WEBVTT - Weekend Law: Campus Protests, Trump Trial & Richest Prisoner 0:00:02.080 --> 0:00:05.000 Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead 0:00:05.000 --> 0:00:09.719 in this hour, When do campus protesters lose First Amendment protections? 0:00:10.000 --> 0:00:13.360 Audio tapes and testimony from a former White House aid 0:00:13.560 --> 0:00:16.479 In the second week of Trump's hush money trial, Elon 0:00:16.640 --> 0:00:19.960 Musk's Twitter sitter case turned down by the Supreme Court, 0:00:20.280 --> 0:00:24.840 and billionaire Binance founder Shang Panjao will be the richest 0:00:24.880 --> 0:00:40.600 person ever to do time in a federal prison. Demonstrations 0:00:40.600 --> 0:00:44.440 against the Israel Hamas war have wreaked havoc on college 0:00:44.520 --> 0:00:48.800 campuses across the country, escalating in recent weeks as pro 0:00:48.840 --> 0:00:54.480 Palestinian demonstrators refuse to remove encampments and administrators turned to 0:00:54.520 --> 0:00:59.080 police to clear them by force, often resulting in violent clashes. 0:01:00.040 --> 0:01:02.920 I kinda Gail Gibson, the police captain for the University 0:01:02.960 --> 0:01:04.080 of Cowboy of other at. 0:01:04.760 --> 0:01:06.759 And your right player has to be at my momost 0:01:07.200 --> 0:01:10.480 break ups, and you do not do so, you may 0:01:10.520 --> 0:01:13.000 be arrested or subject to other prospections. 0:01:13.440 --> 0:01:17.920 At UCLA's campus in Los Angeles on Thursday, police warned 0:01:17.920 --> 0:01:21.720 protesters for hours over loud speakers that there would be 0:01:21.840 --> 0:01:25.440 arrests if they didn't disperse, and in the pre dawn hours, 0:01:25.480 --> 0:01:29.640 police in riot gear confronted demonstrators in helmets and gas 0:01:29.720 --> 0:01:34.440 masks and arrested two hundred protesters. Similar chaotic scenes are 0:01:34.480 --> 0:01:38.480 playing out at colleges nationwide. From the White House, President 0:01:38.560 --> 0:01:42.440 Joe Biden warned against violence and said the protests put 0:01:42.480 --> 0:01:47.120 to the test two fundamental American principles. The first is 0:01:47.160 --> 0:01:50.400 the right to free speech and for people to peacefully 0:01:50.400 --> 0:01:54.400 assemble and make their voices heard. The second is the 0:01:54.480 --> 0:01:55.160 rule of law. 0:01:56.240 --> 0:01:57.560 Both must be upheld. 0:01:58.200 --> 0:02:02.240 The charge situation sp like the difficulty of balancing the 0:02:02.360 --> 0:02:05.000 right to free speech with the need to provide a 0:02:05.040 --> 0:02:08.920 space where students feel safe joining me is constitutional law 0:02:08.960 --> 0:02:12.720 scholar Michael Dorf, a professor at Cornell Law School, explain 0:02:12.760 --> 0:02:16.960 what the First Amendment protects in the context of these demonstrations. 0:02:17.240 --> 0:02:23.640 The First Amendment protects speech and other expressive activity, primarily 0:02:23.919 --> 0:02:29.560 against government interference or where it's voluntarily undertaken, private university 0:02:29.639 --> 0:02:34.800 interference that is based on the content of the speech. Right. 0:02:34.840 --> 0:02:38.920 So the critical distinction is between what are sometimes called time, 0:02:38.960 --> 0:02:42.919 place and manner restrictions. Right, you can have your rally 0:02:43.080 --> 0:02:45.360 in this place, but not that place, at this time, 0:02:45.360 --> 0:02:49.760 but not that time without amplification, except under certain circumstances. 0:02:49.800 --> 0:02:53.000 Those are about how you are making your point, and 0:02:53.160 --> 0:02:57.960 generally the government has considerable leeway to restrict that so 0:02:58.080 --> 0:03:02.359 long as it does so reasonably. Orsu content based restrictions. 0:03:02.400 --> 0:03:05.680 You can't have a rally for this side, but you 0:03:05.760 --> 0:03:07.840 can have it for the other side, right, And so 0:03:08.000 --> 0:03:12.040 that's the sort of basic principle that's operating here. The 0:03:12.080 --> 0:03:17.200 government can restrict speech, but not based on its content, 0:03:17.520 --> 0:03:19.760 and when it does so, it has to do so reasonably, 0:03:20.200 --> 0:03:24.840 meaning leave open adequate alternative channels of communication and so forth. 