Pod Save America - Trump Trial: "Jail Is on the Table"

Episode Date: May 17, 2024

Jon, Dan, and CNN legal analyst Norm Eisen break down the highlights and lowlights of the Manhattan prosecutors’ case against Donald Trump and look ahead to what might happen next.  Plus, Dan and Jon discuss what’s at stake for Trump and Biden in a prime-time face-off that’s now just six weeks away—and why it might work to Biden’s advantage to start debating so early in the race. For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast. 

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It's fantastic. It's a great show. Subscribe to Cricket's Friend of the Pod on Apple Podcasts directly from the Pod Save America feed, or learn more about our Friends of the Pod community at cricket.com slash friends. Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On today's show, the prosecution is close to wrapping up their case in Trump's criminal trial. Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On today's show, the prosecution is close to wrapping up their case in Trump's criminal trial.

We're suddenly only six weeks away from the first Biden-Trump debate, and RFK Jr. is whining about not being included in the action. Then later, we're joined once again by none other than Norm Eisen to talk about the case that the Manhattan prosecutors have built, what it's been like in the courtroom, and where the trial heads from here after another tense day with Michael Cohen on the stand. But first, before we get to all that, we are a day out from Joe Biden's surprise debate challenge to Donald Trump and the even bigger surprise of Trump almost immediately accepting the proposed dates, networks, hosts, rules, all wrapped up by the time we got our kids to school on Wednesday. They couldn't have waited until Thursday for the Thursday pod to

give the first news to Jen and Tommy yesterday. It's been a big week for Tommy's family, so it's honestly the least the news gods could do. That is true. Of course, there was a little turbulence when Trump proposed a third presidential debate hosted by Fox News, and the Biden campaign hit back saying, quote, no more debate about debates. Maybe a little wishful thinking there. So we will talk about all the developments since Tommy and Jen talked about this on Wednesday. As of now, we're looking at presidential debates on June 27th and September 10th with a vice presidential debate in between the conventions. In studio, no audience,

and the campaigns are negotiating directly over the terms. Fly on that wall. The first debate will be hosted by CNN in Atlanta, and we now know that the moderators for that debate will be Jake Tapper and Daniv Ash. We don't know the location of the ABC debate yet, but the moderators will be David Muir and Lindsay Davis. CBS will host the vice presidential debate on either July 23rd or August 13th. They're still figuring out which date. And over on Fox News, they're taking all of this pretty well. What he's really trying to do here is ultimately maybe he's really cowering away from any real debate either take my chosen liberal network

with my chosen moderator with all my rules or i'm not going to debate secretly hoping that donald trump insists on basic fairness so they can duck and dodge and cower and hide and say, see, we tried to debate. Let's see, the American people, they deserve a fair debate. That means no fake Jake Tapper. Tapper is a radical left-wing partisan talk show host that masquerade as a journalist. Wow, that's surprising to anyone who's dealt with Jake Tapper. Also, a partisan talk show host masquerade as a journalist a little on the nose there for the horrors the horrors i also like the accusation that that joe biden by challenging donald trump to debates it's really just a strategy to avoid debating if it was. Yeah, he fucked that one up.

All right. So now that we've got two debates set, we have, of course, moved on to the even more important debate, which is who won the debate about the debates? The Biden team is saying Trump took their bait. Trump is saying, no, no, no. Biden took our bait. What do you think? I mean, I think the whole thing is stupid.

Was there anything more mind-numbingly stupid than this sort of competitive spin egged on by the most banal of political reporters? The whole thing is so stupid. But having said that, Joe Biden definitely won. I mean, I don't think it's that complicated. Joe Biden said on Wednesday morning that he wanted two debates, one in June, one in September. He wanted no audience. He wanted a set of rules that made it hard for Donald Trump to interrupt and cause chaos. And what did he get? Two debates, one in June, one in September, no studio audience, and a set of rules to make it harder, at least, for Donald Trump to interrupt and cause chaos. So Biden got what he wanted. This was on his terms.

Ultimately, how he performs in the debate will decide whether this was a good idea or a bad idea. But his campaign decided they wanted to debate and they want to debate early. And that's what they got. And so I think like I thought this was a very well executed move on the Biden campaign. Right. This is this is what they want. We can debate whether this is what they should want, but it is what they want. They got what they wanted. This is what they want. We can debate whether this is what they should want, but it is what they want. They got what they wanted. Yeah. The Trump spin on this is they think they won because there was never even an understanding that there'd be debates, which is like, what did they think? Like, I think it would have been we can talk about this, but I think it would have been very hard for Joe Biden to just like, no, I'm not debating Donald Trump. The the the Trump people also said, well, now that he's opened the door to debates and agreed to a couple, we're just going to keep pushing for more debates. But it's like, you were going to do that anyway. I don't really understand their spin. So let's get to why Biden did this. Until recently, his team has seemed ambivalent about whether the president would debate Trump. Some Democrats like Nancy Pelosi,

