WEBVTT - SCOTUS Hands GOP A Win on Map & The Trump Defense 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.760 --> 0:00:14.280 By a six to three vote down ideological lines. The 0:00:14.320 --> 0:00:19.000 Supreme Court upheld a Republican drawn congressional map in South Carolina, 0:00:19.280 --> 0:00:23.840 rejecting a lower court's finding of racial gerrymandering and boosting 0:00:23.920 --> 0:00:26.880 Republicans in the fight to control the House for the 0:00:26.920 --> 0:00:31.600 rest of the decade. The six Conservative justices overturned a 0:00:31.720 --> 0:00:37.600 three judge panel's decision that Republican lawmakers had unconstitutionally relied 0:00:37.640 --> 0:00:41.159 on race when they removed thirty thousand black voters out 0:00:41.240 --> 0:00:45.879 of Republican Representative Nancy Mace's district a quote bleaching of 0:00:45.960 --> 0:00:49.800 African American voters from the district. Joining me is elections 0:00:49.880 --> 0:00:53.080 law expert Richard Rffald, a professor at Columbia Law School. 0:00:53.240 --> 0:00:57.440 The majority opinion by Justice Alito. What was the reasoning 0:00:57.720 --> 0:01:00.200 of the Conservative majority here? 0:01:00.000 --> 0:01:03.600 The majority concluded that the three judge court below the 0:01:03.600 --> 0:01:07.399 district court erred that there was clear error in finding 0:01:07.480 --> 0:01:10.720 that the redistricting of District one in South Carolina was 0:01:10.760 --> 0:01:12.640 done on the basis of race rather than on the 0:01:12.640 --> 0:01:16.119 basis of party. The Court recognized that racial jermy mannering 0:01:16.120 --> 0:01:18.840 and partisan jurry mannering often look alike. They said the 0:01:18.840 --> 0:01:20.840 burden was on the plaintiffs to show that this was 0:01:20.920 --> 0:01:24.080 race and not party. And then the court then kind 0:01:24.080 --> 0:01:27.240 of carefully picked apart and quite to tail the findings 0:01:27.240 --> 0:01:30.119 of the district court and concluded that the district court 0:01:30.240 --> 0:01:33.039 had made a mistake in concluding based on the evidence 0:01:33.400 --> 0:01:35.520 that this was racial rather than partisan. 0:01:35.920 --> 0:01:38.280 I mean, the district court had heard evidence right and 0:01:38.640 --> 0:01:43.080 made these conclusions that the lawmakers, the Republican lawmakers, established 0:01:43.080 --> 0:01:46.640 a target of seventeen percent black voters for the first district. 0:01:47.040 --> 0:01:50.480 Alito said the state had strong evidence that the seventeen 0:01:50.520 --> 0:01:54.600 percent figure was simply a side effect of the legislature's 0:01:54.640 --> 0:01:57.480 partisan goal. What evidence is he talking about. 0:01:57.840 --> 0:02:01.120 Well, the thing is, normally, when you're viewing a district 0:02:01.120 --> 0:02:04.320 court's findings a fact, that burden is on the state 0:02:04.400 --> 0:02:07.520 to show that the district court was completely wrong. And 0:02:07.680 --> 0:02:10.520 here he seems to have put the burden more on 0:02:10.560 --> 0:02:13.320 the plaintiffs, not just in the original case where they 0:02:13.360 --> 0:02:16.560 persuaded the district court, but also in the Supreme Court, 0:02:16.840 --> 0:02:19.800 to show that the district court was right as opposed 0:02:19.840 --> 0:02:22.440 to being reasonable. I mean, in some ways there's an 0:02:22.520 --> 0:02:25.840 argument that he in applying what is theoretically a differential 0:02:25.880 --> 0:02:29.600 standard to the district court, the Senative clearly erroneous. He 0:02:29.680 --> 0:02:33.040 went much further and in some sense reviewed all the 0:02:33.080 --> 0:02:36.160 facts himself and concluded that on his reading of the 0:02:36.200 --> 0:02:39.280 facts and his reading of the expert testimony, the plaintiffs 0:02:39.320 --> 0:02:40.240 had not made their case. 0:02:40.800 --> 0:02:44.679 He also said that a party challenging a map's constitutionality 0:02:44.760 --> 0:02:48.160 must disentangle race and politics if it wishes to prove 0:02:48.200 --> 0:02:51.919 the legislature was motivated by race as opposed to partisan 0:02:52.000 --> 0:02:55.079 jip and the challenges provided no direct evidence of a 0:02:55.200 --> 0:02:58.320 racial gerrymander. Is he looking for a statement by a 0:02:58.400 --> 0:03:02.320 Republican lawmaker, or we're doing this because of race? 0:03:02.440 --> 0:03:02.840 Righting me. 0:03:03.040 --> 0:03:05.960 It basically said you could either do it by direct evidence, 0:03:06.080 --> 0:03:09.840 like a smoking gun statement, or by strong circumstantial evidence. 