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0:30

Welcome to How to Went Twenty Twenty

0:33

Four. We are recording this episode on

0:35

Wednesday, May twenty second. I'm Jennifer Palmieri

0:37

and I'm here if my co host

0:40

Claire Mccaskill hi Claire Page And so

0:42

it's almost summer and on the first

0:44

debate is in a month. I now

0:46

is wild crazy. But

0:49

this is commencement season. This is

0:51

that time of year which I

0:53

always looked forward to. A. Lot

0:56

of invitations to do college and high

0:58

school commencement and at Bidens commencement speech

1:01

at Morehouse College on Sunday. He not

1:03

only spoke to the continuing struggles of

1:05

young black men in America, he also

1:07

made an effort to reach out to

1:09

students protesting the war in Gaza and

1:11

that it should be taken seriously. Yeah,

1:14

there is another group that he also

1:16

needs to be talking to Swing voters.

1:18

Know he's got to challenges. One

1:20

is the enthusiasm of the base,

1:22

particularly people of color and and

1:24

particularly young people of color. but

1:26

he also got to worry about

1:28

swing voters that the same time,

1:30

which is hard to. Jan and

1:32

I want to strategize on the

1:35

issues that these groups care about

1:37

what like immigration, crime, of course,

1:39

the conflict in Gaza. And the

1:41

economy? yeah, there's a lot to cover Their

1:43

really get all of that. And now that

1:45

the defense wrapped up and the jury will

1:47

be ready to deliberate, After closing arguments next

1:49

week, we thought it would be a good

1:51

time to catch people up on some take

1:53

a ways from the first ever criminal trial

1:55

of a former President Barber Mcquaid, a former

1:57

Us Attorney for the Eastern District of Michigan,

1:59

John. Claire for that in just a bit.

2:01

But first, let's get to this week's strategy

2:04

session. If we were in the room, what

2:06

would we be saying to the Biden campaign

2:09

on immigration? Yeah, Chuck Schumer is

2:11

going to force a vote on

2:13

Thursday on the bipartisan border

2:15

security package that GOP blocked

2:17

this year, trying to underscore

2:20

that the Democrats are willing

2:22

to try and solve this problem

2:24

rather than just talk about it.

2:26

And I just think it's really

2:28

important that people realize how conservative

2:30

this immigration bill is. This

2:33

bill goes much further at changing

2:35

the request for asylum process. It

2:37

goes much further in trying to

2:39

stop the flow of immigrants at

2:42

the border. You know, this

2:44

isn't going to get a different outcome

2:46

in terms of enforcing a vote. But

2:48

I don't know about you, Jen, I

2:50

think it's really smart that they're ginning

2:52

this up again, pardon the expression, to

2:54

do another vote to try to break

2:56

through that the Republicans are the ones

2:58

that are hesitating to fix the problem

3:00

that presents itself. And I

3:02

think that they probably want to

3:05

get that vote done now. The

3:07

president take a executive action on

3:09

the border after he's proven that

3:11

Congress won't pass something and do

3:13

all of that

3:15

before the debate, right? So then Biden can stand

3:17

on stage at the debate and he can say

3:20

to Trump directly, we had

3:22

a bipartisan solution. He can say all

3:24

the things we know to be true.

3:26

I've put more agents on the border

3:28

than anyone. I've spent more money on

3:30

border enforcement than anyone. We had a

3:32

bipartisan package and it would not pass

3:34

because you told them to vote

3:37

against it. I think for Democrats who are

3:39

nervous and I can feel it, friends, I

3:41

can feel you getting nervous, be

3:43

looking to the debate. And when you're seeing things

3:45

that are happening that the campaign is doing

3:47

and think, well, that seems smart, but it's kind

3:50

of a one off. How's that getting traction?

3:52

A lot of this stuff is laying down markers

3:54

so that they can take him on in the

3:56

debate. Yeah. And the Democrats need to continue

3:58

to be on offense, not defense. defense about

4:01

the subjects that Fox News is blowing

4:03

into the land of disinformation. I mean,

4:05

if you watch Fox News, you would

4:07

think that there's 100,000 people coming across

4:10

the border today and they're all going

4:12

into the cities and raping and murdering

4:14

people, which is, of course, so far

4:17

from the truth. It's laughable.

4:19

But I think it is important

4:21

to remember that we've got to focus

4:23

on safe legal ways for people to

4:25

immigrate to the U.S. and making it

4:27

harder to come here illegally. But let's

4:29

talk about, like, you brought up swing

4:32

voters. We have seen a lot of

4:34

action taken by the Biden team that

4:36

seemed to be geared toward base voters,

4:38

voters that voted for Biden in 2020,

4:41

that he needs to get back. And

4:43

you think they're not reaching out enough

4:45

to swing voters. I feel like that

4:47

doesn't need to be at odds. I

4:50

feel like you can do both these

4:52

days because of how fractured the media

4:54

ecosystem is. I think you can. And

4:56

I think you can do it a

4:59

lot with targeting. And we talked before

5:01

about the ability to target information online,

5:03

particularly. But the two biggest vulnerabilities that

5:06

Biden has writ large with those voters

5:08

in Pennsylvania, Wisconsin, Michigan, Nevada, Arizona, are

5:10

immigration and crime. And he's got

5:12

to lean into crime because, frankly, especially

5:15

on crime, what these voters are hearing

5:17

is just not true. And a growing

5:19

number of Americans are saying reducing crime

5:21

should be a top priority for the

5:23

president. Well, we have reduced crime. Crime

5:26

is down in America. You would never

5:28

know that if you watched conservative media.