for example, said that he shouldn't debate Trump. We learned that he probably would debate Trump when Howard Stern asked him and the president said yes. Why do you think the Biden folks ultimately decided that not only should the president debate, but come out first with this proposal? Well, you know, if you think back to the last New York Times-Siena battleground poll, it was six months ago, right? It was in November, and Trump was winning in all the states. And the argument at the time, which I think was pretty credible, was, sure, but the campaign had not started yet. Trump had not won the nomination. The primaries had not happened. The trial had not happened. Well, here we are six months later. Trump's won the nomination. We had all the

primaries. Trump has spent a month on trial in the media capital of the world. And the race is in the exact same place. It is still a referendum on Joe Biden. And for everything that's happened, the Biden campaign has not had the ability yet to focus the attention of the vast majority of voters who are not paying attention on Donald Trump, on the fact that this is a choice between those two men. And it's hard to think of a better way to do that, particularly in this fractionalized media environment, than a high-profile, must-watch live television event where people will see Donald Trump. I think they make a conclusion they have to shake up the dynamic here because this is moving very quickly like a referendum on the president.

And at a time in which people are unhappy about the economy and cynical about government and three quarters of them think the country is going in the wrong direction, that's not the race you want to run. You want it to be a choice between two people, and they're trying to get to that as fast as possible. Yeah, I do think that the biggest challenge in this election is getting people's attention. It's almost the biggest challenge for anyone in any industry, anyone and everything, everything who wants to get who needs to get people's attention. And historically, more people watch the debates than anything else, more than the convention speeches, more than anything else that happens in the campaign. The debates have traditionally had the highest ratings. So, you know, we're going to deal with so much just silly and downright stupid conversation and debate about the debates from now until they happen.

But the debates themselves, like whatever happens, will be the moment where probably most people tune in. And for some people, it might be like the time that they tune in and see both of these candidates live on TV. Right. 70 million people watched the debates in 2020. Right. 80 million people watched in 2016. Yeah. And then that was that was fall and everyone was, you know, locked in their homes. But but still, that was that was a record. You called Biden's move a high risk strategy in the message box. Everyone go subscribe to the message box. Thank you, John.

What do you think are some of the risks of this approach? Well, I think a debate for anyone is a high-risk endeavor, right? Debating John McCain in 2008 was a massive risk for Barack Obama, right? A very new person, new on the political scene with real questions about whether he had the experience to handle the job. For Joe Biden, one, doing anything with Donald Trump is you're just automatically putting yourself in a situation where anything can happen, right? Just mass chaos where he can try to fight Joe Biden on stage. Everything's on the table, right? There is no

set of things. I mean- He almost killed him last time. Yeah. I mean, he brought COVID. Like literally. Yeah. He came infected he brought COVID. Yeah. He came infected with COVID and basically tried to spit at him, right? Like, oh, how does your water taste, Joe? It's very dangerous. So literally anything could happen. The other risk for Joe Biden here is that the press is going to cover this with a double

standard, right? A single mistake from Joe Biden, if he were to do what he did at that sort of infamous post special counsel report press conference, where he misspoke and said Mexico, but he meant Egypt. If he does that on the debate stage, that is going to be a five alarm fire. While at the same time, if Donald Trump said that gravity wasn't real on stage, people would be like, ha ha, there's Trump again, just being his old wacky self. And that's a hard dynamic. And also the next day, Mike Johnson will be like, ha ha, there's Trump again, just being his old wacky self. And that's a hard dynamic. And also the next day, Mike Johnson would be like, we haven't seen gravity for real.

We don't know that. He could be correct. I think it could be a hoax. I've read my scripture front to back and I've seen nothing. I've seen the word gravity once. Yeah, no, I guess I don't think that the Biden campaign really had another choice or they did have another choice. But I think that just declining to debate altogether is probably riskier. Yeah. I mean, there's sort of

two ways to look at that conversation. One is, it is an unfair situation that the way this will be covered and the way that sort of the public is viewing it because of how much questions about Biden's age have taken hold in a way for him in a way they haven't for Trump. And I think that's how a lot of pundits talk about it, they have to do it because this is going to be a live, nationally broadcast cognitive test. I don't think that's really why they had to do it. They have to do it because they need people to see Donald Trump. Most voters never, ever, ever see Donald Trump. Donald Trump, as you and I talked about, I think three days ago, went to Wildwood, New

Jersey and act like a nut, said insane things for two hours. And no one who was going to decide this election saw one second of it. Nope, nope. And the only way to, and you're not going to, and it's hard to reach people with ads. It's just, you got to do something really, really high profile. And I think, you know, Tommy and Jen talked about this a little bit on Wednesday, but they're all this idea that the Biden folks are there. They're in denial about how hard this race is, right? They're denying the polls and Joe Biden's citing a Marist poll, which shows them up. And it's like, well, you know what

shows that they are not in denial of this, this move. This is a high variance strategy, right? When you think that when you believe is, I think they truly believe this is an incredibly close race where they're facing a lot of headwinds. You do things like this, right? You do a high risk maneuver because you cannot play it safe and win. And so I think they, I don't think they had a choice to do it. Um, but the way they've gone about, I think it's quite interesting, right? And the timing is interesting. Yeah. Let's talk about the timing. Cause that's, I think it's quite interesting. Right. And the timing is interesting. Yeah. Let's talk about the timing, because that's that's an area that Tommy and Jen didn't get into too much.