0:03:10.120 --> 0:03:11.880 And hear what the plaints were about the show is, 0:03:11.880 --> 0:03:14.240 if you look at the numbers, there was a huge 0:03:14.400 --> 0:03:17.560 movement of people in and out of this district. The 0:03:17.680 --> 0:03:20.760 map makers dramatically move large numbers of people around, but 0:03:20.880 --> 0:03:24.400 in particular they seemed to be moving more black voters 0:03:24.440 --> 0:03:27.640 out and more white voters in, and so there was evident, 0:03:27.720 --> 0:03:30.080 and that in the end, with all of the movement, 0:03:30.480 --> 0:03:33.640 that sixteen point eight percent number was a number that 0:03:33.680 --> 0:03:37.160 the Republicans felt was low enough so the district would 0:03:37.160 --> 0:03:40.280 continue to chill Republican His view is that was really 0:03:40.320 --> 0:03:44.160 about partisanship. The plaintiff's view and the district courts view 0:03:44.560 --> 0:03:46.400 was that no, that showed that they were engaged in 0:03:46.400 --> 0:03:48.680 a racial gerrymander. They moved like one hundred and eighty 0:03:48.680 --> 0:03:51.520 thousand people around, but their target was to keep the 0:03:51.600 --> 0:03:55.160 racial fraction the same, and they did it by moving 0:03:55.200 --> 0:03:57.200 black voters in one direction and white vote in a 0:03:57.200 --> 0:03:57.800 different direction. 0:03:58.240 --> 0:04:01.440 The dissent, written by Justice A. La Keg and joined 0:04:01.480 --> 0:04:05.200 by the two other liberal justices, was scathing. 0:04:05.640 --> 0:04:08.200 She basically said that this case looks a lot like 0:04:08.240 --> 0:04:11.600 a case the Supreme Court decided seven years earlier, Cooper 0:04:11.680 --> 0:04:15.200 versus Harris, which presented a very very similar question of 0:04:15.520 --> 0:04:17.760 was it race or was it party in a districting 0:04:17.800 --> 0:04:20.480 dispute coming out of North Carolina, and the lower court 0:04:20.520 --> 0:04:23.200 had found that it was race, and the Supreme Court 0:04:23.200 --> 0:04:26.080 a firm basically by saying, you know that we're relatively 0:04:26.120 --> 0:04:28.520 different to the lower court. And the lower court had 0:04:28.520 --> 0:04:31.279 facts that support it. Kagan wrote the majority opinion in 0:04:31.320 --> 0:04:34.360 that case, Alito wrote the descent, and as she points out, 0:04:34.839 --> 0:04:38.360 much of the language and much of the ideas of 0:04:38.560 --> 0:04:41.760 Alito's majority opinion come directly from his descent in Cooper 0:04:41.800 --> 0:04:44.680 versus Harris, a case decided about seven years ago, and 0:04:44.720 --> 0:04:46.359 so her view is that this case he should have 0:04:46.400 --> 0:04:48.560 been governed by that case and should have come out 0:04:48.600 --> 0:04:49.039 the same way. 0:04:49.520 --> 0:04:52.680 She also said the majority was stacking the deck against 0:04:52.760 --> 0:04:56.440 the challengers when it presumes legislators are acting in good faith, 0:04:56.480 --> 0:05:00.720 and she quoted from Alito's opinion when racial clu notifications 0:05:00.800 --> 0:05:04.200 in voting are at issue, the majority says every doubt 0:05:04.320 --> 0:05:07.799 must be resolved in favor of the state, lest heaven 0:05:07.880 --> 0:05:13.000 forfend it be accused of quote offensive and demeaning conduct. 0:05:13.360 --> 0:05:16.200 I mean taking Alito head on, Yeah. 0:05:16.040 --> 0:05:18.920 I mean Alito begins with the basic premise that whenever 0:05:18.960 --> 0:05:22.240 a law is challenged, the law has presumptively valid. The 0:05:22.279 --> 0:05:24.960 burden is on the plaintiffs to show that it's invalid. 