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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: It was a historic day at the Supreme Court. For

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Speaker 2: the first time, the justices were considering whether former presidents

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Speaker 2: have immunity from prosecution for acts they took while in office,

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Speaker 2: a question they've never needed to answer before. Donald Trump

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Speaker 2: claims he has absolute immunity and that Special counsel Jack

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Speaker 2: Smith can't try him for trying to overturn his twenty

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Speaker 2: twenty election loss. During oral arguments, the liberal and conservative

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Speaker 2: justices seem to have different concerns. The conservatives, like Justice

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Speaker 2: Samuel Leto, were concerned that presidents without immunity would be

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Speaker 2: subjected to abusive prosecutions, while the liberals, like Justice Katanji

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Speaker 2: Brown Jackson, were concerned that presidents with immunity would be

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Speaker 2: emboldened to commit crimes while in office.

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Speaker 1: I mean, the presidents have to make a lot of

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Speaker 1: tough decisions about enforcing the law, and they have to

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Speaker 1: make decisions about questions that are unsettled, and they have

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Speaker 1: to make decisions based on the information that's available. Do

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Speaker 1: you really did I understand you to say, well, you know,

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Speaker 1: if he makes a mistake, he makes a mistake. He

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Speaker 1: subject to the criminal laws just like anybody else. You

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Speaker 1: don't think he's in a special, a peculiarly precarious position.

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Speaker 3: I guess more worried about you seem to be worried

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Speaker 3: about the president being chilled. I think that we would

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Speaker 3: have a really significant opposite problem if the president wasn't chilled,

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Speaker 3: If someone with those kinds of powers, the most powerful

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Speaker 3: person in the world, with the greatest amount of authority,

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Speaker 3: could go into office knowing that there would be no

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Speaker 3: potential penalty for committing crimes. I'm trying to understand what

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Speaker 3: the disincentive is from turning the Oval office into, you know,

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Speaker 3: the the seat of criminal activity in this country.

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Speaker 2: After the oral arguments, the only thing that seems apparent

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Speaker 2: is that Trump's trial for election interference is unlikely to

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Speaker 2: take place before the election, and that delay is certainly

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Speaker 2: a win for Trump. Joining me is constitutional law professor

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Speaker 2: Michael Dorf of Cornell Law School. Mike, these oral arguments

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Speaker 2: seemed to be all over the place. What was your

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Speaker 2: general impression?

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Speaker 4: So I was surprised that I was surprised, And what

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Speaker 4: I mean by that is I have long regarded Trump's

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Speaker 4: arguments here as pretty and substantial, and therefore I was

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Speaker 4: surprised at how seriously the Court was taking it. But

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Speaker 4: I should be surprised at my surprise, because they set

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Speaker 4: the case for briefing and full oral argument a while back.

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Speaker 4: That means that at least four justices thought that there

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Speaker 4: was enough here to warrant plenary consideration, rather than simply

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Speaker 4: disposing of it in the way that Jack Smith had

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Speaker 4: asked them to. Having said that, I'll add that I

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Speaker 4: was at least a little bit pleased that nobody seemed

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Speaker 4: especially taken by what I regard as the weakest of

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Speaker 4: Trump's argument, which is this notion that the impeachment clause requires,

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Speaker 4: as a precondition for prosecuting a former president that that

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Speaker 4: former president have been impeached and removed. And in fact,

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Speaker 4: Justice Barrett, who was the only one who really asked

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Speaker 4: any questions about that, asked the very obvious question, if

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Speaker 4: that's what it means, why doesn't it mean that with

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Speaker 4: respect to all other officers who are subject to impeachment,

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Speaker 4: including Supreme Court justices. Many of the people who have

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Speaker 4: been subject to impeachment have actually been prosecuted without being

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Speaker 4: impeached beforehand, And so it's hard to see why the

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Speaker 4: impeachment clause would mean that with respect to the president,

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Speaker 4: and the lawyer for former President Trump gave a contradictory

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Speaker 4: answer to that. At first he said that, well, this

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Speaker 4: is just what the plane meaning of the clause is.

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Speaker 4: But if that were the plane meaning, it would be

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Speaker 4: plain with respect to people other than the president as well.

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Speaker 4: And yet he had to concede that Justice Barrett was

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Speaker 4: right about that. So then he said, well, and this

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Speaker 4: is what Robert Bork thought when he was working in

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Speaker 4: the Justice Department many years ago. So I thought that

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Speaker 4: was not a great answer, and I was pleased at

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Speaker 4: the Court didn't credit this argument based on the impeachment clause.

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Speaker 4: But that was about all that pleased me, because there

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Speaker 4: were so many other, in my view, very implausible claims

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Speaker 4: that were given serious creedence. So you had Justice Gorsuch

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Speaker 4: and Justice Alito and Justice Thomas asking questions based on

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Speaker 4: hypothetical example involving, you know, a corrupt Justice Department in

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Speaker 4: the future, about planning a coup overseas, which was some

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Speaker 4: of that interested Justice Thomas about all sorts of things

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Speaker 4: that are you know, potentially troubling if they were to

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Speaker 4: arise and ignoring the real thing that just happened.

