publicly defend himself against these charges. You know, we know there are things that defense lawyers will do, unless gagged, that will do about a case and talk and try to get away with as much as they can to defend in the public arena before they get into a jury and less the judge in the state court system, gags them, and this is the rub. But let's wrap up that.

Any other thoughts about what, the prediction on Mershon? And then we can talk about Takapena. Just one more thought, which is, this is a very tricky thing to execute if there are restrictions, because really a protective order on discovery means you can't show this document, right, or you can't show things to the public, right?

But he's going to just talk in his generalities. They don't have any evidence. I've seen all the evidence. They don't have anything on me. He's going to say things like that, or he's going to say, there's not one single, whatever he's going to say, or he's going to talk about it in generalities, I think, that is going to,

that the prosecutor is going to, or things that he'll say, well, I knew about that already. I had that already, or I read about that in Michael Cohen's book. So I didn't get that from, you know, this discovery. So I don't know what they're talking about. This is, you know, he's going to do it in a way the way he does everything that he still does it. And so I think it's going to be a very tricky thing to enforce no matter how they, how it's, how it's written. But I, this is the trick, this is going to be the trickiest part

of the whole trial in my opinion. Very, very, very fascinating observation on that. Let's do a quickie on Takapina. I framed it before we started and I'd like your comment on it. They're going to, Susan Hoffinger, who you know well, friend of yours from the office, filed the motion asking for a Gromberg inquiry. You'll talk about the Gromberg inquiry, which sounds like a, you know, a Ludlow book, the Gromberg inquiry about the relationship if any between Takapina and Stormy Daniels

when she was looking for counsel and how that impacts representation of Donald Trump. The judge has ordered Takapina to turn over all communications that he had with Stormy Daniels, any information that was shared, and any information that was shared between him and Trump about the contact he had with Stormy Daniels. Judge wants to know about that too. Talk about what is the Gromburg inquiry and how do you think that's going to play with this judge and Takapina?

Takapina, in or out? Yeah, so anyone who's ever watched a show on TV about lawyers and judges and trials, etc. You hear it, lawyers say, I can't represent this person, I have a conflict. The question is, what does that mean? It means you can't... There's this attorney client privilege, and when you represent someone, you can't, so there's this attorney client privilege and you when you represent someone, you can't then, so let's say I hire you as my attorney pop-off on something and I share my deepest darkest secrets with you as my lawyer because it's important

for the representation. You can't then go represent the opposing side and then use those deepest, darkest secrets of mine against me, nor can you say, oh, trust me, I won't, right? There's a conflict there. And there are ethical rules surrounding those conflicts. Some are not wavable even, you know, by the defendant who is Donald Trump right now because he's not the one who holds it, right? Stormy Daniels has it in this particular instance. So this is going to come down to a factional scenario, whether an attorney client relationship was established.

And if so, is he conflicted out of the case? And on the one hand, Takapena is saying, well, she called my office and someone from my office wrote certain things down in the computer. I never talked to her. But and then but then he goes on TV and is defending her. So he clearly had enough information and represented to the world that he was representing her. So I think he's gonna have a hard time saying saying that there was that there is not a conflict.

And I think he's out. That's my prediction. I think this is, you know, it's not because it would be one thing if it was in another matter, but it's in, it's in this case, right? He represented the victim in this case. So I think the Gromberg inquiry is, is really focused on if Trump, if Trump can, I never understood it. It's if Trump can continue to retain him

knowing about the representation, why isn't it just an ethical conflict and he's out? It is usually, I mean, usually these hearings are that, it's that, hey, you know, Trump, did you realize that your client might know information that could help you from representing Stormy Daniels, from the representation of Stormy Daniels, but he can't use that in your case. Are you okay with that?

Like, a hearing like this will spell out all the ways that this conflict could hurt Trump and make sure he's still okay with it. But that's really what happens in this type of hearing. But I don't know. I don't see the judge being okay with it here, but we'll see. We'll see what happens. Yeah, and whether for the Gromberg hearing to really be meaningful, whether Trump has to participate, which would be interesting if that were to happen, but we'll follow. I agree with you on your instincts. We're going to talk in the next segment about E. Jean Carroll and her case against Donald Trump,

which is already in full swing. Five full days, E. Jean Carroll has already testified as have at least two corroborating witnesses for her one in spectacular fashion. Yesterday we've got a motion for Miss Trial, and we'll talk about which we predicted would happen, even before Eugene Carroll was off the stand, brought by the defense.

