Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Demonstrations against the Israel Hamas war have wreaked havoc on
Speaker 2: college campuses across the country, escalating in recent weeks as
Speaker 2: pro Palestinian demonstrators refused to remove encampments and administrators turned
Speaker 2: to police to clear them by force, often resulting in
Speaker 2: violent clashes.
Speaker 1: I'm Gontain Daywen Gibson, the police captain for the University
Speaker 1: of Colboy of Los Angels and your right deplayers to
Speaker 1: be about mamos bring up. Maybe you do not do so,
Speaker 1: you may be arrested or subject to other constructions.
Speaker 2: At UCLA's campus in Los Angeles, police warned the more
Speaker 2: than one thousand protesters for over a loud speakers that
Speaker 2: there would be arrests if they didn't disperse. Chaotic scenes
Speaker 2: played out in the pre dawn hours today when officers
Speaker 2: in riot gear confronted demonstrators who wore helmets and gas masks.
Speaker 2: At least two hundred people were arrested and from the
Speaker 2: White House, President Joe Biden, in warning against violence, said
Speaker 2: the protests put to the task two fundamental American principles.
Speaker 2: The first is the right to free speech and for
Speaker 2: people to peacefully assemble and make their voices heard.
Speaker 1: The second is the rule of law. Both must be upheld.
Speaker 2: The protests spotlight the difficulty of balancing the right to
Speaker 2: free speech with the need to provide a space where
Speaker 2: students feel safe joining me is constitutional scholar Michael Dorf,
Speaker 2: a professor at Cornell Law School. Let's start with the basics. Mike,
Speaker 2: explain the difference between First Amendment rights at public versus
Speaker 2: private college universities.
Speaker 3: Sure, the Constitution applies to the government with respect to
Speaker 3: state universities. That's pretty clear. Because state universities are arms
Speaker 3: of the state. Private universities are not bound by the
Speaker 3: Constitution and therefore not bound by the First Amendment. However,
Speaker 3: there are at least two ways in which we need
Speaker 3: to qualify that. First, most colleges and universities in the
Speaker 3: United States, as a matter of their own internal organizing principles,
Speaker 3: some of which is protected by contract with students, faculty members,
Speaker 3: et cetera, adhere to First Amendment or First Amendment like principles.
Speaker 3: That is to say, freedom of speech is not only
Speaker 3: part of our constitutional system, but it's an important value
Speaker 3: for higher education you see it in practices like academic
Speaker 3: freedom and so forth. So in that sense, whether it's
Speaker 3: imposed the government or voluntarily undertaken, and principles of free
Speaker 3: speech are pretty much universal on college and university's campusits.
Speaker 3: The second way in which I would qualify it is
Speaker 3: that in some places that's actually imposed by law. So,
Speaker 3: for example, in California, there is a state law called
Speaker 3: the Leonard Law that says that even private universities must
Speaker 3: abide by the strictures of the First Amendment, at least
Speaker 3: with respect to matters of student discipline. And so you know,
Speaker 3: the unrest you saw at UCLA and USC isn't really
Speaker 3: very different in terms of how we think about that
Speaker 3: in terms of free speech in virtue of that state law,
Speaker 3: even though UCLA is a state university and USC is private.
Speaker 2: Let's talk about what the First Amendment protects and what
Speaker 2: it doesn't protect. It doesn't protect unlawful conduct.
Speaker 3: That's a little circular, right, that is to say, of course,
Speaker 3: it doesn't protect unlawful conduct. But part of the point
Speaker 3: of the First Amment is it tells us what conduct
Speaker 3: can be made unlawful. The way I would put it
Speaker 3: is that the First Amendment protects speech and other expressive activity,
Speaker 3: primarily against government interference or where it's voluntarily undertaken, private
Speaker 3: university interference that is based on the content of the speech. Right.
Speaker 3: So the critical distinction is between what are sometimes called time,
Speaker 3: place and manner restrictions. Right, you can have your rally
Speaker 3: in this place but not that place, at this time,
Speaker 3: but not that time without amplification except under certain circumstances.
Speaker 3: Those are about how you are making your point, and
Speaker 3: generally the government has considerable leeway to restrict that so
Speaker 3: long as it does so reasonably, versus content based restrictions.
Speaker 3: You can't have a rally for this side, but you
Speaker 3: can have it for the other side. Right, And that's
Speaker 3: the sort of basic principle that's operating here. The government
Speaker 3: can restrict speech, but not based on its content, and
Speaker 3: when it does so, it has to do so reasonably,
Speaker 3: meaning leave open adequate alternative channels of communication and so forth.
Speaker 2: Let me give you an example, an anti Semitic chant.