0:03:25.120 --> 0:03:28.480 Let me give you an example. An anti semitic chant. 0:03:29.040 --> 0:03:31.280 Would that be protected under the First Amendment? 0:03:31.760 --> 0:03:33.680 Strange as it may sound, the answer to that question 0:03:33.760 --> 0:03:38.440 is yes. In most constitutional democracies the answer would be no. 0:03:39.120 --> 0:03:42.280 But in the United States, what is sometimes called hate 0:03:42.280 --> 0:03:47.240 speech is not unprotected in virtue of the fact that 0:03:47.320 --> 0:03:50.400 it is hate speech. The leading case is a case 0:03:50.400 --> 0:03:53.360 from the US Supreme Court in nineteen ninety two called 0:03:53.560 --> 0:03:57.800 rav against City of Saint Paul, which said that the 0:03:57.840 --> 0:04:01.160 First Amendment does not include an exception for hate speech. Now, 0:04:01.240 --> 0:04:05.040 I should qualify that by saying that an anti Semitic 0:04:05.160 --> 0:04:11.440 chant under certain circumstances, could be proscribable harassment. So if 0:04:11.480 --> 0:04:14.760 you think about racial or sexual harassment at the workplace, 0:04:15.120 --> 0:04:18.039 which is forbidden by Title seven of the nineteen sixty 0:04:18.040 --> 0:04:21.360 four Civil Rights Act, or at a federally funded college 0:04:21.400 --> 0:04:24.080 or university, which means just about every college and university 0:04:24.080 --> 0:04:28.800 in the country, racial harassment is prescribed if a college 0:04:28.920 --> 0:04:31.400 university takes federal funds. It's just what all of them do. 0:04:32.160 --> 0:04:36.159 They're not permitted to tolerate racial harassment. And Department of 0:04:36.279 --> 0:04:42.239 Education guidelines define anti semitism, Islamophobia, and various other forms 0:04:42.240 --> 0:04:44.880 of hatred that you might think correlate with religion but 0:04:45.000 --> 0:04:48.080 have some sort of ethnic and therefore racial component. It 0:04:48.120 --> 0:04:53.080 defines those as covered by Title six. So if the 0:04:53.760 --> 0:04:57.680 chant rises to the level of harassment, then it is 0:04:58.080 --> 0:05:00.960 forbidden by Title six. In the universe, city is not 0:05:01.000 --> 0:05:05.479 only permitted, but obligated to stop it. And now the 0:05:05.560 --> 0:05:10.320 question that naturally raises is does the First Amendment contain 0:05:10.400 --> 0:05:15.440 an exception for harassment? The Supreme Court has never decided 0:05:15.520 --> 0:05:18.599 that question. Lower courts have assumed that the answer to 0:05:18.640 --> 0:05:21.799 that is yes, and I think that is the correct answer. 0:05:21.880 --> 0:05:25.400 That is to say that what is defined as harassment, 0:05:25.400 --> 0:05:28.599 which is sort of creating a hostile environment based on 0:05:29.080 --> 0:05:32.839 race or sex and so forth, is proscribable. That is 0:05:32.880 --> 0:05:35.200 to say, the First Moment doesn't protect that, And you 0:05:35.240 --> 0:05:37.880 have to ask, well, what's the reason for that. Why 0:05:38.040 --> 0:05:40.640 is it that if there is no exception to the 0:05:40.640 --> 0:05:42.520 First Moment for hate speech, why is it that the 0:05:42.560 --> 0:05:46.760 government can forbid harassment that takes the form of hate speech. 0:05:47.160 --> 0:05:51.040 The answer to that, I think is that the government 0:05:51.160 --> 0:05:57.440 can't forbid harassment generally where harassment consists simply of saying 0:05:57.440 --> 0:06:02.160 offensive things, but it can do so when it's targeted 0:06:02.720 --> 0:06:05.560 in circumstances where someone can't just sort of look the 0:06:05.640 --> 0:06:09.719 other way. So if a neo Nazi group or white 0:06:09.720 --> 0:06:14.600 supremacists want to have a march through Charlottesville, for example, 0:06:14.880 --> 0:06:17.520 they're protected by the First Amendment in doing so. But 0:06:18.000 --> 0:06:20.880 if they want to do that at the workplace of 0:06:21.240 --> 0:06:25.560 particular individuals, then those people are a kind of captive 0:06:25.600 --> 