June 27th is in six weeks. It is the earliest first presidential debate ever. September would be the earliest last presidential debate ever. What are your thoughts on why Biden wanted this timing and also why Trump agreed? Well, let's start with Trump, right? Trump is so high on his own Fox News supply that he truly does believe that Joe Biden has dementia, right? The only way that he and the people around him have been able to rationalize Joe Biden's impressive State of the Union performance is to think he was on cocaine while doing it. And so in their mind, anytime Joe Biden is on stage, he is going to trip over his own two feet and hand the election to Trump. So any opportunity you can get to get him on stage,

you take it. If Biden wants to debate 50 times, you debate 50 times because in their mind, every single one is a net negative. Now, I'm sure in Trump's mind, he'd prefer, if you really think there will be some campaign campaign ending gaffe there, you'd prefer that to happen in mid-October than mid-June. But he saw the opportunity. He took it. He wants the debates. He'll take these debates. I think they probably do think they might be able to bully Biden into more at some later stage. So take the money on the table and go, which is a very Trumpian approach to all things. For Biden, the timing makes sense on two fronts. One, get the choice in front of voters now. Don't wait until October. Right now. And I think they have reasonable belief based on their understanding of the media environment that the conventions are not going to mean what they did

before. You're not going to capture the nation's attention. The nation's not going to tune in and see Donald Trump give a convention speech. And that convention speech, based on how Trump has performed in high leverage moments in this campaign, might be kind of normal, right? He may not. That's on his terms. And so start it now, get it happening now. And then on the back end, if you think the debates are high risk and something may go wrong, have that happen in September, early September, not late October. And also don't spend October in debate camp. Like Biden was not, you know, like we know this from 2012, we have to do three debates starting in mid, you know, late September through mid-October. You hardly campaign because you have to, especially for the incumbent president who has to prepare for the debate, campaign, and lead the free world at the same time.

Do that in September so you can be on the trail in October. So I think that makes sense for him. And guess who was incredibly angry about every campaign event he had to do while preparing for the debates and running the free world? Barack Obama. Yes. Because it'd be like a long, long day of debate prep, and he'd be like, okay, you just got to go do this rally event for a quick hour. He's like, are you kidding me? Or more likely like, sir, I know you got in at 1 a.m. from Wisconsin last night,

but we're going to need you to record this video for this conference. That went over very well, too. Yeah. I think it's interesting about the timing that traditionally, we've talked about this before, the first presidential debate that an incumbent president participates in. They tend to not do well. Certainly, Barack Obama did not do well in his. This has been sort of throughout history. This has been a trend.

And if Biden should falter in that first debate in June, he's got the convention to sort of have a reset. And then he's got like, he's got a couple months between that and September, right? So there is some time to sort of shake off the first debate. It's also an interesting timing because we'll probably have a verdict in Manhattan by then. Almost surely we'll have a verdict in Manhattan by then. The immunity case will be decided by then. We'll know whether we're going to get a trial there going forward. So it is a good time to have Donald Trump on television and confront him to get people's attention.

I think the only thing I wonder about is, would you want, if things are going well, or by the time, say Biden does great in both these debates, and we're all breathing easily and now we're heading into late September, October, and now no one's paying attention anymore and the polls start going back to this like stasis that we've been in and it's close. Then do you not have any more big moments to capture people's attention before election day if you need them? When you're the incumbent president, you really only have your convention speech in the three

debates. In this case, it's your convention speech in two debates. When you're the incumbent president, you really only have your convention speech in the three debates. In this case, it's your convention speech in two debates. If you're the challenger, you have your convention speech, your VP announcement, and then the debates. And so we will head into the final stretch of this campaign with no Trump cards for either candidate to play. And that pun was quasi-intended. And so, yeah, there's definitely risk. There is risk in that. But there's – so it's what if the debates go poorly and you want to change the dynamic the other way? You don't have another debate. Will Trump give you another debate if you wanted one, if you're doing well?

There is no – we are in an election in a highly polarized country with a totally fucked up political system that gives undue weight to the other side in an electoral college with the fate of democracy. There's no obvious risk-free choice here. They're all kind of shitty. So that's sort of where we are. And the thing that I think is impressive for the Biden team is they decided what was in their interest, and then they went out and achieved that within like three hours. And that's impressive. That is a win for their campaign tactically and now it's just what happens next is you have to deliver on you have to execute the plan you came up with do you think there's truth to the rumor that they chose uh june 27th for the debate because it is right between our pod save america live show in brooklyn

which is june 26th and our pod save america live show in boston is June 26th and our Pod Save America live show in Boston which is June 28th do you think that's because I mean why do I have to do this for every time is it because June 25th is the release day of Democracy or Else? There it is you're the best hype man for Democracy or Else Dan, you're the best hype man

yes, I mean talk about talk about a book tour there we don't have anything about the debates in the book sorry we'll have plenty to talk about plenty to talk it'll be in the paperback people i got a pit in my stomach when i thought about how much prep the Biden team will have to squeeze in over the next six weeks. What do you think Joe Biden and Ron Klain, who's going to lead the debate prep team, what do you think they're going to focus on? And what do you think they want to get out of this debate? Obviously, winning, I get that.

