The Jury Deliberates on Trump's 'Hush Money' Trial

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. 12 anonymous Manhattanites have returned to the courthouse for day two of deliberations in the criminal trial of Donald Trump. Who doesn't know that already? I had to say it to start out. Yesterday, the jury wrapped without reaching a verdict on the former president's 34 felony counts, and that isn't something that's gotten much attention. We'll ask our guests about that in a minute.

Do they need 34 different decisions, 34 felony counts of falsifying business records in pursuit of fooling the public about his payments to Stormy Daniels? We do have some clues to what discussions might be sounding like behind the jury's closed doors. Jurors have requested to hear four particular excerpts of testimony from two key witnesses for the prosecution. David Pecker, former publisher of the National Enquirer, and Michael Cohen, Trump's former lawyer.

A court reporter reads these excerpts out loud to the jury. Additionally, the jury asked just a few minutes ago for a repeat of certain pages of the jury instructions, which the judge read from the bench yesterday morning. I saw that it's estimated that this is a 45-minute reread that they're asking for. Let's see where we are in this first criminal trial of any former US president.

Joining us now, Andrew Weissmann, professor of practice at the NYU School of Law, lead prosecutor in Robert Mueller's Special Counsel's Office in the Russia Investigation, MSNBC legal analyst, co-author of the book, The Trump Indictments: The Historic Charging Documents with Commentary, and co-host of a podcast called Prosecuting Donald Trump. You might say Andrew Weissmann is covering this just a little bit. Andrew, I know with your TV commitments, you're doing us a great favor by carving out this time for us. Thank you and welcome back to WNYC.

Andrew Weissmann: Happy to be here. I'm a veteran New Yorker, so I've been a fan of yours for many, many years.

Brian Lehrer: That's very meaningful to me to hear. Let's take these requests from the jury one by one. The newest is the clarification this morning about what sections of the jury instructions they want to hear again. Can you explain what those are and what questions the jury might be trying to answer for themselves?

Andrew Weissmann: Sure. I should caution everyone that we are now in the tea leaf part of the case, where we're all reading tea leaves. I have to say, reading notes from jurors is fraught with peril. With that as a preamble, it really is very, very hard to know what's going on. I've been in many trials where you get notes that seem very favorable to the defense, and then there's a conviction and vice versa. It really is important to take the notes with a grain of salt. Also, they've only been deliberating for a very short time.

These are all probably introductory things. On the jury charge, if you just remember that for over an hour, basically about an hour and 20 minutes, the jury charge, that is what the law requires the jurors to find or to find that it's not found, is something that they only heard orally from the judge for an hour and 20 minutes. It's natural to ask for parts of it to be read back to make sure they fully understand that, particularly for the non-lawyers on the jury. Remember, there are two lawyers on the jury, but there are 10 non-lawyers.

The one thing that was a little confusing to me is that the note this morning was in response to the judge saying, "Do you want the whole jury charge read back," which, of course, he would do, "or do you just want a part of it?" They came back and said, "Pages 7 through 35." The jury charge is, altogether, 55 pages. In looking at the hard copy that I have, pages 7 through 35 aren't logically-- there is no-- On page 35, it actually stops in the middle of a discussion of the law on one of the things they need to find.

It may be when the judge gets to that part and stops. He may say, "I'm stopping because that's the end of page 35." There may be another note saying, "Essentially, complete your thought and finish that." With that, it does seem like they are asking for what I would say is the core part of the charge, which is exactly what it is that they have to find if there were the so-called elements of the charge, the 34 counts.

Brian Lehrer: Would that seem to indicate just taking it seriously on the part of the jury and making sure they're clear on what the charge is and what they would have to find in order to convict or is it an early indication of dissension within the jury that even from moment one, some people are saying, "Yes, it looks like guilty," somebody else is saying, "Yes, it doesn't look like guilty," and they're trying to clarify for that reason, or is there absolutely no way to tell?

Andrew Weissmann: What I would say is there's no way to tell. I don't think there is a sign from any of the notes that there's dissension. It would be unusual at this point to have dissension and to be at an impasse on day one in just a few hours. Just remember, the jurors have not deliberated until yesterday. They were told with respect to the case, they cannot deliberate. For anyone who's listening, who's been on a jury, they know that, which is when you go and finally are allowed to deliberate. I've actually served on a jury after I served on the Mueller team.