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Speaker 2: It struck me as well because several of the justices,

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Speaker 2: and I think Alito, Kavanaugh and Gorsuch said, you know,

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Speaker 2: I'm not really concerned about the facts here, right, We're

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Speaker 2: concerned about hampering the power of future president. Justice gorse

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Speaker 2: It said, we're writing an opinion here for the ages.

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Speaker 4: Yes, and that is a fair point in general. Right,

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Speaker 4: in any particular case, the Supreme Court isn't merely resolving

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Speaker 4: the case. It's also making law that will apply in

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Speaker 4: future cases. But one would think, if ever there is

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Speaker 4: an occasion to focus, especially on the particular fact before you,

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Speaker 4: it's here where we have an unprecedented set of actions

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Speaker 4: at this point, officially only alleged with respect to the

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Speaker 4: criminal justice system, but unprecedented actions by a sitting president

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Speaker 4: to attempt an overthrow of an election. You know. So,

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Speaker 4: I guess it's a little bit like saying, well, you

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Speaker 4: don't want to use the fire extinguisher on a grease

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Speaker 4: fire in your kitchen because you know it could damage

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Speaker 4: the wall. Yeah, it could damage the wall. But if

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Speaker 4: you don't use it, now the whole house is going

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Speaker 4: to go up on fire.

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Speaker 2: Something that struck me. Justice Alito in particular, seemed to

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Speaker 2: be buying into Trump's argument that one that he's been

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Speaker 2: making outside courthouse is over and over again, and he

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Speaker 2: said threat the real threat to democracy was if an

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Speaker 2: incumbent who loses a closely contested election knows that there's

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Speaker 2: a possibility that if he leaves office, the president who's

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Speaker 2: in his place is going to go after him. That

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Speaker 2: president may be criminally prosecuted by a bitter political opponent.

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Speaker 2: Will that not lead us into a cycle that destabilizes

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Speaker 2: the functioning of our country as a democracy?

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Speaker 4: Right? Again, it's like worrying about in the future, maybe

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Speaker 4: extraterrestrials will come and do bad things to us, while

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Speaker 4: there's a war on the ground now which we're fighting

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Speaker 4: an actual enemy. So again, right, there's nothing wrong with

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Speaker 4: thinking about the long term implications of your decision. But

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Speaker 4: the focus on these remote hypotheticals at the expense of

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Speaker 4: the very substantial damage in the here and now is,

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Speaker 4: I guess the most polite way I could say it

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Speaker 4: is misguided, very polite.

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Speaker 2: So did all or most of the justices reject or

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Speaker 2: express skepticism about Trump's sweeping claims of absolute presidential immunity.

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Speaker 4: I think that's right, with the possible exception of Justice Thomas.

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Speaker 4: It's not that Justice Thomas accepted it, but he didn't

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Speaker 4: really say anything about it. He seemed interested in other things.

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Speaker 4: I guess he wanted to focus on the difference between

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Speaker 4: personal and official actions, and there that was part of

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Speaker 4: the theory of Trump's lawyer, mister Sour anyway, so you know,

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Speaker 4: it's hard to say I think that it was something

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Speaker 4: misleading about the argument if you weren't paying close attention.

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Speaker 4: That is, you know, accepting the framing of well, we

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Speaker 4: need to distinguish between actions that are in an official

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Speaker 4: capacity versus those that are in a personal capacity, could

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Speaker 4: be consistent with the extreme version of Trump's theory, because

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Speaker 4: of course, even the extreme version says, well, you know,

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Speaker 4: and for prosecuting the president for a murder he committed

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Speaker 4: while president, but as part of a love triangle, and

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Speaker 4: that would be permissible, although as I heard Sauers say, well,

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Speaker 4: it would be impromis if he did it by having

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Speaker 4: someone in the FBI do it for him, because giving

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Speaker 4: orders to the FBI is an official function.

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Speaker 2: Well, Sour also wouldn't give a yes or no to

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Speaker 2: whether or not the president or is it coup? He

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Speaker 2: wouldn't admit that that was necessarily private.

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Speaker 4: Yeah, although he's sort of admitted that in the DC Circuit.

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Speaker 4: And I mean, I think Justice Kagan was exactly right

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Speaker 4: when she characterized him as saying, well, yeah, but I

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Speaker 4: don't want to say it because it sounds bad.

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Speaker 2: So do you think that it will come down to

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Speaker 2: the distinction between private acts versus official I mean, a

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Speaker 2: lot of the justices you mentioned, Justice Kagan, I mean,

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Speaker 2: and Justice amy Cony Barrett read from the indictment and

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Speaker 2: asked Michael Dribin, who was representing the Special Council, well,

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Speaker 2: is this public or is it private? I mean, do

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Speaker 2: you think it would come down to that?

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Speaker 4: So, I think that's probably the most likely way to

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Speaker 4: get to five votes. I suspect that if there is

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Speaker 4: a five justice majority for a version of that question,

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Speaker 4: that still permits the case to go forward. Substantially. The

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Speaker 4: five main votes are the three Democratic appointees, Chief Justice

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Speaker 4: Roberts and Justice Barrett. It's possible they would pick up

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Speaker 4: Justice Gorsuch on that, but maybe not. But in a way,

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Speaker 4: none of that really matters. I thought that of the

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Speaker 4: Republican appointees. Justice Barrett was the one who seemed to

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Speaker 4: be taking the prosecution the most seriously, right, because she

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Speaker 4: wanted to know whether there would be a way to

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Speaker 4: articulate some tests that gives some kind of immunity for

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Speaker 4: some core of official acts, but still have the case

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Speaker 4: move forward quickly. I think that's a nice wish if

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Speaker 4: that's what she's sincerely trying to do. I admire her

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Speaker 4: for doing so, but I think that basically the core

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Speaker 4: you know, put the kaibage on this prosecution when they

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Speaker 4: set it for oral argument. Right, we're not going to

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Speaker 4: get an opinion until June, probably not until late June.