Speaker 2: Would that be protected under the First Amendment?
Speaker 3: Strange as it may sound, the answer to that question
Speaker 3: is yes. In most constitutional democracies the answer would be no.
Speaker 3: But in the United States, what is sometime is called
Speaker 3: hate speech, is not unprotected in virtue of the fact
Speaker 3: that it is hate speech. The leading case is a
Speaker 3: case from the US Supreme Court in nineteen ninety two
Speaker 3: called rav against City of Saint Paul, which said that
Speaker 3: the First Amendment does not include an exception for hate speech. Now,
Speaker 3: I should qualify that by saying that an anti Semitic chant,
Speaker 3: under certain circums stances could be proscribable harassment. So if
Speaker 3: you think about racial or sexual harassment at the workplace,
Speaker 3: which is forbidden by Title seven that's the nineteen sixty
Speaker 3: four Civil Rights Act, or at a federally funded college
Speaker 3: or university, which means just about every college and university
Speaker 3: in the country. Racial harassment is prescribed if a college
Speaker 3: university takes federal funds. It's just what all of them do.
Speaker 3: They're not permitted to tolerate racial harassment. And Department of
Speaker 3: Education guidelines define anti semitism, Islamophobia, and various other forms
Speaker 3: of hatred that you might think correlate with religion but
Speaker 3: have some sort of ethnic and therefore racial component. It
Speaker 3: defines those as covered by Title six. So if the
Speaker 3: chant rises to the level of harassment, then it is
Speaker 3: forbidden by Title six, and the university is not only permitted,
Speaker 3: but obligated to stop it. And now the question that
Speaker 3: naturally raises is does the First Amendment contain an exception
Speaker 3: for harassment? The Supreme Court has never decided that question.
Speaker 3: Lower courts have assumed that the answer to that is yes,
Speaker 3: and I think that is the correct answer. That is
Speaker 3: to say that what is defined as harassment, which is
Speaker 3: sort of creating a hostile environment based on raise or
Speaker 3: sex and so forth, is proscribable. That is to say,
Speaker 3: the First Moment doesn't protect that. And you have to ask, well,
Speaker 3: what's the reason for that. Why is it that if
Speaker 3: there is no exception to the First Moment for hate speech,
Speaker 3: why is it that the government can forbid harassment that
Speaker 3: takes the form of hate speech. The answer to that,
Speaker 3: I think is that the government can't forbid harassment generally
Speaker 3: where harassment consists simply of saying offensive things, But it
Speaker 3: can do so when it's targeted in circumstances where someone
Speaker 3: can't just sort of look the other way. So if
Speaker 3: a neo Nazi group or white supremacists want to have
Speaker 3: a march through Charlottesville, for example, they're protected by the
Speaker 3: First moment in doing so. But if they want to
Speaker 3: do that at the workplace of particular individuals, then those
Speaker 3: people are a kind of captive audience at work. And
Speaker 3: the crucial question, then, I think, for current purposes, is
Speaker 3: to what extent is a college or university campus more
Speaker 3: like a workplace where there's a kind of captive audience
Speaker 3: rationale for restricting what would otherwise be offensive but first
Speaker 3: protected speech versus more like just the public streets and
Speaker 3: public parks and so forth. I think that's a question
Speaker 3: to which we don't have an answer, but it's sort
Speaker 3: of at the heart of the clash between the First
Speaker 3: Amendment and antidiscrimination principles.
Speaker 2: There have been protests on college campuses all the way
Speaker 2: back to the nineteen twenties, I think, perhaps reaching a
Speaker 2: height in the protests against the Vietnam War in the sixties.
Speaker 2: But are the current protests different because many Jewish students
Speaker 2: feel threatened by the anti Semitism that's sweeping across college
Speaker 2: campuses and these protests, so.
Speaker 3: Yes, to the extent, and there is a real extent
Speaker 3: that the demonstrations and the encampments include anti Semitic speech
Speaker 3: that does distinguish nineteen sixties Vietnam War era campus activism,
Speaker 3: where there were certainly students who didn't oppose the Vietnam
Speaker 3: War and may have therefore disagreed with other students' protests,
Speaker 3: but they didn't feel like they were the target of
Speaker 3: those protests. So that is a distinction. But let me
Speaker 3: then also say that, you know, the fact that people
Speaker 3: feel threatened by something is of course always unfortunate, but
Speaker 3: that usually isn't enough to shut down other people's speech
Speaker 3: if it isn't actually threatening. And so I think it
Speaker 3: would be important to distinguish people who are saying or
Speaker 3: doing actually threatening things or things that create a hostile
Speaker 3: environment because they're anti Semitic, from people who are there
Speaker 3: simply opposing the Gaza war and urging divestment or whatever
Speaker 3: it is that they're demanding of the colleges and universities. So, yes,
Speaker 3: that is a distinction, but I don't think it distinguishes
Speaker 3: all of what's going on now from earlier periods of
Speaker 3: campus activism. Coming up next on.