5:30

You would think that you couldn't walk

5:32

a downtown block in America without being

5:34

the victim of violent crime. It's really,

5:37

really disturbing to me that they're getting

5:39

away with making people believe they should

5:41

be frightened on the streets of

5:43

urban America. And as we talk about this

5:45

and these things that aren't won't break through, you

5:47

know, including people still thinking that the economy

5:49

is not doing well. I don't know that you can

5:51

convince, you know, that's a thing people got to they

5:54

got to hear a lot of good news. They got

5:56

to see prices going down. It's great. The McDonald's, Wendy's

5:58

and Target are all lowering their prices. and see

6:00

it in their own life and

6:02

then understand what Biden's done to

6:04

make that happen. But I think

6:07

Biden's problem is his views and

6:09

the state of the world are

6:11

not breaking through. You can see

6:13

why they want to do this debate.

6:15

And I talked to the campaign yesterday

6:17

about just kind of where we are

6:20

because I was like, you can feel

6:22

people, even though we try to discount

6:24

New York Times, the N.O. polls, people

6:26

feeling nervous. And polls may not change

6:28

really until September. We've talked about that

6:30

before. But there's a good reason why.

6:32

And not only do people not really

6:35

pay attention, particularly voters that aren't paying

6:37

attention to the news day to day,

6:39

that they don't pay attention until after

6:41

Labor Day, voters who consume news, Biden

6:43

is winning those people and winning them

6:45

by a lot. Right? Yeah. And

6:47

so let's talk about his commencement

6:50

address at Morehouse College. Let's listen

6:52

to some audio of President Biden

6:54

at that speech, talking about the

6:56

protests around the way Israel is

6:58

conducting the war against Hamas. What

7:25

do you think? Smart way for him

7:27

to handle this, Jen? A very straightforward

7:29

way, I thought, right?

7:47

I know that people are protesting, people protesting

7:49

right here. I know you have concerns. I

7:51

hear the concerns. We're doing what we can.

7:53

I do feel like

7:55

I believe he's listening to these concerns.

7:57

I think he's taking into account. I

8:00

think when you hear him say this and you hear

8:02

him say it a lot, it is meaningful. Now, then

8:04

of course two days later, he's got to come out

8:06

and say that Hamas is a war criminal and Israel

8:08

is not. You know, there's things not... If you're on

8:11

the side of the student protesters, you might feel like,

8:13

are you hearing me? But I

8:15

do think that that's the composite picture you want

8:17

to emerge of him. The question with all this

8:19

stuff is how does it break through, right? He

8:22

also hit another topic in Morehouse that I

8:24

think is really important and that is policing

8:26

reforms. It is four years since... In

8:29

fact, we're right at four years after

8:31

George Floyd was murdered by

8:33

police officers. And once again,

8:35

he I think did a good job

8:37

speaking to the audience at this

8:40

graduation. Let's listen to what he

8:42

had to say speaking directly to black men

8:44

about their experience in America. You

8:46

start a college just as George

8:48

Floyd was murdered and

8:50

there was a reckoning on race. It's

8:52

not to the wonder. What

8:55

do you hear about actually works for you? What

8:58

is democracy? If black men are

9:00

being killed in the street, what is

9:02

democracy? The trail

9:04

of broken promises still leave black

9:06

communities behind. What is

9:08

democracy? You have to be 10 times better

9:11

than anyone else to get a fair shot. Most

9:13

of all, what does it mean? As

9:16

you've heard before, you'd be

9:19

a black man who loves his country, even

9:21

if it doesn't love him back in equal measure. So

9:24

we've seen a lot of policing

9:26

reforms since the murder, mostly by

9:29

democratic state legislatures around the country

9:31

that have done more on accountability

9:34

and addressing the use of force and

9:37

making sure that there's a mechanism to

9:39

root out bad police officers. On the

9:41

other hand, it has been the Democrats

9:43

that have funded the police by and

9:46

large in this country over an increased

9:48

funding for police. Another thing

9:50

that we can do both things at once. We

9:52

can reform police, but we can also adequately

9:54

fund them. And I think Biden really

9:56

needs to lean in to the fact

9:58

that Republicans have voted. against his

10:01

budget proposals that increased

10:03

funding to police. There

10:05

is a federal bill that has been pushed

10:07

by the Democrats to prohibit racial profiling

10:09

and creating a national misconduct registry,

10:12

but it stalled in the Senate

10:14

twice, mostly with opposition from Republicans.

10:16

And then there have been lots of

10:18

reforms in the states. Over 30 states

10:21

have put forward important policing reform laws,

10:23

addressing use of force, and intervening in

10:25

reporting misconduct. We have made some progress.

10:27

I think it's important that we should

10:29

celebrate that progress. At the

10:31

same time, we should recognize that funding

10:33

the police is also very important for

10:36

everyone in every community to feel safe.

