The Megyn Kelly Show - Trump Convicted - Now What? Expert Legal Analysis, with Aidala, Eiglarsh, Dershowitz, Geragos, Aronberg, Davis, and Holloway| Ep. 807

Episode Date: May 31, 2024

Megyn Kelly is joined by all-star legal experts to break down the Trump conviction and guilty verdict, with Arthur Aidala, Mark Eiglarsh, Alan Dershowitz, Mark Geragos, Dave Aronberg, Mike Davis, and Phil Holloway, to discuss what Trump's sentence might be now that he's found guilty, Judge Merchan's history of sentencing, whether Trump will get jail time or "community service," what probation would look like, Trump speaking out and unloading on the biased Judge Merchan, Elie Honig's fair coverage of the case, comparing the Trump case to the Harvey Weinstein verdict that was overturned on appeal, what Trump's appeal strategy should be, how the case could end up at the Supreme Court, whether Republicans should fight fire with fire and go after political opponents too, Judge Merchan's small donation earmarked for "resisting the Republican Party and Donald Trump’s radical right-wing legacy," whether he should have recused himself, President Biden's comments about the Trump verdict, whether Biden should have weighed in on a criminal case, his campaign out in the media calling Trump a "convicted felon" over and over again, Michael Cohen's media tour, and more.Aidala- https://omny.fm/shows/the-arthur-aidala-power-hourEiglarsh- https://www.eiglarshlaw.com/Dershowitz- https://www.amazon.com/War-Against-Jews-Hamas-Barbarism/dp/1510780548Geragos- https://www.youtube.com/@reasonabledoubtpodcastAronberg- https://www.youtube.com/@TrueCrimeMTNDavis- https://article3project.org/Holloway- https://www.youtube.com/@PhilipHolloway

Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at noon east. Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. Former President Donald Trump found guilty on all 34 counts, as you know by now, by a New York City jury late Thursday afternoon. What does that mean for him now, for the legal system, and for America, meaning the rest of us? I shared some of my thoughts last night in a bonus episode, which you can find on YouTube, Spotify, Apple, and all the podcasts and video platforms. Today, we have perhaps the most impressive legal panel ever assembled. I'm not kidding. You're going to hear right here from Alan Dershowitz,

Mark Garagos, Mike Davis, Dave Ehrenberg, and Phil Holloway. But we begin with two Kelly's Court all-stars and originals. Martha, Arthur Idalla, trial attorney and managing partner for Idalla, Bertuna & Kamens, and host of Arthur Idalla Power Hour. And Mark Eglarsh, criminal defense attorney for Egllar's Law, which you can find at speaktomark.com. Guys, welcome back to the show. So they did it. They went ahead and did it. And now Trump is officially, as you might have heard, all over CNN and MS, a convicted felon. So Arthur, let me start with you as the New York trial attorney. What's going to happen to him now? Well, right now, his lawyers should be preparing a

substantial sentencing memorandum. I mean, I did a state sentence yesterday, like moments before this verdict. And it's a little like 25, 30, maybe a 50 page, like this is your life, Judge Marchand. These are all the reasons why a disposition, which we would be asking for, of a conditional discharge, meaning there's no jail, there's no probation, there's no community service, there's no fines. The fact that he went through this experience was punishment enough for the crime that was committed and conditional discharge. The condition is don't get rearrested over the next five years and you'll have no further problems. If you do get rearrested in the next five years, you come back and you answer to the court and the court can adjust the sentence appropriately. We would print the statistics from the state of New

York about e-felony convictions with the median sentences, I believe you're going to find that is a non-jail sentence. If it is, it's very, very, very low. You add in that, forget about the president of the United States, you add in a 77-year-old businessman never in trouble in his life. You convince the judge that jail is ridiculous, probation is a waste of time, effort, energy, and money, and that really nothing should happen. Simultaneously, you're filing a notice of appeal, and you're preparing the appeal to the Appellate Division, First Department. That whole process of the appeal there will take probably right around one year. Arthur, we did a quick search to see what we could find out about Judge Merchant and his sentencing. And here's just a couple of things that we found. Former Manhattan assistant D.A.

Stuart Meisner to Politico. Trump would likely or Merchant will likely sentence Trump to a term of incarceration. I don't think much, but I think it would be included just to show that no one's above the law. Then there's Peter Tillum, New York defense lawyer, former ADA in New York County DA's office in Manhattan. Judge Mershon is not known as a draconian sentencer. He's not known to be the toughest sentencer in the building. I don't think he'd want to start with this particular case. And then there's Ron Kuby, a veteran New York criminal defense attorney, who says Judge Mershon is known for being a harsh sentencer when it comes to white collar crimes committed by people who have wealth and privilege and power. It's substantially likely that Mershon

will sentence Trump to jail or prison time. So this is where you practice. This is your bread and butter, this courtroom. What do you think? Well, I think it's true. He does not have kind of all of the above. I don't, I think ultimately he's not going to give him jail time. He's not known as being a draconian sentencer, but he's not known as being an easygoing guy either.

Let's take it a step before that though, Megan. Alvin Bragg asked for jail here, which I'm assuming he's going to. It's going to go down as one of the most critical statements I've ever seen. This is an administration, the Bragg administration, that ran on and has functioned as the alternatives to incarceration. Everyone deserves a second chance. Anything but jail on violent crimes, on crimes of people who are predicate felons, meaning they already have a felony conviction. All of a sudden, in this lowest

level paper crime, he asks for jail. It is beyond preposterous. But I don't think, look, Rashad showed his cards a tiny little bit during the DAG order hearings, where he said, I know you're the former president. I know you're the presumptive nominee. I believe he said, I don't want to put you in jail. So if he's smart, he finds a creative community service alternative where Donald Trump could use his money and his status to make New York a little bit of a better place while he hurts Donald Trump or makes makes a little bit of a lesson out of the exposure of it. This is a guy, Mark Judge Mershon. Sorry, Alvin Bragg, who, when he came to office, promised that he wasn't going to prosecute marijuana misdemeanors, prostitution, fare evasion, and instructed prosecutors in his office to avoid seeking

jail time for crimes including robbery, assault, and gun possession. There was such a revolt in the city after that, and two cops got killed, gunned down in the prime of their lives, that he had to reverse, he had to backtrack after blowback from the NYPD on that letter. But he didn't want his DAs, his ADAs seeking jail time for robbery or assault. So how is Alvin Bragg going to saunter into this courtroom and try to get jail time for the former president of the United States on the falsification of business records? I hope he doesn't. Look, the goal here in this case, in every case, is justice. I love Aristotle's definition of justice, like cases being treated alike. One would argue there's nothing like this,

but the truth of the matter is you can plausibly analogize this case to the other 70-something year old first-time offenders. They've never been in trouble before in the legal system. This is their first go around. This is a white collar, nonviolent offense. I think that in most cases, you would find that the state would ask for probation. Everything Arthur said is accurate. I think it would be very hypocritical to come in and ask for his liberty to be stripped. And also one other thing, I don't see how they carry that out. I mean, no one really has said exactly how that would work, but he's not going to leave his Secret Service guys behind and they're not going to remain unarmed. So what they're going to bring guns

into a jail to sit by a cell like that just doesn't make any sense. I did. I did. Can we talk about probation? Yeah, go ahead, Arthur. And then we'll talk about probation after your point about the jail part of it, because during the trial, there was a possibility, right, when he was violating the gag orders, informative corrections, as I believe has already, or I've been told, identified a section of the prison, if he was sent, believe it or not, if he was actually sent to Rikers Island.

You know, during the court, they'd be able to keep him in the courthouse and there are secure facilities there where they could keep him. But after, if the judge actually sentences him to let's say three days in jail, which basically means he's got to do a day,

they would just find or they've already identified like a private area where he could be. But he would be without his phone, without TV, you know, all of those things. What about Secret Service? Where is Secret Service? In the cell next to him? No, sitting right outside the cell, making sure no one's going to bother him, no one's going to arrive. No guns, no weapons to protect the president. It would be poured out of his mind. That would be really his punishment because the last time he didn't have a TV, a phone, a newspaper, maybe they would give him a newspaper seriously or a book, and he would have to sit there for 24 hours.

I don't see how that's done. Let's talk about probation. Probation, now this is, okay, discussed on The Daily, The New York Times. I mean, the left-wing press, you can actually hear the smiles through the reporting on podcasting and on radio. You can hear the smiles. They're so, go ahead and listen.

I dare you to listen to NPR's Up First today. They were giggling like a bunch of middle school girls at a pool party. I mean, it was absurd. Here's the New York Times, the Daily, saying often people on probation have to meet with their probation officer and tell them what they are doing for work. So if he is elected as president, he will have to meet with the probation officer and explain to him, I'm president. Now, does anyone think that's actually going to happen? They go on to say people on probation are not supposed to associate with known felons. So what's going to happen?

The probation officer is going to be like, Steve Bannon can't come in here, sir. He's out. Peter Navarro, out. No. You and Michael Cohen having it out, man to man, out. You can't associate with here, sir. He's out. Peter Navarro, out. No. You and Michael Cohen, having it out, man to man, out. You can't associate with known felons. Sure, sure. And pointing out you have to tell probation officers your known travel plans. And so now you have, you actually have speculation in the press, Trump would be elected as president

and he would not be allowed to travel as our world. This is I'm sorry. This is left wing fantasy land. So you don't have to just let them know your travel plans. You have to get approval from the Department of Probation to travel plans. But listen, Judge Rashad, if he does sentence him to probation, he has the ability to alter all of those, all of those qualifications, all of those recommendations, the standard operating things. And look, I just had a guy and the judge said, I said, Judge, he travels to New Jersey, Connecticut and Rhode Island for work. OK, I'll mark the papers. He's allowed to do that without checking in. So if he did ever sentence him to probation, which is such a ridiculous idea, what a waste of time, effort, energy, and money.

But if he did do that, he would have to lose his mind, Judge Marchand, to keep that travel restriction on the books. And if he did, I would pray to God that the Department of Probation of the city and state of New York would be smart enough to say, OK, Mr. President, you can travel wherever you want. Just have someone on your staff. Let us know where you are. Here's here's what we're going to get, Mark. We're going to get a probation officer who says, Mr. President, this will be, you know, in July. You can travel wherever you want, except Wisconsin, Michigan, Pennsylvania, Colorado. Other than that, you're good. Right. And now that I'm done listing the states you can't go to, can I get a urine sample?

