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Hello! Welcome to How to win Twenty

0:42

Twenty Four. It's Thursday, April eighteen. I'm

0:44

Jennifer Palmieri and I'm here if makeovers.

0:46

Claire Mccaskill Hello Claire. Hey, it is

0:48

good to be with you again. And

0:50

by the way, even though Caitlin Clark's

0:52

only going to make seventy six thousand

0:54

dollars as a player in the N,

0:56

be a shovel, make a good Jillian

0:58

on her endorsements and that was exciting,

1:01

It was great. Loved watching the whole

1:03

thing, the whole draft great and and

1:05

it's great for women in terms of

1:07

basketball, but women in Arizona have a

1:09

whole nother. Level Of Problem. Oh My

1:11

God. My guide. So like let's recap

1:13

what's happened here. So two weeks ago

1:15

that Arizona Supreme Court said that the

1:18

eighteen sixty four abortion ban from before

1:20

woman had right to vote from before

1:22

Arizona was able to stay. but that

1:24

still applies and the state legislature brought

1:26

up in an effort to repeal bad

1:28

and the republicans blocked it again. Yeah

1:30

I mean tsar if they were interested

1:32

in their own political standing they would

1:35

vote repeal. It is just not if

1:37

a very unpopular position. But you know

1:39

this is. What happens when Republicans get

1:41

into power? Trump owns all of this.

1:43

The by a team did a good

1:45

job of they put a statement out

1:48

after this happened last night. Same ask

1:50

women of Arizona if they are quote

1:52

happy or they think it's quote incredible.

1:54

But Trump overturn Roe and took their

1:56

rights back to eighteen Sixty Four Quoting

1:59

Trump back to. them. But you

2:01

know, same thing the United States

2:03

Senate, don't act like they're moderate

2:05

because they had an opportunity to

2:07

protect IVF. And Cindy Heidsmith, Republican

2:09

senator, stood up and blocked it.

2:11

It's really something. We saw Biden

2:13

in Pennsylvania this week, right? Yeah, right.

2:15

So most of the week in Pentagon

2:17

State of Pennsylvania, that was about economic

2:19

policies and goals, contrasting them with Trump.

2:21

We're going to drill down on the

2:23

effectiveness of that three-day one-state strategy and

2:25

the impact of Biden's kitchen table economics

2:28

pitch. Let's talk a little bit about Mike

2:30

Johnson's big gamble. I mean, he's rolling

2:32

a big set of dice this

2:34

weekend. He's finally saying the right

2:36

things about supporting Ukraine. And

2:38

he's going to say to Marjorie Taylor Greene,

2:41

bring it. You want to

2:43

bring it? Bring it. But I'm going forward.

2:45

And we're going to vote on this aid

2:47

to our allies that are in the midst

2:49

of serious war. And people are losing their

2:52

lives every day because of Mike

2:54

Johnson's stall on this. So I'm glad

2:56

to see that he's finally bucking up

2:58

and going to do the right thing. Yeah, acting

3:00

like he actually is the Speaker of the United

3:02

States House Representative. And I'm trying to think if

3:05

there's another big story happening this week. Yes, yes,

3:07

that's right. The first ever criminal trial of a

3:09

former president. Claire and I are going to catch

3:11

up with veteran prosecutor and law professor Joyce Vance

3:14

to get a roadmap of what to keep an

3:16

eye on now that the trial is underway. But

3:18

let's get to the strategy session if I were

3:20

in the room. So like how do you feel

3:23

about the three days of campaigning in Pennsylvania? On

3:25

the one hand, you think, wow, why don't you

3:27

diversify this? But I think it's smart. It's hard

3:29

for him to break through. And when he spends

3:31

three whole days in a battleground state, it breaks

3:34

through more in the local press. And then also,

3:36

I think just in the national level, it has

3:38

more penetration. And of course, it is. I mean,

3:40

there's no question it's a good contrast with Trump

3:42

who's spending three days in a courtroom instead. But

3:44

what do you think? I

3:46

think it's a smart way to break through.

3:48

I hope he uses it in every single state

3:50

that is going to be the ones that

3:52

really, really matter. And you know, Pennsylvania is personal

3:55

to him. Yeah, he feels very strongly About

3:57

that. And It was also a way when you

3:59

do Scranton. Yeah. It is a

4:01

natural contrast with Trump, right? There were

4:03

no. Gilded and Gold as well

4:05

as in Scranton, there was nothing

4:08

in Scranton that allowed Joe Biden

4:10

to live like some kind of

4:12

kings. He is from a very

4:14

modest middle class. Background and I

4:16

think that really made sense and

4:19

I And good did he did.