Speaker 2: The Bloomberg Law Show, I'll continue this conversation with Professor
Speaker 2: Michael Dwarf of Cornell Law School. Have the courts provided
Speaker 2: a clearly defined line to mark when's speech and protests
Speaker 2: are no longer peaceful and lose First Amendment protection. And
Speaker 2: later in the show, we'll talk about day six in
Speaker 2: the hush money trial of Donald Trump. I'm June Gross.
Speaker 2: When you're listening to Bloomberg. Demonstrations against the Israel Hamas
Speaker 2: war have reached havoc on college campuses across the country,
Speaker 2: escalating in recent weeks, and police have arrested more than
Speaker 2: two thousand people, according to the Associated Press. I've been
Speaker 2: talking to Professor Michael Dorf of Cornell Law School, what
Speaker 2: about these encampments that have sprung up, I think starting
Speaker 2: at Columbia, but I've sprung up across the country. Some
Speaker 2: campus protesters consider their encampments to be a form of speech.
Speaker 3: So that actually is just not true. I mean, of
Speaker 3: course they mean to express a message through the encampments,
Speaker 3: and it's a demonstration of their seriousness of purpose, So
Speaker 3: I don't want to deny that. Of course they're doing
Speaker 3: it to make up. But that doesn't mean that colleges
Speaker 3: and universities lack content neutral grounds for objecting to the encampments. Right.
Speaker 3: I mentioned earlier that it is permissible for the government
Speaker 3: or in the context of a private university committed to
Speaker 3: freedom of speech, the university administration to enforce content neutral, time, place,
Speaker 3: and manner restrictions. And one form of manner restriction is
Speaker 3: if you want to use the public space to have
Speaker 3: a rally or to habits and speeches, you apply for
Speaker 3: a permit, You do so at a time when it's
Speaker 3: not going to be totally disruptive to the rest of
Speaker 3: campus life, and you know, and then they have to
Speaker 3: issue it to you if and they can't deny it
Speaker 3: to you because they disagree with your message. Depths fair enough,
Speaker 3: and in the encampments all as far as I know,
Speaker 3: violate the colleges and universities content neutral rules. Now that's
Speaker 3: not to say that they're being enforced necessarily in a
Speaker 3: content neutral manner. It is to say that there is
Speaker 3: a completely legitimate rationale for saying you can't have an encampment,
Speaker 3: regardless of what side of whatever issue you're supporting. There's
Speaker 3: a Supreme Court case that involves almost literally that question.
Speaker 3: Is the case called Clark against Community for Creative Non Violence,
Speaker 3: the case in which a group of people wanted to
Speaker 3: also did set up an encampment on the Washington Mall
Speaker 3: to dramatize the problem of homelessness in America. So it's
Speaker 3: certainly a worthy cause, and you can see how setting
Speaker 3: up an encampment would express that message. But it violated
Speaker 3: a National Parks rule. But you couldn't camp accept in
Speaker 3: designated areas in the National Parks, and the Washington DC
Speaker 3: Mall is run by the Park Service. The case goes
Speaker 3: up to the Supreme Court, and the Supreme Court said, yes,
Speaker 3: they're expressing a message, but the no camping rule is
Speaker 3: a content neutral rule, and here there hadn't been a
Speaker 3: showing that the government was telling the protesters, don't have
Speaker 3: your encampment because of hostility to their message. So if
Speaker 3: the current protesters want to make a persuasive case that
Speaker 3: they've got a first moment right to be there, I
Speaker 3: think they would need to show that the colleges and
Speaker 3: universities that are telling them they can't be there are
Speaker 3: doing so because of disagreement with their hostility to their message.
Speaker 3: And it's you know, I don't have a view about
Speaker 3: whether that showing they could make. I would need to
Speaker 3: know a lot more of the facts at you know,
Speaker 3: each of the places where there was that kind of conflict.
Speaker 2: There have been more than two thousand arrests across the country.
Speaker 2: Let's use Columbia, though, as an example, because I think
Speaker 2: that's where the arrests started. Let's say these students are charged,
Speaker 2: Do they have any defense based on the First Amendment?
Speaker 3: Say so, that's a complicated question, because their right to
Speaker 3: free speech as against Columbia is of course contractual right.