10:38

Yeah. Both on border enforcement and

10:41

the police. Did you want to talk

10:43

about Portland? You know, I think

10:45

what happened on Tuesday, Oregon had

10:47

their primary elections, and the progressive

10:49

candidates in open primaries for the

10:51

Congress were defeated by more moderate

10:53

opponents. And it appears,

10:56

although it hasn't been called yet, but

10:58

it appears that the sitting prosecutor who

11:00

was very much part of the progressive

11:02

prosecutor movement was defeated by a

11:04

more moderate candidate who talked more

11:06

about street safety and making people

11:08

feel comfortable and safe in all areas of

11:10

Portland, Oregon. And the same thing happened in

11:12

San Francisco two years ago, right?

11:15

A very progressive DA was

11:17

ousted and, you know, very liberal

11:19

San Francisco for, again, a more

11:21

moderate, someone with more moderate

11:23

views. You know, it is

11:25

a complicated situation, but the Democrats and

11:28

Biden have advanced reforms that hold police

11:30

accountable while also supporting police in a

11:32

way that the Republicans have not. And

11:35

it just does need to, like everything else,

11:37

it just needs to break through more. And,

11:39

you know, one more thing about the Morehouse

11:41

commencement, it's hard to talk to students. You

11:43

know, sure, Biden's speech was before a group

11:46

of students, but they weren't the only audience.

11:48

You know, he's got to do a commencement,

11:50

and it says a lot to a lot

11:52

of black voters that he chose to

11:54

go to Morehouse. It's a very

11:56

storied institution, and that alone says

11:58

something. is important, but

12:01

don't think that that's like Biden's

12:03

way of communicating with college students.

12:05

Okay, that was a speech to a

12:07

broader community than just the students in

12:10

the audience that complained that it was

12:12

too political. Yeah, and by the way, there

12:14

were more adults and parents and grandparents of

12:16

students there than there were students, and he

12:18

was speaking to all of them. Yeah.

12:21

Let's take a quick break. When we're

12:23

back, Barbara McQuaid, former US attorney for

12:25

the Eastern District of Michigan, stops in

12:27

to give some context to the latest

12:29

from the New York trial. Estimations start

12:31

next Tuesday. Claire will be back with

12:33

Barbara in a moment. Spectrum

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world's never been harder to

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understand. That's why it's never

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13:24

MSNBC. Understand more. Welcome

13:33

back. The historic criminal trial of

13:35

Donald Trump is winding down and we

13:37

will have summations, closing arguments on Tuesday.

13:39

We thought it would be a great

13:41

time to consider how the

13:43

whole trial went and what to expect when

13:45

the jury meets to decide the case next

13:47

week. Barbara McQuaid was the

13:50

U.S. Attorney for the Eastern District of Michigan from 2010

13:52

to 2017 and

13:54

the author of the book, Attack From

13:56

Within, How Disinformation is Sabotaging

13:59

America. If we have time, we should talk

14:01

about that too because that is a big damn deal. She's

14:04

also a law professor at the University of Michigan

14:06

Law School and she joins me now to dig

14:08

into where the trial stands after weeks of

14:10

testimony. Barb, thanks so much for spending some

14:12

time with me this morning. Oh, Claire,

14:14

thanks so much for having me. Glad

14:16

to be with you. Okay, so I

14:18

thought it might be good to start

14:20

out with your opinion of the worst

14:23

moment for the defense and

14:25

the worst moment for the prosecution

14:27

in this trial. What's your sense

14:29

of where both of them flailed

14:32

slightly and probably had a little bit of

14:34

trouble in the eyes of the jury? Yeah, I

14:36

suppose worst moment can depend on most

14:38

embarrassing for Donald Trump. But in terms

14:40

of what's the most harmful for the

14:43

case, frankly, I think it's that audio

14:45

recording where Michael Cohen is talking to

14:47

Donald Trump because that's really the only

14:49

place where we hear really direct

14:52

evidence of Donald Trump being involved

14:54

in this scheme. So I

14:56

thought that was pretty powerful evidence against

14:58

Donald Trump. As for the defense, I

15:01

suppose it was the cross-examination of Michael

15:03

Cohen. Certainly there were things there

15:05

that he got beat up a little bit, sometimes

15:08

a little bit contentious and cantankerous

15:10

when he was confronted with prior

15:12

inconsistent statements. Instead of saying, yes,

15:14

it was a lie, lean

15:16

into it, admit it, man, he would say,

15:18

I wasn't entirely accurate. I'm not sure I

15:20

would agree with that. So I thought that

15:22

the defense scored some points there. But I

15:25

think in the end, the prosecution knew that

15:27

was coming. And I thought Michael

15:29

Cohen held up about as well as might have been

15:31

expected. What did you think

15:33

of Costello on the stand? And what

15:35

was really interesting to me about Costello

15:37

is that he's a lawyer.