Brian Lehrer: Wow.

Andrew Weissmann: I had no idea. I had some thoughts as to what I was thinking, but I had no idea whether we were all going to be in agreement or not until we were told we could deliberate. In many ways, yesterday was the first time the jurors actually could get a sense of what the other jurors were thinking. These all seem like very natural notes. I do think that if I were guessing, I would say that your first point is the right one, which is it certainly suggests a seriousness of purpose in that they're asking to make sure they understand the key parts of the law that was just read to them orally so that they can hear that again.

In New York, you're not allowed to give the written jury charge to the jurors. In federal court, you are allowed to do that. You wouldn't get this note because the jurors would have the charge back in the room and they could all go over it. That's why you have these notes come out with respect to that. It certainly suggests that they're taking it seriously. There's no reason to think in a case like this that they're not.

I'd say another tea-leaf reading on that point is they haven't lost a juror. Very typically in a case that's five, six weeks, one or two jurors are lost for various conflicts. It just happens inevitably. Here, not a single juror has had to be excused and replaced with an alternate. That also suggests a commitment by the jurors to this case. Obviously, it's come out at the trial that this is the former president. They have to understand the seriousness of the case and the extra weight that they may feel because of that.

Brian Lehrer: Now, as an aside, I have to say that I was shocked when you said a minute ago that you, Andrew Weissmann, former lead prosecutor in the Mueller investigation, was subsequently selected to be on a jury in a criminal case. I was once selected to be on a jury in a Manhattan criminal trial. I was shocked that they chose me, knowing what I do, that one side or the other wouldn't have wanted me, but they chose me. I'm even more shocked that they chose you.

Andrew Weissmann: Well, let me just say, first, it was a civil case, not a criminal case.

Brian Lehrer: Ah, okay.

Andrew Weissmann: I have to tell you, I was more shocked than you were. I was positive I was not going to be on-- I just thought it was a given that I was not going to be chosen. I, of course, loved it. By the way, one thing I do want to say is I was courted no extra weight. I know people are thinking, "Oh, if there are two lawyers on the jury, won't they be able to be deferred to, et cetera?" At least in the group I had, this is a bunch of New Yorkers. Everyone had a lot of opinions and people were extremely collegial, really smart. The fact that I was a lawyer, I don't think, mattered to them.

Brian Lehrer: You mean you don't think they looked to you and that today's jury might not be looking to the two lawyers among them for some kind of guidance on how to understand points of the law or anything like that?

Andrew Weissmann: I actually think one of the things that was helpful, this is, again, on a data point of one. When I served on a jury, I actually think the people who had served on a jury before were the ones who were most useful because they could say, "What we did last time was we took a straw poll or we asked for all the evidence to be brought in." They had some experience. I had no experience. I couldn't say, "Well, let me tell you what I did when I tried a case." That was not particularly relevant evidence. Also, my experience, which is basically in the criminal law, was not particularly applicable to the civil case. It just wasn't something that people were deferring to.

Brian Lehrer: On being on the actual jury, especially in this case, it's not like watching coverage on TV, right? For people who see you on MSNBC or watch any of the other channels that have been covering the trial pretty closely where you can isolate meaningful moments, put sections of the transcript of testimony on the screen, read and reread for the audience to digest and to hear you and other panelists analyze it and kick it around, they don't get anything like that until these requests to reread. They just hear it go by once. I guess they can take their own notes, but they don't get transcripts. They certainly don't get video or audio. It's really kind of, I guess, impressionistic when there's a weeks-long trial compared to what somebody like me following the case as a viewer closely on television is getting day in and day out.

Andrew Weissmann: That's absolutely right. Certainly, I have the advantage as many people do. Eventually, the next day, I see the transcripts. I can go back and reread what David Pecker said. The first note asked for four sections to be read. It involved David Pecker's testimony, the first witness, the former head of the AMI. That's the company that controlled the National Enquirer, an incredibly important witness.