Speaker 3: Because I said that Columbia adopt free speech principles voluntarily,
Speaker 3: it's not imposed by the First Amendment. There is a
Speaker 3: New York State law that governs discipline for various reasons,
Speaker 3: but it doesn't really create a free speech right if
Speaker 3: they are prosecuted. And my understanding is a lot of
Speaker 3: people are being released. Although I don't know what's happening
Speaker 3: with the latest rounds of arrests, I know that was
Speaker 3: true of the earlier round. But if they are prosecuted,
Speaker 3: in order to have a successful First Amendment defense, they
Speaker 3: would need to show that they were being selectively prosecuted
Speaker 3: by New York State or New York City because of
Speaker 3: their message, as opposed to because they were engaged in
Speaker 3: criminal trespass and we're told to leave and give an
Speaker 3: opportunity to leave didn't and it's notoriously difficult to make
Speaker 3: out a successful case of selective prosecution, and so I
Speaker 3: think the answer is very likely no, especially because my
Speaker 3: understanding is the New York City Police only moved in
Speaker 3: at Columbia's invitation. So even if we think Columbia is
Speaker 3: acting because they don't like the messages, I don't think
Speaker 3: it's established. But even if we thought that, that doesn't
Speaker 3: mean that New York City is proceeding because they don't
Speaker 3: like the message. As I said, the NYPD only goes
Speaker 3: in once they're invited. You can think of it in
Speaker 3: the following way, right, that is, there is a law
Speaker 3: against criminal trespass. If somebody comes into your apartment when
Speaker 3: you're not there, and then you ask them to leave,
Speaker 3: and they refuse to leave, and you call the cops,
Speaker 3: the police come and they remove them, doesn't matter what
Speaker 3: your reason was for calling the cops. Maybe you didn't
Speaker 3: like that they were there because they were saying things
Speaker 3: that you found offensive. That wouldn't convert the police action
Speaker 3: in removing that person into a violation of the First Amendment.
Speaker 2: As far as what the administrators are doing here, do
Speaker 2: you think there's a better.
Speaker 3: Way for of course, yes right, I'm not endorsing the
Speaker 3: calling of the comps as a wise ways for Columbia
Speaker 3: or UCLA or any of these other places, certainly not
Speaker 3: the University of Texas, where you know, the governor seems
Speaker 3: to have sent them in. But I'm not saying that
Speaker 3: that's the best way for an administration to handle these demonstrations.
Speaker 3: At the very least, you would want there to be
Speaker 3: lots of de escalatory steps taken. You know, I understand
Speaker 3: that in some of these campuses there were negotiations that
Speaker 3: were going on, and apparently they didnt lead to very much.
Speaker 3: But again, that's a question for university administrators. I think
Speaker 3: it's a tough question because part of having content neutral
Speaker 3: rules means enforcing them in a content neutral manner. And
Speaker 3: so while of course you want to avoid suspending, much
Speaker 3: less subjecting to criminal prosecution your own students, if you
Speaker 3: don't enforce the rules even handedly, you potentially set yourself
Speaker 3: up for a free speech challenge in some later case.
Speaker 3: So again, you know, I'm not sure what the right
Speaker 3: answer is. I'm kind of glad I'm not in university administration.
Speaker 3: I think it's a very difficult position to be in
Speaker 3: at any time, but especially now, because there are all
Speaker 3: sorts of conflicting pressures. I'm just trying to give you
Speaker 3: what I understand to be the background law on the question.
Speaker 2: I mean, as part of the problem here, there's so much,
Speaker 2: you know, political pressure, starting with the hearings in Congress.
Speaker 3: That's right. I mean, arguably everything we're seeing over the
Speaker 3: last couple of weeks is a consequence of the House Committee,
Speaker 3: specially represent in that of Stephonic calling the Columbia University
Speaker 3: president to testify and her then giving answers that sort
Speaker 3: of didn't really satisfy anybody, but put her in a
Speaker 3: position where I think she felt she had committed to
Speaker 3: cracking down, and then the crackdown, which of course was
Speaker 3: completely counterproductive and led to the encampments sprouting up all
Speaker 3: across the country. Now that's not to say that some
Speaker 3: other triggering event might not have caused this, or not
Speaker 3: to detegrate the underlying concern of the protesters about the
Speaker 3: conduct of the Gaza war, but it is to say
Speaker 3: that there are lots of politicians, administrators, and others who
Speaker 3: have acted in ways that seem to have heightened the
Speaker 3: conflict rather than attempted to have a conversation.
Speaker 2: What's the hardest part of this analysis of what the
Speaker 2: First Amendment protects and what it doesn't.
Speaker 3: I mean, I think the truly difficult pieces we've already
Speaker 3: talked about. That is, you know, the place at which
Speaker 3: you draw the line between permissible free speech and prescribable harassment.