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Speaker 4: You know, you're not going to get your reflection immediately. Right,

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Speaker 4: The earliest you get a trial under the best of

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Speaker 4: circumstances is October, and that's just not going to happen.

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Speaker 4: The judge is not going to schedule a trial for

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Speaker 4: the month before the presidential election. So it almost doesn't

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Speaker 4: matter unless right Trump loses the election, doesn't somehow become

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Speaker 4: president anyway, which is not a guarantee, and then the

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Speaker 4: case goes forward during the second Biden administration.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with Professor Michael Dwarf of Cornell Law School,

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Speaker 2: we'll explore some of the other possible outcomes in the case.

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Speaker 2: I'm June Gross. When you're listening to Bloomberg, Donald Trump

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Speaker 2: says he has presidential immunity from prosecution in the election

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Speaker 2: interference case brought by Special Counsel Jack Smith. The Supreme

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Speaker 2: Court heard oral law arguments today over that claim. Although

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Speaker 2: you heard very little in the more than two and

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Speaker 2: a half hours of questioning about Trump's actions, several of

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Speaker 2: the conservative justices, like Neil Gorsuch, said they didn't care

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Speaker 2: much about the facts of this case.

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Speaker 5: And I'm not concerned about this case so much as

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Speaker 5: future ones too.

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Speaker 6: He was the president, he is the commander in chief.

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Speaker 6: He talks to his generals all the time, and he

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Speaker 6: told the generals, I don't feel like leaving office. I

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Speaker 6: want to stage a coup. Is that immune if it's

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Speaker 6: an official act, it's peace official actor. On the way

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Speaker 6: you've described that hypothetical, it could well be.

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Speaker 4: I just don't know.

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Speaker 6: You'd have to again, it's a fact specific, context, spcific termination.

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Speaker 6: That answer sounds to me is though, it's like, yeah,

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Speaker 6: under my test it's an official act. But that sure

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Speaker 6: sounds bad, doesn't it.

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Speaker 1: Well, it certainly sounds very bad.

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Speaker 2: I've been talking to an expert in constitutional law, Michael Dorf,

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Speaker 2: a professor at Cornell Law School. The Chief Justice said

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Speaker 2: that he had concerns about the DC Circuit Court's opinion,

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Speaker 2: and he suggested sending it back to rule on the

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Speaker 2: extent to wish official acts are protected. A couple of

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Speaker 2: the other justices, I think Gorsach and Kavanaugh talked about

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Speaker 2: sending it back. Do you think that under any version

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Speaker 2: this is going back to a lower court?

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Speaker 4: Oh, I think that's the most likely outcome. Again, Justice

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Speaker 4: Barrett was exploring ways with mister Driba about how they

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Speaker 4: might do that in a way that moves it forward

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Speaker 4: with some alacrity. But I don't think there's a fifth

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Speaker 4: vote for that. I think there would be four votes

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Speaker 4: for that potentially, you know her basically the four women

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Speaker 4: on the court. But I think that you know, Roberts

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Speaker 4: and certainly all of the justices to his right would

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Speaker 4: want a test that would take some sorting out, and

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Speaker 4: that just adds, you know, additional delay during the pre

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Speaker 4: trial proceedings.

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Speaker 2: Besides the distinction between official acts and private acts. Is

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Speaker 2: there any other way you see them handling this?

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Speaker 4: Well, I see other obstacles. I mean, there were various

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Speaker 4: points during the oral argument where some of the justices

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Speaker 4: suggested that the former president can't be prosecuted under any

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Speaker 4: statute that doesn't specifically list the president, Right, So that

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Speaker 4: if a statute says anybody who commits murder, you know,

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Speaker 4: shall be subject to prosecution, that doesn't include the president

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Speaker 4: because it's said anybody. But you know, the President isn't anybody.

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Speaker 4: He's the President. So you know, I don't think there

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Speaker 4: are five votes for saying that, but I think someone

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Speaker 4: might be attracted to that. Justice Thomas at one point

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Speaker 4: early in the argument suggested that the very existence of

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Speaker 4: the Special prosecutor might be unconstitutional. Justice Kavanaugh had, you know,

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Speaker 4: that bizarre couple of minutes when he's just sort of

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Speaker 4: giving a dramatic reading of Justice Scalia's descent from Morrison

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Speaker 4: against Olsen, which also was critical of the Independent Council.

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Speaker 4: So there, you know, there's a whole lot of dirt

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Speaker 4: that was kind of just kicked up, and I I

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Speaker 4: think it's unlikely that many of those things ends up

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Speaker 4: commanding a majority but it will likely delay the release

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Speaker 4: of the opinion till the very last day of the term,

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Speaker 4: and then whatever additional procedure is called for is going

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Speaker 4: to add further delay. So again I'm less focused on

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Speaker 4: the exact outcome than I am on the delay, because

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Speaker 4: I don't think there are five votes. There may not

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Speaker 4: even be one vote for saying that the president is

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Speaker 4: simply absolutely immune, But I do think there are at

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Speaker 4: least five votes for some kind of a test that

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Speaker 4: further delays trial and means it doesn't happen until after

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Speaker 4: the election, if at all.