At this point, it's four weeks ago. The jurors, I think, naturally may want to recall exactly what he said. The same thing with Michael Cohen is that we have the advantage of being able to go back to the transcripts and see exactly what was said and compare that. It is really normal to have notes that go over parts of the testimony. Then, obviously, people like you and me try and push and pull to figure out what could be going on in the jury room.

Brian Lehrer: Listeners, we'll get into the David Pecker testimony that the jury wanted to hear again and the Michael Cohen testimony that the jury wanted to hear again, but I also want to open up the phones. Listeners, any of your questions for Andrew Weissmann from the NYU Law School and MSNBC and the podcast, Prosecuting Donald Trump, who has a question? 212-433-WNYC, as the jury deliberates. 212-433-9692, call or text. Have you been following the trial closely and you're left with any questions? Not about the politics. Obviously, this segment is not about what impact any kind of verdict will or won't have on the presidential race. This is about the law and the case. 212-433-WNYC. Come on in. 212-433-9692, call or text.

By the way, 34 counts. I think that it didn't really hit me until yesterday watching some of the coverage that there are 34 counts. I think we've been hearing this generally described as one narrative having to do with the allegations of falsifying business records to cover up to the electorate, that there was hush money paid to Stormy Daniels. That's the allegation. That sounds like one unified thing, but there are 34 counts. Does the jury have to go through each of the 34 and say, "Well, did Trump do it in this case? Did Trump do it in that case?" How does that go in this particular case?

Andrew Weissmann: Love that question. The answer is yes, there are 34 verdicts. They have to decide each one. Now, many listeners who followed closely would be saying, "Well, aren't they kind of all the same?" If you do one, doesn't it, by necessity, mean you've got to find all 34?" The answer to that is no. There are some factual differences in each of the-- you can put into buckets various aspects of the 34 charges.

For instance, Donald Trump did not sign all of the checks that are part of the false business records. You could imagine a jury saying, "Well, the ones that he personally signed, it is much more likely that he would know that the invoices were false and that he'd see them and they were in his hands," as opposed to the checks that were sent to his two sons where they were involved.

You could imagine saying the internal records that were created more or less automatically by a back-office functionary at The Trump Organization, maybe those will be treated differently because he was not aware of how those worked. There are ways to separate out those two. What that means is that for each count, obviously, you can have 12 jurors who find that it's proved and it's a conviction. You could have 12 jurors who find that it's not proved and that's an acquittal.

Remember, you have to have a unanimous jury either way to acquit. There have to be 12. Everyone I think knows that to convict you have to have 12. If you don't have either of those, you have what's called a hung jury. You could end up with what's called, essentially, a partial verdict. A partial verdict that would be favorable to the defense might be, we are hung on certain counts and we acquit on the rest of them.

A partial verdict that would be favorable to the state would be, you have a conviction on certain counts and were hung on the other counts. You really do have this mix-and-match issue. It also means that just because the first count is-- Let's say the jury comes back and it's not guilty. People need to hold their breath because the first counts are actually for charges that Donald Trump is not the signatory of. If you were having a compromise or even just a logical discussion within the jury, you might have a jury that says, "You know what? We're going to acquit on those, but we're going to convict on others."

Brian Lehrer: Right. Theoretically, he could be acquitted or there could be a hung jury in 33 counts, find him guilty of one count for some check that he personally wrote, something like that, and he's a convicted felon.

Andrew Weissmann: Absolutely. Just to be clear from the government's perspective, any conviction on any count is a huge victory and a huge defeat for the defense. Typically, just to put the shoe on the other foot, a hung jury where they don't reach a verdict on anything is generally viewed by the defense as favorable even though the state gets to retry the case if it chooses to.

Brian Lehrer: We're getting a few versions of the same question in text messages. Listener writes, "Why doesn't the jury get a copy of the trial transcript while deliberating?" Another one, similar, "Why is the jury not allowed to watch or listen to recordings of the trial as many times as they'd like at this point?"

Andrew Weissmann: Some of that is a quirk of New York law. Under New York law, the jurors are not allowed to get the jury charge, the written jury charge. Federally, I've practiced in federal court. The judge is allowed to send the jury charge back. I should say sometimes even in the federal system, a judge decides not to do that and also not to send all of the transcripts back of all of the testimony and not send all of the exhibits back, but it varies in federal court judge by judge as to what they think is useful.