15:40

Now I gotta tell you, I can't

15:42

imagine he's been a courtroom lawyer because

15:44

if you've tried a case to a

15:46

jury, you are keenly aware of how

15:48

a witness is going to

15:50

be perceived by the jury. It is

15:52

all about them weighing the credibility of

15:54

the witness and their demeanor on the

15:57

stand and how they handle themselves. at

16:00

how he behaved during

16:02

direct when the prosecution

16:04

was objecting and I

16:07

very rarely seen a judge clear the

16:09

courtroom to admonish a witness. What was

16:11

your take on that? I was confused

16:13

why he would be so out of

16:15

control. Boy, same Claire. And you know

16:17

this is witness called by the defense.

16:19

You would expect him to come in

16:21

there to be smooth, to be polished.

16:23

This is an experienced attorney but I

16:25

agree with your observation that this was

16:27

a very poor way to conduct oneself

16:29

in court. And I think if anything

16:31

it really helped the prosecution because it

16:33

fed into this narrative of kind of

16:36

mob boss, arrogant,

16:38

untouchable, nobody's the boss of me.

16:40

And so I think it fed

16:42

this narrative of this is the guy who's

16:44

saying things like, you have friends in high

16:46

places, you should sleep well tonight, a back

16:49

channel to Rudy Giuliani and Donald Trump. I

16:51

mean my gosh this really sounds like mob

16:53

stuff. And so I thought it

16:55

really kind of crystallized the narrative that

16:57

the prosecution is trying to show here.

16:59

So huge backfire I think for the defense.

17:01

And I really think that this is a real

17:04

interesting window into the mind of Donald

17:06

Trump and his team. This is how

17:08

they see the world, that the world

17:11

succeeds on the basis of bullying and

17:13

power and arrogance and just show up

17:15

and say things are true. And I

17:18

think a jury is going to really

17:20

recoil at that idea. And so I

17:22

think it did not help the defense

17:24

and I think it very much helped

17:26

the prosecution. You know when you're preparing

17:28

for a cross-examination, the best gift

17:31

you can be given is an

17:33

opportunity to tie a witness to

17:35

actual documents and words they have

17:38

used. And I have sat at

17:40

the table and listened to a

17:43

witness on direct as a prosecutor

17:45

and felt like I've drawn an

17:47

inside straight. And the prosecutor had

17:50

to feel that way during

17:52

that direct because talk about

17:54

an opening for her to

17:56

come back on the cross

17:58

with those emails. that

18:00

had that language that you talked about.

18:03

I mean, she had to have been

18:06

like, her heart had to start beating

18:08

faster as that witness began being that

18:10

kind of, you know, jerk bully on

18:12

the stand knowing that she had those

18:14

emails to cross him with. I

18:17

was just astounded that the defense

18:19

wasn't more prepared for that coming.

18:21

That's the last taste in the

18:23

mouth of a jury, right? Oh,

18:25

I know. Right? I really actually

18:28

questioned both the defense and the prosecution for

18:30

the way they ended their cases. They always,

18:32

as a prosecutor, did not want to end

18:34

with a cooperator. I would put Barry the

18:36

cooperator somewhere in the middle, right? Because of

18:38

those concepts of primacy and recency, they're going

18:40

to remember the first witness, David Pepper, very

18:42

strong witness for the prosecution. Right. Someone

18:45

who's aligned with Donald Trump and yet gave all of

18:47

this really damaging testimony. Great first

18:49

witness. And then they end him like a Cohen

18:51

who's got some baggage. I thought that was a

18:53

really risky way to end the case for the

18:55

prosecution. I would have put up somebody,

18:58

you know, some insider paralegal for the law

19:00

firm, you know, for the prosecution

19:02

or, you know, an investigator or something like that.

19:05

And then same on the defense. Again,

19:07

they really misfired here. I really think

19:09

they thought, oh, you know, Bob Costello

19:12

is going to come in and tell him what's what.

19:15

And boy, did he tank. And I agree

19:17

that it is left in the minds of

19:19

the jurors who now have several days off

19:21

to sort of let this all simmer and

19:24

percolate. And I think that between the testimony

19:26

of Costello and Michael Cohen, who, you know,

19:28

of course, is Trump's guy,

19:31

every piece of damaging impression that you get

19:33

about Michael Cohen also reflects on Donald Trump

19:35

because he was his personal lawyer for, oh,

19:37

the 10 years. This

19:40

is the guy he wanted to fix his

19:42

problems and intimidate people into paying pennies on

19:44

the dollar for every debt that he owed.

19:47

And so I think that it was not a

19:49

good way for the defense to end their case.

19:51

I know at one point they were trying to

19:53

get in an expert who would testify about, you

19:55

know, FEC matters, but it seemed like the battle

19:57

there was all about whether he was going to

19:59

actually try to. misstate the law

20:01

on behalf of the defense and so

20:03

they were not successful there. So let's

20:05

talk a little bit about charging documents.

20:07

The charging documents are where the lawyers

20:09

argue what the judge should instruct the

20:12

jury on. And keep in mind what

20:14

the jury is going to be told is

20:16

you now have the facts, the

20:19

evidence that has been presented to you through

20:21

documents and witness testimony. Now you have to

20:23

take those facts and apply it to the

20:25

law and here is the law. And we

20:27

don't know what the final instructions are going

20:29

to be because I don't think the judge

20:31

has published them and said he won't publish

20:33

them to the attorneys until Thursday. Was

20:35

there anything about the arguments around

20:37

the jury instructions that surprised you?