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Speaker 2: If the latter happens, do you think they would just

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Speaker 2: send it back to the DC Circuit or we would have,

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Speaker 2: you know, the majority opinion concurrences to sense. Do you

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Speaker 2: think that there would be some statement of what they

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Speaker 2: think presidential immunity is.

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Speaker 4: Oh, yeah, I think it's likely that you'll get, you know,

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Speaker 4: a variety of opinions. They put it on the calendar,

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Speaker 4: and you know, they could have put it off till

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Speaker 4: next year, which would be the end of the case.

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Speaker 4: They didn't do that, but I don't think they realistically

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Speaker 4: could have done that. So I don't think they're going

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Speaker 4: to speed up the process between now and the end

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Speaker 4: of June. And you know that cases get argue that

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Speaker 4: are argued in late April sometimes produce multiple concurrences toscent

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Speaker 4: and so forth.

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Speaker 2: Obviously they don't feel a rush at moving this forward, right, She.

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Speaker 4: Was remarkable to my mind.

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Speaker 2: Do you think the liberal justices were able to sort

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Speaker 2: of move the ball forward at all with their questions?

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Speaker 4: I don't think so, right. I mean, I would characterize

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Speaker 4: most of the questions from Justices Sodomayor and Kagan as

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Speaker 4: having as the subtext, Oh, come on, right, like, you know,

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Speaker 4: we know what's going on here. This is outrageous. You're

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Speaker 4: saying that Donald Trump is above the law. Whereas I

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Speaker 4: thought Justice Jenckson was trying to engage a bit more

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Speaker 4: with the particulars of the argument and what's official whether

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Speaker 4: this that right? And I can see the case for

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Speaker 4: doing either of those things. I don't think either move

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Speaker 4: was very successful in terms of persuading any of their colleagues.

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Speaker 2: What did you think about Trump's attorney deciding not to

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Speaker 2: do a rebuttal. Apparently there were gasps in the courtroom,

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Speaker 2: I mean, like drop the mic moment. I don't know

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Speaker 2: what he was thinking.

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Speaker 4: So it's highly unusual in the US Supreme Court. It's

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Speaker 4: not at all unusual in the lower federal courts or

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Speaker 4: in state courts. That you know, if you think you

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Speaker 4: don't have, you know, an important point you want to

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Speaker 4: with respect to you drop your rebuttal. I mean the

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Speaker 4: thinking is sometimes like, you know, well, I'm ahead, I

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Speaker 4: don't want to risk it. Like maybe if I stand

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Speaker 4: up there just as Kagan's going to ask me a

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Speaker 4: tough question that I have a hard time answering. So

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Speaker 4: I'll just you know, I'm happy to hold my cards

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Speaker 4: and you know, and let it ride broadly.

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Speaker 2: There's this case, there's the case over the January sixth

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Speaker 2: obstruction charge. There's the Colorado ballot case. This Supreme Court

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Speaker 2: seems to be, in various ways inserting itself into the

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Speaker 2: presidential election, unlike anything we've seen since Bush v. Gore.

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Speaker 2: And it's at a time when the Supreme Court is

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Speaker 2: not viewed favorably by a majority of the country. So

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Speaker 2: I mean, I'm wondering do they think about that?

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Speaker 4: So I guess I would distinguish some of the cases.

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Speaker 4: So I think that although I think they got it

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Speaker 4: wrong in the Colorado case, I think it would have

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Speaker 4: been irresponsible to have left the Fourteenth sen and Section

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Speaker 4: three question just to each of the fifty states and

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Speaker 4: local election boards and so forth. I think what they

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Speaker 4: should have done was take the case and agree with

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Speaker 4: the Colorado Supreme Court. But you did sort of need

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Speaker 4: a national determination with respect to whether Trump committed insurrection

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Speaker 4: within the meaning of the Section three of the fourteenth Amendment.

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Speaker 4: With respect to this case, I do think that what

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Speaker 4: they've done does, at the very least unnecessarily and you know,

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Speaker 4: dispositively delay any kind of a prosecution. As far as

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Speaker 4: you know, public opinion, I think it hasn't been true

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Speaker 4: since the appointment of Justice Cony Barrett that the court

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Speaker 4: really cares about that. I mean, I think that's something

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Speaker 4: that chiefs Justice Roberts has long cared about. I think

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Speaker 4: he now realizes that he's lost that battle, and even

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Speaker 4: if he still wants to fight for the courts standing,

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Speaker 4: he's going to lose. And so they're just going to

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Speaker 4: do what they think is the right thing to do.

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Speaker 4: And you know, I suspect that they think they're just

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Speaker 4: following the law, even just as Alito I believe believes

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Speaker 4: he is just following the law.

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Speaker 2: Anything else strike you about these arguments.