Sometimes it's considered inundating them if they are sent all of that as opposed to, "Ask us for what you want like a menu in a restaurant and we'll send that back to you." As I said, with a jury charge, I think it's important that they understand it. The downside of sending the jury charge back is that it becomes a biblical exegesis and you can get people fretting over, "What does the word 'the' mean?" In some ways, it is better to have a note come out saying, "Can you explain something to us?" The judge then does it as opposed to arguments within the jury when they can actually just get the judge to explain the law to them.

Brian Lehrer: To that point, I saw that the lawyers were negotiating yesterday with the judge over what exact portions of things would be read back. Is it not straightforward like the jury asked for whatever testimony it wants to hear and it's an automatic yes like one side or another can argue that the jury should not be allowed to rehear certain things?

Andrew Weissmann: This is my least favorite part of the trial when I was a trial lawyer. The answer is, this is going to give lawyers a bad name if they don't have it already, which is nothing simple. If you have a note that we had yesterday that says, "We'd like David Pecker's testimony about the Trump Tower meeting," well, does that mean only his testimony about what actually happened at the meeting or what about a conversation he had later about the meeting?

Both sides read that note and try and figure out, "Are there portions of the transcript that are favorable to their side that they can make an argument that it's actually called for by the note?" Usually, and this has happened already, both sides actually agreed with respect to two of their four requests. They actually agreed on the page and line numbers of what would be read back by the court to the jury. On two, they had different views and the judge heard from both sides and then made a decision.

Brian Lehrer: We'll continue in a minute with Andrew Weissmann. We will get to the stretch of David Pecker testimony and Michael Cohen testimony that they asked to rehear. I'm interested to hear if Andrew thinks they were testing Cohen's credibility. We'll get to that. Listeners, we'll get to some of your questions as well as we talk as the jury deliberates in the Donald Trump criminal trial. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we're following the Trump criminal trial jury and its requests for rehearing parts of the jury instructions and testimony. That's what we have so far from the jury deliberations. We're talking about it with Andrew Weissmann, professor of practice at the NYU Law School, lead prosecutor in Robert Mueller’s Special Counsel's Office in the Russia investigation, MSNBC legal analyst, co-author of The Trump Indictments: The Historic Charging Documents with Commentary, and co-host of the podcast called Prosecuting Donald Trump. Josie in Brooklyn, you're on WNYC with Andrew Weissmann. Hello, Josie.

Josie: Hi. Good morning. I was hoping that Andrew Weissmann could explain the difference between the charges against John Edwards and these charges against Trump if there's different charges or why they think these will stick and who was acquitted, John Edwards.

Brian Lehrer: John Edwards, for people who forget, the former Democratic presidential hopeful who was charged with something similar. I think Andrew got off with the argument that he was concealing hush money payments or concealing something regarding a mistress so his wife wouldn't find out as opposed to the electorate wouldn't find out. We have heard a similar defense from the Trump team, right?

Andrew Weissmann: We have. I think there are two differences with respect to the John Edwards case. One is legal and one is factual. Legally, the two crimes, the ones charged with John Edwards and the one charged here, are pretty distinct although, as Josie points out, there's an overlap. This is not, first and foremost, a federal election fraud or election campaign violation charge. It's about a false business record.

The overlap is that in order for this to be a felony, a defendant has to have intended to commit some other offense. One of those other offenses alleged by the state in New York is that there was this federal election violation. That's the overlap is that for it to be a felony that that was part of the intent. The factual difference is I think the key. I think that's what really Josie is asking really excellent question about. That's the defense did in this New York case float, I would say, softly, the idea that this may have been done to keep information from Melania, not to keep information from the electorate.

I would note in summation, that was a very minor part of the defense summation. I think the reason is that there was so much evidence from people, not just Michael Cohen, that that was not what was motivating Donald Trump. Indeed, let me just give you one example that Hope Hicks testified that when she had a direct conversation with Donald Trump and her credibility was not challenged at all by the defense that he said, "Thank God, the Stormy Daniels stuff came out after the election, not before." He wasn't saying, "It's just as damaging now because what I was concerned about was not the election. I was concerned about Melania." The other is just to be clear--

Brian Lehrer: Glad this came out after the election out of Trump's lips.