Speaker 3: The one thing I would add to that is that
Speaker 3: it's complicated by the fact that there are you know,
Speaker 3: many participants in these encampments, and so you know, in
Speaker 3: New York, you know, you saw Mayor Adams complaining yesterday
Speaker 3: about outside agitators sort of infiltrating the Columbia takeover of
Speaker 3: Hamilton Hall and the protests generally. And you know, that's
Speaker 3: an old problem, especially on the political left, that you
Speaker 3: have movements that attract people who have views that are
Speaker 3: sort of within a range of sort of within a
Speaker 3: standard deviation or two of the center of public opinion,
Speaker 3: and then you have people who are truly radical, and
Speaker 3: not just radical in their substance views, but in the
Speaker 3: means that they want to use, who then attach themselves
Speaker 3: to these movements, and that can then undercut the other folks.
Speaker 3: And so, you know, in addition, to the question of
Speaker 3: how do you protect students who feel, in some cases
Speaker 3: justifiably threatened by the protests without you know, shutting down
Speaker 3: people's right to express themselves. There's also the question of
Speaker 3: how do you separate out the people who are really
Speaker 3: engaged in harassment or threats what have you, from people
Speaker 3: who are just there legitimately to protest. And I think
Speaker 3: that's a very very hard question.
Speaker 2: The line is not clear. The Supreme Court has never
Speaker 2: clarified the line between the two.
Speaker 3: No, I mean, so the scrit has never face to
Speaker 3: case in which the issue was somebody is being charged
Speaker 3: with racial or sexual harassment, whether it's an employer for
Speaker 3: failing to shut it down, whatever, and there's a claim
Speaker 3: of free speech. On the other side, there are lower
Speaker 3: court cases that in Supreme Ware cases that seem to
Speaker 3: just accept that it's permissible for the government to require
Speaker 3: private employers, private universities, et cetera, to restrict harassment, or
Speaker 3: even public universities to restrict harassment and harassment includes creating
Speaker 3: a hostile environment. But they don't directly address the question
Speaker 3: of you know, well, what if the basis for finding
Speaker 3: that it's a hostile environment is that people are engaged
Speaker 3: in protests that you know, express a viewpoint but also
Speaker 3: hit home with other people in the community. Yeah, that
Speaker 3: is unexplored territory. There's academic writing on it, but again
Speaker 3: no definitive Supreme Court case. So two other things. One is,
Speaker 3: I want to be clear, I'm speaking on my bi
Speaker 3: half as a constitutional scholar. I am in no way
Speaker 3: representing the views of Cornell University or its administration, which
Speaker 3: you know I think that's always true, but especially now,
Speaker 3: I want that to be clear. And the second thing
Speaker 3: is I very rarely give legal advice on air, but
Speaker 3: I am now going to give legal advice to all
Speaker 3: university presidents throughout the country. If you're asked to testify
Speaker 3: before Congress about any of this stuff, don't do it
Speaker 3: unless you have a subpoena. That's my advice, because no
Speaker 3: good can possibly come of it.
Speaker 2: Sounds like good advice, because it certainly hasn't in the
Speaker 2: latest cases. Thanks so much for your insights, Mike. That's
Speaker 2: Professor Michael Dwarf of Cornell Law School. Coming up next
Speaker 2: on the Bloomberg Law Show. We'll take a look at
Speaker 2: day six, So the Trump hush money trial. I'm June
Speaker 2: Grosso and you're listening to Bloomberg. Juris in day six
Speaker 2: of Donald Trump's hush money trial heard perhaps the most
Speaker 2: colorful piece of evidence presented to them so far to
Speaker 2: connect Trump to the money payments at the center of
Speaker 2: his criminal trial in Manhattan. It was a recording of
Speaker 2: Trump discussing with his then lawyer and personal fixer, Michael Cohen,
Speaker 2: a plan to purchase the silence of a playboy model
Speaker 2: who said she had an affair with the former president.
Speaker 3: And I spoke to Alan about it.
Speaker 4: When it comes time for the financing, which will be listening,
Speaker 4: you will have to no no, no, no no, I
Speaker 4: got no no no.
Speaker 2: Joining me is Dave Ahrenberg, the state attorney for Palm
Speaker 2: Beach County. This morning there was a hearing, another contempt hearing,
Speaker 2: and part of what Trump's defense showed was all the
Speaker 2: times that Michael Cohen had attacked Trump, and their theory
Speaker 2: is Trump is allowed to respond to these kinds of attacks.
Speaker 3: Yeah.