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Speaker 4: Yes, I thought there was. As a Supreme Court watcher,

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Speaker 4: there was one point relatively early in the argument that

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Speaker 4: something somewhat remarkable happened, which was Justice Sotomayor asked a

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Speaker 4: follow up question to a question that Justice Alito had asked,

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Speaker 4: and in the course of her question, she sort of

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Speaker 4: pointed out something that she thought was mistaken or mysterious

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Speaker 4: about Justice Alito's question, I remember, and then he took

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Speaker 4: the opportunity to respond, and so it was one of

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Speaker 4: those sort of, you know, almost breaking the fourth wall

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Speaker 4: moments where instead of just pretending that they're just asking

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Speaker 4: questions of the lawyers, they are actually arguing with each

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Speaker 4: other on the bench. And I kind of liked it.

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Speaker 4: I thought it, you know, refreshingly honest.

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Speaker 2: Yes, Supreme Court oral arguments are something unto themselves. Thanks

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Speaker 2: so much for sharing your insights, Mike. That's Professor Michael

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Speaker 2: Dorf of Cornell Law School coming up next on The

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Speaker 2: Bloomberg Law Show. As a Supreme Court oral arguments were

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Speaker 2: going on, Donald Trump was in a courtroom in Manhattan

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Speaker 2: where a former friend of his, David Pecker, the former

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Speaker 2: publisher of the National Inquirer was testifying against him. We'll

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Speaker 2: do a deep dive into how the trial has been going.

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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Former National Inquirer publisher David Pecker was back on the

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Speaker 2: stand in Donald Trump's hush money trial today. He told

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Speaker 2: the New York jury that he promoted Donald Trump and

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Speaker 2: shielded him from unflattering stories long before the twenty sixteen

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Speaker 2: presidential campaign. Joining me to talk about the trial is

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Speaker 2: former federal prosecutor Jeff Psy. Jeff, I want to start

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Speaker 2: at the very beginning with the charges here and what

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Speaker 2: the prosecution has to prove. Falsifying a business record is

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Speaker 2: a misdemeanor in New York. How are the prosecutors going

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Speaker 2: to make that into a felony? What do they have

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Speaker 2: to prove to do that?

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Speaker 5: They have to use an underlying felony charge in order

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Speaker 5: to make this a felony. And so what they're using

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Speaker 5: are the intent to commit another crime, in this case

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Speaker 5: election interference, which itself can be criminal under New York law.

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Speaker 5: And I'll tell you something to me that is an

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Speaker 5: often discussed but I think least analyze part of this

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Speaker 5: entire case. And the reason is because there is a

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Speaker 5: statute of limitations problem that the government has where it

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Speaker 5: to only charge this as a misdemeanor. You've also got

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Speaker 5: an underlying policy issue at play where the government, in

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Speaker 5: this case, the DA's office, isn't necessarily interested in only

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Speaker 5: charging this as a misdemeanor. But what happens if you

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Speaker 5: have a jury that is implored by the defense lawyers

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Speaker 5: to consider this as what's been called and what is

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Speaker 5: often called a lesser included effect type of charge. So

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Speaker 5: if the defense starts to feel like we're talking about

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Speaker 5: a conviction scenario, they're going to want to talk to

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Speaker 5: the jury about possibly looking at this as a again,

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Speaker 5: lesser included offense where they're asking the jury to convict

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Speaker 5: only for a misdemeanor charge, which is lesser than a felony.

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Speaker 2: The defense in the openings said, what on earth is

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Speaker 2: a crime? The thirty four counts are really just thirty

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Speaker 2: four pieces of paper? Is that an attempt to try

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Speaker 2: to sort of lower the bar here?

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Speaker 5: Yes, it's also more substantively an attempt to try to

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Speaker 5: turn a three dimensional case into a one dimensional or

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Speaker 5: two dimensional case. This is always going to be a

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Speaker 5: pitched battle between an issue of paper or an issue

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Speaker 5: of substance, and you see it in every kind of

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Speaker 5: fraud case that exists. In this case, obviously, dealing with

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Speaker 5: a former president is no different. The defense's job front

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Speaker 5: and center is going to be presenting to the jury

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Speaker 5: the idea that at most this is a small sea

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Speaker 5: crime of paper. It is about moving things from the

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Speaker 5: left side of the desk to the right side, and jury,

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Speaker 5: do you want to be the ones who potentially takes

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Speaker 5: someone's liberty away because he didn't move the paper on

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Speaker 5: the desk quite the right way. That's part of the

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Speaker 5: reason why you saw the government and their opening statement

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Speaker 5: start not just with the idea that we're talking about

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Speaker 5: thirty four felony charges, but that we're talking writ large,

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Speaker 5: like take a step back about election interference. And then

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Speaker 5: you also heard that phrase in the opening statement where

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Speaker 5: the prosecutor talks about the idea of the former president

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Speaker 5: lying quote over and over and over again. They're just words,

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Speaker 5: of course, that the prosecutor is saying, but there is

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Speaker 5: a message behind it, which is this isn't just about paper.

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Speaker 5: This is also about the core things that no one

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Speaker 5: likes lying and lying about something that matters, and.

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Speaker 2: The prosecution in the opening said it's about a criminal

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Speaker 2: conspiracy and a cover up. He's not charged with conspiracy.

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Speaker 2: Is the prosecution setting the bar too high for itself.