20:40

And is there anything you think it's important for people

20:42

to keep in mind about those jury instructions based

20:44

on what the judge said from the bench

20:47

yesterday? So this is a really

20:49

important part of the case, Claire, as

20:51

you well know. Jury instructions is probably

20:53

the issue that is most frequently appealed.

20:55

When there's a reversal on appeal, it's

20:57

because of some error in jury instructions.

21:00

And it can really make a difference in

21:02

the outcome of the case because it is

21:04

where the judge says, here's what the prosecution

21:06

has to prove to find guilt beyond a

21:08

reasonable doubt. And to me, the really

21:10

tricky thing is always intent. Proving

21:13

intent can be very difficult for a

21:15

prosecutor because you can't read another person's

21:17

mind and so you have to be

21:20

able to prove intent through inferences and

21:22

circumstantial evidence and what they said,

21:24

what they did, the totality of the circumstances, etc.

21:26

And so it can be really tricky. And as you

21:29

know, there's a wide range of intents that can be

21:31

required under the law from simple negligence, what you should

21:33

have known, all the way up to willfulness, that you

21:35

knew what you were doing and you knew it was

21:37

illegal. And so yesterday we saw

21:39

a lot of tug over this. And

21:42

at one point, the defense was trying

21:44

to insert the word willful

21:46

into the jury instructions. And

21:48

the reason they wanted to do that is the

21:50

stakes are so high in this case. And

21:52

the prosecution came back with what I thought was the

21:55

perfect response was just because the stakes are high doesn't

21:57

mean we should be rewriting the law. The law says

21:59

what it says. it says intent to defraud

22:01

by violating some other law and that's what

22:03

the instructions would say. So we don't know

22:05

what those final instructions would look like but

22:07

overall I think the law is actually fairly

22:10

favorable to the prosecution and so I don't

22:12

think we'll be seeing those words willful and

22:14

other things added as additional obstacles for the

22:16

prosecution to overcome. Are you worried about

22:18

the law itself? Is it too

22:20

broad? I mean I'm thinking back to

22:23

the McDonald trial in Virginia and how

22:25

the courts have reinterpreted the bribery

22:27

statutes to make it much harder

22:29

for the government to bring bribery

22:31

and corruption cases against elected officials.

22:34

Is this statute so broad and are the

22:36

instructions going to be so broad? The jury's

22:38

not going to have to find unanimously

22:41

what law he was violating

22:43

in terms of enhancing this from a

22:46

misdemeanor to a felony. One juror can

22:48

decide that he was trying to impact

22:50

the election illegally. Another juror can decide

22:53

he was trying to avoid taxes illegally.

22:55

I mean they don't have to all

22:57

agree, they just have to agree that

23:00

there was some unlawful intent in terms

23:02

of filing false business records. Does that

23:04

vagueness worry you at all on appeal

23:07

as somebody who is not just a

23:09

practiced trial lawyer but also

23:11

somebody who is an academic? Are you

23:13

worried about the vagueness of the statute?

23:15

A little bit. The vagueness doctrine says

23:17

that people are entitled to fair notice

23:20

of what the law prohibits so that

23:22

we have the ability to conform our

23:24

behavior with the requirements of the law.

23:26

And so if a law is vague and unclear

23:29

about what it requires then that can

23:31

be problematic. And so here as you

23:33

say the intent to defraud here is

23:35

for committing a crime that makes it

23:37

illegal to promote or prevent the election

23:39

of a candidate by unlawful means which

23:41

then requires a look at another statute.

23:43

But I think that the

23:45

way that this statute has been interpreted

23:48

under New York law is that

23:51

this is considered what's called manner

23:53

and means and not an element of

23:55

the offense. The example they

23:57

frequently use in this case is burglary.

24:00

And there is New York Court of Appeals, the

24:02

highest court in New York case law and the

24:04

case called Mackey that says burglary is

24:06

breaking an entrance with intent to commit

24:08

a felony inside the building. But you

24:11

don't have to agree on what felony

24:13

that is. So I think

24:15

that ultimately what you want to

24:17

make sure is that the person is not

24:19

doing something innocent without realizing it. I think

24:21

when you're falsifying business documents and you're doing

24:24

it because you know that you are covering

24:26

up something you would otherwise be required to

24:28

report on campaign finance forms that is probably

24:30

adequate notice. So I'd be willing to defend

24:32

this case in a court of appeals. But

24:34

as you say, the current makeup

24:37

of the Supreme Court has been

24:39

kind of gutting some of these

24:41

public corruption statutes in the McDonald

24:43

case, in the Bridgegate case, in

24:45

some other cases and now perhaps

24:47

this obstruction of an official proceeding case,

24:49

Fisher, that's before the court now. So

24:52

it is not without peril I

24:54

think. But I think it is sound

24:56

under New York law and I'd be willing to

24:58

defend it in the Supreme Court if it came to that. So

25:01

people need to remember that you have to have

25:03

a unanimous jury for two things. You have to

25:05

have a unanimous jury for a conviction and

25:07

you have to have a unanimous verdict for an

25:09

acquittal. But there's a wide space between those

25:12

two. Hold out jurors are

25:14

the bane of prosecutors. Let's

25:17

assume for a moment that this

25:19

case is hung. Let's assume

25:21

that there are one or two or three

25:23

jurors that just refuse to go

25:25

along. Perhaps the

25:28

jury compromises and finds him guilty of the

25:30

misdemeanor without the enhancement. Perhaps

25:32

they just say we can't reach a verdict and

25:34

they come back to the court and say we

25:37

cannot reach a verdict and the judge accepts that.