Right, right, right, right, right, right, right. Realistically, Mark, realistically, you're advising Donald Trump at this point. I was being realistic about the urine sample, by the way. Oh, my God. I mean, that's one thing I don't think Trump does. He likes Sudafed, but he doesn't do drugs. My client is being the cop. They have to go in the company. Oh, my God. Yeah, yeah. Meanwhile, that's the one detail Stormy Daniels didn't share but wanted to, the in-depth description of Trump's private parts. Apparently, even Judge Bershon had his limits. So what would you be

telling him to expect on July 11th when he actually gets sentenced? Well, expect that he finds just a little humility just for a second, because the guy that he is taking shots at every single moment is the one who can sentence him to immediate custody and make that happen. So the first thing I would do is say, look, it's been fine up till now or not fine, but OK, we've accepted up until now. But as we go into court, this is the one opportunity where this guy's making a decision. Assuming he hasn't already made the decision months ago. Let's just just try to be humble. Let's present the mitigation and let's see what he does. You're sweet. Then he'd say, Mark, you're fired. Try to be humble.

That's not what he's going to do. Go ahead, Arthur. Let's just play that out, because I know you got all these great guests coming on, but I don't know how much of them have actually been in this exact situation. It's very unique in New York. So let's say he sentences him to three days in jail, three months, whatever it is. Immediately, you say to Merchant, Your Honor, and my client be held in the back. So he's got to leave the courtroom once the judge leaves the bench and allow me the opportunity to go in the state of New York, you get to pick your judge. So if the 20-some-odd judges of the appellate division, you already have a judge lined up. And you say, judge, my client's being sentenced at 11 o'clock. I would like to have a tentative appointment with you at 1 p.m. or 1.30. We come over and see you then if there's a period of incarceration. The judge says, yes. You run over there with the prosecutor. You have some paperwork. You have to show the judge at the appellate division the likelihood

of success at the appellate level. So you can't go in there with some frivolous documents. You can't say, oh, he's president. You can't do this. You have to say, judge, look at these unique circumstances, never done before. You cannot let this guy go to jail for three minutes, let alone three days, because by the time his appeal gets perfected, there's no redress. He can't get those three days back. And more likely than not, under those circumstances, because you get to pick the judge who's going to be a reasonable judge, the judge will stay the prison time until the appeal is over. So this jail time thing will get put on the side until the appeal is totally perfected. And if he loses the appeal at both the appellate division and the court of appeals, if they allow him to go up there, then he would have to do his three days in jail. And there'd be good. And could he appeal to the court of appeals right away if the appellate division like the appellate division judge says you don't to, you don't have to do the jail time. Can the prosecutor take it up to the court of appeals right away? No. If the appellate division, if the appellate, he has no redress after that Trump

does. If the appellate division denies him and says you got to do the three days, he cannot go to the court of appeals. I don't see a way for him to go to the federal court. He's just, that's just done. But if the judge does say you don't have to do the jail time right now until the appeal is over, there's nowhere for the prosecutor to go. And if he loses his overall appeal at the appellate division, it is not automatic that he gets to go to the court of appeals. Either a court of appeals judge has to invite him up, or if there's a lower court judge who's in the dissent,

that that lower court judge can send him up. I mean, I just don't see any way this doesn't ultimately get resolved by an appellate court, whether it's the New York State Court of Appeals or the U.S. Supreme Court. But none of that matters because the election will have taken place. Megan, I am not as confident as you on that issue.

But let me just say, Arthur mentioned that, you know, the chances, what would be his chances of staying that sentence? I think that they're great. I think that there's more than just he's the president, keep him out. I think all you have to do is raise that one issue about the jury instructions. They were either correct or they weren't. And that issue alone, I think, would serve as the basis to grant him a stay. And so he doesn't serve the sentence. And even before that, are you allowed for the first time to take a misdemeanor out of the statute of limitations and concoct this new

system to figure out an underlying crime? Yeah, Frankenstein. It's a Frankenstein charge. But wait, but Mark, so what would you be telling Trump? Because I want to talk to you about this. So what is what is expected of him? Like an allocution? What does he what does he need to say when he goes in for sentencing? Because what we all expect him to say is basically F off. You're corrupt. This is outrageous. Go ahead and do your thing. The truth is, I just went into generic, you know, 30 years of experience mode. It doesn't apply to Trump. And it would look hollow anyway, you know, and insincere if all of a sudden it's in front of him. So I take it back.

Truth of the matter is, you know, keep doing what you're doing. It's not going to make a difference. The judge already, I think, has decided what he's going to do. It doesn't matter, you know, how many letters of, you know, character or recommendation you get. That doesn't matter. I think this judge has decided what that is. We'll, we'll wait and see. I still think it will be non, non-jail. I think Mark is a hundred percent. I think Mark's a hundred percent correct. Under normal circumstances, you mentioned the term allocution. Allocution is only when you will plead guilty and you accept responsibility. Here, he's not accepting responsibility. He's been found guilty after a trial, so he doesn't have to accept responsibility. He can stand there and say, Judge, I know what the jury said, and we were, we'll never say that. I know what the jury said. I'm innocent. I didn't do anything wrong. I had no intent to cook any books or do anything. I did have an intent to shut up Stormy Daniels about something that I'm telling you didn't happen, but that's that. Your sentence is going to be whatever it

should be. I think this whole system stinks. I don't think I had a fair chance. I think these jurors were against me from the get-go. And you know what, Judge? I think you were against me from the get-go. But you're going to sentence to me whatever you're going to sentence me, and we'll take it from there. That's exactly what he's going to say. Arthur is like he's looking at his script already. That's exactly what he's going to say. Arthur, Arthur's like, like, like he's looking at his script already. That's exactly, I want to agree with you on something. And I hate to say this. I hate to say this. I agree with you. It's not that easy with this appeal because Megan, the appellate division is appointed by the last four or five governors, all the Democrats, Cuomo,

Spitzer, Patterson, Hochul. They're going to have a lot of pressure on them not to reverse this. When you get to the Court of Appeals, they have shown a lot of courage. They've shown a lot of guts. So maybe that could happen. But in the last case I did that went to the Court of Appeals, it took four years from the date of conviction or the date of sentence, I should say, to the date of reversal. So, you know, this is a long road to hoe. Nothing's going to happen fast. I don't know. It's not going to happen fast. Megan, I don't know if you really, really meant it or whether it was more like hopeful when you

said, oh, this is definitely because I saw you say that. I went, I said out loud to my kids. I go, Megan's Megan's not right on this one. I don't think it's going to be absolutely guaranteed to be overturned. In fact, many of the things that happened during the trial, and I've just been the victim of this many times, where you go, this is definitely going to be reversed. And then at best, they'll say, yeah, it was error. The judge shouldn't have done this, but it's harmless error. We're going to let it go.

No, it's not going to be upheld, you guys. It's not, for multiple reasons. Number one- Maybe you're right. The state constitution of New York was violated. It is not okay to just incorporate by reference the entire criminal law. If he tried to falsify the business records by unlawful means, that's how we got the dead misdemeanor resurrected up to a felony felony because he said they violated the New York election law, which says you can't win an election or try to win an election by unlawful means. And that unlawful means is so amorphous as to effectively incorporate by reference

all federal law and all New York state law, whether it's New York state tax law, federal election law, New York state business record law. That's all the foundation of Alvin Bragg's case. So he's admitting that those two words, unlawful means, are actually an incorporation by reference of all law. That's not okay. That violates the New York state constitution, which requires specificity so that future defendants know what the law is and is not. It's going down. Mark my words. And that's the argument. That's a great argument.

That's one of them. That's one of them. But you're saying that the court's not likely to take it. They're going to take it, and they're going to strike it down on New York State constitutional grounds in addition to the federal due process arguments. You may be right for that reason,

but they also may find just the opposite, and then that becomes law. No, I don't may find just the opposite. And then that becomes law. No, I don't think they find the opposite. Megan, by the way, I'm going to make this personal. Megan, you know who agrees with every word that just came out of your mouth? My father. He said, how do you defend yourself? He said, it's creating a false document to commit a crime in the book.

You're going to defend yourself against every single crime in the penal law? It seems so unfair. It seems so unfair. And as trial lawyers, I'd lose my mind. You know, you mentioned the other day, Arthur, about a bill of particulars. Why couldn't they have nailed that down and found out in advance, these are the three options, and then throughout the trial, the defense could have then fought against those three

and not been allegedly surprised. Mm hmm. But Greg said at the press conference, when he was asked several times, what is the underlying crime? And he said, the Constitution, the laws of the state of New York do not obligate me to tell you what they are. And that is true. It's true in the state, which yes, but in the burglary case, which is in the statute of limitations, which is already a felony. You don't have to be unanimous on what the underlying crime is that you went into the house for. But this is not that case. It's a misdemeanor out of the statute of limitations. There should be a higher standard that needs to be reached. The jury should have had to be unanimous about what that underlying crime was. And we don't know

if it was 444-3293, whatever. And to me, I think Megan's right. That is a violation of state and federal custody. And so we're clear, so we're clear to minimize the hate mail. I agree with each of you, and I like that argument.

You sound like RFK Jr. He came on the show yesterday, reversed himself on every position as soon as I pushed back on him. I didn't reverse it. I'm saying I don't have the confidence in the appellate court. This isn't how Mark Igler feels. I don't know that it's as certain and a slam-dunk reversal as you're saying. That's all I'm saying.

The reason why I fear Megan for quick, the only reason why I'm pushing back about the certainty, and I'm a little scarred, five appellate division judges heard the Weinstein case and seven court of appeals judges heard it. Only four agreed that it was egregious behavior by the trial judge. The appellate division, it was five nothing to affirm it. There was no problem with having all these other people testify. It was no problem having having all these other people testify. There was no problem having these crazy other things come in if he testified. 5-0.

And then at the appellate division, it was 4-3. I get it, but there's also the U.S. Supreme Court. There's also the U.S. Supreme Court, which is not going to see this the same way as the New York State appellate division. They're going to understand what a Frankenstein it is and how this defendant was not afforded due process under the federal constitution or, as I just pointed out, the state. They're going to understand what a Frankenstein it is and how this defendant was not afforded due process under the federal constitution or as I just pointed out the state. They're going to see it, they're gonna see it clearly. I actually think every single one of the conservatives will see it. I think it'll be a 6-3 decision.

It doesn't matter for electoral purposes, the election comes in November. There's zero chance anything happens before then. But I'm just saying ultimately, this is gonna reversed, and I have zero doubt about it. Here's Trump and what I think he's gonna sound like talking to Judge Mershon on July 11th during the sentencing. This may have been a preview. He had a presser this morning at 11 AM, Sat 2. There's never been a more conflicted judge. Now I'm under a gag order, which nobody's ever been under. No presidential candidates ever been under a gag order before. I'm under a gag order, which nobody's ever been under. No presidential candidate's ever been under a gag order before. I'm under a gag order, nasty gag order, where I've had to pay thousands of dollars in penalties and fines and was threatened with jail.

So I'm the leading person for president, and I'm under a gag order by a man that can't put two sentences together given by a court and they are in total conjunction with the white house and the doj just so you understand as far as the trial itself it was very unfair we weren't allowed to allowed to use our election expert under any circumstances you saw what happened to some of the witnesses that were on our side. They were literally crucified by this man who looks like an angel, but he's really a devil.