But what do you think the message they really want to drive in this debate? Obviously, winning, I get that. But what do you think the message they really want to drive in this debate is? I think a lot of the problem is going to be less about message and more about how to prepare for all the various things Donald Trump can do. It's just so unpredictable. You're going to have to figure out, what do you do with his lies? Do you rebut all of them? If you rebut all of them, you'll never get on offense, right? You'll just be doing that. How do you respond when he says something entirely gross and disgusting about Hunter to try to provoke you? of the prep. And then what traps can you set for Trump to set him off to show the country, to remind the country, frankly, about what an unhinged, unfit, erratic con man that he is, right? How can you do that? And so it is an incredibly complicated... I mean, it's ironic this complicated to debate a simpleton, but it is in this case. you think, okay, people aren't happy with Joe Biden.

And what they're nervous about with our candidate is that he's a just complete unhinged lunatic who says things that make people like roll their eyes and not want to deal with him for another four years and all that kind of stuff. So if he just shows up and in every answer talks about Joe Biden's record and starts complaining about inflation and complains about inflation and complains

about immigration, complains about this and just keeps just hammering him and making this a referendum on Joe Biden, keeping this election a referendum on Joe Biden and doesn't seem crazy, then I've won the debate. And so I wonder for Biden, like, I think that Biden probably will want to drive the choice more than anything. And he'll then and, you know, there'll be plenty of specific policies they'll talk about and everything else. But I really think it's I'm going to fight for you. Trump's only going to fight for Trump. And like he's just he's got to get that across. And if he can, he can leave that debate with people thinking like, you know, Trump said all kinds of crazy stuff to him. Trump tried to get under his skin. Trump tried to do all these outrageous things. But Joe Biden was just like, here's what I want to do for you. Here's what I have been doing for

you. Here's who I'm going to fight for. And this guy, either he was just convicted or he's running for all these reasons that only have to do with himself, revenge, whatever else it may be. I do think that's probably the core of what I would focus on. It's going to be challenging, I think, because I think what you want out of this is to avoid making it, for Biden's sake, to avoid making it about himself. And there is sometimes in the, and I know it's in jest, so I don't take it too seriously, like the make my day, pal, this you Donald stuff, which makes it like about his anger at Trump, as opposed to his anger on behalf of the American people because of what Trump has done and will do to them if he's reelected. And that's going to be

really hard because Biden is a prideful, prideful guy. And Trump is very good at doing things that are – and Trump's mere presence on the public stage morally offends Joe Biden, as it should. on the public stage morally offends Joe Biden, as it should. There was righteous anger about that. Join the club. Right. But it's going to have to be suppressed in a way, because if this is just like two old white guys yelling at each other, that's not going to help Joe Biden as much as we need it to, is my guess. Yeah. And I think it is hard too, because I know that some of the mistakes that Obama made in that first debate is what incumbent presidents often make is, you know, Romney goes after his record. And then when you're the president, you're like defensive about your record, you know, and Joe Biden's been known to be like that.

And so is Barack Obama. Like, that's just natural. Every president, George Bush in that first debate. Yep. Right. And so I think they're going to like the amount of time that Biden has defending himself needs to be like minimal, quick, and then just like turn around and punch back. You know, the other interesting thing about this dynamic is normally the advantage the challenger has is they went through 37 primary debates. Oh, yeah. And the incumbent has not debated since the last general election debate four years prior.

And but Trump has Trump and Biden have gone the same amount of time without debating. That's true. That's interesting. Yeah. So Trump could be a little stale. There's one other big debate factor we haven't talked about yet, and that's the possible participation of RFK Jr. So reporting suggests that one reason both campaigns decided to ditch the commission on presidential debates and just do it themselves was because the commission may have included RFK Jr., which neither campaign wanted. But CNN says RFK can be on the stage if he gets to 15 percent in four high quality national polls and has secured ballot access in enough states to actually win 270 electoral votes. Kennedy has responded by accusing Trump and Biden of colluding to exclude him. And he has claimed that he will meet those qualifications in time.

And it's worth noting that his running mate, Nicole Shanahan, just pledged another $8 million of her own money to the campaign. So that could help push his numbers up with ads and fund more ballot petitioning. She also had a kind of funny line at a fundraiser uh this week where she made the announcement saying hey right now we're in third place but we can win i'm proof i was in third place behind aaron rogers and hulk hulgin it wasn't jesse ventura anyway so i was gonna say it was did i miss it did i miss a news cycle uh no i think i think she did unfortunately uh all right first of First of all, do you believe RFK

Jr.'s spin that he'll meet the thresholds? I don't know how he can meet the threshold by June. He's actually doing... I was initially incredibly skeptical that he had any chance of getting on the ballot in states adding up to 270 electoral votes, but he actually is doing much better. There was a report in Politico a couple of days ago that they have had real success getting the requisite signatures in New York and Texas. And he's already on the ballot in California because they used a sketchy third party loophole to get on the ballot. So that right there gets you to 122. All the other states that- I did the math, Dan. He's on the ballot in six states, the total 125 electoral votes. They say that they have the signatures to qualify in another eight states. That adds up to 187 electoral votes altogether.