25:39

Why don't you explain to everyone what happens then

25:41

if it's a hung jury? Yeah. So

25:43

if it's a hung jury, well, first the judge will send

25:45

them back and say try harder. But

25:47

if at some point they really do say, you know

25:50

what, we are hopelessly deadlocked and we're just not going

25:52

to get a verdict, the judge will declare a mistrial.

25:54

And that means that the defendant

25:56

is neither convicted nor acquitted and

25:59

the case may be brought again and so it

26:01

gets set for the

26:05

case may go again. But you know in

26:25

which case sometimes prosecutors dismiss a

26:27

case after a hung verdict. So

26:29

it is certainly perceived I think by most

26:31

defendants as a victory because they at least

26:33

live to fight another day. And if there

26:35

is a retrial of a case clear I

26:37

don't know if you've ever had this experience

26:39

you probably haven't your career as a prosecutor.

26:42

Retrying a case is always in the favor

26:44

of the defendant because they're no surprises strategically

26:46

and they have the transcripts of the witness

26:48

testimony on the prior trial and

26:50

they're able to impeach them on the most

26:52

minor of inconsistencies and make them look like

26:55

they're fabricating evidence at trial when in fact

26:57

they're just you know telling the story slightly

26:59

differently. So we'll see where things land if

27:01

that is the case. Yeah retrial are tough

27:04

because you already have an index of everything

27:07

every witness has said in writing

27:09

under oath and it

27:11

makes impeachment so much easier in terms of

27:13

the witnesses. On the other hand in this

27:15

case it's not like any of these guys

27:18

hadn't made statements before the trial. Right. We

27:20

had lots of lots of words

27:23

that came out of Michael Cohen's mouth

27:25

on his podcasts and in Congress and

27:27

so forth. There was a rich resource

27:29

of impeachable items especially with some of

27:32

the witnesses who had been more public.

27:34

What did you think about them delaying

27:36

the clothes like this? To me of

27:38

course I'm a state prosecutor and we

27:40

just go go go right. We

27:43

don't wait to indict. We are I think

27:45

you would agree typically much more quickly

27:48

getting to court and I would

27:50

be surprised if a state court in my

27:52

state would have said okay come back next

27:54

week. In my experience the judge

27:57

would have instructed the jury yesterday send

27:59

him out to. deliberate and had him

28:01

deliberate until they get a verdict regardless of Memorial

28:03

Day weekend. And that has a way, when there's

28:05

a time clock like that, that is a way

28:07

of putting pressure on the jury to get

28:09

to a result. Were you surprised that

28:11

he waited until next week and do you think that

28:14

gives an advantage to the defense? I was surprised just

28:16

because there's such a long period of delay. You know,

28:18

if it had been a day or half a day,

28:20

maybe that would have made some sense. Because

28:22

I think what I heard him say is he didn't

28:24

want to break up the closing, you know, where the

28:26

prosecution goes before the weekend and the defense goes after

28:28

the weekend. He wanted them to be in close proximity

28:31

and in close proximity to the instructions that he

28:33

gave them so that they can consider those things

28:35

altogether. But I agree with you.

28:37

They had, you know, I guess they're off and

28:40

off on Wednesdays. There's Thursday and

28:42

I think they were going to be off anyway on Friday.

28:45

But I was surprised. However, I do think

28:47

that it was done thoughtfully because I think

28:49

what Judge Marchon is trying to avoid is

28:51

this scenario where the jury gets the case,

28:54

you know, just before a holiday weekend and

28:56

then as you say, it's remarkable how often

28:58

when that happens, they do get a verdict

29:00

before the weekend. So, you know, Friday verdicts

29:02

very common. So I think, I don't think

29:05

it's an advantage for either party. I think

29:07

it kind of puts them on fair equal

29:09

ground and maybe that's why he did it.

29:11

Do you think any of these other trials,

29:13

the federal cases, have a chance of seeing

29:16

a courtroom before November? I don't

29:18

think so. I think there's, you know, a

29:20

slight chance of the federal election interference case

29:22

just because, you know, if the Supreme

29:24

Court, it would require a

29:26

perfect alignment of the stars now, I

29:28

think, which is a pretty quick decision from

29:31

the Supreme Court. We're already in mid-May now.