Literally? Literally crucified. They crucified him? I don't know what a nasty gang order is. I'm not sure. But see, this is where Trump shoots himself in the foot. We don't know that Biden is involved with this judge and the White House is involved. That's where he loses credibility.

He could just say that this judge is one of the only judges in the courthouse who made a donation to Joe Biden's campaign in violation of the judicial ethics rules so you know where he stands. Everything I just said is accurate. He could just say that and that casts the vote who's on the judge. That's right. And there was a pretty extraordinary piece, you guys. I know we've been talking about, Arthur, how you've been going on CNN.

And there is a former prosecutor there named Ellie Honig, CNN contributor who was writing in New York Magazine today. These are left-wing media. And pointing out how ridiculous these charges are and saying, prosecutors got their man, for now at least, but they also contorted the law in an unprecedented manner in their quest to snare their prey. And goes on to say things like this judge donated money, a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind to a pro Biden anti-Trump political operation, including funds that the judge earmarked for, quote, resisting the Republican Party and Donald Trump's radical right wing legacy. And he very fairly points out, would folks have been just fine with the judge staying on the case if he had donated a couple of bucks to reelect Donald Trump MAGA forever?

Absolutely not. Very fair point by Ellie Honig. This is amazing that he was allowed to stay on, but he didn't recuse. That is the image of impropriety at a minimum. I'm surprised he didn't recuse himself. I just want to say a word about Eli Honig. Through this whole thing, this media blitz I've been going through, he's one of the highlights of everyone I've met.

I met a lot of new people, and he's a quality lawyer, and he's a quality individual. And you know where he works and what journal he was writing for. And it takes some courage to write what he wrote. And he should be complimented for that. I have to say I've enjoyed Eli Honig's coverage. I actually do find him to be fair even prior to this piece. And I don't say that about most people. So kudos to him. But he went on to say as follows, the DA's charges against Trump push the outer boundaries of the law and due process. That's not on the jury. That's on the prosecutors who chose to bring this case and the judge who let

it play out as he did. And he talks about how he inflated the charges, how he incorporated by reference these three other possible crimes and so on. And he actually said, many have called this a zombie case. It's better characterized as the Frankenstein case, cobbled together with ill-fitting parts into an ugly, awkward, but more or less functioning contraption that just might ultimately turn on its creator. I hope that's true. I think Alvin Bragg has disgraced himself. That's what I think. He's disgraced himself by using the law to get a political enemy instead of to get justice. You guys are the greatest. Thanks so much for being a part of this show since it's dawn and even prior to.

Martha, you guys are the greatest. Thanks for being here. Real quick, ask Dershowitz or someone how this case gets to the United States Supreme Court. Just logistically, because I know through the New York State system, but I don't know how SCOTUS actually gets it. And one of those great guests will have the answer. And as a consumer, I'd like to know.

He's up next. Thank you for teeing up my next panel very, very nicely. See you guys. Thank you so much, Maggie. Take care, Maggie. Bye. All right. Up next, Dersh and Mark Garagos return.

But I'm out there and I don't mind being out there because I'm doing something for this country and I'm doing something for our Constitution. It's very important. Far beyond me. And this can't be allowed to happen to other presidents. It should never be allowed to happen in the future. But this is far beyond me. And this can't be allowed to happen to other presidents. It should never be allowed to happen in the future. But this is far beyond me. This is bigger than Trump. This is bigger than me. This is bigger than my presidency. So we're going to be appealing this scam. We're going to be

appealing it on many different things. He wouldn't allow us to have witnesses. He wouldn't allow us to talk. He wouldn't allow us to do anything. The judge was a tyrant. So we will continue the fight. We're going to make America great again. Very simple, because everybody saw it was a rigged deal. It was a rigged trial. But we're going to make America great again. We're going to make it better than ever before. November 5th. Remember, November 5th is the most important day in the history of our country. Welcome back to The Megyn Kelly Show. That was Donald Trump this morning speaking out for the first time about this jury verdict in full. Joining me now, Alan Dershowitz, professor emeritus at Harvard Law School and author of Get Trump, and they did,

and Mark Garagos, managing partner of Garagos and Garagos and host of the Reasonable Doubt podcast. Guys, welcome back to the show. So Alan, let me pick it up where we just left off with Arthur Aydala and Mark Eglarsh, where Arthur said, would you please ask Professor Dershowitz how it is that Trump could get this case, if he needs to, to the U.S. Supreme Court and passed what will be a heavily weighted Democrat bench at both levels, an immediate appellate and court of appeals in New York. He should make an appeal to the New York Court of Appeals asking him to bypass the appellate division because he's not going to get justice in the appellate division.

The appellate division are Manhattan judges that are elected and they don't want to have to face their families and say, we're the judge who will allow Trump to become the next president of the United States. They don't want to be Dershowitz. They don't want to be treated in New York the way I have been treated in Martha's Vineyard and Harvard and New York because I defended Donald Trump. So they should skip the appellate division, go to the New York Court of Appeals, ask for an expedited appeal. In the meantime, prepare for an expedited appeal in the United States Supreme Court and say that this was a rush to try to get this case a verdict, a conviction before election. And the Supreme Court of the United States has an obligation to review this case before the election so that the

American public knows whether or not Donald Trump is guilty or not guilty of these made-up crimes. You know, this is worse than Stalin and Lavrentiy Beria. Lavrentiy Beria said to Stalin, show me the man and I'll find you the crime. Bragg tried to find the crime, but he couldn't because his predecessor couldn't find the crime. The U.S. attorney couldn't find the crime. Bragg tried to find the crime, but he couldn't because his predecessor couldn't find the crime. The U.S. attorney couldn't find the crime. The FEC couldn't find the crime. So he did worse than what happened in the Soviet Union. He made up a crime that didn't exist, and he charged a political opponent with it. This will create a terrible precedent for how local DAs will become involved in trying to influence not only local elections, but national elections as well.

Let me ask you a follow up. Our audience probably knows that you're a famous criminal defense attorney and Harvard law professor, but really you're one of the most famous appellate lawyers in the country. And that's where we are now. So if you had to consult with Team Trump on grounds for appeal, not the everything but the kitchen sink approach, which I know you take, but like your top three favorites in this case, what comes to mind?

Number one is Stormy Daniels. The New York Court of Appeals recently held that the Weinstein, Harvey Weinstein, certainly not a popular defendant, his conviction had to be reversed because the court allowed the introduction of too many salacious other accusations that really had nothing to do with the trial and also threatened to put in other material if he took the witness stand. So the first thing I would do is try to piggyback on the New York Court of Appeals reversal of the Weinstein case and talk about how he improperly admitted Stormy Daniels,

particularly the details, the positions they took during sex, the kind of aftershave he used, the pajamas that he wore. The lack of birth control. Yeah, even more, right, even more if he took the witness stand. That would be number one. Number two, I think, would be the failure to give an instruction on the missing witness. The way the judge and the prosecution handled Allen Wieselberg really denied the defendant the right to a presumption that the only reason he wasn't called was because he would not have corroborated the very important testimony, lying testimony, of Michael Cohen.

So those would be the two things. I would also focus on change of venue and the fact that the crime was manufactured. There are so many issues that are good, even a minor technical issue. The judge closed the courtroom to the public. I was there. I was a witness. He didn't throw me out, but he threw out the media. And, you know, the Sixth Amendment doesn't say partially public trial. It says a completely public trial. So I would emphasize that as well, although it would be hard to show prejudice from that. But there are there are some this is a winnable appeal.

This is an appeal that a first year law student could win if the defendant's name wasn't Donald Trump and it wasn't New York. You know, Megan, can I? Go ahead. Yeah, go ahead, Mark. One second, because I don't know if Alan will remember, but Alan and I and Harvey actually got on a call, and I won't talk about the substance of the call, but it was the Saturday before he got remanded. And I will tell you that when you compliment Allen as being he's far and away the the appellate lawyer for the ages, but he correctly predicted what would's point about the Weinstein reversal, I would go one step farther because that opinion also said that and excoriated the then trial judge, who's no longer on the bench in New York. He excoriated him for telling Harvey that if you take the stand, this Molyneux evidence is going to come in, meaning the other acts evidence, basically freezing the defendant from taking the stand. This judge in this case did the exact same thing. It's almost like he read the opinion

and said, I'm going to commit the exact same error in this case with Donald Trump that just got reversed in Harvey Weinstein. And the reason he did it is because he knows the defendant in this case name is Donald Trump, and courts don't reverse convictions of Donald Trump. There's a special law for Donald Trump, which is why I named my book Get Trump. It wasn't my title. That's the title that was devised by Bragg. He ran on that principle. They know, prosecutors and judges know, the law doesn't apply to Donald Trump because the goal is to make sure he doesn't become the next president of the United States. So what, here's a little bit of Alvin Bragg, by the way, because now we're all looking forward,

not like happily looking, we're looking to the date of July 11th where sentencing will happen. And prior to then, both parties are going to submit a recommendation on what they think Donald Trump should get. Obviously, the defense is going to want no jail time. And I don't know whether they're going to want any punishment at all. They'll probably say what he's been through already is punishment enough. And the DA, will he recommend jail time? Will this DA who ran on a promise to get Trump, will he say this man should be put in jail? He was asked about whether he would object to a stay of enforcement if Trump gets a jail sentence at a press conference

he held, I think last night. So in other words, he was asked, okay, if he gets a jail sentence at a press conference he held, I think, last night. So in other words, he was asked, OK, if he gets a jail sentence, would you object to staying the jail sentence while he appeals this and runs for president? And here's as much as Bragg would say in SOT 13. If a jail sentence is in the cards, it is likely that Trump and his attorneys would seek a stay on enforcement of that sentence pending appeal. If that were the scenario, would your office object to staying in sentence? I'm going to let our words in court speak for themselves when we get to the sentencing matter. I'm not going to address hypotheticals. They raise arguments. We'll respond.

And I think your question really underscores an important point. This is an act of ongoing matter. I'm not going to address hypotheticals. They raise arguments. We'll respond. And I think your question really underscores an important point. This is an act of ongoing matter, right? We have other phases of this going ahead. We will continue to do our speaking about this matter, about issues like that. That's what he said when asked if he would seek jail time, too. Go ahead, Alan. Let me tell you what I think he's going to ask for. He's going to ask for a jail sentence, a prison sentence of two years, but suspended. The fact that he'll impose a two year sentence will create a symbol and a message that this is somebody who deserves jail time. But he's going to say he has no prior convictions. So we wouldn't object to a suspended sentence. But I don't think he's going to.