So he is 83 electoral votes short between now and June that you have to get, which is not, it's not nothing, but it's not like, who knows? Six weeks. It's six weeks. I think six weeks would be very hard. Now, could they get there by September? Maybe. I don't know. I also think that 15% is a number he has not hit in any poll. Yeah, no, he's, he hit 15 in CNN's April poll and Quinnipiac's April poll. And that's it. Just two, two polls. He had 15% and then no other polls. He had 15% and his other polls he had 15 and his

the average on 538 is 10 yeah and so I think it's a it'd be a stretch for him to meet both those qualifications certainly by June and even by September I do wonder if this will help him like he'll now use this as a you know a way to get more ballot signatures. But to do this, he'd also have to get more attention. And again, tension, hard to get, even if you're RFK Jr. running around saying crazy things. Maybe he'll drop a lot of money on another national ad and try to tell everyone, even if you're not with me, even if you're not for me yet, at least get me on the debate stage. I wonder if that could work. I mean, this is a sad statement on the state of the american media media system but it's almost impossible to reach voters at scale outside of football season yeah that's right there are

enough people watching any singular event to i was just trying to think i'm like what's happening between now and both debates that he could really i guess in the convention the olympics the olympics oh the olympic is one but even, those individual events don't have massive ratings like the football games. We reach in tens of millions of people at a time. his truth nickname for RFK Jr. And he also wrote, I don't care if Junios joins the debate. J-U-N-I-O-S apostrophe? He used the apostrophe twice?

I don't understand. But that his polling numbers are very low. He's not properly qualified in the States and he seems to be on a downward path. Biden got a shouted question about debating RFK. He just laughed it off. Who do you think is more nervous here, Biden or Trump, that RFK Jr. is going to end up on that debate stage?

I think they should both be nervous for probably the same amount of nervous for very different reasons. We saw this in the New York Times poll that RFK Jr. was basically taking equal from both sides, so he's not necessarily a spoiler. If you are Biden, you don't want RFK Jr. up there because you want the focus to be all on Trump. You just divided Trump's time by a large fraction because RFK Jr. will be speaking. So that's less Trump. That's bad for Biden. Also, you have someone with the last name Kennedy who has some environmental credentials based on work earlier in his life who might be going after Joe Biden from the left on some issues.

And that's not good for Joe Biden. If you're Trump, here you have a anti-vaccine conspiracy theorist who's supportive of January 6th with some real MAGA vibes coming after you. And the voters he takes from Trump are people who are often, some of them are MAGA voters, but a lot of them are disenchanted Democrats who had left Biden, right? And went to RFK Jr. Or they profile demographically like the voters that Biden has been losing, more working class, more black and Latino, younger. And so it serves neither of their interests to have RFK Jr. on that stage, because Trump also wants all the focus on Biden. In his mind, the more minutes Biden speaks, the more likely he is to say something that he can weaponize as evidence of unfitness for the presidency. And I guess the same is true for Biden, right? He wants Trump to talk the whole time so that people can see that. Yeah, that makes sense.

All right. Before we hear from Norm Eisen, we got a few quick housekeeping notes. If you are ready to make a real difference in the campaign, please sign up for Vote Save America's 2024 volunteer program, organize or else. There's still time. The very first training call is this Monday, May 20th at 8 p.m. Eastern starring Dan Pfeiffer himself. That's right.

How exciting. Dan, I'm a team West co-captain. You're a team East co-captain. Is this some kind of illicit effort to get your team a head start? What's going on here? No, it's a sincere effort to help motivate people to save democracy.

And Shanique asked me to do it. When Shanique asked me to do things, I do them. When's the Team West kickoff? No one's told me that. I got my co-captain isn't even around. Yes, he immediately got... As soon as he found out he was on your team, he took off. On the call, Dan and everyone else will be talking about messaging and relational organizing.

And this is VSA's words here. De-scarifying phone banking to make volunteering as easy and effective as possible. Look, phone banking can be scary. I tend to like it now, but it's every once in a while I can get, you know, you're like, what am I going to say if I actually get someone? Because you get a lot of hangups and then you get someone and then you freeze. You know what? The VSA volunteers and organizers, they're going to help you out. They're going to make it feel easy, fun. So check it out. So far, over 5,300 volunteers have signed up to maximize their impact, but we still need you to get involved. If you haven't already, head to votesaveamerica.com slash 2024 to register and get ready to organize or else. This message has been paid for by Vote

Save America. You can learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidates committee. When we come back, Norm Eisen. Back by popular demand. The man who is braving Judge Mershon's infamously chilly and fart infested courtroom as a legal analyst for CNN, also author of the excellent book, Trying Trump, our old friend, Norm Eisen. Norm, welcome back. Thank you for having me back, guys.