0:06:30.040 audience at work. And the crucial question, then, I think, 0:06:30.120 --> 0:06:34.400 for current purposes, is to what extent is a college 0:06:34.440 --> 0:06:37.960 or university campus more like a workplace where there's a 0:06:38.040 --> 0:06:42.880 kind of captive audience rationale for restricting what would otherwise 0:06:42.920 --> 0:06:48.920 be offensive. But first protected speech versus more like just 0:06:49.080 --> 0:06:52.080 the public streets and public parks and so forth. I 0:06:52.080 --> 0:06:54.039 think that's a question to which we don't have an answer, 0:06:54.200 --> 0:06:56.839 but it's sort of at the heart of the clash 0:06:56.920 --> 0:07:01.000 between the First Amendment and crimination principles. 0:07:01.279 --> 0:07:05.200 More than twenty three hundred demonstrators have been arrested across 0:07:05.200 --> 0:07:08.680 the country so far. Let's use Colombia as an example. 0:07:08.720 --> 0:07:12.920 And let's say that these protesters are charged. Do they 0:07:13.000 --> 0:07:16.560 have any defense based on the First Amendment? 0:07:16.680 --> 0:07:22.960 Say so, that's a complicated question because their right to 0:07:23.120 --> 0:07:28.160 free speech as against Columbia is of course contractual right 0:07:28.200 --> 0:07:32.560 because Columbia adopt free speech principles voluntarily. It's not imposed 0:07:32.600 --> 0:07:35.440 by the First Amendment. There is a New York state 0:07:35.640 --> 0:07:41.320 law that governs discipline for various reasons, but it doesn't 0:07:41.680 --> 0:07:44.960 really create a free speech right if they are prosecuted. 0:07:45.000 --> 0:07:47.600 And my understanding is a lot of people are being released, 0:07:47.600 --> 0:07:50.040 although I don't know what's happening with the latest rounds 0:07:50.080 --> 0:07:52.640 of arrests, I know that was true of the earlier round. 0:07:53.000 --> 0:07:55.200 But if they are prosecuted, in order to have a 0:07:55.360 --> 0:08:00.800 successful First Amendment defense, they would need to show that 0:08:01.600 --> 0:08:05.600 they were being selectively prosecuted by New York State or 0:08:05.600 --> 0:08:09.040 New York City because of their message, as opposed to 0:08:09.760 --> 0:08:14.200 because they were engaged in criminal trespass and we're told 0:08:14.240 --> 0:08:16.720 to leave and give an opportunity to leave. And it's 0:08:16.760 --> 0:08:22.800 notoriously difficult to make out a successful case of selective prosecution. 0:08:23.200 --> 0:08:26.680 And so I think the answer is very likely no, 0:08:27.240 --> 0:08:30.720 especially because my understanding is the New York City Police 0:08:31.080 --> 0:08:34.400 only moved in at Columbia's invitation. So even if we 0:08:34.520 --> 0:08:38.480 think Columbia is acting because they don't like the message, 0:08:38.480 --> 0:08:40.480 which I don't think it's established. But even if we 0:08:40.559 --> 0:08:43.000 thought that, that doesn't mean that New York City is 0:08:43.080 --> 0:08:45.520 proceeding because they don't like the message. As I said, 0:08:45.520 --> 0:08:48.719 the MIPD only goes in once they're invited. You can 0:08:48.720 --> 0:08:50.840 think of it in the following way, right, that is, 0:08:50.920 --> 0:08:54.600 there is a law against criminal trespass. If somebody comes 0:08:54.600 --> 0:08:57.520 into your apartment when you're not there, and then you 0:08:57.559 --> 0:08:59.200 ask them to leave, and they refuse to leave, and 0:08:59.240 --> 0:09:02.520 you call the comp the police come and they remove them, 0:09:02.760 --> 0:09:06.240 doesn't matter what your reason was for calling the cups. 0:09:06.320 --> 0:09:08.040 Maybe you didn't like that they were there. Because they 0:09:08.040 --> 0:09:11.319 were saying things that you found offensive that wouldn't convert 0:09:11.520 --> 0:09:15.240 the police action in removing that person into a violation 0:09:15.320 --> 0:09:16.160 of the First Amendment. 