UNBIASED - May 29, 2024: Jury Starts Deliberations in 'Hush Money' Trial, Breaking Down the Charges, What the Jury Must Consider, and Much More. Plus Alito's Official Response to Calls for Recusal.

Episode Date: May 29, 2024

1. Jury Starts to Deliberate in Trumps 'Hush Money' Trial: Recap of the Charges, the Burden of Proof, What the Jury Must Consider, How They'll Reach a Verdict, the Jury's Request to Rehear Certain Testimony, and More (1:31)2. Justice Alito Issues Formal Response to Calls for His Recusal After Flag Incidents; Here's What It Says (15:06)Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Wednesday, May 29th, and this episode is going to be a little bit different than my usual daily news recap because I'm focusing on two stories today, the first of which will take up the majority of the episode, and that is Trump's hush money trial. There's a couple of reasons for this. Number one, that is what I spent my entire day focusing on. I really tried hard to summarize this whole case and kind of get you prepared for when a verdict does come through, everything you need to know to understand that verdict. And then second, this case is a big deal. Whether you like Trump or not, this is the first

criminal trial against a former president. And I think it's incredibly important for all of us to be informed. There are a lot of people out there that want to talk about this case without actually having a full understanding of it, but I won't let that be you. So that will be the big chunk of this episode. The second story will be about Justice Alito's decision not to recuse himself from Trump-related cases. He sent two letters today, one to the House, one to the Senate, explaining why he won't be stepping aside from certain cases. So we'll go over those letters as well. With that said, if you love the unbiased approach that this episode provides and you feel more informed after listening, please go ahead and leave my show a review on whatever platform you

listen, share the show with your friends. And if you're watching on YouTube, please go ahead and hit that thumbs up button and subscribe to the channel if you're not already. All of those things really help me out, and I very much appreciate them. Without further ado, let's get into today's episode. So we sort of wrapped up yesterday's episode with closing arguments in Trump's hush money trial, but at the time that I recorded the episode, the prosecution was still presenting its closing arguments. So I really only went over the closing arguments from the defense and why the defense

used the strategy that they did. I also touched a little bit, you know, on the prosecution strategy and closing arguments. But now I want to focus briefly on what those closing arguments from the prosecution consisted of, and then we'll really focus on jury instructions, the charges, all of those things, and what the jury's job is from here. I'm not going to recap all of the important talking points that I touched on yesterday, because the beauty of a podcast is that the information is still there today, it'll be there tomorrow, it'll be there for the rest of time. So instead of being redundant, you can go back and listen to that whenever you have time and sort of get acclimated with the defense, the strategy from the defense and the closing arguments set forth by the defense. But I will say this, the defense is focused on raising reasonable doubt, whereas

the prosecution in their closing arguments was focused on erasing any reasonable doubt. So the prosecution really focused on the corroboration of Michael Cohen's testimony. In other words, they said, if you don't believe Michael Cohen, look at all of this other corroborating evidence and testimony, such as the testimony from David Pecker, who was the former chief at American Media and was in charge of running stories or not running stories. Because remember, David Pecker testified to conversations he would have with Donald Trump and Michael Cohen about buying negative stories and suppressing those negative stories so that they wouldn't run ahead of the election. So the prosecution is using these past conversations to speak to their assertion that

this was a normal thing for Michael Cohen and Trump and American media. The stories would be caught and killed on behalf of Trump, and then he had a better chance at winning the election. But let me now refresh your memory as to the actual charges. So Donald Trump's indictment charges him with 34 felony counts of falsifying business records. The prosecution alleges that in 2015, Stormy Daniels was trying to sell a story about a sexual encounter she had with Trump back in 2006. And that's when Michael Cohen, Trump's former attorney, swooped in and paid Daniels $130,000 for the rights of the story. But that's not the illegal part. The prosecution says then after Cohen paid Daniels, Trump reimbursed Cohen through monthly payments, and each monthly payment was falsely recorded as payment for legal services.