I'm excited to talk about what was today one of the most momentous days in the trial. Oh, wow. the most momentous days in the trial oh wow okay well let's let's just start there because i always try to while i'm doing all my other work half follow the trial on twitter and usually i get a good sense of what's going on but today it was like really tough to to dissect everything so this was the cross-examination of michael cohen how did it go? It was a mixed bag. There was a lot of flailing, but there were a couple punches that landed,

including one right on Cohen's chin, but it didn't knock him down. He stayed on his feet. It came back strong in the afternoon. What was the punch? At the end, Trump's defense lawyer, Todd Blanch, has been pilloried for his poor performance. And he came out today with a very weak start. He got better.

But then he saved his best material for right before the lunch break. And Cohen had testified about a short call to Trump's bodyguard, Keith Schiller, in October 2016 when Cohen said, I called Schiller, he handed the phone to Trump, and I communicated that the Stormy Daniels deal was done. It's a pivotal call, but what he hadn't testified about on direct was that there was another series of calls to Schiller that day about a campaign of harassing phone calls, And Blanche was able to rock Cohen a little bit by saying, look, how could you have packed into a call of less than two minutes the update about Stormy Daniels

and also a discussion with Schiller about all this other stuff? That call must have really, and he yelled, he was carrying on, that call must have really been about the harassment and you're making up the stormy stuff. But Cohen, to his credit, he was surprised. It really, the prosecution had not properly prepared him for that line of cross-examination,

but he did stand his ground. And in the end, he said, that's what happened. I did not lie. Blanche tried to shake him up by carrying on repeated objections. The objections were sustained. And that was the only real punch on the chin that Blanche landed today. real punch on the chin that Blanch land did today. The big question going into the Cohen testimony was, is the jury going to find Michael Cohen credible? We're not going to know that for a little while, but obviously the jury doesn't have to like him. They just have to believe him or at least believe what he's saying with regard to the charges at hand. Do you think the defense effectively undermined his credibility with relation to the actual criminal charges and the stormy payment? Or do you think that he was still a good witness

for the prosecution? My belief, we'll find out when we get the verdict, is that the defense rocked him. There were a couple of other moments where they were effective, but it was not enough to shake what had been a very strong direct examination, a very credible presentation. I felt that in multiple points. And today also, Cohen really bonds with the jury.

They put down their writing implements. They listen to him. He turns and he talks to them. So my own conclusion is that there was proof beyond a reasonable doubt going into today and that coming out of today, the prosecution still has proven their case, but it's closer than it was after the first day of cross. Part of the reason that I think the prosecution is hanging in there is because there's so much corroboration. You don't have to believe Cohen on this one minute and 30 second phone call to believe former President Trump is guilty, there's a pile of evidence showing

that there was a conspiracy to make illegal campaign finance and tax acts. So I think the prosecution is still there, but it's definitely closer now than it was when we finished court on Tuesday. Now, this is a question in which we have no personal interest, but how damaging do you think the quotes from Michael Cohen's podcast were to his credibility? Not damaging. The principal function, they played them out loud, two of them out loud in court, is to show that there's another side to Michael Cohen. Because on his podcast, and I've been on his podcast, on his podcast, he's much more exercised and colorful and vigorous and emotional and much more critical of the former president. Whereas in court,

he's been much more buttoned down, calm. He's kept his cool. He's clearly presented. And that is a side of his personality as well. So I don't think the content affected his credibility at all. Two things that I've been wondering about, Norm. The first is wondering about what happens with former Trump organization CFO slash current inmate Allen Weisselberg, who neither the prosecution or defense has called. Why do you think that is, considering he plays such a pivotal role in the alleged scheme? And how big of an impact do you think his absence will have on the case? We've moved on past the possibility of calling Weisselberg. Nobody's talking about it anymore. The prosecution doesn't want him because the case has come in well. He just pled guilty to perjury in the AG civil fraud case, and he's an unreliable witness.

The defense doesn't want him because they don't know what he's going to say. He could blow up the former president in explaining those notes. So the prosecution wanted to explain to the jury where he was by introducing a document. Judge Mershon is so fair. If people could sit in that courtroom, they would understand Trump's lies about a biased judge. He wouldn't give the prosecution that document that they wanted to put in the evidence. But we've all moved on.

I think there's more than enough evidence. But we've all moved on. I think there's more than enough evidence. And I don't think the jury is going to be stopped by the absence of Allen Weisselberg. OK. Yeah, I was just wondering, because like they've heard his name now a whole bunch of times in the trial. They've seen his handwriting on documents. He was in these meetings. So I was just wondering if like does the judge give them certain instructions on like what to do about Weisselberg or if they have questions on that? There is such a thing as a missing witness instruction. But you only get that instruction and it allows the jury to draw an inference that if one of the parties has control of a witness and doesn't produce that witness who seems to have information,

that the information would be bad. It's not dispositive, but, you know, it's a thumb on the scale. The problem is, it's not clear to me that either one of the parties here would be entitled to a missing witness instruction because the prosecution certainly doesn't control Allen Weisselberg. He doesn't work for them. And he no longer works for the defense. He does have a separation agreement. That's the document that the prosecution wanted to put in evidence.