0:05:25.000 --> 0:05:27.200 And that's the kind of judicial review one on one, 0:05:27.360 --> 0:05:30.720 as you begin with the presumption of validity. But she's saying, 0:05:30.760 --> 0:05:33.760 in effect, she's taking it so far that he's using 0:05:33.800 --> 0:05:36.159 it not at the opening stage of the case, but 0:05:36.279 --> 0:05:39.720 on the appeal following a determination by the district Court 0:05:40.000 --> 0:05:43.800 after a lengthy trial with lots of testimony, lots of exhibits, 0:05:43.839 --> 0:05:46.360 lots of depositions, as pre judge panel that found the 0:05:46.440 --> 0:05:49.240 other way. And so she's saying that, in effect, he's 0:05:49.240 --> 0:05:51.159 putting such a heavy thumb on the scale for the 0:05:51.240 --> 0:05:54.440 legislature that he's making it almost impossible for plaintiffs to 0:05:54.480 --> 0:05:57.320 prevail in a case, even after they prevail before the 0:05:57.360 --> 0:05:58.080 district court. 0:05:58.240 --> 0:06:02.360 Is this decision raising there for winning a challenge to 0:06:02.400 --> 0:06:05.080 a map based on racial jerry mandering. 0:06:05.560 --> 0:06:07.440 I think it is. I mean, I think basically the 0:06:07.440 --> 0:06:11.680 burden is now even heavier on the plaintiffs to disentangle 0:06:11.760 --> 0:06:14.520 race from party and to show it was clearly race 0:06:14.600 --> 0:06:18.080 and not party, as opposed to the intertwining that we 0:06:18.200 --> 0:06:21.400 often see. So I do think although technically he's applying 0:06:21.440 --> 0:06:24.279 the same standards as before, he is now hying them 0:06:24.320 --> 0:06:26.720 in a much tougher way. He's also added a kind 0:06:26.760 --> 0:06:30.240 of requirement that court had rejected as a requirement before, 0:06:30.680 --> 0:06:34.440 which is that the plaintiffs produce an alternative map which 0:06:34.480 --> 0:06:38.120 produces the same partisan results but with a different racial 0:06:38.120 --> 0:06:40.800 makeup to show that it really was race and not 0:06:40.920 --> 0:06:43.240 party that was driving this court in the past that 0:06:43.360 --> 0:06:46.040 said having a map is helpful, but now he has 0:06:46.080 --> 0:06:48.000 come very close to making it a requirement. 0:06:48.760 --> 0:06:51.760 And then you have Clarence Thomas, who joined the majority 0:06:51.760 --> 0:06:55.479 but wrote separately, do basically say federal courts should just 0:06:55.560 --> 0:06:57.280 keep out of this issue completely. 0:06:57.680 --> 0:07:00.640 That's correct. He basically said that ago in the Rout 0:07:00.640 --> 0:07:04.080 show case, we decided that partisan jerrymandering is not justiciable. 0:07:04.400 --> 0:07:07.800 Now I think that racial jerry mandering is justice non justiciable, 0:07:07.839 --> 0:07:10.720 and that it's so difficult to figure out to disentangle 0:07:10.840 --> 0:07:14.400 the legislative motivation and legislative consequences. That that's for the 0:07:14.400 --> 0:07:17.400 state legislatures and for Congress. Congress has the power to 0:07:17.440 --> 0:07:20.240 review this and write rules, but it's something that the 0:07:20.240 --> 0:07:23.680 courts can't handle. And he actually didn't join one part 0:07:23.720 --> 0:07:26.480 of the opinion, the part of the opinion where Justice 0:07:26.520 --> 0:07:29.600 Alito went through all of the expert testimony and picked 0:07:29.600 --> 0:07:31.680 it apart, and he basically said, you didn't need to 0:07:31.760 --> 0:07:33.680 do that. But more of the points, the fact that 0:07:33.720 --> 0:07:36.640 you would engage in so much detail with the expert testimony. 