Legal AF by MeidasTouch - Trump Lawyers' 'MISSING WITNESS" to Play KEY Role in Closing?!

Episode Date: May 28, 2024

Trump’s lawyers will mention the “missing witness” of the disgraced Trump CFO Allen Weisselberg so much in closing argument to the jury, that we could make it into a drinking game. Michael Popok explains how both the prosecution and defense will try to use Allen Weisselberg’s participation in the criminal conspiracy to their unique advantage, and why the jury instructions won’t help the jury sort it out. This is sponsored by BetterHelp. Give online therapy a try at https://BetterHelp.com/LEGALAF today to get 10% off your first month and get on your way to being your best self! Visit https://meidastouch.com for more! Join us on Patreon: https://patreon.com/legalaf Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Learn more about your ad choices. Visit megaphone.fm/adchoices

This is Michael Popak, Legal AF. We've got a missing witness and a missing chair at the Donald Trump trial. And I'm gonna tell you what it means, what the defense is gonna try to do about it, whether the missing witness rule as an instruction, jury instruction even applies. And I'm gonna do it all around

and center it all around Alan Weisselberg, twice disgraced convicted felon, chief financial officer, money man for Donald Trump for over 50 years and his father even before that. Alan Weisselberg, who knows where all the bodies are buried, who handled all the money and transfers of money to Michael Cohen and the repayment to Michael Cohen for paying off Stormy Daniels through a straw man,

fake LLC did not testify in the six weeks of trial for Donald Trump. He wasn't one of the 20. He wasn't called by the prosecution and he wasn't called by the defense either. Remember that point when I get to the missing witness rule and whether it applies in this particular case. Donald Trump didn't want to call him either. Now they talked a lot about Allen Weisselberg

during the trial. Michael Cohen talked a lot about Allen Weisselberg. David Pecker talked a bit about Allen Weisselberg during the trial. Michael Cohen talked a lot about Allen Weisselberg. David Pecker talked a bit about Allen Weisselberg. Why? Because all money flowed through Allen Weisselberg for Donald Trump. Not behind Donald Trump's back. Not as a rogue CFO,

cut in checks Donald Trump didn't know about, but with Donald Trump's participation, with his direction. That is the testimony. Now a key event happened involving Alan Weisselberg. Jeff McConney, who did testify, was the financial controller who reported to Alan Weisselberg, and he testified on behalf of the prosecution. I mean, it's obvious the prosecution wants to get by and get this prosecution completed and a conviction of Donald Trump with a Cohen testimony combined

with a McConnie testimony backed by a Pecker testimony. That's how they want to do it. And they want to avoid Allen Weisselberg. Why? Because Allen Weisselberg lied twice under oath, one time convicted and the second time he pled guilty. Two years ago when the Manhattan DA, same prosecutors brought a tax fraud and tax and business record fraud case against Weisselberg and Donald Trump, or at least the Trump organization entities, they got a deal, some sort of deal with Alan Weisselberg where he did testify but he had a deal to serve five months at Rikers Island for his own tax fraud and his role in the tax business record fraud part of the case. He testified, but he wasn't very convincing. He tried to take the blame. He tried to say Donald Trump didn't have anything to do with the tax fraud or

the business record fraud, all of that. The jury didn't buy it. Jerry convicted Donald Trump and his Trump organization entities, two of them, of 17 counts of tax fraud and tax evasion. And off went Allen Weisselberg. Now Allen Weisselberg came back out and testified both for the New York Attorney General and for Donald Trump at the Attorney General case. How did that go? Not well. Allen Weisselberg lied under oath about his interaction with counterparties and third parties about the value of Donald Trump's assets, which was at the heart of that matter, and lied so badly, including to the investigators and to the Attorney General, that he got prosecuted after the case was over and Donald Trump got found for up to $465 million fraud judgment, which is still pending on appeal.

Manhattan DA, same office prosecuting Donald Trump now, turned around and had to prosecute Allen Weisselberg. He was so dead to rights that his lawyer cut a deal with Allen Weisselberg to plead guilty and the guy's now back in Rikers Island. Follow that? But he's an important witness and the guy's now back in Rikers Island. Follow that. But he's an important witness and he got mentioned a lot in front of the jury.

So you know the defense is gonna point to the empty chair of Allen Weisselberg and try to blame Allen Weisselberg for everything. They'll say Donald Trump didn't know about the legal expenses. Donald Trump didn't make the decision about the legal expenses. He didn't make the decision to masquerade

repayment to Michael Cohen for legal services that were never rendered as really the payment to Stormy Daniels. He didn't authorize that. He didn't authorize the creation of a limited liability liability company, a fake LLC corporation by Michael Cohen. That was, that was some combination of Michael Cohen with Allen Weisselberg. And you never heard from Allen Weisselberg. Allen Weisselberg is the true criminal here. And this case is about Donald Trump, not Allen Weisselberg. You know, some version of that.