Speaker 4: The reason why you have this gag order is in
Speaker 4: part to protect witnesses. It's also to protect jurors, but
Speaker 4: it's to protect witnesses from intimidation. And what Trump's lawyers
Speaker 4: are saying is that you can't intimidate Michael Cohen. He
Speaker 4: gives as good as he gets, And I think that's
Speaker 4: actually a decent argument. Michael Conan is not your typical witness.
Speaker 4: He's not going to shy away from the spotlight because
Speaker 4: of what Trump says about him, because they've been going
Speaker 4: at each other for a while. So I think this
Speaker 4: is another reason why if Trump is sanctioned for the
Speaker 4: violations of the gag order, because he is violating it,
Speaker 4: it'll be these small fines. He's not going to be
Speaker 4: wearing an orange jumpsuit anytime soon.
Speaker 2: Also, you know, he didn't criticize David Pecker, who was
Speaker 2: the first witness, the former publisher of the National Choir,
Speaker 2: but he said things like, David Pecker be nice.
Speaker 4: David Pecker is a really compelling witness because he and
Speaker 4: Trump have remained friends over the years. He doesn't have
Speaker 4: an AXA grind. The only potential bias with David Pecker
Speaker 4: is that he's under a non prosecution agreement. So Trump's
Speaker 4: lawyers have said that, ay, you're doing this is save
Speaker 4: your own hide. But Pecker referred to Trump as a mentor,
Speaker 4: and he still considered him a friend in his testimony,
Speaker 4: which makes his testimony even more powerful. But the bigger
Speaker 4: question is one you raise, why isn't Trump attacking Pecker
Speaker 4: because he attacks everyone who goes against him, and Pecker
Speaker 4: has been a devastating witness. And I think the answer
Speaker 4: is Trump is transactional. He doesn't want to attack someone
Speaker 4: who knows where the bodies are buried. He worries that
Speaker 4: if he goes after Pecker, Pecker could come after him
Speaker 4: even more strongly than he has already.
Speaker 2: An unusual thing that's going on here is I believe
Speaker 2: it was the fourth witness, Ronograph, Trump's longtime personal assistant.
Speaker 2: Trump is paying her legal fees.
Speaker 4: We've seen this before. He paid Alan Weislberg's attorney's fees
Speaker 4: while Weisselberg was supposedly testifying against Trump in the previous
Speaker 4: criminal trial in Manhattan, and so we've seen this before.
Speaker 4: But it does get disclosed to the jury. The jury
Speaker 4: hears that and can judge her credibility based on the
Speaker 4: fact that the defendant is paying for her lawyers. She
Speaker 4: didn't give much up except for the fact that she
Speaker 4: had Stormy Daniels and Karen McDougall in the Trump organization's books.
Speaker 4: Why he said that he never had an affair with
Speaker 4: either of them. He still maintains it, why are they
Speaker 4: in the corporations books. Defense also says, well, you know,
Speaker 4: she was trying out for the Apprentice. That's why Stormy
Speaker 4: Daniels at least was in the book. Doesn't explain why
Speaker 4: Careren McDougal is. But Jeremy Daniels said in her documentary
Speaker 4: that she was trying out for The Apprentice, and that's
Speaker 4: when Donald Trump was trying to pretend that, you know,
Speaker 4: he was going to help her get on the show
Speaker 4: if she would get closer to him. So it does
Speaker 4: feed into her own story.
Speaker 2: Pat Heurtado, who's our reporter who's in the courtroom, said
Speaker 2: that when Ronograf got off the stand, Trump got up
Speaker 2: sort of to go shake her hand and then realized that, oh,
Speaker 2: I'm in a courtroom. I think it sort of shows
Speaker 2: you how his you know, I'm the former president's side,
Speaker 2: I'm the billionaire side, and I'm a defendant.
Speaker 4: That was a mistake by Trump because maybe that works
Speaker 4: in court of public opinion outside the courthouse to your followers,
Speaker 4: shows your gentleman, you do that in front of the
Speaker 4: jury and it looks like the witness is by towards you,
Speaker 4: and it looks like you're sucking up to the witness.
Speaker 4: It's not a good look for either the defendant or
Speaker 4: the witness. When the defendant is getting up from his
Speaker 4: chair and wants to give the witness a hug or
Speaker 4: a handshake, it's.
Speaker 1: Not a good look.
Speaker 4: So any credibility that she had, at least in favoring
Speaker 4: Trump is out the window. And it also gives more
Speaker 4: credibility to the negative stuff she said about Trump, which
Speaker 4: is when I say negative, I mean saying that Stormy
Speaker 4: Daniels and Caer McDougal were in the books of the
Speaker 4: Trump organization. So it makes her testimony against Trump that
Speaker 4: much more powerful.