The judge wouldn't let him. The jury may be curious, but this is not a jury that's going to complain, oh gosh, we didn't get enough evidence. It's been a long trial. It's packed with evidence. People have talked about Weisselberg. That's not going to be the deciding question here. It's going to be how well did Cohen hold up on cross? How well is he rehabilitated? But I really think he held in there and I believe him. So it's a question now of where the jury lands. Not the whole jury, guys. Trump is not playing for acquittal here. He's not going to be acquitted. He's hoping for one or two rogue jurors. I actually brought my jury consultant to court with me one day to analyze the jury.

Is there a potential for a hung jury here? Usually you need two alienated jurors. You're looking for two jurors who are kind of winking and smiling at Trump or who seem bored or angry or hostile to the prosecution. I haven't seen that. And neither did my jury experts. So I think the prosecution is on track, but you never know. They were harder to read once Blanche really started going after Cohen, Hammer and Tongs. Blanche really started going after Cohen, Hammer, and Tongs. So the other thing I needed clarification on, does the prosecution need to prove that Trump knew that making the payment to Stormy Daniels was a campaign finance violation or just prove that he made the payment himself

and that whether in his mind, obviously the intent was to hide that fact from the voters and hide the scandal from the voters but does he have to know that it was a campaign finance crime unlike when the two of you were my clients and i taught you all the rules we had a session where uh we went through all the rules, a defendant does not need to understand all the elements of FICA, the federal election law that is alleged to have been violated here to be convicted. If you think about it, you could never get a white collar conviction unless the defendant went to law school.

What you have to show is criminal intent. You don't even need to prove the elements here. You just have to show that the documents were falsified to cover up the intent to violate another crime. And I think that Cohen has, if the jury believes him, and I think they will, that Cohen has established Trump had that criminal intent. You can infer it from the fact that he wanted these large benefits from AMI, starting at a Trump

Tower meeting in 2015 to benefit the campaign, all the way through to the end of the scheme where he tried to cover it up. Look, the reality is you don't need to be a campaign finance genius to understand that the campaign finance limits are $2,400. And this was a $130,000 payment by Michael Cohen to benefit the campaign. So I think the proof of intent is there. So Norm, as you have pointed out, the prosecution's case is coming in well, I think that's the right term of art here. But that's only half the equation. What do you expect from the defense? How would you go about poking holes in the prosecution's case if you were defending Trump, which I know something that's impossible to imagine, but just indulge me.

You know, I actually was for most of my attitudes towards some of the structural biases in the criminal justice system. And one of my former law firm colleagues, John Lauro, is defending Trump now. He's one of his defense lawyers. John Lauro is defending Trump now. He's one of his defense lawyers. If I were defending Trump, I would put on an alternative case, which it doesn't seem like they're going to do here, that Donald Trump was not.

Are you in the courtroom? Are you at the courthouse? I'm in my office. I share an office with George Conway and I rented an office together. We temporarily podcasting right out of sight. It's America's it's America's most anti Trump law firm, Conway and Eisen. Conway and Eisen. If I were defending Trump, I would emphasize the extremely steep burden that the prosecution has to make. I would do what they're gonna do with Cohen, that if you don't believe Cohen,

the prosecution didn't make their case because he's the only one who has direct intent evidence what Trump was thinking during the Stormy Daniels payment, what Trump was thinking during the falsification of documents to cover up that allegedly illegal campaign contribution. I would argue the plausibility of an alternative motive, and we heard a little bit about this at the end of court today.

I think it went over most people's heads, the irrespective test. You have to show that the payment to Stormy Daniels would not have been made but for the campaign and say, look, you heard from Hope Hicks and Madeleine Westerhout that Donald Trump cared about not embarrassing his family. At a minimum, the proof establishes that that was the cause, one of the causes of the payment. So they haven't cleared that irrespective test,

that hurdle. And offering that alternative explanation. Third, I would say, fortunately, by the way, I don't think Todd Blanche is a listener to Pod Save America because I'm laying out his closing argument for him. Let's hope. Fingers crossed. Third, I would point to the fact that the prosecution has an extraordinarily steep burden to meet these complicated legal tests. And we heard about this today in court also, they started talking about the instructions to the jury. I would argue the law and say, you know, you can't put these pieces together. They just haven't gotten there.

It would be better if there was an alternative case that would come in. Oh, I know the last point I would make. The last point I would make is, look, Trump was very busy with the presidential campaign and then very busy with the White House. Cohen was a rogue operator. And again, I would point to Hope Hicks saying disparaging things about Cohen. He was desperate for Trump's approval. He did this on his own. If you don't believe his stories, then you haven't got a case here. So that's the third element is, you know, Cohen went rogue. The problem with that argument is that the evidence doesn't support any of that.

So I think they have most of the jury. And we'll see what happens with now we're going to move into a phase where we're going to see the jury instructions. How is the law going to be described to this jury? That will make it easier or more difficult for the prosecution and the defense to make their respective arguments. Do you expect the defense to call any witnesses themselves? They're considering two groups of witness. One is some rebuttal witnesses. They've been referred to. They're going to be short. We don't know what they're going to come in and say. They're probably individuals who are being called to establish very particular points that aren't yet in evidence. The defense tried to get what they

needed on cross-examination so they can make something like my three-part argument. The case falls apart if you don't believe Cohen. The extremely steep legal hurdle is not met here. Extremely steep legal hurdle is not met here. This was a rogue actor who's making up a story to cover for his own wrongdoing. Then the other group is a class of one, Donald Trump. And they talked about him today at the end of court. Is Donald Trump going to testify? He said, we have not made up our mind.