Andrew Weissmann: Exactly.

Brian Lehrer: That's almost case closed in terms of that question.

Andrew Weissmann: Yes. Obviously, that's just one example. I think that is why the defense, I think, was correct not to put too much weight on that particular argument. Whereas in the Edwards case, there was substantial reason given there. That's just a factual call by the jury as to whether they think what the motivation was. As Josie points out, the jury, even if it wasn't argued very strenuously, they could find that. I just don't think that it would be likely given the nature of the proof.

Brian Lehrer: Josie, thanks for the question. Now, the jurors are asking to hear Pecker's testimony and Michael Cohen's testimony about a meeting at Trump Tower in 2015. You'll refresh our memory on the basics there, but my question, which I said earlier I was going to ask you, is are they looking to test Michael Cohen's credibility since he's a convicted liar and everybody says his credibility is a key to whether they can convict Trump?

Andrew Weissmann: If you recall, David Pecker, who was the first witness, talks about essentially ground zero, the beginning of this plan that's alleged by the state. That was this meeting with David Pecker as a principal for the National Enquirer and Donald Trump as the other principal. Michael Cohen is there, to borrow a phrase from Nicolle Wallace, as a staffer. He is not a principal there.

That is the meeting where it's the so-called "catch-and-kill meeting," where the National Enquirer says, "We can help in several ways. I can be your eyes and ears. I can disseminate fake stories with respect to your adversaries and I can also kill damaging stories." David Pecker, in the read-back that the jury will hear, actually uses the phrase "kill," that I can kill those stories. This is a meeting where the jury actually has two people who are at the meeting testifying about it because Michael Cohen testified about it.

They asked for that to be read back. David Pecker testified about it and they asked for that to be read back. This could easily be a way of testing what it is that Michael Cohen said because they do need to see corroboration of Michael Cohen. No juror is ever going to convict solely based on Michael Cohen's testimony. In fact, New York, legally, you cannot convict somebody solely on the testimony of an accomplice.

The other is I just think something that was noticeable is in the very lengthy closings, one of the last things that the jury heard from Joshua Steinglass, the very skilled lead prosecutor, he said, "This meeting is really important." He asked the jurors to focus in on this meeting and what happened. One tea-leaf reading is that they actually were very much listening to it and they're doing what he said. Doesn't mean they're going to agree with his position, but it could easily be a one-to-one.

It also is chronologically where you would start if you're looking at this. I think it's too soon to say this is a really positive good note for the prosecution, but what I guess I would say dispassionately is it's certainly not a bad note for the prosecution. The fact that they're asking to have some testimony read back by Michael Cohen means that they are not adopting the defense view, which is no matter what he says, it's not believable.

Brian Lehrer: Here's Howard in Great Neck, who has, I think, a relevant question to this point. Howard, you're on WNYC with Andrew Weissmann. Hello.

Howard: Thank you. Good morning, Brian, and good morning, Mr. Weissmann. Thank you for all your good work. Here's my question. Let's say that there are one or more jurors who say, "I don't believe a word Michael Cohen says. This guy is simply out to get Donald Trump and we can't pay any attention to him." Do you believe that the prosecution presented sufficient evidence apart from Michael Cohen, whereby other jurors could say to such a juror, "Yes, okay. Even if you don't believe Cohen, there's all this and that's enough"?

Andrew Weissmann: I love that question. I think that one of the things that Mr. Steinglass, the lead prosecutor I was just speaking of, did, I think, effectively at the end of his summation is he said, "Let me talk to you about the direct evidence against Donald Trump." There was a PowerPoint that he displayed. You needed to be there to see just how dramatically effective it was. He left aside the direct evidence from Michael Cohen.

He would make a point and it would show up on the PowerPoint and then it would essentially almost explode to-- it would create an image of the exhibit or the transcript from Hope Hicks, for instance, saying about the direct conversations she had that we just talked about. It kept on populating the same page. By the end of it, the entire page was full of exhibits and testimony other than Michael Cohen of direct evidence against the defendant as well as, if you remember, the circumstantial evidence is just as valid as direct evidence.