Speaker 2: There have been a lot of reports about Trump's demeanor
Speaker 2: in the courtroom, perhaps nodding off at different points or
Speaker 2: looking uninterested. So the jury is watching him every second,
Speaker 2: aren't they.
Speaker 4: Oh yeah, jurors are very perceptive. They are watching everything,
Speaker 4: and when Trump is dozing off, you know, I don't
Speaker 4: know how they're going to perceive that, but I can
Speaker 4: tell you that makes it harder for Trump after the
Speaker 4: fact to say that he's running against sleepy Joe Biden.
Speaker 4: I mean, it sort of guts his attack on the
Speaker 4: president by call him sleepy Joe when you're the one
Speaker 4: sleeping in this courtroom seemingly every day of the trial.
Speaker 2: Another interesting thing, the second witness was the archivist at
Speaker 2: c SPAN and apparently the defense is not stipulating to
Speaker 2: any kind of evidence. So explain why the prosecution has
Speaker 2: to call these people.
Speaker 4: Normally you just have a stipulation that you could introduce
Speaker 4: certain records because they're obviously real, they're legit. But the
Speaker 4: defense is trying to block them at every step of
Speaker 4: the way, forcing people to come in and testify to
Speaker 4: things that were stipulated to. In the last Trump trial,
Speaker 4: the one with Leticia James, they were stipulating the things
Speaker 4: all the time over there, but in this one he's not.
Speaker 4: And it just shows you that he wants to delay
Speaker 4: this matter. That's his best defense, and this is his
Speaker 4: attempt at delaying. You know how I also know that
Speaker 4: delay is his strategy. Aside from everything we've learned thus far,
Speaker 4: is the fact that he's complaining that the trial's going
Speaker 4: too quickly, the jury selection is going too quickly. But
Speaker 4: at the same time he's saying, but I can't be
Speaker 4: on the campaign trail. This trial's keep me from the
Speaker 4: campaign trail well, which is it is a trial going
Speaker 4: too quickly or too slowly.
Speaker 2: And also it does slow down the trial. I mean
Speaker 2: that is a tactic of the defense too, so that
Speaker 2: the jurors are not so interested in these witnesses. But
Speaker 2: I think the prosecution is trying to balance that with
Speaker 2: witnesses who are interesting, like the lawyer who's on the
Speaker 2: stand who represented both Stormy Daniels and Karen McDougall.
Speaker 4: The prosecution is doing a great job, and I think
Speaker 4: the case is going much better than most people had expected.
Speaker 4: David Pecker, the first witness, was really powerful, and that
Speaker 4: is a good lesson for those young lawyers out there
Speaker 4: and those in law school. You want to put on
Speaker 4: your best witnesses first and last. You want to have
Speaker 4: an initial shock, and then you want to leave them
Speaker 4: the jurors with something in between. You can do the
Speaker 4: nuts and bolts, the more boring witnesses, the archivists, the
Speaker 4: banker who talked about how the loan was structured, that
Speaker 4: was given to Michael Cohen. But occasionally, to keep the
Speaker 4: jurors awake, you want to put in the really compelling witnesses,
Speaker 4: like Keith Davidson, he's been great. Now the big witness
Speaker 4: to consider it'll be Michael Cohen. I think he'll be
Speaker 4: a middle end, but not at the end. You don't
Speaker 4: want to leave with him because that's the last gasp
Speaker 4: I think for the defense, which it's not going well
Speaker 4: for them, But if they can expose Michael Cohen as
Speaker 4: a liar and a perjurer and a felon, and the
Speaker 4: jury goes along with that, then the prosecution's entire case
Speaker 4: could be in trouble.
Speaker 2: It seems like Michael Cohen is an easy witness for
Speaker 2: the defense to cross. I mean, everything's out there.
Speaker 4: Correct, but there's something called corroboration. You may not believe
Speaker 4: Michael Cohen, and he may have lied in the past,
Speaker 4: but he's got all his corroboration now. And by the way,
Speaker 4: the reason why he was convicted of perjury previously was
Speaker 4: because he was lying to protect Donald Trump, So that'll
Speaker 4: come out. But also you now have the Keith Davidson,
Speaker 4: you have David Pecker, who have corroberated what Michael con
Speaker 4: is going to testify to. So is everyone lying or
Speaker 4: maybe just maybe Michael Cohen is telling the truth under oath,
Speaker 4: and so far, everything I've seen from him in interviews
Speaker 4: outside the courthouse shown him to be a pretty credible
Speaker 4: and compelling witness.
Speaker 2: So then do you think the defense has to sort
Speaker 2: of prod him enough for him to lose his temper?