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Speaker 5: I'll tell you, Being a prosecutor and bringing cases, especially

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Speaker 5: big ones like this, are complicated because there is a

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Speaker 5: mission creep desire, sometimes sometimes unintentional by the way, to

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Speaker 5: try to make the case too big, and often the

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Speaker 5: approach that prosecutors try to take, and frankly need to

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Speaker 5: take in many instances, is to try to avoid the

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Speaker 5: mission creep and keep the cases as tight and small

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Speaker 5: as possible. Not small in terms of substance, but small

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Speaker 5: in terms of what you're asking a juror to put

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Speaker 5: in her brain. Over the course of six weeks, there

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Speaker 5: is going to an extraordinary amount of information, testimony, documents, pictures,

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Speaker 5: and I don't care how many notes a juror takes.

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Speaker 5: It is difficult to keep all of that package together cleanly.

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Speaker 5: And I don't care how great the closing argument is,

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Speaker 5: it's difficult to do.

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Speaker 4: So.

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Speaker 5: The bigger a case becomes, it creates two, it can

435
00:26:21,840 --> 00:26:26,760
Speaker 5: create lots of variables, and variables are ultimately the enemy

436
00:26:26,920 --> 00:26:29,520
Speaker 5: for a prosecutor and when she's bringing her case or

437
00:26:29,520 --> 00:26:31,160
Speaker 5: when he's bringing his case.

438
00:26:31,760 --> 00:26:35,280
Speaker 2: So there is then the Michael Cohen problem, which I'll

439
00:26:35,320 --> 00:26:38,000
Speaker 2: call the Michael Cohen problem, and he's going to be

440
00:26:38,080 --> 00:26:41,520
Speaker 2: the star witness for the prosecution. The defense said he

441
00:26:41,600 --> 00:26:44,720
Speaker 2: was obsessed with President Trump, he was disbarred, He's a

442
00:26:44,760 --> 00:26:48,399
Speaker 2: convicted felon and a convicted perjurer. He made a decision

443
00:26:48,400 --> 00:26:51,000
Speaker 2: after getting caught in twenty eighteen to blame Trump for

444
00:26:51,119 --> 00:26:54,720
Speaker 2: virtually all his problems. How difficult is it for the

445
00:26:54,760 --> 00:26:59,240
Speaker 2: prosecution to make Michael Cohen into a believable witness that

446
00:26:59,720 --> 00:27:01,119
Speaker 2: they're going to hang their case on.

447
00:27:01,840 --> 00:27:04,960
Speaker 5: So, you know, to the point about trying to make

448
00:27:05,000 --> 00:27:09,199
Speaker 5: a case too big, I think that principle applies, especially

449
00:27:09,240 --> 00:27:11,440
Speaker 5: in a circumstance where you do have what I think

450
00:27:11,480 --> 00:27:16,520
Speaker 5: you accurately described as the star witness, which is not

451
00:27:16,600 --> 00:27:20,639
Speaker 5: turning Michael Cohen into an angel, but also not trying

452
00:27:20,680 --> 00:27:25,359
Speaker 5: to otherwise characterize him as a devil. The reality is,

453
00:27:25,960 --> 00:27:29,280
Speaker 5: Michael Cohen is a person who clearly made mistakes. We

454
00:27:29,359 --> 00:27:33,000
Speaker 5: know this because he pleaded guilty to felony offenses. If

455
00:27:33,040 --> 00:27:36,880
Speaker 5: the government attempts to try to do too much which

456
00:27:36,920 --> 00:27:40,320
Speaker 5: is to say, try to turn Michael Cohen into this

457
00:27:40,480 --> 00:27:44,399
Speaker 5: kind of angelic figure, one who's almost a martyr of sorts.

458
00:27:44,840 --> 00:27:48,399
Speaker 5: It can backfire because there is a certain degree to

459
00:27:48,440 --> 00:27:52,720
Speaker 5: which when a jury is listening and hearing and watching evidence,

460
00:27:53,119 --> 00:27:57,520
Speaker 5: they're paying attention to that very basic normal person emotion,

461
00:27:57,680 --> 00:28:01,200
Speaker 5: which is, do I just trust the information this person

462
00:28:01,280 --> 00:28:03,560
Speaker 5: is giving me. So there is something to be said

463
00:28:04,040 --> 00:28:06,800
Speaker 5: for trying to present a witness, especially a flawed one,

464
00:28:07,040 --> 00:28:11,760
Speaker 5: and frankly, most witnesses and people are flawed, presenting the

465
00:28:11,800 --> 00:28:14,040
Speaker 5: information in such a way that says, this is a

466
00:28:14,080 --> 00:28:17,040
Speaker 5: person who made mistakes, This is a person who is

467
00:28:17,119 --> 00:28:20,439
Speaker 5: coming clean right now, and there is no reason for

468
00:28:20,520 --> 00:28:24,399
Speaker 5: this person now to tell you anything but the truth.

469
00:28:24,840 --> 00:28:26,560
Speaker 5: And I think that that's going to be really the

470
00:28:26,640 --> 00:28:29,240
Speaker 5: job that the prosecutor has to undertake.

471
00:28:30,160 --> 00:28:33,399
Speaker 2: The prosecution has called David Pecker, the former publisher of

472
00:28:33,440 --> 00:28:37,159
Speaker 2: the National Inquirer, as the first witness. Explain why the

473
00:28:37,160 --> 00:28:38,760
Speaker 2: prosecution is calling him first.