0:07:36.680 --> 0:07:38.640 It's one of the reasons why I don't think courts 0:07:38.640 --> 0:07:39.960 should be involved in this at all. 0:07:40.520 --> 0:07:46.160 It is difficult to separate race from politics. But now 0:07:46.760 --> 0:07:50.559 does this give, as Elena Kagan said, it gives state 0:07:50.640 --> 0:07:54.800 lawmakers an incentive to use race as a proxy to 0:07:54.920 --> 0:07:56.520 achieve partisan ends. 0:07:57.280 --> 0:07:59.920 Yes, I think until now the Court has said that 0:08:00.000 --> 0:08:02.920 although we won't hear parties in jerrymandering cases, we will 0:08:02.960 --> 0:08:05.920 hear claims of racial gerrymandering. So it was one way 0:08:06.000 --> 0:08:09.680 in which plaintiffs couldn't directly attack the parties in jerrymander 0:08:09.960 --> 0:08:12.160 but they could try and do that if they could 0:08:12.160 --> 0:08:14.960 show that it was also a racial gerrymander. Now the 0:08:15.040 --> 0:08:18.400 Court has pretty much made that impossible, or made it 0:08:18.560 --> 0:08:21.200 an even much much harder to be able to make 0:08:21.200 --> 0:08:25.200 a racial gerrymanderin claim outside the context of party. I 0:08:25.200 --> 0:08:27.520 suppose you could have a racial gerrymandering claim in a 0:08:27.520 --> 0:08:29.640 one party state, but in a situation where rac and 0:08:29.680 --> 0:08:31.880 party are so intertwined, it's going to be much harder 0:08:31.920 --> 0:08:34.200 to make any kind of racial gerrymandering claim. 0:08:34.559 --> 0:08:38.640 So for anyone who thought that the Conservatives had changed 0:08:38.720 --> 0:08:42.640 when the Court rule that Alabama Republicans violated the Voting 0:08:42.720 --> 0:08:47.000 Rights Act? Is this proof that, No, it hasn't changed. 0:08:47.600 --> 0:08:53.360 I think it shows the ongoing difficulty of dealing with 0:08:53.400 --> 0:08:57.280 these districting disputes when race and party are so intertwined. 0:08:57.440 --> 0:08:59.920 And yes, that case, the Alabama case was a case 0:09:00.040 --> 0:09:02.960 where the court did differ the findings of the lower court, 0:09:03.160 --> 0:09:05.480 and there although there was a situation where the plaintiffs 0:09:05.559 --> 0:09:09.080 didn't provide alternative maps to show that the district could 0:09:09.120 --> 0:09:11.320 be done in a different way. But I think in 0:09:11.360 --> 0:09:13.600 some ways that it really does show the court's kind 0:09:13.640 --> 0:09:18.880 of impatience with the effort to possibly outflank the court's 0:09:18.960 --> 0:09:22.559 unwillingness to hear partisan jury mannering claims by hearing racial 0:09:22.640 --> 0:09:25.800 jury mannering claims where if the plaintiffs win, the victory 0:09:25.880 --> 0:09:28.760 would be similar to the victory to partisan jurry mannoring case. 0:09:29.080 --> 0:09:31.880 I think they've just made that much harder. It's not impossible. 0:09:32.600 --> 0:09:36.120 What's the difference between challenging a map under the Voting 0:09:36.200 --> 0:09:40.800 Rights Act and under the Equal Protection Clause of the 0:09:40.880 --> 0:09:45.520 Constitution which this case was brought under. Could these plaintiffs 0:09:45.520 --> 0:09:48.400 have brought this case under the Voting Rights Act? 0:09:48.679 --> 0:09:51.080 They did bring a Voting Rights Act vote dilution claim, 0:09:51.559 --> 0:09:54.160 which I think they won on, but the Supreme Court 0:09:54.240 --> 0:09:57.680 said the lower court erred on that as well, because 0:09:57.720 --> 0:10:00.480 the lower courts have applied the same standard and it's 0:10:00.480 --> 0:10:03.200 a different standard for bote dilution cases. So they reversed 0:10:03.200 --> 0:10:05.280 and remanded. So if there's going to be a trial 0:10:05.280 --> 0:10:07.360 on that, it would be the different claim. I think 0:10:07.520 --> 0:10:11.040 they are somewhat different theories. The theory legal protection claim 0:10:11.120 --> 0:10:15.200 is that the state's motivation was predominantly racial. Doesn't have 0:10:15.280 --> 0:10:19.480 to show that there was an underrepresentation of black voters, 0:10:19.480 --> 0:10:22.319 but just that the state was purposely drawing lines based 0:10:22.360 --> 0:10:25.520 on race. And whereas both dilution, you don't even have 0:10:25.559 --> 0:10:27.800 to show that a race was intentional. What you do 0:10:27.960 --> 0:10:30.720 have to show is that as a result of the 0:10:30.800 --> 0:10:35.080 line drawing, black voters or voters of color were underrepresented, 0:10:35.120 --> 0:10:38.200 that it was more difficult for them to win elections 0:10:38.480 --> 0:10:39.239 than otherwise. 