Explain what that means. Explain what that looks like. A suspended sentence simply means that he was sentenced to prison, but the judge suspended the sentence and said, I'm going to allow him not to be convicted, but there would be something hanging over his head. It would be like a probationary sentence. Not to be incarcerated. Yeah, not be incarcerated. But it would send the message that this is a guy who deserves to be in prison for

this. I don't think he's going to just say, yeah, just let him go loose with a fine. He's going to do something more than that. Now, the appellate courts, even the appellate division, will stay the sentence. He's not a flight risk. He's not running away anywhere. He's not a danger unless you think his election is a danger. That's not the kind of danger that I think the statute has in mind. So it would be, say, he's not going to prison pending the election. That I guarantee you. You know, it's interesting, Alan, because I hadn't thought of a suspended sentence. I had thought maybe 30, 60 or 90 and then stay it pending the appeal. The suspended

sentence is interesting because then does he if he doesn't win the election and he gets convicted in one of the other jurisdictions, would that trigger? I know there's arguments against it, but would that trigger the the imposition of the sentence? And so that that's almost diabolical in the way that it's executed. That's a good question. Well, what about all these probation restrictions that we're reading about now, one of which we didn't get to is a convicted felon generally cannot have a security clearance and not forget whether he wins. The tradition in this country is in the last I can't remember the period of times it lasts six to eight weeks prior to the election. Both parties, the sitting president, if he's running for reelection and his challenger, both start getting security briefings and get a

security clearance just to maintain a seamless transition of power depending on who wins. And so now is he prohibited from that? Do you guys know the answer to that? I would suspect under I would suspect no one's seen this before. Of course, this is unprecedented. Sorry. Go ahead. I would suspect under SIPA he's not eligible. My my immediate reaction is, can he not vote? Is he unable to vote for him? We look that up. We have the answer to that. So generally in Florida, convicted felons cannot vote. But if you're a citizen of another state living in Florida, you know, your driver's license, license, whatever, then they'll follow the other state's law. And we assume that Trump is a citizen of New York state. And if that's the case, then he can vote because New York, New York lets you vote even if you're a convicted felon so long as you're not incarcerated on election day.

Boyce is the dad of New York. He is now president and probably a citizen of Florida. Right. He might have become a citizen of Florida given the tax situation, right, between New York and Florida. So I don't know. If he can show, I'm not sure how high the threshold is to get, you know, your foothold in New York. Maybe at this point he'd, he'd probably prefer not to vote and say he's a Florida resident than say he's New York and have to pay the taxes. Go ahead, Alan.

If I were Donald Trump's political advisor, I would say he should be prohibited from voting and he should make a speech saying I'm being stopped from voting. You have to vote in my stead. I want everybody out there to cast a vote for me because I can't vote. I would turn that into a political advantage. I mean, his one vote doesn't matter, but he could make political hay out of it. Well, there's also an irony, isn't there, Alan and Megan? Because part of the left movement is to let convicted felons vote. And now he could embrace that just as he did criminal justice reform. Professor Lawrence Tribe. Champion.

Professor Lawrence Tribe. Emotional. Saying that. Hold on, Alan. Okay, go ahead. You're talking about Professor Lawrence Tribe. come up with a constitutional argument saying that all convicted felons should vote, but not Donald Trump. He'd find an exception in the Constitution for Donald Trump because he always interprets the Constitution to come out in favor of his own political views, unlike me and my wife. So here's where we are. Here's where we are in almost June of 2024.

We have, likely, the Republican Party saying convicted felons ought to be able to vote. And we have the Democrat Party saying it's wrong to charge gun crimes based on false applications for the gun in the Hunter Biden case. Everything is on its head. I can't keep up. All right. Let me go to our old pal Lawrence O'Donnell and his thoughts about this prosecutor, Alvin Bragg. For reasons that will never make sense in my memoirs, I decided today to spend the day at Alvin Bragg's alma mater. When Alvin Bragg graduated from Harvard College, the school newspaper, the Harvard Crimson, ran a profile of him. And the title of that profile in his last week of college was The Anointed One. And you finish that article, as I did a year ago, thinking,

yeah, that's the right title. That's who this guy is. The people of Manhattan who elected him, that's what they saw. They saw somebody who was dedicated to doing this job and doing it flawlessly and so profoundly modestly. Thoughts on that? Was this a profoundly modest judge and prosecutor alike? This judge, this prosecutor is one of the worst, most unethical prosecutors I've ever seen. Not only that, I remember him when he was at Harvard.

He brought Professor Jeffries to speak to the Black Law Students Association. Jeffries was a notorious anti-Semite. So even when he was at Harvard, he didn't have the best record in the world. He was well-liked. He was somebody who thoughtfully balanced one position against the other. But his actions in bringing a criminal charge here are akin to the actions of Stalin and Beria and will create a precedent for all American prosecutors in the future that if you want to get O'Donnell and other people to praise you, just prosecute your political opponents, make up crimes, get the right jury, get the right venue, get the right judge, and you will have your political career enhanced. This is going to send the most dangerous message to every local

prosecutor in the United States. It's going to change the nature of prosecution. You know, I never favored the election of prosecutors. That was Andrew Jackson's contribution to American democracy, electing judges and electing prosecutors, it's the worst thing that ever happened to American justice. And I think that Bragg is the worst manifestation of the worst thing that happened to American justice, elected prosecutors using partisan politics to weaponize the criminal justice system. We are now the shame of the world when it comes to how prosecutors

decide which cases to prosecute. This would never happen in Germany. I'm talking about current Germany. It would never happen in England. It would never happen in most Western democratic countries. It happened in the United States because we have- Can I ask you a question on that? Let me ask you a follow-up on that, Alan. What should happen to Alvin Bragg? You know, I looked just this morning, just for kicks, you know how Lawrence O'Donnell just went back to Harvard to worship at the altar of Alitude, forgery, fraud could get you disbarred. A history of dishonesty could get you disbarred, as well as any pattern of violation of the professional code of ethics. I look at this man who very clearly ran for office on a promise to get one man, as you pointed out, show me the man and I'll find the crime. And who put together this, earlier I called it a Russian nesting doll of legal complaints against him. You just had to keep opening and opening until you found a little one on the

inside, oh, it's a felony. Who I think was dishonest from the start about his good faith belief that an actual felony had taken place here. And I actually would like to see Alvin Bragg lose his license to practice law. I don't think he does this profession any honor. What are your thoughts on it, Alan? I don't think he should be disbarred. I think he should be investigated and we should see whether there's more to it than this. I think I don't want to weaponize the bar complaints, too. There's an organization called the 65 Project, which is trying to disbar every lawyer who ever defended Donald Trump, even filed a charge against me in Massachusetts. And they're going after every possible lawyer.

And I just don't want to see the weaponization of the disbarment. I do. I disagree with you there. Mark, you're going to have to mediate this. See, I was with you. I was with you. But I'm done now. There's only one way to teach these rabid Democrats who have done this to Trump the lesson about how terrible this is for America.

And it means we're going to have to take off the gloves and we're going to have to fight UFC style now. It's not going to be the boxing with the proper protection. It's going to get ugly. And that's the only way they'll learn. No, you be quiet. Let Mark answer one. Go ahead, Mark. I was going to just build on something here about the local prosecutors, whatever. I mentioned the other day when we were on that and I saw last night Mark Levin talking and going crazy. I remember Mark Levin as one of the people who was kind of pursuing Bill Clinton during Whitewater and I find it kind of ironic because we were complaining then, Alan included, about the Whitewater and the Independent Council and what Ken Starr was doing and we said, wait until the shoe is on the other

foot, you're going to see it. And instead of Richard Allen's Skype, we now have George Soros. And instead of an independent counsel, we've got a local prosecutor. What's going to end up happening is, in my humble opinion, you're going to have, and I'll give you an illustration of what Alan's talking about, you're going to have some local county prosecutor who is going to sit in front of a grand jury and ask for Joe Biden to get indicted. You're going to have a local county prosecutor who's going to ask that Ali Mayorkas gets indicted. And you're going to start seeing county prosecutors

in red states doing the exact same thing. And we're going to have this yin and yang pendulum swing, which, by the way, the U.S. Supreme Court started talking about in their oral questioning when they were talking about the absolute immunity. That's the only way through this morass. It's going to get worse before it gets better because it will never get better. And the Democrats will keep doing this. Look how many times they've indicted or sued Trump, just Trump alone, until they have skin in the game. Republicans have tried to say, oh, the system, no, that fails. It's on now. We have to stop pretending that we had the

legal system that you two and I grew up with. It's different now. Go ahead, Alan. Two constitutional wrongs don't make a constitutional right. I think the Republicans do. Keep going. Sorry. The Republicans did a terrible thing by trying to impeach by impeaching Mayorkas. Mayorkas didn't commit an impeachable offense. This was just tit for tat. Trump didn't commit an impeachable offense. They went after him. That was wrong. And then they went after Mayorkas. What was wrong with tit for tat? Mayorkas, a pro bono, if he had asked me to in front of the Senate. And I would defend any Democrat who Republicans tried to target in a

tit for tat, ying for yang approach. My approach is no wrongs instead of two wrongs. We tried that. I couldn't agree more because if you watch this pendulum swing, it just turns out it's inevitable that that is what's going to happen. And I guarantee you, if I can bet, I will bet you that there is going to be a county prosecutor within less than a year who's going to do the exact same thing. Right on. He's going to get favorable coverage right here at the Megyn Kelly show. Because it's on. The norms have been broken.

We can't just sit back and let them do this to Dershowitz and let them do it to Trump and sit there highbrow like, oh, we would never. They're just going to keep on as long as Donald Trump or his descendants or MAGA remains. But even beyond, they try to convince us Mitt Romney was the devil incarnate. It's going to continue happening because now they've succeeded. I agree, but you fight a lack of principle with a principle defense.

You don't get down into the gutter with them and allow the pendulum. You know who we need? No. You know, I thought I'm going to utter words I never thought I would utter in my life. We need Steve Bannon. That's how I feel today. Bring it on. Get somebody who knows how to fight dirty.

Calling the shots. We're losing. They're taking out our people. This is about the presidency and the future of the country. And this jerk from Harvard, the anointed one, with the help of Judge Mershon, just started doing it. He might have done it. We don't know how independents are going to react to this convicted felon thing.

Listen to this. Listen, this is the messaging they're going to hear. Hold on. My team cut some media reaction and the craziness on the convicted felon. Oh, okay. Well, here's Keith Olbermann. He's always good for a laugh.

Convicted felon Donald Trump has been found guilty Oh, OK. Well, here's Keith Olty-gay, guilty-guilty-guilty-guilty, very guilty, repeatedly guilty, incredibly guilty, extra guilty, extra large guilty, extra crispy guilty, diet guilty, lemon-scented guilty, family size guilty, tartar control guilty, and lastly, not, not guilty. I nominate him for the first tax audit. It's on. That's my, that's where I am emotionally and mentally today, you guys. I don't know what can be done,

but do we just sit back and try to whack-a-mole all these cases against Trump? Because if they go forward, it's not going to get any better for him from here. This was the case he should have won. We are now living in an age of left-wing McCarthyism. I grew up during right-wing McCarthyism. And the answer is not to become McCarthyites.