By the way, that exact argument was tried in the tax case and 12 different jurors said, no, I don't think so. The Trump organization and all those entities are liable and we're not plotting this off on Allen Weisselberg. Now, Allen Weisselberg is important because Michael Cohen testified that the day before the inauguration, before Trump went off to become president

of the United States, there was a last meeting held in Trump Tower, a lot of meetings in Trump Tower in this case, but this meeting was Cohen, Weisselberg and Trump. And that's where Trump acknowledged that he had to repay this debt to Michael Cohen, the $130,000 that he had laid out through a home equity loan,

through a fake sham company to Stormy Daniels, it had to be repaid. And because Alan Weisselberg, according to Michael Cohen, mentioned that it needed to be listed as a legal expense, Donald Trump said, that sounds fine. So in other words, he was participant in the conspiracy to label this a legal expense, knowing that it wasn't. That's the fraud.

That's intent to defraud under the statute. That's relevant here. And then they also decided that Michael Cohen needed to not be hurt economically. And so he had to get more than $130,000 to pay for a bonus and to pay for his income taxes because that wasn't really income to him. That was really a repayment of an expense

related to Stormy Daniels. So they had to give him $420,000, $35,000 a month for a number of months until he got repaid. Michael Cohen says Trump said, that's a lot of money. Showing that he knew how much was being paid to Michael Cohen, knew that it was being falsely listed in the books and records of the Trump organization as a legal expense, then Allen Weisselberg came up with that

and Allen Weisselberg with Trump's direction made those payments and Michael Cohen lived up to his end of the bargain. He had already paid the money to Stormy Daniels and he submitted the phony invoices for legal services when all three of those participants in the Trump Tower meeting knew that those legal invoices were bogus basically, right? So the jury heard a lot about Allen Weisselberg in that one.

Just like they heard a lot about Michael Cohen, David Pecker, and Donald Trump in the Trump Tower conspiracy in which they came up with the Catch and Kill program to pay off people like Stormy Daniels for bad sex stories while Donald Trump was running for president. So we've heard a lot about Trump Tower as well.

But Allen Weisselberg is the elephant in the room, right? It's the missing witness. Now, prosecution obviously made a decision that Allen Weisenberg is a terrible witness. He's a liar. He's a genetic liar. He will take one for his boss, Donald Trump, to which he's owed another, I think, $750,000 in severance payments. And he's not going to help the prosecution. Wherever he can, he'll say, I did it. Trump didn't know about it. I listed it as illegal. I don't know if this is exactly what he sounds like, but I think it's pretty close. He didn't know I listed it as illegal expense. I listed it as illegal. I'm not a CPA, you know, just a bookkeeper, CFO guy. I wrote it

down and then, yeah, we overpaid Michael Cohen, but like, no, no, Trump never knew about that. I mean, some version of that. And then prosecution after interviewing and we're talking to them, we're like, no, no, let's use people that will tell the truth. Like Jeff McConnie, the controller, also an insider about money flow and Michael Cohen telling the truth now and David Pecker to support the story and other people. And that's how they decided to do it. But this is a little bit of a sticky wicket, a little bit of an Achilles heel for the prosecution case. And the defense is going to try to drive a truck through it. Where is Allen Weisselberg? We're going to make a drinking game. Every time the defense says Allen Weisselberg's name, take a shot. It's going to happen a lot.

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That's better H-E-L-P dot com slash legal AF. Now let's let me turn to the missing witness instruction. If if it applies and we're still waiting on the judge to make this decision, then the defense will ask that that was a witness that the prosecution should have brought, then that they didn't bring it, and that therefore there should be an adverse inference that whatever he was going to say was going to hurt the prosecution's case. But the problem is the defense, although they don't have a burden, they didn't call the witness either in their defense case. Now again,

we're not trying to shift the burdens. I get that the prosecution has the only burden in this case. It's the burden to prove beyond a reasonable doubt that Donald Trump committed those crimes, right? The crime of business record fraud with the intent to commit another crime, the predicate crime as we call it, which is either election interference under state or federal law, or it is election interference under state or federal law, or it is a tax crime. Those are really the two buckets

that the jury has to find that second crime to make it a felony. So they didn't call them either though, the defense. So the judge is gonna have to struggle with, am I gonna give this, that would be a bad moment for the prosecution if the judge agrees to give the missing witness instruction. Because I don't really see based on the elements

of what's required for missing witness that Allen Weisselberg fits the bill. You know, I don't think you have to call a witness that is twice convicted of perjury to put him on the stand and allow the burden shifting of you can make an adverse inference that he'll hurt the prosecution. No crap. I mean, he's an inveterate liar. It's obvious. So I don't think the missing witness instruction comes in at all, but there is this missing witness, big M, big W,

that the defense will continue to use. Where's Allen Weisselberg? He is truly, it's like saying, you know, this is the reasonable doubt. Maybe it was Allen Weisselberg that made these decisions without Donald Trump's knowledge about, and you'd have to believe Michael Cohen, and Michael Cohen can't be believed.