The prosecution says these payments should have been recorded as reimbursements. But to take falsifying business records up to a felony rather than a misdemeanor, the prosecution says not only did Trump falsely record these entries as payment for legal services, but he did so with the intention of concealing another crime. And that other crime is a conspiracy to promote himself to office through unlawful means. New York election law 17152 prohibits a conspiracy to promote a person to or prevent a person from public office by unlawful means. So let's say you and a friend get together in the state of New York and you guys agree that you are going to use some sort of unlawful means to get your preferred candidate elected or prevent someone from being elected. This would be a violation of New York election law 17152. And by the way, you don't have to actually carry out the crime

to violate this law. You just have to conspire to do something, and that's in violation of 17152. In Trump's case, the prosecution has three theories of those unlawful means. The prosecution says Trump either conspired to promote himself to office by violating the Federal Elections Campaign Act, falsifying other business records, or violating tax laws. Because remember, under this particular New York law, election law, it's not that promoting someone to office or preventing someone from office is illegal in and of itself. It's when the promotion of someone to office or prevention of someone from office is done through unlawful means. And those unlawful means, the prosecution says, in this case could be one of three things. It could be violating the Federal Elections Campaign Act, it could be falsifying other business records, or violating tax laws.

So here's the deal. Let's sort of take it from the top. There are a few things that the jury needs to be asking themselves during deliberations. First, the jury needs to determine whether the recordings of the monthly payments to Michael Cohen were false, whether the payments were falsely recorded as legal services when they should have been recorded as something else, such as a reimbursement. Second, the jury has to determine whether Trump falsified these records himself or worked with someone else in doing so, told someone else to falsify them, aided someone else in falsifying them, whatever it is. And the third thing the jury has to figure out is whether Trump had the intent in falsely recording these entries to commit or

conceal a conspiracy to promote himself to office by unlawful means. So now I want to talk a little bit about each of those unlawful means that the prosecution sets forth because the prosecution says that there are these three potentially unlawful ways in which Trump tried to promote himself to office. First, you have the Federal Elections Campaign Act. The relevant portion of the Federal Elections Campaign Act says that it is unlawful for a person to willfully make a contribution to any candidate running for office exceeding certain limits, which at the time that all of this went down was $2,700. Obviously, Trump's payments to Michael Cohen and Michael Cohen's payment to Stormy

Daniels exceed $2,700. But the question becomes, were these payments a contribution to a candidate running for office? Judge Merchant explained in the jury instructions that the payment should not be treated as a political contribution if the payment would have been made even without the election. But if it was made because of the election, then it should be treated as a political contribution. If the jury says yes, that this was a political contribution, then the jury would also have to ask themselves whether the falsification of business records was done to conceal this action. Okay, so next, the next sort of unlawful means that the prosecution asserts is falsifying of other business records. The prosecution asserts that another potential unlawful way that Trump conspired to promote himself to office was by falsifying other business records, such as, you know, bank records associated with Michael Cohen's entities or the 1099 forms that the Trump organization issued to Cohen, any other sort of falsification. And finally, regarding the

potential tax violations, the question is, did Trump conspire to promote himself to office by willfully producing a tax statement or other document that is materially false? This doesn't have to result in an underpayment of taxes. It just has to be the submission of false tax documents. So those are the three potential unlawful means that the prosecution puts forth. To wrap this all up in a bow, let's call it four questions that the jury should be asking themselves during deliberations. Number one, were the payments to Michael Cohen falsely recorded as legal services? Number two, did Trump himself record those business entries? Number three, if not, did Trump intentionally aid someone in doing so or request that someone do so? And number four, were the business records falsely labeled as legal services to conceal a conspiracy to promote Trump to office unlawfully, whether that's by violating the Federal Elections Campaign

Act, violating tax laws, or further falsification of business records. If the jury finds that the answers to 1, 2, and 4 or 1, 3, and 4 are yes, beyond a reasonable doubt, they have to return a guilty verdict. However, if the answer to any of those questions are no, then they have to return a not guilty verdict. In other words, maybe the payments were falsely recorded, but Trump didn't have anything to do with it. Not guilty. Maybe the business records were false and Trump did have something to do with it, but Trump didn't have the requisite intent to defraud. Not guilty. There are 34 counts here for each business record at issue, specifically 11 invoices, 12