The answer is to fight with principle, not whack-a-mole, but to try to persuade the American public that fighting this fight by imposing wrong upon wrong is not the right approach. Most Americans are decent, middle-of-the-road people who want to vote for leaders who will not engage either in left-wing or right-wing McCarthyism. Eisenhower did a great thing when he stood up against McCarthy as a Republican, and many others did the right thing. But I still have trust in principle. And I can tell you this, I'm going to live my life based on principle. I'm not going to submit to the extremes of the other side and do what they've done. I simply won't do it myself. I'm too old to change. I was brought up with principles. I live my life with principles. And I'm going to die a principled man, I hope.

It's so annoying, Alan. Not anytime soon. No, not anytime soon. Well, that's, I mean, I know that's true. I've known you for a long time. I know it's true, but it's annoying because I just, I'm so tired of this. I'm so tired of these disgusting tactics

by these bare knuckle brawlers over on the left side, you know, on everything. And they just keep succeeding at it. And the right just has its righteous indignation and all of its big losses. And I'm tired of it. All right. So last prediction, what's going to happen, Mark? Is there going to be jail time? And if there's not jail time, what, three days, whatever could be, then what is Trump likely to get? Even though I'm very intrigued by Alan's suspended sentence prediction, I still think you're going to see 30, 60 or 90.

It's going to be stayed. And I think it's a very smart idea that you go, because I've watched both the oral arguments at the intermediate stage for Weinstein and then the Court of Appeals there, which is the highest court in New York. And I thought after the intermediate stage, I don't know, Alan, if you watched it, but I thought they were going to reverse at that stage. If you had seen what they basically eviscerated the prosecution, but they ended up affirming the conviction.

He had to go to the Court of Appeals. It was divided four to three. I think they need to just kind of leapfrog, go straight to the Court of Appeals, and then they may get some traction if the US Supreme Court weighs in, because the US Supreme Court decision, if they don't remand it for factual findings, could sway a lot of this. There's some arguments I can see where the Court of Appeals may have to weigh in. So I don't think he's going to jail. The Supreme Court, just as a reminder, the Supreme Court held last June.

We've got to pull up the decision and take another look at it. But they held last June that you cannot have an amorphous generalized intention to defraud against the general public in criminal statutes. They don't want that. And the judge wrote that right into his jury instructions. So that's contrary to what the U.S. Supreme Court has held. That's hard partisan hacks like we might see on the New York State Appellate Division. And if it gets there, and I believe I happen to believe the New York State Court of Appeals is still a real, legitimate, honest court. I don't think they're all partisan hacks. Harvey Weinstein, that took a lot of guts. And it was all the women. It was all the female justices who reversed it. Go ahead, Alan. Well, but it was a four to three decision. Four to three decisions could easily go the other way. Look, my clear prediction is that on November 5th,

Donald Trump will be out of prison and will be running for president without being in prison. That's my one prediction. He's not going to prison pending the election. After that, it depends so much on what Bragg seeks. And whatever Bragg seeks, I think Judge Marchand will grant. And so it'll either be a suspended sentence or a symbolic weekend sentence or a probationary sentence. But it won't just be a fine.

Here's what's really terrifying. If Trump loses the election, if Trump loses this election, there's nothing to protect him from Jack Smith or Fannie Willis. Jack Smith times two. He loses the election, he's going to go around complaining again that he lost the election. And this time, he may have a basis for the complaint. The last time, I don't think he did. 100%. No, but Alan, the point I'm trying to make here, the point I'm trying to make here is, is he going to do better with a jury in D.C.?

This trial is a reminder of what's waiting for him. And on those two federal cases, he's going to jail. If he gets convicted on one of those, he's going to jail. And that's what's really scary. No, I disagree. If he loses the election, he's going to have to sit for those trials and he's going to be sent to prison. Go ahead, Alan. No, the Florida case. The Florida case is a smoking cigarette butt. That is it smoking because he did wave a classified paper in front of somebody who was unauthorized, just the way President Biden waved the classified paper in front of his biographer and said, this is classified, be careful with it. But he won't get jail time for that. But he might very

well- What about the obstruction? Hm? Well, there's also the obstruction charge down in the Mar-a-Lago case. Yeah, but I don't think he'll get convicted on that. Obstruction, last time I looked, I don't even think those are calls under the sentencing guidelines. So the January 6th case, he will get it. Yeah, I agree with that. I agree.

I agree. He'll get jail time, you're saying, Mark. Disagreeing about something is getting boring. We're disagreeing with you. I'm partnering up with Steve Bannon for the next. OK, that's a fair fight. You guys. It's a fair fight. Abigail F, again, it's a fair fight.

Abigail Finan will never allow it. She's still mad about our little dust up during the Trump first run. Guys, thank you. Thanks for being here. Thank you. Okay. President Biden has just spoken to the Trump conviction. We will play that next when Dave, Mike and Phil join us on this illegal smorgasbord of expertise and talent for you on this important day. Don't go away. I'm Megyn Kelly, host of The Megyn Kelly Show on Sirius XM. It's your home for open, honest and provocative conversations with the most interesting and important political, legal, and cultural figures today. You can catch The Megyn Kelly Show on Triumph, a SiriusXM channel featuring lots of hosts you may know and probably love. Great people like Dr. Laura, I'm back, Nancy Grace, Dave Ramsey, and yours truly, Megyn Kelly. You can stream The Megyn Kelly Show on SiriusXM at home or anywhere you are.

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Offer details apply. Joining me now, Mike Davis, founder and president of the Article 3 Project. Dave Ehrenberg, state attorney for Palm Beach County, Florida, and host of True Crime MTN on YouTube, and Phil Holloway, legal analyst and host of Inside the Law. The legal all-stars continue. Thank you guys so much for being here. Let me get your reactions first to this verdict last night. Mike Davis, I'll start with you. It's an outrageous verdict, but predict it. And it was part of a partisan, corrupt and rigged process. This this criminal this there was a guilty verdict. This judge will convict and sentence that will get overturned on appeal. The issue is, is that will not get resolved before the election. And that's what this is all about. This is election interference by Joe Biden and his allies and his aides. Dave. I know it won't surprise you, Megan, that I'll disagree with my friend Mike.

This was a predictable verdict, but I do think that it's clear that presidents do not communicate directly with state attorneys. If any White House had communicated with a state attorney, it would be me because I oversee Mar-a-Lago. I can tell you, I don't even get invited to a White House holiday party. So, you know, you can try to blame, no, obviously not on anyone's list. And especially now that I go on your show.

I'm totally bringing you to the Megyn Kelly show Christmas party this year, but keep going. It'll be the only one I get invited to, Megyn. Thank you. And as far as the outcome, it was, as we discussed previously, it was pretty predictable because I do think that Todd Blanch, Trump's lawyer, made a couple crucial errors. I think Trump's best defense would have been, yes, these were reimbursed on some Michael Cohen, and so what? You can count them as legal fees when you reimburse a lawyer slash fixer. So there's no intent here to commit a crime. But Todd Blanch undid that in his opening statements. I have to say, I like that. Phil, your reaction? Well, great to be with you again,

as always. You know, they say garbage in, garbage out. The verdict being the garbage that came out of this trial was directly related to a number of things. For example, the judge who has his own legal reasons why he should have recused himself, notwithstanding any bias he personally might have. He should have recused himself due to the financial conflicts of interest with his daughter. But he also has his own personal bias. He should have recused himself for those reasons. He donated money, okay, to the anti-Trump, pro-Biden thing before the trial. And then you had all of these ridiculous rulings that culminated with this ridiculous jury instruction that allowed the jury to be non-unanimous, Megan, on one of the essential elements of the offense, the so-called other crime. What was it? And we still, Megan, we still do not know because the verdict form did not lay it out in that way. So we don't yet know what exactly this jury agreed on and what it may have

disagreed on. And those three possibilities for other charges were things that were never even charged in the indictment. So you have a garbage in, you have a garbage out, and that's what this verdict is. It's garbage. You know, speaking of that donation that the judge made, you raised this the other day, Mike. So the judge, he donated $35 in violation of this rule prohibiting New York judges from making political donations. And he made it to a group, he earmarked it, for, quote, resisting the Republican Party and Donald Trump's radical right-wing legacy.

Mike and Dave, we talked about this the other day. The Democrats right now, the chairman of the Senate Judiciary Committee, Dick Durbin, is trying to get Samuel Alito forced to recuse himself from deciding these two cases, J6 and immunity, that are up before SCOTUS right now, because his wife flew a flag, a flag that was on George Washington's ships, saying, no, that's too much. That poses an appearance of impropriety.

But this is fine for this judge, the judge, to have donated money to the Resist the Republican Party and Donald Trump's radical right wing legacy group, Mike. Well, that's a problem. That was clearly an illegal campaign contribution by a judge under New York law that got him reprimanded by the New York court system. We found out we found that we just found out he got reprimanded many months ago about this. But guess what? That didn't deter this corrupt Democrat, Juan Merchan, whose adult daughter, Lauren Merchan, is raising millions of dollars off of this unprecedented criminal trial over which her father presided, requiring his recusal under New York

statute. He didn't recuse. Instead, he retaliated against President Trump with an illegal unconstitutional gag order. How about that one, Dave? You didn't like the flag being flown outside of Alito's. We talked about appearance of impropriety. Does it create an appearance of impropriety for the sitting judge over the first trial of a former president to have donated to the resisting the Republican Party and Donald Trump's radical right-wing legacy group? Well, it was $15, but yeah, I concede that. Well, $35 with some money. Yeah, but whatever. So what? He did it. Shows his bias. Well, the thing is, he did go to the State Ethics Commission to see if he needed to step down from the case.

And the commission said, no, I only wish Sam Alito would do the same thing. But, oh, that's right. The Supreme Court gets to make its own rules. Sam Alito could go to Chief Justice John Roberts tomorrow and say, what do you think? And he would say, you're good. No, no, no. He would say, you're good. You're right about that. He actually did. He checked the Supreme Court ethical guidelines. And he cited that in his letter to the Senate where he checked with the Supreme Court ethical guidelines, and he cited that parties playing games to get justices to recuse,

because there are only nine justices and you can't substitute them like you can substitute the lower court judges. It's just amazing that we can have an appeal to heaven flag, cause the left to want these justices off the Supreme Court cases, but an actual donation to a far left group that says its whole mission is to resist Donald Trump and his radical right-wing legacy. No problem. Okay, go right ahead and preside over the very first trial ever, criminal trial for a former president. All right, speaking of presidents, our current president decided to weigh in on this from the White House, ill-advised in my view. Just stop, stop, stop, stop. You represent us all when you're in that

house and when you are the president. Stop it. Remember when we used to have presidents who didn't comment on criminal cases? Just zip it. Zip. Got a whole lot of for you. But here's what he had to say. Before I begin my remarks, I just want to say a few words about what happened yesterday in New York City. The American principle that no one is above the law was reaffirmed. Donald Trump was given every opportunity to defend himself. It was a state case, not a federal case. And it was heard by a jury of 12 citizens, 12 Americans, 12 people like you, like millions of Americans who served on juries.