And then we have an announcement that Donald Trump isn't even gonna bother to show up for his own trial. We'll talk about all of that next, but first the word from our sponsor. Do you take millions of photos like me only let them sit on your phone or get lost in your files? What if you could put all your photos,

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That's AURAFrames.com. Plus listeners can get a free shipping with code Legal AF at checkout. Thanks, Aura Frames, for sponsoring our podcast. And we're back. And thank you to Aura Frames for that. Let's talk about E. Jean Carroll. And the case, I know you and I have been following it closely.

Again, another case, I know people are frustrated, but another case, it's not televised. It will not be on television, as they say. Instead, we're getting good reporting from those that are in the room. And then we then apply our own magic of being practicing attorneys that, that try cases in courtrooms, just like this one, clicking the Southern District of New York federal court. And we talk about it from our perspective of what we think is happening in the room. Let me kind of frame it a little bit and I'll turn

it over to you, Karen, for what you've learned and kind of update where we were from last week and some assumptions that we made that may or may not have been accurate. Or, you know, we're, we're, we're, we're, we're, we have our big, big adult pants on. And if we're wrong about something, we're going to say we're wrong.

And if we're right about something, we're going to remind you that we were right. That's how this show operates. So let me start from where we are. We have E. Jean Carroll, who's already completed her testimony. And I thought did a masterful job. A, it was obvious that she's telling the truth that this is memories that are seared in her memory if she is tracking exactly what she has said without almost any deviation for the last number of years, almost dating back to 1996. We now have a date for this. Spring of 1996, we'll talk about the witness who actually dates this, the closest we've

ever heard, as happening in the evening on a Thursday night in spring of 1996 at the Woman's Department section, the Woman's store of Berkdorf Goodman's. I always forget when I talk about that department store, it's really two department stores, one across from the other, one's amends and the other is ladies. The Woman's department store is where La Jureia is obviously

and what transpired there. She not only did well in her direct examination about being attacked by Donald Trump in the dressing room and the specifics of how she was attacked, but she also did a masterful job in counter-punching during the cross examination to make better and new points in front of the jury. A jury that according to court watchers is riveted by everything involving aging carol in her witnesses, meaning they are focused on her, not on Joe Takapina, who's done a lot of the cross examination, but not all of the cross examination. We'll talk about the arrival of Perry Brandt, who I talked about in a hot take from the Midwest, all the way from Kansas City. They flew them in special to do one cross examination so far. Well, and we'll talk about how that went. These witnesses

because they're telling the truth are have also been amazingly prepared for their moment in the courtroom by the lawyers for E. Jean Carroll. You can tell because they are ready in the in the counter punching. First of all, they're smarter than the lawyers that are cross-examined. Let me put that on the record. Eging Carol, Lisa Burmbock, the famous author who testified in support of Eging Carol. We're gonna hear from Carol Martin,

a well-respected longtime newscaster here in New York. They're just smarter than the other people and they're telling the truth. They have an added combination. Or as I have choked on a hot tick, it's, it's, you know, the magic trick where the, the woman is sought in half by the magician. We are watching women sawing the defense in half in real time. All of them. We had a motion for mistrial because, how do I, how do I make the sound legit?

Because the judge has been mean to Joe Takapina. I mean, that's the best I can put it. He can't ask a properly formed question. He doesn't know how to properly cross examine. And then when the judge calls them out on it or reinforces something that the witness just said and tells Takapina to move on, that's prejudice. That's not prejudice. Okay. There's not prejudice.

There's no such thing as a perfect trial. You just get a fair trial. And so far, it's been exceedingly fair for Donald Trump who's decided not to come. Miss trial denied, we'll talk about the act of making a mistrial motion. So early in the case, and what that indicates. And then we've got witnesses that came on later,

including Lisa Burmbock, an award-winning author, who is the first witness, Karen, who can definitively say that in real time, within five to seven minutes of the attack, E. Jean-Carol reported it to a friend on the phone in Lisa Burmbock, who dates it also as being in spring of 1996 in the evening, which totally fits with E. Jean Carroll's testimony. And we'll talk about her testimony. And the announcement now, I don't want to hear your view, of the permanent empty chair. Donald Trump