It is the moment of truth for whether or not Trump testifies. I am extremely dubious that he's going to get up there on the stand and open himself up to cross-examination. I mean, if we had that one intense and a couple semi-intense moments today where Cohen was rocked, but ultimately I thought stood his ground. I've never seen a case that's decided by a single moment where a witness, a bit of a struggle, and then finds his footing again. If that is the cross-examination of Michael Cohen, can you imagine the cross-examination of Donald Trump? And they're ready for that. They're laying in wait for him. So I don't think Trump is going to testify. I think he would harm himself, both on the liability phase, the guilt phase that we're

in now, but on sentencing. Because if the judge determines that Donald Trump got on the stand and lied to him and his jurors, he's going to hold that against him on sentencing. And we have a very, if Donald Trump is convicted, you know, we have a very unusual set of circumstances. The judge has already talked about is, you know, whether he's going to jail Trump for another act of contempt. So the judge is really going to have to wrestle with sentencing. I do think a jail sentence is on the table if Donald Trump is convicted. How long? Well, the courthouse, there's a lot of, you know, 100 Center Street experts, like the New York people who spend their entire professional lives, first usually as prosecutors, DA's

office, then as defense lawyers in this courthouse. The smart money, I talked to a bunch of them for my book and for a New York Times op-ed based on the book. The consensus seems to be if he gets sentenced, it will be less than a year, probably somewhere in the six-month range, just because a jail sentence is unusual. I looked at 10,000 of these falsifying business record cases. You get jail about 10% of the time, but it's unusual. On the other hand, if Trump is convicted, this will be the most serious FBR false buying business records case in the history of the state of New York. So it seems like it should be up there in that 10 percent. He gets on the stand and lies. He really worsens his position on sentencing.

Just a huge FBR case. You know, there's no pod FBR, right? Law and order FBR. Can you imagine how much fun the prosecution has had preparing for the slim possibility that Donald Trump would take the stand? One of the hardest things to do as a lawyer is to prepare for contingencies

that are extremely unlikely to come to pass. Because on the one hand, you're telling yourself, oh, you've got to work hard, it might happen. On the other hand, you're telling yourself, there's no effing way Donald Trump is getting on the stand for this cross-examination. But yes, I'm sure they mocked it. There's no effing way Donald Trump is getting on the stand for this cross-examination. But yes, I'm sure they mocked it.

One of the prosecutors probably played Donald Trump and they had a good time that day. Last question before we let you go. Last time you were on, you said if the Supreme Court delays the immunity case past May 20th, then it's probably going to be too hard to have a trial before the election. We're talking on May 16th. Do you have any hope that we'll get the right decision in the next couple days? Monday is complicity day. Look, they are already outrageously delaying this case. We should be finishing the D.C. case.

There is no immunity to send SEAL Team 6 to assassinate a political opponent. It's nuts. Jack Smith shouldn't have agreed to the stay in the case. The Supreme Court certainly should not have done this outrageous delay. Every day is that this D.C. case, the Supreme Court certainly should not have done this outrageous delay. Every day is that this D.C. case, and Alvin Bragg had said, I'll give preference to the D.C. case. It was supposed to start March 5th. So in a sense, every day since March 5th has been a complicity day. 20th is a marker because that is the space from oral argument in this case to Monday,

May 20th, is the same amount of time that they took from oral argument to a decision in the 14th Amendment case. That's the benchmark. I will say that even if we don't get a trial in the DC case, we may very well get as a backup, I would even say it's likely we get as a consolation prize, a mini trial. Because the Supreme Court, they're not going to say that Trump can use order, is immune from political assassinations, because if they make a decision he doesn't like, he'll send SEAL Team 6 to them. So they're going to say, if they decide, they're going to say, well, here's the test, we're not deciding these facts, we're remanding it to Judge Chuck, then she's going to have to have a discovery and a hearing. Is he immune or not then she's going to have to have discovery and a hearing.

Is he immune or not? She's going to find he's not immune. There'll be witnesses, there'll be evidence, there'll be a mini trial. If that comes on top of a verdict in this case on the 2016 election interference through the hush money payment to maybe change the outcome of the election and covering it up. That represents some degree of accountability, but we should never lose sight of the outrageousness of the fact that we're not almost done or done with the 2020 election interference case in D.C., or at least it should be getting queued up to begin

within a couple weeks after we finish this trial for 2016 election interference here on Center Street in Manhattan. What a world. What a world, Norm. Thank you, Norm Heisen, for joining us as always. And and keep us updated and good luck out there at the trial. Thanks, Fabs. Thanks, Dan. Good luck out there at the trial. Thanks, Fabs. Thanks, Dan. Thanks to Norm for joining us again today.

Everyone have a fantastic weekend. And we will be back with a new episode for you on Tuesday. It'll be me and Tommy's going to be back. And Dan's going to be here in studio. What a fun episode. Come join us. Wild times for living. Bye, everyone.

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