474
00:28:39,720 --> 00:28:44,680
Speaker 5: The first witness is probably the most important evidentiary step

475
00:28:44,800 --> 00:28:48,720
Speaker 5: that the government makes, because it is literally the very

476
00:28:48,840 --> 00:28:52,280
Speaker 5: first human being who will start presenting what is actually

477
00:28:52,360 --> 00:28:55,520
Speaker 5: evidence to a jury. There is a tendency in a

478
00:28:55,560 --> 00:28:58,960
Speaker 5: case like this that you put the star witness on

479
00:28:59,000 --> 00:29:02,640
Speaker 5: the stand because it allows for two things, One for

480
00:29:02,800 --> 00:29:06,600
Speaker 5: the evidence to come in immediately for the jury, no

481
00:29:06,720 --> 00:29:10,800
Speaker 5: waiting around. But also number two, it allows the government

482
00:29:10,880 --> 00:29:14,960
Speaker 5: to buffer in some other kinds of evidence in case

483
00:29:15,320 --> 00:29:18,240
Speaker 5: the star evidence doesn't come in quite as they expected.

484
00:29:18,760 --> 00:29:21,840
Speaker 5: This is slightly different. It's slightly different for a couple

485
00:29:21,920 --> 00:29:26,000
Speaker 5: of reasons, one of which is they're an important goal

486
00:29:26,040 --> 00:29:29,400
Speaker 5: that the government has is to try to get cooperation

487
00:29:29,680 --> 00:29:32,480
Speaker 5: in place and to try to make sure that they

488
00:29:32,520 --> 00:29:36,920
Speaker 5: are not relying only on Michael Cohen's testimony. And so

489
00:29:37,080 --> 00:29:39,600
Speaker 5: you have someone in the form of David Pecker, who

490
00:29:39,720 --> 00:29:43,320
Speaker 5: serves as a narrator of sorts, who can tell the

491
00:29:43,400 --> 00:29:46,760
Speaker 5: story not in the beginning of time, but in a

492
00:29:46,960 --> 00:29:50,880
Speaker 5: very important snippet of time that will allow the government

493
00:29:50,920 --> 00:29:54,160
Speaker 5: to both go forwards in time and backwards in time.

494
00:29:54,680 --> 00:29:57,320
Speaker 5: And that's where they then slot in Michael Cohen. I

495
00:29:57,360 --> 00:29:59,680
Speaker 5: think there is a very good chance that we will

496
00:29:59,720 --> 00:30:03,040
Speaker 5: see Michael Cohen come in, if not as the second witness,

497
00:30:03,080 --> 00:30:07,920
Speaker 5: then after potentially a witness like Clifford or McDougall, or

498
00:30:08,440 --> 00:30:14,360
Speaker 5: maybe even another person from the National and inquirer both

499
00:30:14,440 --> 00:30:18,880
Speaker 5: to bolster David Pecker's testimony and again to corroborate a

500
00:30:18,920 --> 00:30:22,120
Speaker 5: lot of it, but to also then prepare for what

501
00:30:22,240 --> 00:30:25,800
Speaker 5: will ultimately be a very rocky series of days when

502
00:30:25,800 --> 00:30:27,320
Speaker 5: Michael Cohen then testifies.

503
00:30:27,840 --> 00:30:31,200
Speaker 2: And they have asked Pecker a lot about Michael Cohen's role,

504
00:30:31,560 --> 00:30:34,760
Speaker 2: and it's come out already that Trump was the one

505
00:30:34,760 --> 00:30:37,000
Speaker 2: who set up Cohen as the point man.

506
00:30:38,080 --> 00:30:40,920
Speaker 5: And I got to tell you that was not only

507
00:30:41,080 --> 00:30:43,720
Speaker 5: intentional on the government's part. I think it was an

508
00:30:43,720 --> 00:30:47,040
Speaker 5: important piece of what they're trying to build in their case,

509
00:30:47,080 --> 00:30:50,240
Speaker 5: which is not just this notion of we want to

510
00:30:50,320 --> 00:30:54,120
Speaker 5: corroborate Michael Cohen and bolster this idea that he was

511
00:30:54,160 --> 00:30:58,960
Speaker 5: an important person. They also want to directly insert Donald

512
00:30:59,000 --> 00:31:04,320
Speaker 5: Trump into the conversation through someone other than Michael Cohen.

513
00:31:04,800 --> 00:31:08,360
Speaker 5: That's an important piece because the testimony that the jury

514
00:31:08,400 --> 00:31:12,160
Speaker 5: hears from Michael Cohen is going to rely in significant

515
00:31:12,200 --> 00:31:16,800
Speaker 5: part on whether the jury trusts the conversations that Michael

516
00:31:16,800 --> 00:31:20,200
Speaker 5: Cohen had with Donald Trump. And that's even putting aside

517
00:31:20,560 --> 00:31:24,880
Speaker 5: the recording, assuming it gets into evidence, You've got the

518
00:31:25,000 --> 00:31:28,480
Speaker 5: jury having to listen to Michael Cohen's testimony, and the

519
00:31:28,520 --> 00:31:31,840
Speaker 5: only thing better than having just Michael Cohen describe a

520
00:31:31,960 --> 00:31:36,120
Speaker 5: conversation is to have an entirely different person say that

521
00:31:36,160 --> 00:31:39,600
Speaker 5: the conversation also happened. And that's why I think you

522
00:31:39,680 --> 00:31:44,040
Speaker 5: see a lot of the descriptions from David Pecker about

523
00:31:44,080 --> 00:31:47,120
Speaker 5: the conversations Donald Trump was in and I think it's

524
00:31:47,160 --> 00:31:49,960
Speaker 5: going to be something that the government continues to utilize

525
00:31:49,960 --> 00:31:50,920
Speaker 5: for the rest of their case.