is not coming through the doors of the courtroom. He's not going to appear to this jury. He's going to phone it in with deposition transcripts being read and videos being played. And that's going to be his defense in his case. So that's my breathless presentation. Talk about where you were last week, where you are this week, in what you've read about the case and your predictions

about how the plaintiff is doing and how the defense is doing. Yeah, so last Wednesday a week ago, I think that was the first day E.G. and Carol testified on in trial. And I made the mistake of relying on Twitter recitations of the testimony, because we didn't have access to the transcripts yet, right? It was something that a mistake that I made, and will not make again, because obviously, it's Twitter limits you to a certain number of characters

and you don't get the full story, and it's only whoever the person is wants to say. So I have since been able to obtain the transcripts and actually read them and I will tell you even though you don't get to see a person's face or see their demeanor or hear their tone I mean boy did that did the demeanor and tone and context come through with those transcripts? And, you know, I have to say, I find it's a total headscratcher, but I guess in a good way for E. Jean Carroll. Why would they have put Joe Tak made Joe Tak a pena be the person cross examining E. Jean

Carroll? I mean, he is just, you know, a bull, first of all, he's a bull in a china shop, but second of all, he's just, he's almost like an exhibit. He's like exhibit A of why women don't come forward and report that they've been sexually assaulted because number one, you're going to be attacked by somebody like him. You're going to be accused of lying. You're going to be asked questions like, why didn't you scream and you didn't report it to the police. And it's like being violated a second time. And it's just a horrible experience. And I really think it is going to set back sexual assault victims and survivors in a way,

because anyone who reads that and reads what happened there, especially with someone like Donald Trump, who's obviously much more powerful than E. Jean Carroll by virtue of who he is, not just his size and that he's he is, not just his size and that he's a man, but just his power and influence. I mean, who would go come forward? It's got to be a really hard decision to do because you're putting your whole life out there and you're going to be questioned about all the things you did and didn't do. You know, why did you go into the dressing room with him? Why were you giggling? You know, really he was able to pull your tights down and, and, you know, it's just,

I don't know, it was just kind of sickening actually reading it. And I felt terrible for E. Jean Carroll, but frankly, she seemed to hold her own. I mean, she really did hold her own. And I give her so much credit for her strength and composure and her ability to reply and respond to his offensive questions and his really offensive cross examination. And frankly, if that's how I felt, I can't imagine how the jury must feel. So, because mine was just a reading of the cold words, but someone's seeing her face and seeing her demeanor and watching her and watching him, I think that that is just not going to bowed well

for Trump, which makes me happy, obviously. So, I think she's doing really well. I think she's holding up. I hope she's, of course, I always worry emotionally. I just can't imagine how that must have felt. Just being on the stand for three full days and having to describe an excruciating detail, this horrific thing that happened to her.

And then to be questioned the way she was questioned. They even said something to her, the way she was questioned. He even said something to her, but you call the police, you know how to call the police, you call the police once when kids vandalized a mailbox. And he just, he clearly doesn't know the shame that so many women place on themselves when they are victims of sexual assault. There is a shame, and especially she did a good job describing that,

this was way before the Me Too movement. This was in the early 90s and she's comes from a different generation where people like her didn't go to the police if something like this happened. It really was a different time and I think she did a really good job explaining that. But it's just she blamed herself like so many women do. You know, what did I do to lead him on? What did I, you know, you go through all this mental machinations about, you know, how come I did, all the what ifs I didn't do?

And you know, she was just awful, you know, she was so upset. She was, you know, and then the witness that testified next, that was really powerful as well, was Lisa Burmbach, who you mentioned. She was allowed to testify because there's a legal concept that in criminal cases as well, it's called a prompt outcry witness. So that's it's it's it's an exception to the hearsay rule because normally an out-of-quart statement which is offered for the truth of the matter asserted which is what was done here is normally not allowed in in court because it's hearsay but this is an exception to hearsay because really it's not offered for the truth. It's offered for the fact that it was said and

there it's it's because you know she's people explain why they don't go to law enforcement why they don't go to the police etc. But typically you tell your best friend or you would tell a friend and if you did do that close in time That's consistent with it actually having happened. So she was her prompt outcry witness and she said that the way she described aging Carol that she sounded breathless, she was hyperventilating, she was emotional. Her voice was all sorts of different things and she just kept saying he pulled down my tights, he pulled down my tights, she was clearly still processing it because it happened to her. And you know, Bernbach remembers this because she said she was feeding her young kids. She was in the kitchen at the time and she walked out of the room to have to whisper to