0:09:16.400 --> 0:09:20.120 What's the hardest part of this analysis of what the 0:09:20.160 --> 0:09:23.319 First Amendment protects and what it doesn't. 0:09:23.679 --> 0:09:27.320 I mean, I think the place at which you draw 0:09:27.440 --> 0:09:35.000 the line between permissible free speech and prescribable harassment. It's 0:09:35.200 --> 0:09:40.199 complicated by the fact that there are you know, many 0:09:40.240 --> 0:09:44.560 participants in these encampments, and so you know, in New York, 0:09:44.640 --> 0:09:48.400 you know, you saw Mayor Adams complaining yesterday about outside 0:09:48.440 --> 0:09:53.360 agitators sort of infiltrating the Columbia takeover of Hamilton Hall 0:09:53.800 --> 0:09:58.679 and the protests generally. And you know, that's an old problem, 0:09:59.040 --> 0:10:03.920 especially on a political left, that you have movements that 0:10:04.040 --> 0:10:08.080 attract people who have views that are sort of within 0:10:08.840 --> 0:10:13.880 a range of sort of within a standard deviation or 0:10:13.920 --> 0:10:17.560 two of the center of public opinion. And then you 0:10:17.640 --> 0:10:20.400 have people who are truly radical, and not just radical 0:10:20.400 --> 0:10:22.319 in their substance views, but in the means that they 0:10:22.360 --> 0:10:26.679 want to use, who then attach themselves to these movements, 0:10:27.080 --> 0:10:30.200 and that can then undercut the other folks. And so, 0:10:30.320 --> 0:10:32.280 you know, in addition to the question of how do 0:10:32.360 --> 0:10:38.200 you protect students who feel, in some cases justifiably threatened 0:10:38.240 --> 0:10:41.839 by the protests without you know, shutting down people's right 0:10:41.880 --> 0:10:45.200 to express themselves. There's also the question of how do 0:10:45.280 --> 0:10:49.240 you separate out the people who are really engaged in 0:10:49.520 --> 0:10:52.920 harassment or threats what have you, from people who are 0:10:52.960 --> 0:10:55.600 just there legitimately to protest. And I think that's a 0:10:55.720 --> 0:10:56.920 very very hard question. 0:10:57.559 --> 0:11:01.000 There's so much that goes into this analysis, and the 0:11:01.040 --> 0:11:04.480 Supreme Court has never drawn a line between the two. 0:11:05.040 --> 0:11:07.160 No. I mean, so the subcuit has never faced a 0:11:07.240 --> 0:11:11.840 case in which the issue was somebody is being charged 0:11:11.920 --> 0:11:15.440 with the racial or sexual harassment, whether it's an employer 0:11:15.480 --> 0:11:18.360 for failing to shut it down, whatever, and there's a 0:11:18.360 --> 0:11:20.400 claim of free speech. On the other side, there are 0:11:20.440 --> 0:11:22.760 lower court cases that in Supreme Ware cases that seem 0:11:22.800 --> 0:11:26.440 to just accept that it's permissible for the government to 0:11:26.559 --> 0:11:31.599 require private employers, private universities, et cetera, to restrict harassment, 0:11:31.800 --> 0:11:35.400 or even public universities to restrict harassment and harassment includes 0:11:35.480 --> 0:11:39.760 creating a hostile environment. But they don't directly address the 0:11:39.840 --> 0:11:43.400 question of, you know, well, what if the basis for 0:11:43.559 --> 0:11:47.800 finding that it's a hostile environment is that people are 0:11:48.040 --> 0:11:53.000 engaged in protests that express a viewpoint but also hit 0:11:53.040 --> 0:11:56.439 home with other people in the community. That is unexplored territory. 0:11:56.520 --> 0:11:59.959 There's academic writing on it, but again no definitive Supreme Court. 0:12:00.559 --> 0:12:02.559 We'll have to see how the courts handle these cases. 0:12:02.600 --> 0:12:05.720 Thanks so much, Mike. That's Professor Michael Dorf of Cornell 0:12:05.800 --> 0:12:09.360 Law School coming up. How's the prosecution doing in the 0:12:09.400 --> 0:12:12.560 second week of Trump's hush money trial. I'm June Grosso 0:12:12.640 --> 0:12:16.360 and you're listening to Bloomberg. We are appointing this till 0:12:16.800 --> 0:12:17.760 we had a fair trial. 0:12:17.840 --> 0:12:19.679 If we had a fair judge, I don't think it 0:12:19.720 --> 0:12:21.160 would to be allowed. 0:12:20.679 --> 0:12:22.520 This trial to take place. 