Trump's Trials - Here are three possible outcomes in the Trump hush money trial

Episode Date: May 25, 2024

For this episode of Trump's Trials, host Scott Detrow speaks with legal expert Harry Litman. Closing arguments in former President Donald Trump's hush money trial are expected to begin on Tuesday. And if all goes according to plan, the jury will begin deliberations on Wednesday. That means there's a chance a verdict is reached as soon as next week. We break down three possible outcomes the jury could reach — guilty, not guilty, or a hung jury.Topics include:- Prosecution and defense rest - Jury instructions - Possible verdicts Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Early next week, 12 New Yorkers will deliberate whether to make a former, and maybe future president, a convicted felon. From NPR, this is Trump's Trials, I'm Scott DePriest. We love Trump! This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. After six weeks, 22 witnesses, and 15 days of testimony, the prosecution and defense

have rested their cases in former President Donald Trump's criminal trial centered around hush money payments and the financial documents that allegedly covered them up. Closing arguments come Tuesday, and they'll cover what each side sees as the highlight to their case. For the prosecution, that could be National Enquirer publisher David Pecker testifying about the catch-and-kill scheme he allegedly carried out with Trump and Trump's lawyer and fixer, Michael Cohen. They'll likely remind the jury of Stormy Daniels' detailed description of the alleged

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

so in the context of a presidential election where Trump and President Joe Biden are neck and neck in the polls. So what's it all mean? How do we look at this trial as a whole now that it's almost over? We will talk about it after the break with legal expert Harry Litman. On this week's episode of Wild Card, poet laureate Ada Lamone tells us how to give yourself a little grace. The nice thing about being in my mid to late 40s, yeah, I forgive myself all the time. Join me, Rachel Martin, for NPR's new podcast, Wild Card, the game where cards control the conversation.

This is Sam Brigger, longtime Fresh Air producer and sometime interviewer. In the special extended podcast episode, I talk with Maggie Rogers about nostalgia, her new album, and her decision to go to Harvard Divinity School. I think at its core, music has always been the most sacred and most spiritual thing that I've ever been a part of. Find NPR's fresh air wherever you get podcasts. The Bullseye Podcast is, according to one journalist, the, quote, kind of show people

listen to in a more perfect world. So make your a more perfect world. So make your world more perfect every week. Bullseye puts the pop in culture interviewing brilliant authors, musicians, actors and novelists to keep you on your pop culture target. Listen to the Bullseye podcast only from NPR and maximum fun. And joining us now is former Deputy Assistant Attorney General Harry Littman. Harry, welcome back to the show. Thanks, Scott.

Good to be here. A lot to talk about with you, but first, you have seen a lot of this in person yourself. And I want to start with what it was like in the courtroom, what your main observations were, and if anything really surprised you about this trial seeing it in person compared to what you thought it would be. Yeah, it was really interesting to be there. And to me, it was sort of a combination of banal and historic.

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

of the gravity of the case. And then I guess I would count this as a surprise, since it's what you're asking. I do think the Trump lawyers are competent overall, but they really, I thought, flubbed a lot of big moments. And as a former trial lawyer, I sat there continually surprised that they didn't comply with sort of axiomatic practices. They asked repeatedly, as a one good example, they asked questions they didn't know the answer to and they were sort of scatter shot and it wasn't clean and crisp and that contrast was apparent in some of the big witnesses with the DA that did do it by the book.

You know both sides have presented their cases now. We're waiting for closing arguments. How would you describe this trial so far, at least in three words? Strong prosecution narrative. Okay. And if I had to do another three, it would be, I just want a fourth word, prosecution narrative. I'll give you a fourth word. Prosecution narrative defense, no. I think what really is the most salient

of what's going on coming into closing is that they've told, successfully told, a tight story that reinforces itself across all kinds of witnesses and the defense, you know, you gotta play with the cards you're dealt, but they haven't done a counter narrative. They're not required under the law, but in my experience, it's so much better to have a story, a theory, like, you know, and that's what an alibi is saying, or someone out there.

If you had to in a phrase, capture what the defense closing is going to be, or someone out there. If you had to, in a phrase, capture what the defense closing is going to be or what their pitch to the jury is, I think you'd be very hard pressed. It would be something like, Michael Cohen's a liar. But that's just not enough to carry the day, I think, when there's such a strong story on the other side. I want to come back to your point that you think the prosecution made a really strong case and told a really strong story in a moment, but we've really focused on the prosecution a lot in this podcast because it had four plus weeks of witnesses. The defense came and went with its side before we could even tape our usual Saturday podcasts.

When you think about the holes in the defense's arguments from your point of view, are you thinking about the fact that they only called two witnesses and one of those witnesses was pretty problematic on the stand? Or are you thinking more about how they cross-examined all of the witnesses throughout the trial? Well, here's the main theme to me. In a normal case like this, even with a very prominent client, a prominent defense lawyer would say, sit down and shut up and let me handle this.