E.G. and he said, you know, E.G. and he raped you. Go to the police. And E.G. and said, you know, I'm not going to the police and don't ever speak of this again. You know, I don't ever want to talk about this again. You know, this is not something that we talked about back then. You bury it and you go forward, you know. And anyway, I just thought that was the way she testified about that. I mean, there is no doubt in this jury's mind, in minds that this actually happened in an empty chair. He doesn't even show up for it. So there is no other side. There's only, this is not a he said, she said.

This is a she said. And so the jury is going to, I think, have no other option in a good way, but to find for the plaintiff. And then there was Jessica Leeds, who testified yesterday. She's now 81 years old, you know, and I would just love to see her testimony.

She was talking about how Trump, you know, they assaulted her on Narapalene, sitting in first class in the late 70s. How he was roping her out of the blue. There was no conversation. There was no anything he just turns around and starts to grab her breasts. I think it was 80s by the way, but yes.

Was it the 80s? I don't know why I thought that happened in the late 80s. She's in her 80s, but it was 80s. Okay. So anyway, but she was describing how he had like 40 zillion hands. And it was just very consistent with his access Hollywood statement that you can just do anything to a woman without even asking. And that's just his mindset.

That's what he bragged about doing on that tape in 2016. That's what he did to misleads. And clearly, that's what he did to E. Jane Carroll. So I think that, you know, I think that this trial is going to result in a judgment for E. Jane Carroll without a doubt and it should. And Trump will forever be branded a rapist,

even though it's civil, it's still a rape. But, you know, what this will do to him, if anything, and his followers and his standing is, you know, I have no idea your guess is good as anybody's, but I'm not worried about, yeah, I'm not worried about his followers because no, I'm hoping it'll, yeah, but I'm hoping it'll, it'll change things. I think that, yeah, go on. No, no, no, that's my point. My point is his followers are long gone. You're aiming for the independence

and the women who have not made up their mind. It between the abortion, the abortion decision on his watch with his justices and his position and this. I mean, I don't, you know, if he lost by $7 million, which he did to Joe Biden, I don't know how he doesn't lose by nine million, I actually welcome him being the candidate on the other side. But let me just, I'll give you the two most powerful moments

for me so far in the trial that I think will sear in the minds of all the jurors, including the one that we've already identified as being somebody who gets all of his information from right wing podcasts. Still, there are facts that are being developed in that courtroom and law to which that has to be applied. And I think the rest of them will gang up on him and get to a unanimous jury, which is what's required for federal court and a civil side. Lisa Burmbock made it clear not only she dated this in a way that E.

Jean Carroll was like 95 or 96, but it happened in the evening during evening hours when there were very few people in Berkdorf Goodman to answer Joe Takapina's opening about how incredible and incredulous it is that in this department store, teeming with people, he was making it out to be Walmart in the grocery section during the day before Thanksgiving. And I agree with Joe that if that's where it happened, it would be a little bit odd.

But a lingerie department buried off the back on whatever floor in the woman's section, evening hours, where there's usually one or two women tops there to begin with. Yeah, that could have happened, Joe. And that's, and we have a date. And the former dressing room of that area. Yeah, exactly. And there's, by the way, I've gone shopping. You can't find a, you can't find a

salesperson in that section or any of those sections. So that goes out the window. So she dates it, but this is the powerful testimony to two things that, of course, happened that I think if they remember anything from the trial, it's going to be eging Carol saying in response to cross examination by a ham-fisted, man-splaining, insensitive, jota-capina, it doesn't matter whether I screamed, I was raped by your client. I'm paraphrasing, but that's powerful. And Lisa Burmbach reminding everybody, my friend tells the truth, and I'm telling the truth, and she wasn't attacked by the president of the United States. She was attacked by a real estate developer

who lout around town, who had a history of harassing women. That's the Donald Trump that attacked by friend. And Lisa went on to say, and I know Donald Trump, because just before the attack, I went down at his invitation to Mar-a-Lago. Just shows you how obsessed, as Sestuous, this level of celebrity is in New York where they hang out in a lanes, the old restaurant and people from writers and actors and sports heroes and developers and real estate people, they all know each other. She was at Mar-a-Lago doing an interview with him.