Speaker 3: Oh?
Speaker 4: Yeah, they're going to try to get under his skin,
Speaker 4: and the prosecution will be working with him to try
Speaker 4: to prepare him for what's coming. But it's different when
Speaker 4: it's for all the marbles and you're on the stand
Speaker 4: and this is it and you feel like you're being
Speaker 4: unfairly attacked by a person that he hates, a person
Speaker 4: who led him to prison. That's why he went to prison.
Speaker 4: Donald Trump did not go to prison for the thing
Speaker 4: that Michael Cohen went to prison for, even though Trump
Speaker 4: was an unindicted co conspirator at the time. So you
Speaker 4: can see why Michael Cohen is en rage and he
Speaker 4: just god has to chill and he has to just
Speaker 4: answer the questions that are asked and not come across
Speaker 4: as unlikable, because if he's unlikable to the jury, the
Speaker 4: jury just may say the entire case is unlikable and unwinnable.
Speaker 2: Do you think Stormy Daniels comes before Michael Cohen or after.
Speaker 4: Oh, that's a good question. I don't know that answer.
Speaker 4: But the Stormy Daniels testament will not be the last
Speaker 4: one either, because she also is a flawed witness. I mean,
Speaker 4: she has in the past sent letters swearing that she
Speaker 4: didn't have an affair with Donald Trump. She is an
Speaker 4: adult film actress, so whatever you want to say about
Speaker 4: that line of work, it doesn't have a lot of
Speaker 4: jury appeal. And she also has some unusual thinkings about
Speaker 4: like what like space aliens or like goes or ghouls
Speaker 4: or something, So they're gonna bring out all that stuff.
Speaker 4: But just like Michael Cohen, she comes across as credible
Speaker 4: when you see her in outside interviews. I don't know
Speaker 4: whether she goes before Michael Cohen or after. I think
Speaker 4: they want to put Michael Cohen in where she's sandwiched
Speaker 4: in with other helpful witnesses, so that that's not the
Speaker 4: last impression you have of the key witness who also
Speaker 4: has a lot of flaws.
Speaker 2: So tell us about Keith Davison as a witness. Why
Speaker 2: is he there?
Speaker 4: Well, he's there because he not only represented Stormy Daniels,
Speaker 4: he represented Karen McDougall. This shows that there was a pattern.
Speaker 4: It wasn't just a one off with a payment to
Speaker 4: Stormy Daniels. This was about protecting Trump's election chances. And
Speaker 4: that's what Davidson is testifying to that this was not
Speaker 4: about protecting Milania or Avanka from finding out about an affair.
Speaker 4: This is a coordinated attempt through Keith Davidson, through David Pecker,
Speaker 4: through Donald Trump, and through Michael Cohen to help Trump
Speaker 4: win the election. And there's this very powerful text message
Speaker 4: that came out in trial where Keith Davidson texted, what
Speaker 4: have we done after Trump wins the election? Acknowledging that
Speaker 4: everything they did was to help his election and now
Speaker 4: it came to fruition and now there's buyer's remorse.
Speaker 2: In most cases, the defendant's family members are there at
Speaker 2: trial in a show of support for the defendant. For example,
Speaker 2: think about Sam Benkman Freed. His parents were there every
Speaker 2: day of the trial, sitting behind. In this case, we're
Speaker 2: on day six and there was only one day when
Speaker 2: someone from Trump's family, his son Eric, showed up at trial.
Speaker 2: I mean, I have to ask why aren't they there?
Speaker 2: And does it matter? Well?
Speaker 4: It does matter because you said earlier correctly, that jurors
Speaker 4: notice these things. Yes, jurors notice when your family's not
Speaker 4: there to support you. Why aren't they there? I mean
Speaker 4: they have to ask Donald Trump about his relationship with
Speaker 4: his family, because when your father, when your husband is
Speaker 4: on trial. Maybe they don't think that this really poses
Speaker 4: an existential threat to his future freedom. Maybe they don't
Speaker 4: really think this is going to lead to any prison time.
Speaker 4: But if that guilty verdict has read, then it's a
Speaker 4: game changer. He may never serve prison time for this,
Speaker 4: but the polls show that a guilty verdict would swing
Speaker 4: enough voters to prevent him from returning to the White House.
Speaker 4: So it is a big deal.
Speaker 2: Tomorrow, Day seven. Thanks so much, Dave. That's Dave Ahrenberg,
Speaker 2: Palm Beach County State Attorney. And that's it this edition
Speaker 2: of the Bloomberg Law Podcast. Remember you can always get
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Speaker 2: Slash podcast, Slash Law. I'm June Grosso and this is
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