At times, it's even stronger. One of the things that Mr. Steinglass, I think, did well, and I never heard anything from Mr. Blanche, the lead lawyer for Donald Trump, addressing this, is the argument that Michael Cohen just did this as a rogue actor was something that Joshua Steinglass really took on and said, "What would be the possible reason that Michael Cohen would keep this from Donald Trump?"

He wanted to get paid back. He would get fired if he was doing this on his own. It would be audacious for him to say, "I decided how he would handle Stormy Daniels and whether we would pay her before or after the election without discussing it with the person who's the primary beneficiary." He just went through argument after argument after argument, logical arguments as to why it would make no sense. It would not be in Michael Cohen's own self-interest to have kept this from the principal.

I think, obviously, each juror have to make up their mind about how convincing that is and whether it reaches the level of beyond a reasonable doubt. If I were a juror trying to convince other jurors without relying on Michael Cohen, it would be that constellation of direct evidence, and then I think there's very logical inferences with respect to why Michael Cohen would clearly have told the principal.

Brian Lehrer: Now, briefly, because we're going to run out of time soon, the one other piece of testimony that they've asked to rehear so far, David Pecker of the National Enquirer regarding a phone call between Trump and Pecker while Pecker was in an investor meeting. What do you think they're looking for there?

Andrew Weissmann: Again, I think it's just more direct evidence from a witness whose credibility was not challenged that puts Donald Trump's knowledge and intent in play so that he is part of the scheme, he knows about the scheme, and people aren't trying to keep it from him. Again, you're hearing this from a witness who is not Michael Cohen and who the defense, I think, somewhat surprisingly did not challenge his credibility.

Brian Lehrer: Last thing before you go, Andrew. In the background behind the scenes here as you've been on, we've been watching the feed from the Supreme Court because this is a decision day, as you know, Thursdays at this time of year. We were waiting to see if any significant ruling came down and particularly if the presidential immunity ruling came down, which it did not. Probably even the Supreme Court is concerned enough with appearances and theatrical roll-outs of things.

I think we've seen a lot of theatrical roll-outs from the Supreme Court over the years but that they probably did not want to release that decision into the thick of the jury deliberations when they're ongoing. Even if they find largely for Trump in terms of presidential immunity and some of these alleged acts took place while he was president, which is central claim there, immune from things that one does while president of the United States, some of this was, some of this wasn't. Just to be clear for our listeners, even if they find lots of immunity for Donald Trump, none of it would apply here because it's a New York State case. True or false?

Andrew Weissmann: It is true. That will not apply here. I'm not sure it's because it's a New York case. It's that the conduct at issue here, although some of it occurred when Donald Trump was president, it clearly was in his personal capacity. It had nothing to do with his role as president. There's the issue of whether someone as president could be immune.

Even Donald Trump in the Supreme Court conceded and did not argue that conduct that relates in its personal capacity would be something that would be subject to immunity. Here, assuming that there's conviction and they say you paid checks as part of this reimbursement scheme to Michael Cohen with respect to the hush money payments, that clearly was not a presidential act in any way, shape, or form.

Brian Lehrer: Did you just say that if they do find presidential immunity that that would apply not just to federal government charges but also to charges in state courts like New York?

Andrew Weissmann: That is an open issue, but I think that, certainly, Donald Trump would take that position. Very much like the disqualification decision that came up from Colorado that there would be a challenge saying that you don't want 50 states to be able to bring those kinds of charges. In this case, it's nothing that I think anyone has to worry about because it's so clearly personal conduct that is at issue.

Brian Lehrer: He's responsible for it. Andrew Weissmann, professor of practice at the NYU Law School, lead prosecutor in Robert Mueller's Special Counsel's Office in the Russia investigation, MSNBC legal analyst, co-author of The Trump Indictments: The Historic Charging Documents with Commentary, co-host of the podcast called Prosecuting Donald Trump. All right, back to the TV studio with you. Andrew, thank you so much for today.

Andrew Weissmann: Thanks so much, Brian.

 

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