vouchers, and 11 checks. The jury could find Trump guilty of all counts, not guilty of all counts, or guilty of some counts but not others. Really, the only situation I could see the jury finding partial guilt is if they find that Trump is responsible for some of the business records, but not others. Like maybe he's responsible for 12 vouchers and 11 checks, but not for the 11 invoices. Maybe the jury finds that the 11 invoices are solely on Michael Cohen and not Trump. That's the only situation where I foresee partial guilt and partial innocence. Lastly, the last thing I want to cover is does the verdict have to be unanimous? Yes. All 12 jurors must find Trump is guilty or not guilty on each count. If the jury

cannot come to a unanimous verdict, that is what we call a hung jury. And in that case, the judge may declare a mistrial. However, there is one aspect of the verdict that does not have to be unanimous per the judge's instructions. And it's already causing a bit of controversy. So you know how the prosecution laid out three theories of unlawful means when it comes to this conspiracy to promote Trump to office? According to Judge Merchant, the jurors don't have to unanimously agree as to which unlawful means were utilized in the conspiracy. In other words, some jurors can say the unlawful mean was a violation of the federal election law. Other jurors can say the unlawful mean was falsification of other business records. And other jurors can say the unlawful mean was a violation of tax laws. So long as all

12 jurors agree that Trump conspired to promote himself to office or prevent someone from taking office through some sort of unlawful behavior, that would be sufficient for purposes of the unanimous verdict. Now, look, I know that that was a lot. You may have to re-listen to this portion of the episode to fully understand it because there are a lot of elements at play here. And I am so sorry if you're a visual learner. I know sometimes it's hard to digest things audibly. I'm actually one of those people that prefers a visual, so I get it. But listen to this episode again if you have to. The reason I did this is because now whether, you know, regardless of what the jury's verdict is, you have a solid understanding of what the jury is doing in deliberations and how they're going to reach their ultimate decision. Again, remember the burden of proof here is on the prosecution.

The prosecution has to prove all of those elements that we just went over beyond a reasonable doubt. If the jury has any sort of reasonable doubt, they have to return a not guilty verdict. So that is pretty much everything you need to know. With that said, if you have questions, I know this is a big deal. Like I said in the beginning of this episode, whether you like them or not, this is the first criminal case of a former president. It's a big deal. So if you do have questions, send them to me. I may do like a brief Q&A in tomorrow's episode and just answer some pending questions. I've already gotten a couple of questions that I didn't necessarily get to in this episode. So I may do a brief little Q&A tomorrow.

So submit me any questions you may have and I'll try to get to them. The jury will deliberate until 4.30 today and then they'll start back up tomorrow should they not reach a verdict by that time. I don't think they'll reach a verdict by the end of the day today. I'll tell you why in a second. If the jury returns tomorrow, then, which I'm sure they will, then they may work a little bit later tomorrow, but Judge Marchant said he'll decide that when the time comes, he may have them go until 6.30. Now, the reason I said I don't think the jury will finish today is because around three o'clock, 330, the jurors sent a note to to the judge.

So in the jury's note, they are requesting to rehear certain testimony. They are requesting to rehear David Pecker's testimony regarding a phone conversation with Donald Trump while Pecker was in the investor meeting. They're requesting to hear Pecker's testimony about the decision not to finalize and fund the assignment of Karen McDougal's life rights. They're asking to rehear Pecker's testimony regarding a Trump Tower meeting, and they're also requesting to hear Michael Cohen's testimony regarding the Trump Tower meeting. And they're also requesting to hear Michael Cohen's testimony regarding the Trump Tower meeting. So they are being brought back in to rehear the testimony that they're requesting to rehear. And just, you know, obviously that means they're not

they're not super close to coming to a decision. So I would anticipate this goes into tomorrow. We'll obviously see what happens tomorrow. Okay. Even I'm exhausted from that discussion, which is saying a lot, but assuming you have some capacity left to hear the other story from the day, let's talk about Justice Alito. As you know, I have been covering this a little bit, not really that in depth, but Justice Alito has taken some heat in the last week or so for flying some flags on two of his properties, one in January 2021 and one this past summer. The first flag that was brought to light was an upside down American flag. Now, flying an upside down American flag has long been a sign of distress and protests here in America.