0:10:39.840 --> 0:10:43.320 Would you say that For the last decade or so, 0:10:44.000 --> 0:10:48.400 the Roberts Court's decisions have made it harder for black 0:10:48.480 --> 0:10:50.800 voters to challenge redistricting plans. 0:10:51.640 --> 0:10:51.800 Well. 0:10:51.800 --> 0:10:55.080 The Roberts Court obviously famously got rid of Section five 0:10:55.480 --> 0:10:58.839 of the Voting Rights Act, which required dates in covered 0:10:58.880 --> 0:11:02.560 jurisdictions to get Justin Department approvals first, so therefore actually 0:11:02.600 --> 0:11:05.160 putting the burden on plaintiffs to go ahead. I think 0:11:05.280 --> 0:11:08.640 how they've handled both dilution cases has been a little inconsistent. 0:11:09.040 --> 0:11:10.800 As you point out Plank, that is one of vote 0:11:10.800 --> 0:11:13.800 dilution cases from Alabama last year. This was technically a 0:11:13.800 --> 0:11:17.480 constitutional case, so it's a little hard to characterize sometimes 0:11:17.480 --> 0:11:20.360 plaintiffs of one, but certainly this one I think is 0:11:20.400 --> 0:11:22.880 going to make it much harder for plaintiffs to win 0:11:22.960 --> 0:11:23.600 cases like this. 0:11:24.160 --> 0:11:27.440 Thanks so much, rich That's Professor Richard Briffald of Columbia 0:11:27.520 --> 0:11:30.560 Law School. Coming up next on the Bloomberg Law Show. 0:11:31.120 --> 0:11:33.320 It looks like the jury and the Trump hush money 0:11:33.360 --> 0:11:37.199 case will begin deliberations next week. We'll take a look 0:11:37.200 --> 0:11:40.920 at the prosecution's case. I'm June Grosso and you're listening 0:11:41.000 --> 0:11:46.280 to Bloomberg. The historic first criminal trial of a former 0:11:46.360 --> 0:11:51.200 president is nearing a conclusion. Manhattan jury will decide whether 0:11:51.240 --> 0:11:55.000 the former president falsified his company's records to hide a 0:11:55.080 --> 0:11:58.440 hush money payment to poor and star Stormy Daniels and 0:11:58.600 --> 0:12:02.240 influence the twenty sixty election. The case could be in 0:12:02.280 --> 0:12:06.600 the jury's hands as soon as Tuesday, after closing arguments 0:12:06.640 --> 0:12:10.760 by both sides and jury instructions. Joining me is criminal 0:12:10.760 --> 0:12:15.480 defense attorney Jeremy saland a former Manhattan prosecutor. Let's start 0:12:15.480 --> 0:12:19.760 with the cross examination of Michael Cohen, the prosecution star witness. 0:12:20.200 --> 0:12:24.400 The defense attorney was very aggressive. How effective was he 0:12:24.559 --> 0:12:29.160 in undermining Cohen's credibility which sort of hangs by a thread. 0:12:28.960 --> 0:12:33.480 Anyway, I think that there was diminishing returns in the 0:12:33.559 --> 0:12:36.880 time frame that a Blanche kept him on the stand, 0:12:37.520 --> 0:12:40.920 the lack of what I thought was enough leading questions 0:12:40.920 --> 0:12:43.400 as opposed to open ending questions from what I read. 0:12:43.520 --> 0:12:45.480 And I also thought that there were times when he 0:12:45.600 --> 0:12:48.120 hits some of the same points over and over, and 0:12:48.160 --> 0:12:50.280 that goes back to the diminishing returns. And it's not 0:12:50.360 --> 0:12:53.200 just diminishing returns in that you lose the jury they 0:12:53.240 --> 0:12:55.400 get the point, but you also run the risk of 0:12:55.440 --> 0:12:59.320 opening certain doors. The end of his cross examination went flat. 0:12:59.480 --> 0:13:02.040 It could have been better, but at the same time, 0:13:02.840 --> 0:13:06.120 it exposed Michael Cohen for who he was, which is 0:13:06.320 --> 0:13:10.960 a conniving, dishonest, selfish person with an agenda to really 0:13:11.080 --> 0:13:13.680 hurt the former president. Now I will say this though, 0:13:13.800 --> 0:13:16.440 and this shouldn't be lost in anybody. When we think 0:13:16.480 --> 0:13:18.880 of John Gotti, by a show of hands, how many 0:13:18.920 --> 0:13:21.720 people think the man was innocent. He was convicted after trial. 