This jury is chosen the same way every jury in America is chosen. It was a process that Donald Trump's attorney was part of. The jury heard five weeks of evidence, five weeks. And after careful deliberation, the jury reached a unanimous verdict. They found Donald Trump guilty on all 34 felony counts. Now he'll be given the opportunity, as he should, to appeal that decision just like everyone else has that opportunity. That's how the American system of justice works. And it's reckless. It's dangerous. It's irresponsible for anyone to say this was rigged

just because they don't like the verdict. Our justice system has endured for nearly 250 years, and it literally is the cornerstone of America, our justice system. The justice system should be respected and we should never allow anyone to tear it down. Yeah, and that's exactly what he did, Phil. That's exactly what he did. This president in the federal cases hit through his AG and these two state prosecutors in your locale with Fannie Willis and up in mine with Alvin Bragg.

Your reaction to the president? Yeah, guess what, Mr. President? We didn't have to wait for the verdict to know it was rigged. We watched it in real time being rigged day after day after day. We watched as acting Justice Mershon repeatedly would sustain the objections of the prosecutors before the objections even got out of their mouth and without offering the other side an opportunity to weigh in. And we watched every day as Justice Mershon gave ridiculous jury instructions that did not require their unanimity on an essential element of the offense. And we watched in real time as this judge let this prosecutor take this

trial all the way to the end without even naming what the so-called other crime was they were trying to hang around the neck of the defendant. This is all in violation of due process. It's all in violation of Donald Trump's constitutional rights. And this is not even to mention allowing in all of the irrelevant testimony from witnesses like Stormy Daniels. And to build a case on a convicted, felonious liar such as Michael Cohen, it's reprehensible. It's reprehensible of Bragg. It's reprehensible for this judge.

It's reprehensible for Joe Biden to stand there and tell me that I've got to take this and I've got to respect it. I don't have to respect any jury verdict when it is built upon a card of lies. Yes, I agree with you. Dave, what do you make of the president? Remember,

do you know what I'm saying? Remember when we used to not have presidents do this? You know, the president of the United States did not feel the need to weigh in on criminal cases. And I would say, especially when it's your opponent in the presidential election, stay out of it. That you're working for us, for the entire country. Don't speak about this from the White House. Am I wrong? Am I missing something here? Well, I think you may be fighting the last war, Megan. I think we're way past that point. I mean, Donald Trump called for his opponent to be locked up. And as president, he tried to pressure the attorney general to do something about his opponent. So this is. And as president, he tried to pressure the attorney general to do something about his opponent. So this is not new anymore. You know, this has been going on for a while. So I don't take umbrage that Biden talked about it. You know, I don't think he's going to

spend a lot of the campaign talking about it. If he continues to do so from the White House, then I'd have more of a problem. But I don't have a problem with him just making a reaction statement the next day. We'll see how much further he goes. OK, but just for the record, Trump has definitely said some outrageous things. However, I was there and I covered Barack Obama, who was the first that I know. I mean, I definitely my tenure as a journalist began when W. Bush was president. He never did this. It was Barack Obama on the Trayvon Martin case

who for the first time felt the need to weigh in on a private matter. And now we're at the point where we have Joe Biden as he's running for president, about to be elected, calling Kyle Rittenhouse a white supremacist for which there was no evidence. And none of that panned out, no apology from him to Kyle. And now on and on it goes.

It's not appropriate. I want them to stop doing this. Now the campaign, they're not even trying to seem highbrow about convicted felon Donald Trump, but here's how they sounded. Mitch Landrieu, he is the Biden campaign co-chair this morning on Morning Joe. Take a listen, Sot6. It's a very sober moment for the country and a very sad moment for the country, for all of the people in America to have a president or an ex-president become a convicted felon. That's nothing for anybody to have a lot of joy about.

And as a consequence of that trial, Donald Trump is now a convicted felon. You can have a guy that's a convicted felon that has been found liable of defamation, sexual abuse and business fraud. And now a convicted felon who thinks about himself and of course, every word that comes out of his mouth thinks about revenge against people who dare cross him. Or you can have Joe Biden who wakes up every day thinking about the American people. Mike, it's a very sad and sober moment for convicted felon Donald Trump, who's a convicted felon, in case you weren't aware, he was convicted of a felony. Well, I hope these Biden Democrats, including President Biden, keep doing this and they keep celebrating their Pyrrhic victory here, because I don't think they understand how much they have

outraged the American people. They have poked the bear. I am getting inundated with phone calls, text messages, DMs, emails, donations to Article 3 Project when we're not even soliciting donations on this matter. It is overwhelming what I'm hearing from people. And these aren't my fellow Trump supporters. These are people who are tired of Trump. They're sick of Trump. They even don't like Trump, right? But they are all in now because they see what happens with this trial in New York, that it is a corrupt, partisan, rigged process. And they don't find this is acceptable in America. Dave, that's the thing. To me, this feels almost like a Brett Kavanaugh moment where that moment made a lot of people Republicans.

And it brought back into the fold a lot of Republicans who didn't like Trump. But what they did to Kavanaugh was it activated many people. And this moment seems like it's doing the same thing. I am like Mike. I am getting the same amount of incoming to me. People are stopping me on the street, wanting me to know how they feel and saying they're, nothing can stop them from voting for Donald Trump now. And then they all start with like, I'm actually don't, I don't really even love the guy. Do you think that that's something that the Democrats have factored in, right? Do you think they thought it would be this would contain any backlash? I don't know how much they thought about that. I can tell you this, Megan, I run in different circles and I'm experiencing the same on my side where there's a new energy that didn't exist before. Democrats were sleepwalking through this campaign. They were not enthused about Joe Biden.

They were bedwetting, as we like to do, thinking we're going to lose. And then all of a sudden, there's a spring in their step. They're fired up. And I wonder if this is the type of thing to light a fire under the base, to bring the base home to Joe Biden. We'll see. But in the end, this is going to be decided, this election, by that small number of swing voters in those few swing states. And how they will react to this is still up in the air. Phil, this is what Trump posted last night on his Truth Social.

It was before he'd really spoken in earnest to it, but this was sort of his messaging, and I think his mood right after this happened. Sot 5. This is the final battle. With you at my side, we will demolish the deep state. We will expel the warmongers from our government. We will drive out the globalists. We will cast out the communists, Marxists and

fascists. We will throw off the sick political class that hates our country. We will rout the fake news media and we will liberate America from these villains once and for all. It reads, join President Trump's fight for America. And he reported himself this morning, Phil, that just in the overnight, he'd received over $40 million or almost $40 million. I'm sure it's over 40 now in donations. He said almost all of them small money donations. So the amount of people who would have had to have donated, the website crashed. There is real enthusiasm right now. And it's not just from Cormaga. No, I think it's because Americans, whether they like him, even if they don't like him, Megan, they have lived vicariously now through him because they have seen that this trial

was unfair from the very beginning. They've seen how it was weaponized and the criminal justice system basically pointed like a double barrel shotgun aimed directly at one specific citizen. So they've experienced that. When I have handled in my own career cases involving people who were innocent, outright innocent, yet they were charged with very, very serious things. You know, they oftentimes would say to me, I had no idea that the system could be used like this. And now a lot of America is feeling that same feeling because they're living this through Donald Trump. They see what's going on. They recognize that it's partisan. They recognize that it's not fair. And so they've turned a lot of people who might not otherwise be on the MAGA train,

so to speak, they've brought them over to where they can be, you know what, I'm going to have to support this guy because what has happened to him is wrong. So absolutely, it's motivating people who did not necessarily like Trump or maybe not even considered voting for him before now, but now they will. Mike, I feel strongly, and I just had a fierce debate with Alan Dershowitz and Mark Garagos about this, that it's time to fight. Let's fight the way they fight. Let's take off the gloves. Let's go UFC, hardcore. Let's start indicting their people. I'm sorry, but if this is how we're going to do it, then we're going to have

to do it like this until we can restore sanity to the legal process. And I'll give you a suggestion just out of nowhere about who we could start with. Can we please run SOT7? Thank you. Thank you so much. Anything going on today? Yeah. That's Hillary Clinton last night in new york what do you think i 100 agree with you megan and that's the exact approach i ran with the kavanaugh confirmation when i was the chief counsel for nominations i i ran what i called the dead chicken strategy. And when I did my clerkship on the Supreme Court briefly to help Gorsuch get set up,

all the clerks meet with all the justices for lunch. You have like speed dating with the eight other justices. And our lunch with Justice Clarence Thomas was my best and most memorable because he talked about growing up on the farm in Georgia, when dogs killed chickens, you wrapped those dead chickens around those dogs' necks. And as those chickens rotted around those dogs' necks, those dogs lost the taste for chicken. And Republicans need to do the same thing with these Biden Democrats on this lawfare. And they need to give these Biden Democrats a healthy dose of their own medicine

with their own indictments and their own investigations. And I think after maybe four years of the Trump 47 Justice Department doing that, working with Republican prosecutors and Republican juries and deep red Republican areas, Republican judges, corrupt Republican judges, hopefully that donated to President Trump like the Democrats are doing to like the Democrats are doing to Trump. Now, once Democrats get a healthy dose of their own medicine with the dead chicken strategy, I bet you they'll think long and hard before they do this again. I feel like you should put Clarence Thomas in touch with Kristi Noem for the sake of her future chicken eating talks. I think we could save a lot of, by the way, it's literally every other day that I say to Stradwick,

you behave or you're going to the Kristi Noem ranch. That's your next move. Off you go. Okay. But I wouldn't. I'm only joking. I joke because I love. Phil, where do you stand on it?

Because I understand Dershowitz was saying, I'm a man of principle and I'll die a man of principle and I'm never going to play the left's games. That's McCarthyism. We don't beat it by becoming them. I just feel like that's a yesteryear mentality. It's on, but we've crossed a barrier that's, you can't undo it. The Rubicon has been changed. And so we have to change the way we fight or we're going to keep losing. And by we, I mean sane people who miss the real America. Well, listen, let's put it this way, Megan, I understand the point you're making. You and I probably are going to see this one a little bit differently and that's OK. We can still be friends, but I don't believe in the organization of the justice system for political

purposes, not in any circumstances. It was wrong when it happens to Donald Trump. This would have been wrong if it were directed at Joe Biden or if it were Barack Obama or even Bill Clinton. And it would be wrong for people to go and find things that they can charge their political opponents with just as a way to get even. I can't support that. How else do we get them to stop, Phil? How else do we? We don't want that either. Mike doesn't want that and I don't want that. But the only way to make it stop is to do it temporarily to make them feel the pain so that we can get back to normal. And what you do is you find the people that are the perpetrators of this, the Juan Merchants, the Alvin Braggs, and you find the ways that they have

violated not only their professional ethics, maybe they violated some criminal laws, and you use those things that they have done, and you punish them for it through the mechanisms that exist. You've got bars. I think it's an all-in. It's an all-in. I said this on exit last night. I think Alvin Bragg should be disbarred. He should be disbarred. Any man who would do this to our justice system for political purposes to a former president and the likely nominee for the Republican Party has no business being in charge of people's futures and liberty. Mike, what do you make of it? I think he should be more than disbarred. I think he should be behind bars. And there is a federal criminal civil rights statute. It's called 18, well, it's 18 USC 241 and 18 USC 242. These deal with conspiracy by government officials to violate someone's

constitutional rights. And we've seen that over and over again with Soros-funded Manhattan DA Alvin Bragg, former Obama and Biden senior political appointee Matthew Colangelo, and this Democrat corrupt judge, Juan Merchan. Remember, this judge just happens to be randomly picked for all of these Trump-related cases. He got picked for the Trump Organization criminal trial. He got picked for Trump's trial. Now he got picked for Steve Bannon's trial. He's an acting justice on the Supreme Court. He's like the Forrest Gump of this lawfare against Trump in New York. He just happens to show up at the key times.