0:12:23.320 --> 0:12:26.160 Trying to make it a salacious He's allowing things in 0:12:26.800 --> 0:12:28.959 that have nothing to do with this case. 0:12:29.080 --> 0:12:29.959 Nothing to do with it. 0:12:30.920 --> 0:12:34.560 Donald Trump once again complaining about the hush money trial 0:12:34.600 --> 0:12:37.840 on Friday, after a week in which jurors heard first 0:12:37.840 --> 0:12:41.320 hand accounts of the negotiations to pay off two women 0:12:41.559 --> 0:12:45.960 to prevent damaging stories about the former president's alleged extramarital 0:12:45.960 --> 0:12:49.320 affairs from becoming public as part of a scheme to 0:12:49.440 --> 0:12:53.600 illegally influence the twenty sixteen presidential election, and one of 0:12:53.600 --> 0:12:56.360 the pivotal pieces of evidence was a recording of a 0:12:56.400 --> 0:13:00.559 meeting between Trump and Michael Cohen, his former lawyer and fixer, 0:13:00.960 --> 0:13:04.319 shortly before the election, in which they in which they 0:13:04.400 --> 0:13:07.840 discussed a plan to pay off an ex playboy model 0:13:08.080 --> 0:13:11.120 who claimed to have had an affair with Trump, and 0:13:11.200 --> 0:13:11.719 I spoke to. 0:13:11.640 --> 0:13:12.360 Allan about it. 0:13:12.400 --> 0:13:14.719 When it comes time to the financing, which will be. 0:13:16.760 --> 0:13:20.720 We'll have to pay you, so'll no no no, I got. 0:13:21.679 --> 0:13:25.199 And the last witness this week was Trump's former top aide, 0:13:25.360 --> 0:13:29.559 Hope Hicks, who gave dramatic testimony about the campaign's panic 0:13:29.720 --> 0:13:33.880 when explosive stories about Trump's alleged affairs leaked to the public. 0:13:34.200 --> 0:13:35.839 Joining me for a look at the week is former 0:13:35.920 --> 0:13:40.280 federal prosecutor Robert Mintz, a partner maccarter in English, Bob 0:13:40.320 --> 0:13:44.760 tell us about the prosecution's strategy here, particularly in the 0:13:44.800 --> 0:13:46.600 presentation of the witnesses. 0:13:47.160 --> 0:13:50.400 The key witness in this case is certainly going to 0:13:50.440 --> 0:13:54.840 be Michael Cohene, former President Trump's lawyer and fixer, who 0:13:54.880 --> 0:13:58.160 was at the very heart of this case. What prosecutors 0:13:58.200 --> 0:14:00.960 have done is to try to say at the stage 0:14:01.320 --> 0:14:04.560 building up to the testimony of mister Cohen, which will 0:14:04.559 --> 0:14:08.080 be the climactic moment of this trial without any question, 0:14:08.480 --> 0:14:12.480 And they're trying to introduce to jurors the concept of 0:14:12.559 --> 0:14:15.480 mister Cohen, the role that he played relative to this case, 0:14:15.520 --> 0:14:18.640 and his relationship with former President Trump. And they're doing 0:14:18.679 --> 0:14:21.520 that first through the remarks of people who knew him. 0:14:22.120 --> 0:14:24.640 Now they have done it more recently by playing a 0:14:24.760 --> 0:14:27.800 tape where they can hear mister Cohne's voice along with 0:14:27.840 --> 0:14:30.960 former President Trump, and eventually they will hear from mister 0:14:31.040 --> 0:14:34.080 Cohen himself. But by the time that mister Cohn takes 0:14:34.120 --> 0:14:37.640 the stand, jurors will already be very familiar with who 0:14:37.680 --> 0:14:40.360 he is and what his role in this case is. 0:14:40.400 --> 0:14:42.000 From the standpoint of the prosecution. 0:14:42.560 --> 0:14:47.400 Prosecutors love tapes, and they played a recording that Cohen 0:14:47.520 --> 0:14:52.400 secretly made in which he's discussing with Trump financing one 0:14:52.480 --> 0:14:56.400 hundred and fifty thousand dollars payment a few months before 0:14:56.440 --> 0:14:59.960 the twenty sixteen election. But the tape seems to cut 0:15:00.160 --> 0:15:03.920 both ways because he's talking about the financing and how 0:15:03.920 --> 0:15:07.440 he's got it all under control, like he's in charge, 0:15:07.840 --> 0:15:10.800 and that sort of squares with Trump's defense that this 0:15:10.920 --> 0:15:12.200 was all, Michael Cohen. 