29:33

It's been almost a month since they heard

29:35

oral argument. That doesn't seem to be coming

29:37

anytime soon. But if that were to come

29:39

and then Judge Chutkin had promised three more

29:41

months to get ready. So that

29:43

puts us in June, July, August and

29:45

the trial could start then. But,

29:48

you know, the likelihood of there being no additional

29:50

delay seems pretty slim to me. And

29:52

so I don't think so. Mar-a-Lago, I

29:55

mean, the judge there, Judge Cannon, has

29:57

suspended the trial date of May 20th

29:59

without... date which is bizarre

30:01

to me. So often when a

30:03

judge adjourns a trial date they at least set

30:05

a new date so that you've got something to

30:07

shoot for. That suggests to me that she is

30:10

not only not in a hurry but working pretty

30:12

hard to avoid a trial before the election. And

30:14

then with the case in Georgia I don't think that's gonna

30:17

go... I think that Fonny Willis when

30:20

she went with the big indictment with 19 defendants

30:22

never expected that that case would come

30:24

to trial quickly. So I guess our

30:26

best hope is the federal election interference

30:29

case. So I think it's

30:31

important to point out that if Donald Trump is

30:33

convicted next week he will not

30:35

go to jail. He will be out pending appeal.

30:38

So he is going to be free

30:40

no matter what from now until the

30:42

first Tuesday in November. And so that

30:44

means the disinformation can continue. I want

30:47

to put another plug in for your book because

30:49

it's something that I think all of

30:51

us need to be more worried about and that

30:54

is we can't ever agree on how our

30:56

government should enact policy if we

30:58

don't agree on the facts. And

31:00

disinformation has become the norm now.

31:02

Your book Attack From Within, How

31:04

Disinformation is Sabotaging America, not only

31:06

do you talk about the polarization

31:09

and how disinformation is seeping in

31:11

everywhere but you also give people

31:13

some tools to fight disinformation. What

31:15

is the most important piece of

31:17

advice you have for our listeners

31:20

about how they determine when

31:22

they're getting bullshit instead

31:24

of the facts? Yeah I think you know one

31:26

of the goals is to simply exhaust us and

31:28

get us to tune out or

31:31

to say things designed to evoke an

31:33

emotional response. And so I

31:35

say when you see those things take a

31:37

deep breath and look for a second source

31:39

to see if anyone else is reporting this

31:41

is true because the whole goal is to

31:44

either exhaust us or enrage us and pit

31:46

us against each other. And so I think

31:48

we need to look for common ground and

31:50

unity. And so I think we can check

31:52

ourselves by making sure that we're choosing

31:54

truth over our political tribe. So thank you.

31:56

This has been great. It's always fun for

31:58

me to talk to... Somebody who. Has

32:01

hung out in the court. I'll be honest with

32:03

you, don't know if you miss it. I kind

32:05

of miss said oh is absolutely a really really

32:07

important part of my career. And. One that

32:10

I have never taken for granted. I feel like

32:12

I was really fortunate to get the opportunity. To.

32:14

Be in a courtroom and and luxuries in the eye

32:16

and I know you feel the same way and I

32:18

think we shed some light. On. Some of the

32:20

confusing aspects of this trial this morning. And.

32:23

I really appreciate you being with us. Thanks

32:25

very much! Clear. Barber. Mcquaid Universe

32:27

in Michigan Law professor former Us Attorney

32:29

for the Eastern District of Michigan. And

32:32

the author of the book attack From

32:34

Within How this information is sabotaging. America

32:36

is great having you with us. Will.

32:38

Take a quick pause here that were more back.

32:41

We want to see the moment to look at

32:43

the political reality of this trial and South com

32:45

and the market will leave on our country back

32:47

with that in a moment. Spectrum

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in all areas. Restrictions apply. Welcome.

33:32

Back before we wrap up this episode sir and

33:34

I want to take a beat to sort through

33:36

the politics of this trials results. and hell,

33:38

it will affect the vote this fall. Yeah, course

33:40

you know there's legal fall out which I

33:42

have a pleasure talking to. Barber played about. The.

33:45

What about the political fallout for Trump and

33:47

for Biden? Is. there anything about his

33:49

trousers hooligan to move voters were you think

33:51

i think that when things are so close

33:53

it's wrong to say nothing matters and even

33:55

though you'd i know that the biden campaign

33:57

is desperate for the frail to and because

34:00

it's eating up so much coverage and they think

34:02

that it's hurting them. Not because it's good for

34:04

Trump, but just because it means he's not getting

34:06

any daylight. So I

34:08

think it feeds into his

34:11

victimization storyline. But

34:13

if he is actually convicted of

34:15

something, there's polling that definitely shows

34:18

that that matters to people. I

34:20

was so relieved to see something can still

34:23

break through that's a high enough percentage to

34:25

people who feel that a conviction means he

34:27

should not be elected president. It

34:30

meant even people who would

34:32

otherwise support Trump would be swayed

34:35

by this outcome. So

34:37

I think it would actually hurt him a little

34:39

bit. And you know how it is clear when

34:42

you're preparing for a loss like in a Democratic

34:44

primary or something like in the presidential campaign, you're

34:46

like, we're going to lose this one state, we're

34:48

lose this one state, it'll be okay, we'll go

34:50

on. And then when it actually happens, it feels

34:52

way worse in the moment, even if you've been

34:55

anticipating it. So I think if he actually does

34:57

get convicted, it will feel really bad. I think

34:59

it'll feel really bad. I worry the most about

35:01

the hung jury, which is I don't think he'll

35:03

ever be acquitted because I don't think 12 people

35:05

after listening to that evidence could

35:08

all be unanimous in deciding that he

35:10

did nothing wrong, especially with the mob

35:12

like note it ended on with Costello

35:14

and all of that. On

35:16

the other hand, if he's if it's hung,

35:18

if there's one or two or three holdouts,

35:21

Trump is going to treat that like he was found

35:23

not guilty. And it is

35:26

going to really feed the narrative

35:28

that this is a partisan witch

35:30

hunt that is purposeful in

35:32

its effort to derail his ability to

35:34

enter the Oval Office again. So I

35:36

worry because it won't be that he

35:38

was acquitted. I think the majority of

35:40

the jurors will probably vote to convict

35:42

him and there might be one or two

35:44

that just hold out. But that's not

35:46

going to be the way he'll treat it. That's not going

35:49

to be the way that conservative media outlets will treat it.