She's lucky she didn't get attacked like the one other witnesses were going to hear from Natasha Stoynff from People magazine when she was attacked doing a puff piece down in Mar-a-Lago on that marriage. So that was very powerful. He wasn't attacked by the president of the United States, like a statesman. So it attacked by a guy, you know, a foot loose guy in Manhattan. It was a loud, it was known for mistreating women. That's who attacked my friend. That was a very great comeback on her point. Why they used, for Jessica Leeds, the former stockbroker who testified

about her being groped by 70 billion hands of Donald Trump, which they tried to spin in the courtroom as he was trying to pick her up, which is crazy talk. Crazy talk. And gave her an easy opening to say, up, which is crazy talk, crazy talk. And gave her an easy opening to say, no, that's not what happened. He has sexually attacked me. She also said, got out on the stand that he ran into her again at a fundraiser

after that attack at another department store in New York. You think everything happens to department stores in Manhattan, but at Sacks, Fifth Avenue of all places where he went, he left his wife, went over to her and hurt testimony was said, Oh, I remember you, you're the seaworth. I met on the plane. She got to say that because it's true out loud in front of that jury. Then they ran the clip shows you how masterful the presentation of this case is of him at a rally

using the exact same language that he used against E. Jean Carroll to deny that happened. If I was going to do that, she's not my type or it would have been with better or whatever he said. And they ran that clip as well. And look at the sequencing because you and I are trial lawyers. People think it's just, I don't that clip as well. And look at the sequencing, because you and I are trial lawyers. People think it's just, I don't know, random selection. But you and I, when we do trials, trials, we sequence our witnesses in a way that we think will be most powerful. And so they're not even putting together, let's say, two witnesses who both were told

simultaneously about the event back to back from E. Jean Carroll. Because if you were going to do that, you'd do Lisa Bernbach and then you'd do Carol Martin, the newscaster who was friends with E. Jean Carroll who also heard contempt, but they didn't do that. They're breaking up those witnesses and they're putting in between other women who got attacked so that the jury under the science of recency, you know, primacy and recency, that you, they want to put these facts so the jury doesn't lose sight of them and spread them out and put in the middle other really bad facts against Donald Trump. So they took Lisa Bernbach, then they took Berkdorf Goodman, another executive for Berkdorf Goodman. Then they brought in Jessica Leeds, the woman on the plane who was attacked, and then Carol

Martin, and then psychologist, and then nothing on the other side, as you said, Karen. It'll be a series of playing video from his deposition, which the best he can do is, it was a hoax, it was a lie. I didn't do it. That wasn't me. After the jury has already heard seven or eight days of consistent evidence. He's allowed to put in his own deposition. Well, he's allowed to put counter in, counter in for what they present. So Robbie Kaplan's team was doing a masterful job. It's Mike Ferraira and Sean Crowley so far on his team and a third, I think a third lawyer for their team against Joe Takapita. Why? Here's another one, Karen. Why did they double down on Joe Takapina? He did

terrible against E. Jean Carroll and they used him to cross examine Jessica leads the woman attacked on the plane. I don't understand. Maybe they think this is effective. Maybe this is I mean think about it This is their worldview. This is this is Donald Trump's worldview. He doesn't respect women He thinks he can do whatever he wants sexually. He thinks he certainly doesn't believe in In women and consent and being able to say no. I mean, heat to him. That doesn't suit to him. The fact that Joe Takapino is saying all the things that he's saying. I bet he reads these transcripts and says, wow, he's right.

This is great. Because that's his worldview. But what he's missing and thank God for Eugen Carol's side of the case, what he's missing and thank God for eging Carol's side of the case what he's missing is Being in the room and watching how this is landing on the jury you and I when we present a case to a jury I am watching the body language of the jury and frankly I know whether I got him or I lost them relatively early on from body language and for things that they're doing I mean I once had a jury for the other side where a five of the jurors sat on one side, the left one juror by themselves and we knew, oh, something's up.