Protesters of the war in Vietnam flew upside down flags. Some of the January 6th protesters flew upside down flags at the Capitol, and some of the protesters of the Supreme Court's decision overturning Roe v. Wade carried upside down flags outside the Supreme Court steps. In January 2021, an upside down flag was seen flying outside of Justice Alito's home. The pictures just now surfaced. Alito said he knew nothing about it. However, some are calling on him to recuse himself from Trump related cases because in their eyes, this flag is a symbol for Justice Alito's loyalty to Trump. Given the timing timing the flag was flying in January 2021 and also shows his support for January 6th. Then about a week after that picture surfaced, maybe less, another picture

went viral of another flag, this time flying at Justice Alito's property in New Jersey. This flag is a white flag with a pine tree in the middle. It's known as the pine tree flag or the appeal to heaven flag. It says appeal to heaven at the top of the flag. And this flag dates back to New England colonies and then to George Washington and the Revolutionary War. The flag has ties to God and religion. The Appeal to Heaven text on the flag has been used in the past to describe the right of revolution. And then most recently, the flag was flown on January 6th at the Capitol, and Speaker Johnson has the flag outside of his office currently. Again, this prompted more calls for Justice Alito to recuse himself from Trump-related cases. Until today, the Supreme Court justices and

Alito himself had been silent on the issue. But in two separate letters, one to the House and one to the Senate, Justice Alito is explaining why he will not be recusing himself. The letters come as responses to both chambers. On May 23rd, two senators wrote to Chiefito himself, asking him to recuse himself from two cases specifically, Trump versus United States, which will determine the issue of presidential immunity for former presidents, and then also Fisher versus United States, which will determine whether January 6th defendants can be charged with a particular crime. So in Justice Alito's response, he writes, quote, to sit unless disqualified. A justice should disqualify himself in a proceeding in which

the justice's impartiality might reasonably be questioned. That is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his duties. End internal quotes. Justice Alito continues and says the two incidents you cite do not meet the conditions for recusal. End quote. He then continues with a deeper explanation, and I'm going to read this. It's going to take a few minutes, but this is what it says. Quote, the first incident cited in your letter concerns the flying of an upside down American flag outside the house in Virginia where my wife and I reside. In considering whether this event requires recusal, an unbiased and

reasonable person would take into account the following facts. As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down. She refused. My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly. My wife's reasons for flying the flag are not relevant for present purposes, but I note that she was greatly distressed at the time due in large part to a very nasty

neighborhood dispute in which I had no involvement. A house on the street displayed a sign attacking her personally, and a man who was living in the house at the time trailed her all the way down the street and berated her in my presence using foul language, including what I regard as the vilest epithet that can be addressed to a woman. My wife is a private citizen and she possesses the same first amendment rights as every other American. She makes her own decisions and I have always respected her right to do so. She has made many sacrifices to accommodate my service on the Supreme court, including the insult of having to endure numerous loud, obscene, and personally

insulting protests in front of our home that continue to this day and now threaten to escalate. I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal. I am therefore required to reject your request. The second incident concerns a flag bearing the legend, an appeal to heaven, that flew in the backyard of our vacation home in the summer of 2023. I recall that my wife did fly the flag for some period of time, but I do not remember how long it flew. And what is most relevant here, I had no involvement in the decision to fly that flag. My wife is fond of flying flags. I am not. My wife was solely

responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years. In addition to the American flag, she has flown other patriotic flags, including a favorite flag thanking veterans, college flags, flag supporting sports teams, state and local flags, flags of nations from which the ancestors of family members came, flags of places we have visited, seasonal flags, and religious flags. I was not familiar with the appeal to heaven flag when my wife flew it. She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the

Stop the Steal movement, and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings. As I said in reference to the other flag event, my wife is an independently-minded private citizen. She makes her own own decisions and I honor her right to do so. Our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place away from Washington where she should be able to relax. A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal. I am therefore duty-bound to reject your recusal request. Sincerely yours, Samuel Alito."

So there you have it, the justices' response. As I've said before, justices do make decisions themselves whether or not they will recuse themselves from a case or cases, obviously he has chosen not to do so. That is what I have for you today. I hope today's episode was incredibly helpful and informative. I hope you have a great rest of your night and I will talk to you tomorrow.