0:15:12.560 --> 0:15:14.840 Well, when we talk about the tape that was introduced 0:15:14.880 --> 0:15:17.120 during this trial, we need to make something very clear 0:15:17.200 --> 0:15:20.480 because it's critical to how this tape came into being 0:15:20.760 --> 0:15:24.280 and how we'll be viewed by jurors. When prosecutors make tapes, 0:15:24.320 --> 0:15:28.560 and you're absolutely right, prosecutors love tapes because it's a 0:15:28.600 --> 0:15:32.280 way for them to hear from the defendants themselves. Defendants 0:15:32.320 --> 0:15:34.640 have a Fifth Amendment right not to take the stand 0:15:34.680 --> 0:15:37.880 in the criminal case. In most criminal cases, defendants do 0:15:38.000 --> 0:15:41.360 not testify on their own behalf because that generally does 0:15:41.360 --> 0:15:44.760 not end well for them. So the only way that 0:15:44.920 --> 0:15:48.080 jurors will often hear from a defendant is by hearing 0:15:48.120 --> 0:15:51.800 a tape in which they hear the defendant. According to prosecutors, 0:15:51.880 --> 0:15:55.160 talking about the criminal activity. It's a way for jurors 0:15:55.240 --> 0:15:59.080 here the voices of the co conspirators in real time 0:15:59.520 --> 0:16:03.240 carrying out the alleged criminal scheme. So tapes are a 0:16:03.360 --> 0:16:07.240 favorite tool of prosecutors, but typically the tape is done 0:16:07.400 --> 0:16:10.520 under the supervision and at the direction of the FBI 0:16:10.640 --> 0:16:13.920 or the DEA or whatever federal agency is running the case. 0:16:14.360 --> 0:16:18.440 They get the witnesses prepared, They basically give an outline 0:16:18.680 --> 0:16:23.040 to the witnesses about the conversation. It might be a wiretap. 0:16:23.120 --> 0:16:25.360 That's another way the tapes are created. But here we 0:16:25.400 --> 0:16:29.560 had an usual circumstance where Michael Cone made this tape himself. 0:16:29.800 --> 0:16:32.040 This was years before any of this started. It was 0:16:32.080 --> 0:16:35.960 in twenty sixteen, two months before the presidential election, and 0:16:36.040 --> 0:16:39.160 so Cone made this tape himself. And as a result, 0:16:39.240 --> 0:16:42.240 it's not a dream tape for prosecutors, but it does 0:16:42.280 --> 0:16:44.600 help them in some ways and it hurts them in others. 0:16:45.480 --> 0:16:48.520 What about the fact that Michael Cohen, a lawyer, is 0:16:48.640 --> 0:16:50.320 taping his own client. 0:16:50.840 --> 0:16:53.040 Well, I think one of the problems with this tape 0:16:53.280 --> 0:16:55.480 is that it does pain Michael Cohen in a rather 0:16:55.600 --> 0:16:59.920 unslattering light. It shows that he is taping former President Trump, 0:17:00.080 --> 0:17:03.840 his own client, without former President Trump's knowledge. Who knows 0:17:03.880 --> 0:17:06.800 how many other clients he may have tape. And it 0:17:06.880 --> 0:17:09.399 says something about Michael Cohen and about the way he 0:17:09.480 --> 0:17:12.600 does business that he's taping his clients in September of 0:17:12.600 --> 0:17:15.320 twenty sixteen. And what ends up happening here is we 0:17:15.440 --> 0:17:19.679 have a tape that does help prosecures by hearing former 0:17:19.720 --> 0:17:23.560 President Trump's voice talking about the hush money payments, talking 0:17:23.600 --> 0:17:26.600 about his knowledge about those payments leading up to the election. 0:17:27.119 --> 0:17:29.960 But the tape is not perfect because it doesn't. 0:17:29.640 --> 0:17:30.679 Go into other areas. 0:17:30.720 --> 0:17:33.720 And whenever you have a tape, there's always some comments 0:17:33.720 --> 0:17:36.240 that are made that are helpful, and the defense will 0:17:36.240 --> 0:17:39.200 always point to other comments that were not made during 0:17:39.240 --> 0:17:42.000 the tape to suggest that because they weren't made on 0:17:42.040 --> 0:17:43.640 the tape, then they don't exist. 0:17:43.920 --> 0:17:47.240 Let's talk about the strategy of the defense, I mean 0:17:47.320 --> 0:17:51.080 so far during the prosecution's case, so they're basically attacking 0:17:51.119 --> 0:17:54.200 the credibility of most of the witnesses, but they're also 0:17:54.359 --> 0:17:58.399 trying to put a spotlight on the actions Michael Cohen 0:17:58.440 --> 0:17:59.920 took in these schemes. 