This jury's not getting along. But let me just, let me make this one point about the Trump. Trump, not being in the room is getting reports from his trial team at the end of the day and he's reading these self-selected things from friendly places like Newsmax or whatever. He's not getting because he's not there what's really going down the jury hates Joe Takapino for what I can for what I can into it in in in in that and is following credibly, E. Jean Carroll, he would make changes

if he knew about them, but he's not there, and that's on him. I don't know, I think he's egotistical enough to think, I'm not gonna, you know, whatever. This is how I wanted done period. And if, you know, and then if he loses, he'll just say, you know, it wasn't fair, it was rigged, you know, he's just, he's so he doesn't. Anyway, there's just something wrong with that man.

And so he wants things done his way. And then when it doesn't go his way, it's everybody else's fault, it was stolen, it was rigged, it was, you know, he's got a script. And he uses it no matter what the scenario. And so that's what he'll do here. It's prewritten. It's prewritten. The jury was racist or whatever. And then we'll have to see and we'll follow before we go to our next segment on Jack

Smith. We'll follow the continuing mystery of what is going on with Alina Habba who's just sitting there like some sort of prop at the council table, has not even got up to do anything. Even at the moment where I thought, okay, well, maybe she'll cross-examine Lisa Burmbock. That's not, no, Perry Brandt, the lawyer, they brought in 72 hours before the trial,

who knows nothing about the case. He's the custom cross-examiner. He, by the way, he did terrible. He did terrible. She counterpunched him mercilessly, senseless. I thought it was like, if I was a referee, it would have been a TKO knockout for that witness and still sits Alina Haba. You and I will follow that. And on the next segment, yeah, sorry, I didn't mean to interrupt. No, no, no, no, I was just going to say Michael Cohen said in the political beatdown that I caught, he said that Alina Haba asked him questions

in his deposition this week in front of the New York Attorney General, and he said she did a really good job. So that surprised me. I've never heard, yeah, I've never heard anyone say that. And I thought, well, okay, if she's able to at least somewhat competently ask questions, why isn't she your point?

Why isn't she doing the cross-examination of these women? Because they can just turn, you know, are coming across terribly. I can't speak from Michael Cohen, and I know he has taken the position that she didn't do a bad job. It is deposition that broke out in the New York Attorney General's civil-fraud case and called the witness there. I did read her transcript or the parts that were revealed in filed in the E. Jean Carroll case in the deposition of E. Jean Carroll. And I did not think that she did a very good job on that.

But we'll have to see. I'm not going to, you and I are not the master trial strategist for Donald Trump and let him fail on his own, on his own route. The next second, we're going to talk about somebody who is doing very, very well, who is Jack Smith, who's prosecuting Donald Trump and investigating him at least three or four grand juries down in Washington. But before we get there, let's have a word from a couple of our sponsors.

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with access to a dashboard where you can check out the webcams and the exact distance you are from your plot at any time. Just head to HighlandTitles.com and use code legalIF to get 20% off at checkout. And now back to the video. And we're back. So let's talk about Jack Smith. Everybody's favorite prosecutor. He's like Batman. You barely see him, but he's out there. In fact, ABC News and I'll post it on my Twitter did a very good job of describing the dozen or so prosecutors where they came from, that work with Jack Smith, where they came from, who he considers to be his right-hand

deputy, which is Tom Windom and the rest, for each of the juries. And I think that's very, very interesting. We won't cover it here. It's a little bit too much detail, but I will put it up on my, you know, the chats and I are in Twitter. Because there is a Jack Smith and he does have a team of federal prosecutors and investigators that since they have been appointed and even before that under Merrick Garland have been doing nothing other than, and you know this well, when you work on a big prosecution carrot, eating, sleeping, drinking from the moment they wake up in the morning till their

head hits the pillow on vacations with their family, all they are doing is focused in concentrated, especially when it comes to a case like this one of Donald Trump about Donald Trump every moment. And then every time he's social media posts and his kids attack people and prosecutors and FBI, all it does is piss everybody off and make them redouble their efforts to do the best job they can to bring this person to justice. That's my view. Jack Smith to update three or four grand juries. We talk about him a lot on legal AF for the people that are just joining us.