It's not random. That's like a one in 15,000 chance that one Mershon ends up on all three of these Trump-related cases. He's obviously being selected. His daughter is raising millions of dollars off of this. She's getting very rich off of this. He is corrupt.

He's violating Trump's civil rights with his illegal gag orders, with this jury instruction that he knows violates Ramos versus Louisiana, a Supreme Court decision from 2020, this rigged process, this partisan process. He should be behind bars. Alvin Bragg should be behind bars. Everyone who was involved with violating Trump's civil rights under 18 U.S.C.

241 and 242 should be behind bars. They better watch it. Phil's clapping. They better watch it because Trump really could win this election. I mean, look, this is kind of a BS poll, to be honest. I have no idea. I've never heard of the Daily Mail poll. It's not the Daily Mail's, but it's JL Partners. And they polled 403, small sample size, likely voters. We do check these polls to make sure if they're legit. This has barely been rated by 538. It's got 1.6 stars out of three and only two polls analyzed.

Okay, so for what it's worth. But that thing, that sort of snap poll, showed that there was a slight bump for Trump in the voting public in his favor after this conviction. Now that's, again, take it for what it's worth. But we are going to have to watch these polls in the days and weeks to come to see whether this is a Kavanaugh moment where the Republican Party is galvanized and even leaners, you know, the so-called independents who are leaners toward Republican or toward Trump, whether they come on board or whether it's the opposite effect. You know, it's the Democrats who are enthused, as Dave just said, and leaners start leaning all the way away and back to Biden because they don't like the words convicted felon and they actually

take this seriously. We just don't know what the truth is. I will say this, and I'll give it to you, Dave. Judge Mershon is taking it on the chin by the right, but the left, including this man, could not be more laudatory. Let's play Sat 17. Judge Juan Mershon, who is an absolute gentleman, to see him on that stand is to see poetry. It's to see a masterful judge who was quick with decision making.

He was absolutely judicial perfection. And the jury had tremendous respect for him, as did I, which is what kept me off of all my social media. That and Donnie, of course. The jury respects Judge Mershon. And I believe a lot of the antics that went on in the courtroom, whether it was by Blanche or by Donald himself with the eye closing, you know, the leaning back, the total disregard for the jury. I don't think he engendered any positive feelings by anyone. That, of course, was, to steal a term, convicted felon Michael Cohen on MSNBC last night. What are your thoughts, Dave, on this judge?

Well, just to go back to what we were talking about earlier about his donations, you know, it's this New York State Commission on Judicial Conduct. They said in an advisory opinion last May that these modest political contributions made more than two years ago cannot reasonably create an impression of bias or favoritism in the case before the judge. So he did check with the commission. They gave him a clean bill of health to go forward with it. Now, as far as what happened at the trial, he made rulings on both sides and Donald Trump decided he was not going to testify. He had every ability to. Costello was the one key witness and that was a mistake to put him on. And he got in a fight with the judge that was not a good look. So there are a lot of missed opportunities for the defense. It wasn't just like you have one judge and they railroaded Donald

Trump. They had a lot of evidence. The jury took nine hours. They asked a lot of questions. And in the end, they made the decision based on the facts and the evidence. One of the jurors got their information entirely from True Social and X. So it wasn't like all bunch of Antifa members on the jury. Well, that was what's been reported. We looked that up. We looked that up because I thought, oh, my God, is there a secret Trumper on the jury? That would

be big. But no, actually what he said was that he gets his news from everywhere, including Twitter. And on Twitter, he sees everything, including some of Trump's truth social posts. So that is, as you know, not the same as being on truth social and actually getting your news from truth social. I want to spend one more minute on Michael Cohen, who's probably the most gleeful man in America today. Here's what he tried to tell Rachel Maddow in Sat 21 about himself. The strategic necessity of you staying cool

and having that same affect and everything, how hard was it? Not hard at all. It's the media that wants to portray me as this sort of bombastic character. It's really not my nature. We've all heard bombast from you. But you've heard it from my mea culpa podcast or political beatdown podcast.

It's a it's a persona for it. I can't go with intelligence, so I have to go with bombastic. That's a persona. I mean, literally every reporter in news, left, center, and right, has a terrible story about Michael Cohen. Berating them, swearing at them, threatening them. And since he raises the Mayor Culpa podcast, which now he says is all acting, it's just a persona. Here's a bit from it in SOT 22. So I want to thank the Manhattan District Attorney's Office and their fearless leader, Alvin Bragg. He is about to get a taste of what I went through.

And I promise you, it's not fun. Picturing Donald Trump being led through the booking process, getting fingerprinted, having his mugshot taken, fills me with delight and sadness all at the same time. Sadness, I say, because what an embarrassment it is to the office of the presidency to have a former president of the United States handcuffed and mugshotted before the entire world. That is the only man who was able to say that Donald Trump explicitly agreed to this so called scheme, the scheme which is totally legal, by the way. But that's the only man, Mike. And

the jury seemed to say, yeah, you know what? We like him. We believe him. Well, does that surprise you, Megan, when you have a jury pool that voted 87 percent for Joe Biden and then this corrupt judge and partisan prosecutor, Alvin Bragg and Biden operative Matthew Colangelo further rigged the jury selection process where they bounced the three people in Manhattan who followed Trump on truth. But they didn't bounce people who followed Biden on social media. Remember with Michael Cohen, he is a disbarred attorney. He's a serial perjurer. He's a convicted felon. He admitted to the, during this trial, he embezzled $60,000 from president Trump. And this goofball was raising money on TikTok during the trial, trashing Trump. So I don't think that Rachel Maddow, giving him kisses, the first guy she's kissed in her entire life, should be doing this after this guy's raising money on TikTok, trashing Trump. Here's my question for you, Dave. When

is Michael Cohen getting arrested again? He admitted to grand larceny on the stand. And by the way, I didn't realize this, but so he stole that 60 grand, right? That 30,000, whatever he was reimbursed around this Redfinch payment. But he stole 420,000 divided by two, 210,000. We're all lawyers, so I know you guys are doing the math with me. He stole 210,000 because Trump reimbursed him double these payments that he thought Michael Cohen had made. And so that he could pay taxes on them and be made whole. But what I heard in the closings was he did not file his tax returns. He did not have taxes taken out of the $420,000.

I believe, based on what I heard, he's got 420,000 sitting in a pot right now. So anyway, my point is, when is he getting arrested, Dave? He admitted to a massive felony under oath on the stand. Yeah, you're referring to the Red Finch, where he did some work to help Trump in a poll, and then he pocketed the money. And that was a confession to a crime. But that's to be a statute of limitations here. And I think that's what bars the prosecution of him. Was it done by unlawful means that include violating the Federal Election Act or tax law? Because I had no way around that time bar problem. You know, I'm glad you brought that up, because my friends, Phil and Mike,

have been bringing up that jury instruction. Just to make it clear, they did have to find, beyond a reasonable doubt, unanimously that the defendant violated falsification of business records, and it led to a second crime. And they made clear, the state did, that it was that New York conspiracy to influence an election crime. That ought to be unanimous. The part that was not unanimous were the two words we discussed this last time, unlawful means. What were the unlawful means? And the judge allowed the jury to have different unlawful means. And how about this? I agree with you. I think that that is grist for an appeal because when you allow the jury to say, all right, we're going to lean on federal campaign finance laws. I don't know if you can do that in a state prosecution or lean on tax laws. Is it a tax violation when the state is made whole?

Although what you're telling me now is that if Michael Cohen never paid the taxes, maybe there is a tax violation, but it wouldn't be Trump's tax violation because he did pay him for the taxes. Yeah, I mean, that's the problem. Go ahead, Phil. The grand jury never charged Donald Trump with anything related to those three statutes that the judge finally determined were the ones that they could choose from. They have to find probable cause to believe that he committed a crime. And that means each and every element of the crime. It's not how the prosecutor or how the judge interprets the indictment. Oh,

I'm sure the grand jury must have meant this crime, that crime, or the other crime. No, that's not how it's supposed to work. You're supposed to have a grand jury indictment. They're supposed to say specifically what you as the defendant did wrong so that they can specifically put you on notice what you specifically need to defend at trial. It's called due process. It's called the at trial. It's called due process. It's called the Fifth Amendment. It's called the Sixth Amendment, right to fair trial. And it's wrong for a judge to allow a case to go to a jury under these circumstances. And it's so far outside the norm that those of us in the legal field, most of us were just sort of scratching

our heads wondering, are we just living in the twilight zone here when you have a judge that's going to allow something like this to go forward? You know, it's just reprehensible. You can't just have a grand jury do an indictment and leave it so vague that the judge and the prosecutor just sort of get to fill in the blanks later when it comes to time to charge the jury. That's not how it works. You literally can't. I mean, Dave, you've been on this show before. We've had Andy McCarthy on here. He found this New York State constitutional provision that prohibits incorporating by reference

the rest of the penal code. You're not allowed to do that. And why? Because it doesn't give the defendant due process. It doesn't give him notice of what he could be charged with when he's deciding how to behave as a citizen of New York State.