526
00:31:51,240 --> 00:31:55,200
Speaker 2: So interestingly, David Pecker is one of the few witnesses

527
00:31:55,240 --> 00:31:58,800
Speaker 2: that Donald Trump has not attacked in the media, or

528
00:31:58,800 --> 00:32:01,400
Speaker 2: at least as far as I'm know. And you know,

529
00:32:01,520 --> 00:32:04,560
Speaker 2: he's painting himself as a former friend of the president,

530
00:32:05,080 --> 00:32:09,200
Speaker 2: loosely defining that word. Why does the defense cross examine him?

531
00:32:09,680 --> 00:32:12,600
Speaker 5: Oh, it's it's such an interesting play that we're going

532
00:32:12,640 --> 00:32:14,560
Speaker 5: to see in the next couple of days when cross

533
00:32:14,600 --> 00:32:18,800
Speaker 5: examination starts. There is of course going to be some

534
00:32:18,880 --> 00:32:23,640
Speaker 5: degree to which they serve to undermine David Pecker's credibility.

535
00:32:23,760 --> 00:32:27,360
Speaker 5: I don't think it's simply this kind of manage in

536
00:32:27,480 --> 00:32:30,720
Speaker 5: battle between someone as good versus someone as evil. I

537
00:32:30,760 --> 00:32:32,720
Speaker 5: think that they are going to try to take the

538
00:32:32,800 --> 00:32:37,520
Speaker 5: approach with David Pecker. You've got your credibility issues, and

539
00:32:37,560 --> 00:32:40,280
Speaker 5: we want to explore some of those with you and

540
00:32:40,320 --> 00:32:43,120
Speaker 5: with the jury. But I think that they stop there

541
00:32:43,280 --> 00:32:46,320
Speaker 5: because they don't need to go further in trying to

542
00:32:46,360 --> 00:32:50,400
Speaker 5: address some of the credibility issues by necessarily tearing him down,

543
00:32:50,680 --> 00:32:53,640
Speaker 5: because of I think a second goal that they have,

544
00:32:53,800 --> 00:32:57,400
Speaker 5: which is there are several things that they want from

545
00:32:57,480 --> 00:33:01,720
Speaker 5: David Pecker, which serves to for purposes of their defense,

546
00:33:02,320 --> 00:33:06,480
Speaker 5: create the idea that ultimately what was happening in these

547
00:33:06,480 --> 00:33:10,400
Speaker 5: facts were the kinds of things that happened in the

548
00:33:10,480 --> 00:33:14,760
Speaker 5: CD world, of certain kinds of papers like the National

549
00:33:14,880 --> 00:33:18,520
Speaker 5: Inquirer and things of the sort, and describe that to

550
00:33:18,600 --> 00:33:21,720
Speaker 5: the jury as you don't have to like any of this.

551
00:33:21,920 --> 00:33:25,120
Speaker 5: You don't have to like tabloid journalism, but this is

552
00:33:25,160 --> 00:33:28,920
Speaker 5: how tabloid journalism works. That doesn't make it illegal. It

553
00:33:29,040 --> 00:33:33,080
Speaker 5: certainly doesn't make it something fodder for an election of

554
00:33:33,120 --> 00:33:36,160
Speaker 5: a national scale. So there are going to be things

555
00:33:36,200 --> 00:33:39,640
Speaker 5: that they're going to want to pull from David Pecker

556
00:33:40,200 --> 00:33:43,160
Speaker 5: that in some ways will rely on him having a

557
00:33:43,200 --> 00:33:47,000
Speaker 5: certain degree of credibility. So they'll both want to attack

558
00:33:47,080 --> 00:33:49,800
Speaker 5: it and then preserve it in some ways to be

559
00:33:49,880 --> 00:33:53,000
Speaker 5: able to get some of the points that they want interesting, tricky,

560
00:33:53,720 --> 00:33:54,400
Speaker 5: very tricky.

561
00:33:54,640 --> 00:33:57,440
Speaker 2: Thanks so much, Jeff, you gave us such terrific insight

562
00:33:57,720 --> 00:34:00,920
Speaker 2: into the concerns of the prosecution and the defense. That's

563
00:34:00,920 --> 00:34:04,400
Speaker 2: former federal prosecutor Jeff si And that's it for this

564
00:34:04,560 --> 00:34:07,680
Speaker 2: edition of the Bloomberg Law Podcast. Remember you can always

565
00:34:07,680 --> 00:34:10,440
Speaker 2: get the latest legal news by subscribing and listening to

566
00:34:10,480 --> 00:34:14,640
Speaker 2: the show on Apple Podcasts, Spotify, and at Bloomberg dot com,

567
00:34:14,680 --> 00:34:18,920
Speaker 2: slash podcast, Slash Law. I'm June Grosso and this is

568
00:34:18,960 --> 00:34:19,560
Speaker 2: Bloomberg