One is about Mar-a-Lago and the stolen and misappropriated documents and obstruction related to that and potential espionage act violations related to that. That one's about done and charging decisions should be coming any day now. The others deal with Jan 6th and everything leading into Jan 6th, the insurrection, the cleaning, the power and the interference with the election and the will of the people that'll Trump at the center of that conspiracy. Then we've got the fundraising grift using raising money, separating donors from their money on the back of a lie. A lie that Donald Trump knew or should have known was untrue, that the election was stolen

from him. So we have that one. And then sort of things related to all of that. And a whole really every, every White House, West Wing, chief of staff, deputy chief of staff, deputy, deputy chief of staff, communications director, aid, lawyer, you name it has been stripped of any privilege whatsoever, including in the most important way, the former vice president of the United States and have either testified, will testify or are targets and may not testify against Donald Trump.

And he and every day, there's a new person being stripped of privilege and the next day or days later being brought in before a grand jury. And this has gone on, you know, for like the last three to four months, without end, the newest one is one tiny layer right below Mark Meadows, chief of staff. And that stands Gavino, who has, he's the oldest, he's the longest serving eight to Donald Trump dating back to get this carrot. He was a caddy for Donald Trump. That was it. He was a caddy for Donald Trump. And he started as a caddy and ended up being the deputy chief of staff under Mark Meadows and the social media director. Basically, every time he saw something on Twitter, it was either Donald Trump or Dan Scavino.

Dan Scavino refused to testify to the Jan 6th Committee. They voted to hold him in contempt. The Department of Justice, as people will recall, made a prosecutorial discretionary decision not to prosecute Mark Meadows or Dan Scavino because of old DOJ Memos and guidelines about the executive privilege that we won't even go over for today But that hasn't stopped Jack Smith from stripping Dan Scavino of any executive privilege getting his phone

Reviewing all his text messages and emails and really every room that Mark Meadows was in reviewing all his text messages and emails. And really every room that Mark Meadows was in, every room, Dan Skaveno was close behind and he's gone in now and testified already. So we have that development. Talk about from a prosecutor standpoint, former prosecutor standpoint, Karen, what you make of Skaveno, are we gonna see Meadows?

Do we need Meadows to conclude these prosecutions? And where you think we are, if we're using a football field analogy, where are we in these prosecutions, especially the ones that would relate to the testimony of Pence and Scevino and the others? And how soon we're in May, how soon do you think we're going to see the charging recommendation from Jack Smith to Merrick Garland, which is the route it has to take for these various prosecutions? I wouldn't be surprised if the Mar-a-Lago one is already being reviewed. The documents one, if that recommendation is already gone to Merrick Garland, frankly. As far as the Mark Meadows dance Gavino,

the one you just talked about, that one seems to be at the finish line, right? Because Mike Pence testified in front of that grand jury, and he's sort of the top of the top, right? He's the first vice president in the history of this country to testify in a criminal grand jury, especially against a former president.

And so the question is, and you work your way up in the grand jury, typically. So that tells me we're at the end or near the end. And as you said, Dan Skivino is somebody who is really a key witness in all things, Donald Trump, because he's really a right-hand person. And so I think that that's going to wrap up a lot of information before the grand jury. And the question about Mark Meadows keeps coming up about whether or not he's going to be called to testify.

And I just have an opinion about it that is very particular. And that is, I don't think he will. And the reason I don't think he will is because I think he's a target. I think he's one of the people who on January 6th, you know, if you remember Cassidy Hutchinson's testimony before the January 6th committee, I mean, Mark Meadows is a Coke-spirited, right? He's in some ways as much of, as much, I shouldn should say he's as much, but he's he's definitely

potentially culpable as well. And so I think they have to make a decision. Are they going to charge him or not? I mean, and if they are going to charge him and they are a target, it's against DOJ policy to call a target to subpoena a target to a grand jury. Now this is a policy. It's entitled or it's found in 9-11.150. And it's a DOJ policy manual.

It's called subpoenaing targets of the investigation. And it says, grand jury may properly subpoena a subject or a target of an investigation and question the target about his or her involvement. Okay, so that is possible, right? But in the context of the case law that that this section cites, a subpoena may carry the appearance of unfairness. And because of the potential for misunderstanding in the grand jury, and because that's great,

before a known target is subpoena to testify before the grand jury, basically you have to get your supervisors, supervisors, permission, et cetera. And you know, Ben talked about giving derivative use immunity to Mark Meadows. And what that means is people call it use and fruit immunity, which means you can't use those statements against him or anything derived

from those statements at trial. And that is possible, but it's tricky, because so one way, for example, that they would do it is they would call him last so that there would be no chance that anything that was presented to the grand jury was derived from his statements, from his compelled statements, his immunized statements. So that's one way they could do it. But then you get into a situation,

a trial where you do have to prove that anything you are using against him was not derived from his statements. And so it's a little tricky. I think that it's questionable whether they would do that with meadows. Do they need meadows? One of the things that this policy says is in determining whether or not to approve a subpoena for a target, pay attention to these three things. How important is this testimony to the grand jury, right? Whether the substance of the testimony or other information could be provided by other witnesses.