He doesn't know that you could actually wind up a felon if you violate federal election law or try to. That's what they were saying here. He attempted to violate federal election law. And therefore, if you do the books wrong, you could be elevating a misdemeanor to a felony because that could be brought in by a state prosecutor against you, even though the feds have exclusive jurisdiction on federal election claims. That what appellate court is going to say, yeah, you're good. That that's fair to the defendant. I think there's a real chance this could be overturned on appeal for the reasons you say, but make it it clear, they did make it obvious in the indictment that this was about falsification of business records. They mentioned other potential crimes,

but I will grant Phil's point that I think they should have, for the sake of transparency, specifically mentioned what the second crime was. What we found out later was that it was that state law, that obscure state law that said you cannot conspire using unlawful means to influence an election. And that was the second statute. And under New York law, it's my understanding,

you don't have to set that out in the indictment. You can just reveal it later on, which they did. But the part that I think is able to be appealed, that I think they have a good appeal on, is the two words unlawful means. What were the unlawful means? And the judge did give three options for the jury. And I'm not sure that's going to fly with the high court in New York. No, because Mike, how could the jury in any world understand federal election law when almost no one understands it? Antonin Scalia is on record as saying, I have no idea. It's too confusing. And the Feds, the Federal Election Commission, has exclusive jurisdiction to enforce those claims for this very reason. And yet they didn't hear from an expert. They heard Michael Cohen backdoor the

fact that he was found guilty, pleaded guilty to such a claim. David Pecker, non-prosecution agreement on such a claim. And no one explained federal election law to them, except for the judge in a one-liner, which was wrong, which misstated the law on campaign finance. Yeah, and the Federal Election Commission, along with the Manhattan U.S. attorney and the prior Manhattan DA, Cy Vance, and even Bragg himself, declined to bring these charges before Colangelo went to Bragg's office from the Biden Justice Department. And I would say this, I think Dave, my good friend Dave, makes our point for us that even a Democrat elected district attorney is saying that this case has a very strong chance of getting reversed on appeal because of that due process problem where they didn't allege the

second crime. Well, I would say if a Democrat elected district attorney thinks that, why the hell would anyone bring this novel charge against a former president who happens to be the leading presidential candidate unless it is a rock solid case? If President Trump had a dead person bleeding in his trunk, I can understand why you would bring criminal charges in that case. You don't bring criminal charges on novel, untested legal theories like they've done here with Alvin Bragg and Matthew Colangelo and this corrupt judge, Juan Merchan, whose daughter's making a lot of money off of this case. That's the thing I just can't get by. Yeah, go ahead, Dave.

Sure. Just to set the record straight with my friend, Mike, I don't necessarily think it's a strong chance on appeal. I think it's a decent chance on appeal. I would change the adjective there. But also, I still don't have an issue with the fact that they did not specify the second crime in the indictment. I don't think they need to. My issue is that by unlawful means, they allowed the jury to adopt campaign finance laws at the federal level, a tax violation, which may not even exist. I think that's the best chance on appeal. I wouldn't say it's strong, but I think it's pretty decent. I just do not believe this is true. I think the instruction on federal election law was very clearly wrong. And once again, they got into the subjective thought that was in the defendant's head.

There was evidence allowed on that over and over. You know, what was the reason for these payments? Was it, you know, more to help him win the election or was it more to keep this a secret from Stormy? And that was ultimately reflected in its own way in the jury instructions. And I go back to Brad Smith, find me a smarter election law lawyer than Brad Smith, and I will listen. I await that person and him saying Brad's got the election law totally wrong. Former chairman of the FEC, who's been out there appointed by Bill Clinton, saying the following,

and we've played his soundbite, but I'll give you more Brad Smith because he's a very interesting guy. No one's freaking rebutting him. I mean, like, great, show me how wrong he is. I Google it all the time, as this audience knows. Here's what he said in a piece that was posted in the, I think it was posted in the Washington Examiner. That's where I read it. And it's entitled, Brad Smith, What I Would Have Told the Trump Jury. You know, he was banned from speaking. Ultimately, the judge said, okay, you can put him on, but he can only define a couple of terms. And team Trump said, what's the point of that? Okay. So no, but he wanted to tell the jury and he says as follows, we would have liked to flag, um, okay, whatever he's picking up in another thought. We would have talked about what this phrase means for the purpose of influencing an election. And explain to the jury, this is not a subjective

test, like what was my intention? It is an objective test. So hiring campaign staff is for the purpose of influencing an election, renting space for your campaign office, buying ads, maybe doing polling, printing up bumper stickers, travel to campaign rallies, renting venues for campaign rallies. All of these things exist only because you are running for office. But under the personal use rules of campaign finance laws, a lot of things candidates do running for office are not considered campaign expenditures, which is what the government was arguing these hush money payments to Stormy and Karen McDougal were, campaign expenditures that needed to comply with the limitations under law. He says, so a lot of these things that candidates do, running for office, are not considered campaign

expenditures. Things like paying for a weight loss program or a gym membership, nicer clothes, teeth whitening, all that sort of thing. It may be true that you do those things in part to help yourself get elected. You might not do them otherwise, but they are not obligations that exist simply because you are running for office. Lots of people do these things. This notion of personal use, and I would have talked about this, and the idea that what a campaign expense is, is an objective test, not a subjective one. Phil, it's just to me, so it's a tragedy that the jury didn't know any of this. And this is why I don't really hold this jury responsible for this. I hold Judge Mershon and Alvin Bragg responsible for this.

Yeah, well, sorry, go ahead. Go ahead, Phil. No, I look, Mershon and Bragg are the two people that are responsible for this. And to our point of our discussion earlier, when I said we shouldn't necessarily retaliate by having now Republicans go after Democrat politicians and indict them for political reasons. But what we can do is we can police the people who are responsible for things like this. We can find out how it is that Justice Merchan

has all of the cases that are related to Trump, some kind of funny businesses going on there. That can be investigated. That can be rooted out. And if people need to be punished, then things can happen to punish them. You've got ethics violations by prosecutors. You've got ethics violations by judges. Those things can be aggressively gone after.

And absolutely, if the people that are responsible for creating these situations in the first place, they are the ones who need to pay the price. And if they violated some kind of federal law in doing it, then so be it. They can have a federal indictment to stand for what they've done. But I don't think we can go around and retaliate necessarily for political purposes. But when it comes to how you have a trial that is run the way Mershon ran this trial. It absolutely rose to the point early on that it was so unfair that the entirety of the way he ran his court, I think, was a violation of procedural due process. And I certainly hope that the courts of appeal that look at this will see it for what it is. Unfortunately, that may take several years. Can I just say, Megan, I think neither Mike nor I are suggesting that we just invent crimes. But I think, you know, Stalin-like,

show me the person and I'll show you the crime. I bet all four of us have committed some sort of a violation. You know, I was joking the other day that what this has been reduced to for Trump is he pulled the tag off the mattress. I mean, I've done it. I'm not gonna lie. I've pulled that tag right off. It's annoying. And so you could come after me. Yeah, you know, if you really wanted to.

I'm saying if this is where we are, where we're just gonna pick the most threatening person from the other side's party and try to find some crime to wrap around them, then this is the gutter we're gonna have to live in temporarily in order to save the country. Go ahead, Dave.

Yeah, Megan, the expert that you cited, as you remember, I was on with him. And to counter him, I said, well, what about the John Edwards prosecution? And his response was, well, yes, that is the exception. And I think the judge got it wrong in allowing that to go forward. So even if he was allowed to testify, there's it's not foolproof. You know, there's at least one court that found the opposite and allowed the John Edwards prosecution to go forward. So that's why I think that look, bottom line is, if Donald Trump didn't want this to happen, he should have either adopted a different defense or should never

have paid off the his lawyer to pay off the adult film star. That's crazy talk. You were right on the first point about he should have tried the case differently. But it's not true, and it's so unfair to say. So, Dave, under this theory, I had a big debate with Dan Abrams about this last night on NewsNation. So under this theory, if you're running for president and some loser comes out of the woodwork and says, I'm going to tell everybody we had an affair, All right, let's say it's not true. Let's say it's just some money grab.

I'm going to tell everyone we had an affair. You cheated on your family, your wife, whatever. And so you cannot pay her off in advance of an election because you're now required to air all of your dirty laundry in front of the public or you've committed a crime. Well, you can't have someone else pay her off. That would be an unlawful contribution to your campaign. You could perhaps do it yourself,

but you can't have someone else do it. And that's the problem here. Why not? It was a campaign violation. Why not? No, it's not. Because hush money payments objectively, under the objective standard,

not the subjective one that is wrongly used here, are paid all the time. Raise your hand if you've ever signed an NDA. We've all signed NDAs. We've all, I mean, everybody, everybody's signed one. Everybody's had one signed. Everybody's gotten sued. If you have two minutes in the professional sphere as a lawyer, as a successful business executive, you're either going to get sued or you're going to sue somebody. And NDAs happen in hush money, whatever you want to call it. It's a contract where it's like,

shut the hell up about your weird allegations and I'll give you some nuisance value to go away. Well, the campaign finance limit at the time was $2,800. That's the problem. When Michael Cohen gave Stormy Daniels $130,000- But it wasn't a campaign donation. We're talking around each other.

We're talking around each other. A campaign donation, whether it's a campaign contribution, is determined by Brad Smith, by his objective test. And your only answer to that is John Edwards, which means one federal district court, we talked about this, found the opposite. And in a case in which John Edwards was not convicted and no one else. And yet you discard the actual expert's testimony and testimonial everywhere, Dave, that this is the law and that that judge got it wrong.

Well, the appellate court determined whether it's a law. That's Mr. Smith's opinion because when I confronted him with John Edwards, he was like, well, they got it wrong. So the law is not that clear. And when the law says

if it's meant to influence an election, then it's a violation. It's law is not that clear. And when the law says if it's meant to influence an election, then it's a violation. It's clear. It's clear. All right. You know, I have a friend, Dave, from law school. Her name is Donna. She listens to the show every day. And at the end of the show every day, she's a Democrat. She sends me a note and she says almost every time you're on, Dave is a good sport. and I feel the same. You are a good sport. Thank you for coming on and giving us the alternate view and taking all the arguments

when you're kind of one man against three today. Yes, she's a big fan. As I know our Mike and Phil, you guys, we appreciate it today and every day. So I'm with Dave on everything, just about everything to deal with Israel but just not on this stuff he may be part of my work and I need to move to Florida and get a prosecutor job part-time I'm gotta be nice look at this see we're all coming together in the end lots of love guys

thanks for coming on we'll see you soon thank you and thanks to all of you for joining me today and all week what a week my god please tell me you feel. Are you feeling the Kavanaugh way, right? Like hot coals to get to the polls now on November 5th? Or are you one of those leaners? I mean, I know my audience is kind of an interesting polling sample because I know I have a lot of like deep MAGA who absolutely love Trump and no matter what they're voting for him. And I know I have a lot of like deep MAGA who absolutely love Trump and no matter what they're voting for him. And I know I have a lot of Democrats, too, who are not hard left, but soft left. And I wonder if you were thinking about voting for Trump. Does this matter to you? Email me. OK, email me, Megan, M-E-G-Y-N, at MeganKelley.com.

And while I have you, you should go to our website, which is makingkelly.com. And you'll see some of the great content that's been on fire for us this week, making the rounds, including that contentious interview I mentioned with Dan Abrams, who's also a pal and of the left. He says he's a centrist. I think he's of the left. Anyway, thanks to all of you. We appreciate it. And we're back on Monday with the EJs. Love them. And for the first time ever, the three of us will be in person. I've actually never, have I met Emily Jashinsky in person? I don't think I have. I've seen Eliana. We did that debate together. Anyway, that's what's happening this Monday. Hope you tune in. Have a great weekend. Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.