0:13:21.760 --> 0:13:24.320 And I'm not comparing the two and saying Donald Trump 0:13:24.440 --> 0:13:27.680 is John Gotti. But who was the main cooperator in 0:13:27.720 --> 0:13:29.920 that case? It was Sammy the Bull. So when we 0:13:30.000 --> 0:13:33.080 hear up beating up Michael Cohen, and we hear about 0:13:33.080 --> 0:13:35.680 the attacks on Michael Cohen, you know he's not Sammy 0:13:35.679 --> 0:13:38.360 the Bull. And if Sammy the Bull, who was alleged 0:13:38.400 --> 0:13:41.640 to have committed I believe some nineteen somehid murders could 0:13:41.679 --> 0:13:44.240 cooperate and have credibility and there could be a finding 0:13:44.280 --> 0:13:47.520 of guilt against John Gotti. So that matter. How many 0:13:47.520 --> 0:13:50.360 people love the movie Goodfellas that's based on Henry Hill. 0:13:50.760 --> 0:13:53.680 Henry Hill was a cooperator who had a rap sheet 0:13:53.760 --> 0:13:55.960 in all sorts of bad things. And people loved Henry Hill, 0:13:56.160 --> 0:13:58.400 or at least they loved Rayleiota in the movie. So 0:13:58.960 --> 0:14:01.920 you know, let's have some here. You don't catch the 0:14:01.960 --> 0:14:04.640 main bad guy, you don't get the kingpin, you don't 0:14:04.679 --> 0:14:07.160 get the main drug dealer. You don't get the main mobster, 0:14:07.800 --> 0:14:10.440 not saying again that that that's who Donald Trump was. 0:14:10.800 --> 0:14:13.080 But you don't get him or her unless you get 0:14:13.120 --> 0:14:16.560 the person who is next in line, a lieutenant, a worker, 0:14:16.920 --> 0:14:19.160 the dealer, the guy who cuts the drugs, the guy 0:14:19.160 --> 0:14:21.640 who counts the money. You don't get that unless you 0:14:21.640 --> 0:14:23.400 have some of those dirty hands. That's how you get 0:14:23.400 --> 0:14:24.160 the big boss. 0:14:24.520 --> 0:14:28.400 There were some things that Todd Blanche, the defense attorney, 0:14:28.400 --> 0:14:33.560 brought out that cast out on Cohen's testimony at trial. 0:14:33.720 --> 0:14:37.840 For example, that phone call he made in October of 0:14:37.880 --> 0:14:40.480 twenty sixteen where he said he was updating Trump on 0:14:40.560 --> 0:14:43.560 the Stormy Daniels payment, and it came out that he 0:14:43.640 --> 0:14:45.560 probably was not talking to Trump. 0:14:45.960 --> 0:14:47.320 Well, I don't know if that's how it came out there. 0:14:47.360 --> 0:14:49.560 It was probably not talking to Trump, because you'd have 0:14:49.600 --> 0:14:52.280 to think that Michael Cohen would call Trump's right hand man, 0:14:52.400 --> 0:14:55.400 was speaking of ninety seconds about some teen harassing him. 0:14:56.040 --> 0:14:58.960 Maybe maybe not, but any New Yorker understands this. I 0:14:58.960 --> 0:15:00.720 think if you were born and or lived in New 0:15:00.800 --> 0:15:02.880 York at any point in your life, you know this. 0:15:03.120 --> 0:15:05.280 If you're sitting at a light and you're sitting in 0:15:05.360 --> 0:15:08.600 traffic for thirty seconds for a minute, you got something 0:15:08.600 --> 0:15:12.160 to do. That's an eternity, it's forever. In other words, 0:15:12.280 --> 0:15:15.520 ninety seconds to be on the phone very well could 0:15:15.520 --> 0:15:19.720 have included three seconds, ten seconds, seventy seconds of conversation 0:15:19.800 --> 0:15:23.080 about this teenager. But it's not mutually exclusive. Just because 0:15:23.120 --> 0:15:25.600 you're talking about one doesn't mean you're not talking about another. 0:15:25.720 --> 0:15:27.760 A minute and a half is a long time. 0:15:29.080 --> 0:15:32.880 The defense called two witnesses in their case. The last 0:15:32.880 --> 0:15:36.160 one was lawyer Bob Costello, who I think they called 0:15:36.160 --> 0:15:39.640 to damage Cohen's credibility even further, but he ended up 0:15:40.000 --> 0:15:44.120 acting out on the witness stand, being disrespectful to the judge, 0:15:44.560 --> 0:15:48.040 rolling his eyes, muttering on the stand, and incredible. The 0:15:48.080 --> 0:15:50.560 judge said at one point, are you staring me down 0:15:50.640 --> 0:15:53.080 right now? And the judge cleared the courtroom. 