0:18:00.480 --> 0:18:03.480 The defense lawyer did a pretty good job of showing 0:18:03.520 --> 0:18:07.520 that the lawyer who represented Stormy Daniels in connections with 0:18:07.640 --> 0:18:10.679 the payment went right up to the line of extortion 0:18:11.040 --> 0:18:13.760 by demanding a payment in order not to go public 0:18:13.960 --> 0:18:16.520 with the statement of this alleged affair. And he beat 0:18:16.600 --> 0:18:19.160 up that lawyer pretty well to show him at least 0:18:19.200 --> 0:18:22.919 that someone who was skating on the edge of the 0:18:23.040 --> 0:18:25.560 law when it came to extortion, he didn't suggest he 0:18:25.640 --> 0:18:28.960 broke the law. But he certainly tried his best to 0:18:29.000 --> 0:18:32.800 paint him in an unflattering light. But really the target 0:18:32.920 --> 0:18:35.359 for the defense is always going to be Michael Cohne. 0:18:35.359 --> 0:18:37.760 Michael Cohne is at the heart of this case. They 0:18:37.800 --> 0:18:40.480 are going to suggest that Michael Cohne was the architect 0:18:40.960 --> 0:18:44.440 of this payment scheme, and most critically, they are going 0:18:44.480 --> 0:18:46.960 to suggest that it was Michael Cohne and not former 0:18:47.000 --> 0:18:51.639 President Trump who designed the payoff scheme and designed the 0:18:51.720 --> 0:18:54.639 cover up because remember, this case is not about the 0:18:54.720 --> 0:18:58.360 hush money payment that was essentially conceded at the opening 0:18:58.400 --> 0:19:02.080 statement by the Trump defense. It's all about how those 0:19:02.119 --> 0:19:05.600 payments were allegedly covered up as a business expense. That's 0:19:05.640 --> 0:19:08.440 what's made this case of crime, and the defense strategy 0:19:08.520 --> 0:19:11.520 is going to say that that was all schemed up 0:19:11.720 --> 0:19:14.720 by Michael Cohne without the involvement or the knowledge of 0:19:14.760 --> 0:19:16.200 former President Trump at the time. 0:19:16.920 --> 0:19:20.800 And now we have the big Friday witness. Prosecutors love 0:19:20.880 --> 0:19:24.080 to put on witnesses on Friday afternoon that they think 0:19:24.119 --> 0:19:29.600 are going to be very strong because it supposedly stays 0:19:29.640 --> 0:19:32.640 with the jurors all weekend. Do you buy that theory 0:19:32.760 --> 0:19:35.080 or did you fall into it? When you were a prosecutor. 0:19:35.560 --> 0:19:37.640 Well, I think at the end of the day, prosecutors 0:19:37.920 --> 0:19:41.080 have to present their witnesses in an orderly way, so 0:19:41.200 --> 0:19:45.120 you can't really rejigger the testimony of witnesses. It has 0:19:45.160 --> 0:19:48.080 to be logical, it has to flow. There's a certain 0:19:48.080 --> 0:19:51.600 strategy into how you build your case. But as a 0:19:51.640 --> 0:19:54.600 former prosecutor, I can tell you there's nothing wrong with 0:19:54.720 --> 0:19:58.440 having a very strong witness the day on Friday. 0:19:59.200 --> 0:20:02.640 Hope seems to be a lot different from the other 0:20:02.720 --> 0:20:06.760 main prosecution witnesses we've heard from so far, because she 0:20:06.840 --> 0:20:11.639 doesn't have the credibility or morality, shall we say, problems 0:20:11.800 --> 0:20:15.280 of witnesses like the former publisher of the National Inquirer 0:20:15.760 --> 0:20:18.200 or the lawyer who broker these hush money deals. 0:20:18.640 --> 0:20:20.960 Yeah, Hope Hicks does not have a lot of baggage 0:20:21.080 --> 0:20:23.600 at all. She is not a leg to being involved 0:20:23.640 --> 0:20:26.840 in this payoff scheme. She wasn't working for the National 0:20:26.880 --> 0:20:31.199 Inquirer on these tax and kill questionable practices of varying 0:20:31.280 --> 0:20:34.720 stories for money. All of that is rather unseemly, and 0:20:34.760 --> 0:20:38.160 all of those witnesses are open to cross examination based 0:20:38.240 --> 0:20:41.639 upon only their credibility, but even the morality of what 0:20:41.680 --> 0:20:44.320 they were doing. The defense lawyers made a point of 0:20:44.359 --> 0:20:47.480 attacking them, and so she will be a strong witness 0:20:47.600 --> 0:20:51.159 for the prosecution, but she doesn't have as much information 0:20:51.400 --> 0:20:52.639 at the heart of the case as some of the 0:20:52.680 --> 0:20:53.600 other witnesses are. 0:20:53.920 --> 0:20:56.840 And with hicks testimony, the focus of the trial seemed 0:20:56.880 --> 0:21:00.639 to be moving from the tabloid world to the world 0:21:00.640 --> 0:21:02.200 of the campaign in White House. 