He doesn't know whether he's coming or going. And therefore, since you don't have Allen Weisselberg and you have an unbelievable Michael Cohen that can't be believed, you have no evidence that Donald Trump did it. And you have more evidence that Allen Weisselberg likely did it. Therefore you have reasonable doubt

and you can't convict Donald Trump. That's what they're gonna shoot for. They're trying to conjure up reasonable doubt and try to get one juror or more to agree. If they get more than one juror and they get the unanimous jury to go, could have been Allen Weisselberg, then he gets acquitted. I don't see that happening.

But if they get a couple of people, I don't know if it's the lawyers on the jury, but couple of people on there, it's a smart jury, who decide to kind of get inside their heads and like, I don't know if it's the lawyers on the jury, but a couple of people on there, it's a smart jury, who decide to kind of get inside their heads. They're like, I don't know. I don't know, why didn't we hear from Alan Weisberg? Now, frankly, a lot of those New Yorkers know why Alan Weisberg's not there.

I mean, if you just follow the local news in New York, there's a lot of coverage about Alan Weisberg. I'd be shocked if a handful of them don't know what happened and they can sort of share with the rest of the jury. They're supposed to apply the facts that are developed in the courtroom. But there was a lot of discussion about Allen Weisselberg. So if somebody on that jury in deliberation says,

hey, where is Allen Weisselberg? I'm sure somebody else on the jury will say, I think he's at Rikers Island because he lied again in the other case, some version of that. So I think that kind of gets quickly dispatched, but the defense is going to lean in and lean on Allen Weisselberg as much as they can. Again, remember the drinking game when we do our further reports. So I think we've talked about the missing witness rule to death. It's not going to happen. That instruction is not going to

apply. But Allen Weisselberg is really a slim read. It's the only life preserver that Donald Trump is clinging onto to try to save himself and get a hung jury. Now, why does he want a hung jury that doesn't make a ruling at all? Because it's another delay. It means the case would have to be retried like six months from now after the election. And if you and I both believe, and our audience believes that it's important,

right, wrong, or indifferent, exoneration or conviction, that the American people know whether they're voting for a felon or not, then we need that trial before November 5. And right now, at the rate we're going, it's the only trial that's gonna happen before November 5. Cannon Mar-a-Lago, not happening. May never happen at the rate that she's going. It's certainly not going to happen over the rest of the summer.

We're still waiting, tick, tick, tick, for the very late Supreme Court bus to arrive, containing a bunch of decisions, including the one on immunity. Even if they do it on the last day, because they already did it on the last, they did the oral argument on immunity Supreme Court on the last day that could possibly do it in April. That was the last oral argument last session. And now we're still here almost in June and we're still waiting. Now it won't go beyond June, but in the next day or so, maybe within the next 10 days, we're going to get a ruling from the United States Supreme Court. And if they send it back to Judge Chutkin with direction about how to handle the next, within the next 10 days, we're going to get a ruling from the United States Supreme Court. And if they send it back to Judge Chutkin with direction about how to handle the case, there's a chance she could get that trial up and

running in the next 90 days. But we're already June. That means September, a trial starts. I mean, it could happen, but it's getting increasingly unlikely at the rate that they're not ruling, helping Donald Trump. Delay, delay, delay. That's what we're watching here on Legal AF and on the Midas Touch Network. We sit at the intersection of law and politics, so you don't have to join me on Wednesdays and Saturdays

at 8 p.m. Eastern time on a podcast we call Legal AF. Now you know why we call it that. Wednesdays, I do it with Karen Freeman at Knitfellow. Saturdays with Ben Misalas. And then an hourly, I don't know, hourly hot takes like this one, right here, Midas Touch Network. And then slide over to my work, Midas Touch as a contributor.

Go under YouTube, Midas Touch, Michael Popok, contributor and playlists. So until my next hot take, until my next Legal AF, this is Michael Popok reporting. Heary, heary, Legal AF Law Break is Michael Popak reporting.