35:51

It will certainly not be the way that his supporters

35:53

will see it. So I do

35:55

worry about that and whether or not we

35:57

have given him something else to use in

36:00

this narrative that the Democrats

36:02

will go to any lengths to stop

36:04

me from entering the Oval Office as

36:06

your Redeemer and Revenge Person

36:09

in Chief. Right. If

36:11

he needs more in that arsenal, that will

36:13

help him. And I don't know,

36:15

I talk to you a lot. So I guess

36:17

maybe that's one reason why I'm also expecting a

36:19

hunger. But I'll be surprised if he actually gets

36:22

convicted, it always seems. But

36:24

it'll be a big deal. And just to,

36:26

you know, I mentioned the polls earlier, just

36:28

some details on that. There's an early May

36:30

ABC News Ipsos poll that found that one

36:32

fifth of Trump supporters said they would either

36:34

reconsider their support, 16% said that, or withdraw

36:36

it, 4% said that, so

36:39

about 20% said that they would

36:42

reconsider supporting him if he was

36:44

convicted of a felon. Of course, they may

36:46

just hear that question and say, nope, doesn't

36:49

matter, even if he's a convicted felon, I'm still going

36:51

to vote for him. And a

36:53

writer's Ipsos poll taken pre-trial in April found that

36:55

one quarter potential Trump voter said they would not

36:57

vote for him if he was serving time in

37:00

prison. Slightly different formulation,

37:02

higher results. Yeah, well, he's not

37:04

going to be in prison no matter what. Because

37:06

if he's convicted, he will be out on

37:08

bond pending appeal and the appeal won't be

37:11

finished by November. So he's not going to

37:13

be in prison. And I'm not going to

37:15

be shocked if he's convicted. Yeah, I might

37:17

be slightly surprised if he's convicted. But the

37:20

evidence is pretty, I mean, they presented a

37:22

strong case. Their case was stronger than I

37:24

anticipated that it would be. So

37:26

I think it's maybe more likely than not

37:28

that it'll be hung. But that

37:31

doesn't mean that a conviction is not possible

37:33

here. And keep in mind, even

37:35

if he's convicted, though, he's

37:37

going to be out on bond and he's going

37:39

to be campaigning this whole time. And

37:41

this conviction, if it happens, is in May.

37:45

And the election is November. And

37:47

nobody's going to see him in cuffs. Nobody's

37:49

going to see him doing anything that

37:51

is anything other than Donald Trump

37:54

campaigning for president. So I worry

37:56

that a conviction won't have the impact

37:58

that it should have on the vote. voting

38:00

electorate, right? It should be a disqualifier.

38:02

Of course, it should be. It

38:05

has a lot of credibility with me when you

38:07

say you felt like the prosecution delivered a strong

38:09

case because I know you had questions going into

38:11

that. But it does feel like, you know,

38:13

this is a tough time. And I can feel it.

38:16

I was in DC yesterday and I can feel Democrats

38:18

getting nervous and it's like, I know, I've been through

38:20

it a lot of times. It's sort of like mid-summer,

38:23

beginning of summer doldrums and it's particularly

38:25

hard for this president to break through.

38:27

I'm just feeling like,

38:30

you know, when I look at their strategy, it's

38:32

like everything's driving to that moment where they can

38:34

get Trump on a debate stage and

38:36

really frame the choice and get that to

38:38

stick and do that seven

38:40

weeks before people start to vote

38:42

in early September, you know?

38:45

That's the plan, people. I get

38:47

it's the plan. I will just say,

38:49

I'm not gonna lie and say I'm

38:52

not worried about a plan that depends

38:54

so heavily on the performance

38:57

of a candidate on one or

38:59

two nights. That is

39:02

an extreme amount of pressure to

39:04

put on the candidate if

39:06

the entire campaign is resting on his

39:09

debate performance, that's

39:11

a load to carry. That's all I'm saying. That's a

39:13

load to carry. Yeah, yeah. That

39:15

and a whole bunch of money they got to do ads

39:18

and do ground game. Ground game.

39:21

I do believe in that, man. I believe in the

39:23

ground game. Democrats know how to do

39:25

that. Alright, thanks so much for

39:27

listening. If you have a question for us,

39:29

you can send it to howtowinquestions at nbcuni.com

39:31

or you

39:33

can leave us a voicemail at 646-974-4194 and we might answer

39:39

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show is produced by Vicki Vergolina.

39:54

Jameris Perez is our associate producer.

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39:58

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