We're in a different venue than you're familiar with. But by all accounts, Trump insisted on making key decisions. And they all seem really flawed to me. And so for example, Dormey Daniels, their position is going to be that they didn't have sex at all. Totally unnecessary for the defense and such a heavy load to carry. Bob Costello, who they called, why the hell would you call Bob Costello? Can you contextualize for listeners

who weren't paying his close attention who Robert Costello was, what the point seemed to be of bringing him to the stand and just why it was such a debacle in your work? Sure. So he was a guy who for a time was flirting with representing Michael Cohen, but what the evidence showed he was is a complete, um, kind of ally of Rudy Giuliani, who at that point had taken over the Trump

defense. And Cohen got the sense, uh, and the email traffic that we showed in court totally substantiated that Costello was playing a double game where he was trying to prevent Cohen from cooperating with authorities, which is straightforward obstruction. But moreover, that's a kind of crappy lawyer, especially once Cohen has served a search warrant and the law enforcement is looking at him. That's who he was for the prosecution, someone who shows that Trump is trying

to keep Cohen from cooperating for the defense. I think he's just a guy who the Trump in Trump's mannichian world, they're a loyalist and non-loyalist. He's still a loyal guy. And I think he wanted to use Costello to say, hey, Michael Cohen's a liar. So we've got closing arguments on Tuesday, and then there's jury instructions.

And you and many others have said that jury instructions are particularly important in this case. Can you explain why that is? Sure, and particularly tricky. So the falsifying business records, which most people understand is what it's about, there are, you know, 34 pieces of paper that stated things that aren't true, basically, that they were paying Cohen for legal services rather than reimbursing him for hush money. That's a misdemeanor under New York law. However, it becomes a felony and it's charged as a felony when you do it with the intent to further another crime. And where it gets really tricky here is that the DA has not specified what the other crime is but

rather given a menu of three possibilities. But each of the possibilities is imperfect and it's just kind of a funky situation to tell the jury but he will tell them this. You don't have to agree. You know, you four can think it's felony A, you four B, and you four C. And also there's a very slippery intent standard where you don't have to complete the crime, you don't even, it's not even a beyond a reasonable doubt, it's just your intent in doing the underlying thing, which you show beyond a reasonable doubt. It's just your intent in doing the underlying thing,

which you show beyond a reasonable doubt, was to further this other crime. So it's something that either a jury could kind of get lost and have trouble kind of holding on to, or more worrisome I think is there are a couple lawyers on the jury and they could really take it super seriously and kind of, you know, walk it through to an endpoint and find in very legalistic reasons that they haven't quite made that case for the felony. It's a tricky issue to get the misdemeanor up to a felony. You have said that you think the prosecution made a pretty clear case, but why isn't it

a flaw in the case that they're making if they can't clearly say this was the initial crime? It was something they could have done nine months ago when they brought the case's bottom line on this one rather than keeping it loose. There are strategic reasons they didn't. But when I say they did a, you know, this isn't part of their charge, as it were, for persuading a jury of the evidence. What they've done a good job on is, you know, start from the beginning with a meeting in August 2015 and show that there was a real plan to scuttle bad stories about him and then they come

out and just just the soup to nuts coherent story of always trying to protect his candidacy and Stormy Daniels in the wake of Access Hollywood being so clearly about that. And I guess the other aspect they did very well in 20 different ways is show the implausibility that he would have done this unknowingly. So that's what I mean. That was what they had to prove to the jury. If there's a tricky legal issue there,

that's part of the cards there, their doubt. So again, we're waiting for closing arguments. We're waiting for jury instructions. We're waiting for a verdict. But just kind of thinking ahead a little bit, can we do a little bit of a decision tree and can you tell us what happens next under each outcome? If he's found guilty, what happens next? When do we know

what the sentence will be? What could the sentence be? It'll take a few months. There'll be a pre-sentence report. A lot of defendants don't get time for this kind of crime. But I think that given the aggravating factors and what Murchon will see as dishonesty, I expect it'll be a few months. That's all it would be. At that point, he would move Trump for bail pending appeal. Let me stay out while I take this up on appeal, which would take a couple of years or 18 months, and Merchant will grant it. So no chance as I see it, he's actually incarcerated before November. What about a hung jury?

Is there a chance we could do this entire trial over again? You know, there is and that I think the prosecution will want to do it, but the real question is, will they do it immediately before November? I don't think they will. Mainly because even if you could do it logistically, I think for both Bragg and Merchan to bite off another sort of three months in the middle of elections and conventions and homestretch and be subject to that charge of really interfering with the election the way Trump puts it, I think they will not want to own.

So I think they will retry it, but not until after the election. And of course, once the election happens, all bets are off. And then a not guilty verdict, obviously that would have enormous political implications that we would talk about. But legally, does anything happen next? Or is that it?

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

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

We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple podcasts. This show is produced by Tyler Bartleman, edited by Adam Rainey, Krishnadev Kalamur, and Steve Drummond. Our executive producers are Beth Donovan and Sammy Yenigan.

Eric Maripotti is NPR's vice president of news programming. I'm Scott Detro. Thanks for listening to Trump's Trials from NPR. Numbers that explain the economy. We love them at the indicator from Planet Money, and on Fridays we discuss indicators in the news, like job numbers, spending, the cost of food, sometimes all three. So my indicator is about why you might need to bring home more bacon to afford your eggs. Ba-dum-tsssh. I'll be here all week.

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