0:15:53.440 --> 0:15:55.720 The way this happened, though, is atypical, and it's really 0:15:55.720 --> 0:15:59.200 disappointing if I'm Donald Trump's team in Donald Trump, because 0:15:59.240 --> 0:16:01.880 you have a witness who objectively could have shared some 0:16:01.960 --> 0:16:06.680 really valuable things and information about Michael Cohen, supposedly telling him, 0:16:06.720 --> 0:16:10.280 meaning Pastello, that Donald Trump wasn't aware that basically Donald 0:16:10.280 --> 0:16:12.240 Trump was not in the noah on what was going on, 0:16:12.440 --> 0:16:17.720 but it was lost in the petulance, sophomoric, amateur behavior 0:16:17.760 --> 0:16:21.520 from a guy who served in his senior capacity at 0:16:21.560 --> 0:16:24.520 the US Attorney's office. This is not his first rodeo. 0:16:24.600 --> 0:16:27.520 What he was thinking, he shot his own credibility in 0:16:27.800 --> 0:16:31.080 the flot. You know, don't run your mouth, show respect 0:16:31.080 --> 0:16:32.600 to the court. You may be a fed and you 0:16:32.640 --> 0:16:34.800 look down on the state. Maybe that's a little des arrogance. 0:16:34.840 --> 0:16:35.320 I don't know. 0:16:35.760 --> 0:16:38.080 But you're in a court of law and follow the 0:16:38.080 --> 0:16:42.120 court's instructions. And as I tell every witness, every witness, 0:16:42.640 --> 0:16:45.800 kill him with kindness. Looked the defense or prosecution in 0:16:45.840 --> 0:16:49.080 the eyes, look the jury in the eyes, be respectful, 0:16:49.160 --> 0:16:51.640 be the bigger person. That's what he did not do. 0:16:51.720 --> 0:16:52.920 And I'm really surprised. 0:16:53.000 --> 0:16:57.160 I'm really surprised, experienced lawyer. So the biggest news to 0:16:57.160 --> 0:16:59.600 come out of the trial this week was no news. Actually, 0:16:59.640 --> 0:17:02.480 Trump had vowed to testify in his own defense and 0:17:02.600 --> 0:17:05.919 started backing off. I don't know that any defense lawyer 0:17:05.960 --> 0:17:10.560 would have encouraged him to testify. So was that the 0:17:10.640 --> 0:17:11.360 right decision? 0:17:11.840 --> 0:17:16.240 I know, quivocally absolutely, and any criminal defense attorney would say, 0:17:16.320 --> 0:17:17.960 especially in a case like this where he has a 0:17:18.080 --> 0:17:19.959 chance to hang. Do I think he's get an acquittal? 0:17:20.040 --> 0:17:21.959 And know? But I'm going down on the limb here. 0:17:21.960 --> 0:17:24.479 I may be completely totally wrong. So I could read juries, 0:17:24.520 --> 0:17:26.240 I would be charging a lot more. I think we 0:17:26.280 --> 0:17:28.720 all would. But none of us could read a jury's mind. 0:17:29.119 --> 0:17:31.760 But you know I've used this term before, and I'll 0:17:31.800 --> 0:17:33.560 go back to what every New Yorker knows. Every New 0:17:33.640 --> 0:17:36.399 Yorker knows the term hutzbook. And he did not have 0:17:36.480 --> 0:17:38.720 the hutspur to get up there despite his behavior and 0:17:38.800 --> 0:17:42.200 his demeanor. He would get eviscerated, He would get hung 0:17:42.240 --> 0:17:44.439 by his toes and hung out to try. And if 0:17:44.480 --> 0:17:46.560 he has a chance of beating this case, he would 0:17:46.560 --> 0:17:48.560 have lost it if he ran his mouth, because he 0:17:48.560 --> 0:17:51.000 would have opened up door after door, and as bad 0:17:51.040 --> 0:17:54.359 as Costello was, and as good, frankly as Michael Cohen was, 0:17:54.760 --> 0:17:56.879 none of them even on their worst dand would have 0:17:56.920 --> 0:17:59.600 done what Donald Trump would have potentially done on that stand. 0:17:59.640 --> 0:18:03.040 So it was a smart move, an intelligent move, common 0:18:03.080 --> 0:18:04.760 sense move, not to get up and testify. 0:18:05.320 --> 0:18:09.760 Looking at the prosecution's case. Has the prosecution made out 0:18:09.800 --> 0:18:10.320 its case? 0:18:10.359 --> 0:18:13.639 Do you think I thought the evidence. Again, if I 0:18:13.680 --> 0:18:15.359 wasn't in the court room, but from what I've read, 0:18:15.760 --> 0:18:18.040 I thought the evidence went in pretty well. There is 0:18:18.080 --> 0:18:21.879 an element of common sense that is so critically important here. 0:18:22.080 --> 0:18:25.639 You know, if I'm the prosecution, I'm arguing saying, you 0:18:25.720 --> 0:18:29.800 have Weifelberg's handwriting on these notes. It's not just Michael Cohen. 