0:21:03.040 --> 0:21:06.639 What she adds to the prosecution's argument is to show 0:21:06.680 --> 0:21:10.639 the campaign's sensitivity to these issues in light of a 0:21:10.680 --> 0:21:15.359 Hollywood access tape, and how critical the campaign viewed the 0:21:15.400 --> 0:21:19.040 public perception of Donald Trump, who was then a candidate 0:21:19.080 --> 0:21:22.240 for president, and doing their best to try to tamp 0:21:22.320 --> 0:21:25.439 down some of these salacious stories that were beginning to 0:21:25.480 --> 0:21:28.959 percolate in the press. So it shows from the prosecution 0:21:29.119 --> 0:21:32.880 standpoint how critical it was for Michael Cohen to try 0:21:32.880 --> 0:21:35.320 to bury this story. That's what prosecutors are going to 0:21:35.320 --> 0:21:38.359 try to argue based upon the testimony of Hope, Hicks and. 0:21:38.240 --> 0:21:43.639 Bob The defense is refusing to stipulate to just about 0:21:43.760 --> 0:21:48.920 every piece of evidence that the prosecution wants to introduce. So, 0:21:49.040 --> 0:21:52.520 for example, one day we heard from the archivist at 0:21:52.880 --> 0:21:56.399 c SPAN, so tapes could be introduced. I mean, it 0:21:56.480 --> 0:21:58.720 slows down the trial, But how much does it really 0:21:58.800 --> 0:22:01.560 get the defense in in the end that little slow 0:22:01.640 --> 0:22:05.320 down or annoyance for the prosecution. I guess well. 0:22:05.320 --> 0:22:09.920 Often the defense will stipulate to these non controversial, essentially 0:22:10.640 --> 0:22:14.440 ministerial testimony in order to get certain documents entered into 0:22:14.520 --> 0:22:15.680 evidence at a trial. 0:22:15.960 --> 0:22:16.440 But what the. 0:22:16.400 --> 0:22:20.240 Defense seems to be doing here is not agreeing to 0:22:20.440 --> 0:22:25.160 any of these stipulated situations in order to slow down 0:22:25.240 --> 0:22:27.879 the prosecution, to try to throw them off their game 0:22:28.160 --> 0:22:30.919 and to break up the narrative. Now, it really is 0:22:31.280 --> 0:22:33.800 a strategy that's being used here. They have every right 0:22:33.880 --> 0:22:37.200 to do that. The defense is not required to stipulate 0:22:37.440 --> 0:22:40.600 to any of these documents, witnesses, And what they're doing 0:22:40.640 --> 0:22:44.640 here is slowing the case down, throwing the prosecutors off 0:22:44.680 --> 0:22:47.160 their timing, or at least they're trying to. And they're 0:22:47.200 --> 0:22:50.119 trying to slow this case down to break up the 0:22:50.160 --> 0:22:53.399 prosecution's case so they can't really build up momentum and 0:22:53.560 --> 0:22:57.560 tell a streamline narrative, which is what prosecutors are trying 0:22:57.560 --> 0:22:58.400 to accomplish here. 0:22:58.920 --> 0:23:01.760 There's been a lot of report about Trump sitting with 0:23:01.800 --> 0:23:05.080 his eyes closed during the trial and on truth Social 0:23:05.160 --> 0:23:08.960 he said that he's not sleeping. I simply close my 0:23:09.080 --> 0:23:14.040 beautiful blue eyes sometimes listen intently and take it all in. 0:23:14.440 --> 0:23:15.640 How might the jury see that. 0:23:15.920 --> 0:23:17.840 Well, it's really hard to say what's in the mind 0:23:17.880 --> 0:23:20.280 of jurors, but you can be certain that they are 0:23:20.520 --> 0:23:23.200 looking at the defendant, as they do in any criminal trial, 0:23:23.240 --> 0:23:26.760 that they're looking at the reactions to all this testimonies. 0:23:26.880 --> 0:23:30.200 And generally, if you're a defense lawyer, you want your 0:23:30.440 --> 0:23:33.400 client to not react to the testimony, to sit there 0:23:33.520 --> 0:23:36.560 essentially stoneface. So it could be that the advice that 0:23:36.640 --> 0:23:39.120 the defenselaers are giving former President trumpet is to act 0:23:39.160 --> 0:23:41.760 as if none of this testimony really means anything. 0:23:42.160 --> 0:23:46.400