And whether the questions the prosecutor and grand jurors intend to ask, is it protected by a privilege? And so, you know, it's not just a done deal that you can do it. And so, do they really need meadows in the grand jury? I don't know. So I just think it'll be interesting to see if they do, in fact, end up calling him, give him derivative use immunity, and end up charging him. So that's I think where we are with him. So yeah, you know,

you know, you do the wrap up. One way of saying that we're at the finish line. Yeah. Yeah. You know, I like co-anchoring two shows one on Wednesday with you and one on Saturday with Ben. Because on the Ben show, I can be told I'm half wrong. And on the Wednesday show, you can rehabilitate me and say, I may be right about meadows. Because I said on the Saturday show that I think

that Vice President Pence, former Vice President, Pence's testimony, was sort of the last witness to me, that signal that they were going to, as you outlined, they may already be making their charging recommendations to Merrick Garland in that area. And Ben said, what about meadows? I think meadows may. And then you and I had an offline chat about that where I totally deferred to you and the DOJ manual, which I love when we are able to cite something like that. We will see. And people are on the edge of their seat to see who's right. Karen better Michael. Yeah. the bottom line is being a prosecutor

is as much of a judgment call as anything else, right? These are all judgment calls. So, and we only have half information. You know, we only have what we, you know, the everything that we can glean from all the news reporting, et cetera. So, so for now. Well, and let me put it, and let me,

that's a very good point. So people understand, I think they do for where we come from We operate as legal commentators with a little bit of informational asymmetry We fill in that asymmetry picture it as a ball We get about half the ball or maybe three quarters we then dotted line the rest of the ball based on our experience, our judgment that has come from 30 plus years or 20 plus years experience of Ben's case of trial practice and what really happens in courtrooms, what really happens in prosecutors making decisions and defense

lawyer strategy and tactics and vice versa. That's how we fill in that. And then we bring that to you, hopefully in an entertaining way. But we could be wrong. So when we talk about stuff, it's our judgment and opinion based on facts and data points that have been developed for us for which we are providing commentary. That's the show. That's the DNA. That's the secret sauce of the show. And we're going to keep doing it.

Every week, twice a week, we curate what we think are the most important stories for you to know at the intersection of law and politics, that politically charged place that we like to talk about. And then Karen, Ben, and me do what we call hot takes. During the day, we saw you, you saw things you'll see six, seven, eight times a day, doing in 10 or 15 minute short bursts, what's going on at that real time moment, and some deeper analysis that we don't have time to do

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You can catch us on all the hot takes in between, in between these moments. And then a show of course that we do, the anchor show on Wednesday with Ben, Salis and me Karen final words from your Saturday with you and Ben Wednesdays. What did I what did I get a backwards? It's fine. So stays in the pod.

So I am off to have paella for dinner to give you a hint of where I am. Oh, that's so good. You're in the Bronx. Something like that. Well, we appreciate it. Listen, people are always giving kind of funny, but respectful comments in our social media about Ben, you need to take a nap. How do you do it? Popoq, these late night Karen. It's you guys never stop. We never have other anchors stepping in for each other and you know We're heading into vacation season So we're trying to take some additional time off

But we listen have microphone have air pods will travel and we try to jump on these things I'm taking a bit of a holiday later in the week But we're gonna find a way to get me back on the air, Karen back on the air when she's back from taking a well-earned break, mental break from all things political and legal. But, you know, that's our commitment to you on the Midas Touch Network that we're going to, as long as there's news to report in the legal and political sphere, we're going to be there to do it hourly, weekly, daily, and that's where we're at. So Karen, I look forward to seeing you,

not this coming Wednesday, but I'll catch you on the flip side on the following Wednesday, and then with Ben on this Saturday. It's Michael Popak, Karen Friedman, McNifelo, signing off for Legal AF. you