0:18:29.920 --> 0:18:33.439 It's not just Stormy Daniels. You have you know, phone logs, 0:18:33.480 --> 0:18:35.960 you have other witnesses. You have Whope Hicks, who puts 0:18:35.960 --> 0:18:39.160 people in certain places at certain times, who describes Michael 0:18:39.200 --> 0:18:41.760 Cohen these are my words, not as a getting generous 0:18:41.760 --> 0:18:43.720 person that he's going to go out on a limb. Here, 0:18:43.960 --> 0:18:46.000 a man who I believe made roughly a half a 0:18:46.040 --> 0:18:48.200 million dollars a year and took a whole equity line 0:18:48.200 --> 0:18:49.800 of credit out to hide it to why he was 0:18:49.800 --> 0:18:51.639 getting them the money and to hide it from his wife, 0:18:51.880 --> 0:18:55.480 and was going to bear responsibility and take ownership of 0:18:55.560 --> 0:18:58.919 those dollars. That seems, like, you know, pretty unlikely. So 0:18:59.200 --> 0:19:01.800 I think very much that the evidence went well. Will 0:19:01.800 --> 0:19:04.119 the jury convict, That's tough, but all they need is 0:19:04.160 --> 0:19:05.680 want to remember, All they need is want to hang 0:19:05.720 --> 0:19:06.320 in the defense. 0:19:07.119 --> 0:19:11.959 Yeah, So now legally, the case gets complicated because with 0:19:12.000 --> 0:19:14.919 the prosecution, as you know, is out to make these 0:19:15.359 --> 0:19:19.040 misdemeanors of falsifying business records into a felony, so it 0:19:19.080 --> 0:19:22.080 has to be done with the intent to commit another crime. 0:19:22.400 --> 0:19:27.080 How tricky is that? For prosecutors, it's tricky because a 0:19:27.119 --> 0:19:27.800 couple things. 0:19:28.400 --> 0:19:30.640 Let me sort of work backwards a little bit. When 0:19:30.640 --> 0:19:33.040 the jury gets the case, a judge can instruct the 0:19:33.119 --> 0:19:36.480 jury on what's called a lesser included offense, meaning the 0:19:36.600 --> 0:19:39.080 judge can tell the jury you can consider the felonies 0:19:39.119 --> 0:19:42.080 on the indictment, but even if you don't find the felony, 0:19:42.280 --> 0:19:45.000 you could find for the misdemeanor's variety or flavor of 0:19:45.040 --> 0:19:47.919 that same falsifying business records. That's what's called the lesser 0:19:48.040 --> 0:19:51.040 included defense, even though it's not actually charged. Now, the 0:19:51.119 --> 0:19:53.679 question I would ask is, if I'm the prosecution, do 0:19:53.760 --> 0:19:56.040 I ask the judge not to submit that? If I'm 0:19:56.040 --> 0:19:57.919 the defense, do I ask the judge to submit it 0:19:58.000 --> 0:19:59.960 or not to submit it? Why do I ask that? 0:20:00.359 --> 0:20:04.000 Because in my view, a conviction on the misdemeanor is 0:20:04.040 --> 0:20:06.720 a loss, and that's end. On the face of Alvin Bragg, 0:20:06.880 --> 0:20:09.040 it's really all or nothing. So it's either a conviction 0:20:09.119 --> 0:20:12.000 on the felony or an acquittal. If I'm the defense, 0:20:12.359 --> 0:20:14.560 do I want to make the jury make that decision 0:20:14.560 --> 0:20:16.840 and don't give them the sort of compromise. It's either 0:20:16.920 --> 0:20:19.359 is or it isn't. So it's an interesting question whether 0:20:19.400 --> 0:20:21.600 they're going to want the judge to instruct the jury 0:20:21.680 --> 0:20:24.560 or it's all or nothing. That's number one. Number two. 0:20:25.000 --> 0:20:27.840 The other difficulty is, you know, what is that other crime? 0:20:27.880 --> 0:20:29.560 Now you don't have to prove that crime beyond a 0:20:29.600 --> 0:20:32.280 reasonable doubt that you're trying to conceal some election crime. 0:20:32.720 --> 0:20:37.720 So don't misconstrue that to prove this secondary element to 0:20:37.760 --> 0:20:40.719 make it the felony, the intent to commit or conceal 0:20:40.760 --> 0:20:43.120