4:21

It and frankly the fact that he's really

4:23

emphasizing labor unions yeah I know I. So

4:25

they start elicited lower. who did the started

4:27

and to say in Scranton at his actual

4:29

boyhood home I know the White House and

4:31

me for months or got a contrast Grande

4:33

Valley as as more lager values. That was

4:36

before they knew about the great set up

4:38

that truck with when to give them when

4:40

he had the fundraiser of more lago and

4:42

told all the rich people there that he's

4:44

going to continue to cut their taxes like

4:46

he did before Wednesday. as you noted, he

4:48

dead or Headquarters, United Steelworkers Union and Pittsburgh

4:50

that's about. Highlighting you with steel by

4:53

an American take on the terrorists on

4:55

China, which it was something that Trump

4:57

talks a lot about and biden one

4:59

to take some of that back. And

5:02

then today wrapping up and silly. Really

5:04

critical city for by other to the

5:06

Kennedy family. They're not just the Kennedy

5:08

family endorsing him, but Bobby siblings carry

5:11

Kennedy Was on Morning Joe this morning.

5:13

interviewed her saying either i love my

5:15

brother south like my brother by saying

5:18

he was doing the wrong thing and

5:20

with your democrat republican. Or an independent

5:22

which is important to say because or of case

5:24

running as an independent. You wanna start of this

5:26

I went to do it in that way to

5:28

stop Trump is to vote for Joe Biden. I

5:30

think if is also really good this week I'm

5:33

glad if I were in the room I would

5:35

have probably told them to play it up even

5:37

more. The Bidens tax return? Yeah yeah. So.

5:39

That's kind of a blip and it's essence. It

5:41

is a contrast to the a trump is the

5:43

first. President in history that never ever

5:46

issued his tax return and allow

5:48

the public to see it. The

5:50

sacked it divides. made six hundred

5:52

nineteen thousand dollars last year and

5:54

paid one hundred and forty six

5:56

thousand plus change and federal income

5:58

tax. That's when Label. to most Americans.

6:00

Frankly, I think most Americans would be surprised

6:02

he didn't make more money in

6:05

the job he's doing. And I think they

6:07

would be surprised he paid that much in

6:09

taxes. So the only criticism I have about

6:11

the Biden shop this week is I would

6:13

have pushed the tax return story more.

6:16

I would have made it a bigger

6:18

deal than they did. You could do that

6:20

on Monday, and then that would be the

6:22

setup for the speech of Scranton Joe on

6:24

Tuesday. Yeah, that's a good idea. Okay, so

6:26

talk about Mike Johnson and what you think

6:28

the campaigns should do on what they're doing

6:30

now to try to get the foreign aid

6:32

for Ukraine, Israel, Taiwan. Well, this is really

6:34

going to be as a political scientist, this

6:36

is going to be an interesting exercise this

6:38

weekend. It'll be interesting to watch how this

6:40

comes down. It'll be interesting to see the

6:42

vote totals. How many Republicans will they get

6:44

for Ukraine aid? Will the Republican Party completely

6:46

go MAGA and forget about our

6:48

obligation to freedom, our obligation to democracy?

6:50

So that's going to be very interesting.

6:52

And frankly, I don't get the whole

6:55

idea that Marjorie Taylor Greene thinks it

6:57

could ever be a good idea to

6:59

throw him out right now. But

7:01

it looks like to me that they're gonna. Now,

7:03

I would probably not have said that we were

7:06

for the bill. If we really want the bills

7:08

to pass, I would have if I were in

7:10

the room said, you know what, just let the

7:12

house do this. Yeah, but they weighed in yesterday

7:14

and said they supported the speaker. Well, that doesn't

7:17

help the speaker get this across the finish line.

7:19

I mean, I wondered about that. He's looking for

7:21

Republican votes. Yeah, I don't know why they did

7:23

that. They are. They just, they weighed in on

7:25

that. Also, the president had a op-ed in the

7:28

Wall Street Journal, interesting choice and sort of an

7:30

outlet to talk again about

7:32

Ukraine and the United States responsibility

7:34

here, noting that the success is

7:37

the Israelis had in beating back

7:39

the Iranian attack. Also, the success

7:41

that the Ukrainians have had is

7:43

due in large degree to US

7:45

leadership and the US involvement in

7:48

both of those efforts. And yeah,

7:50

it comes out of Biden's mouth. It

7:52

usually hurts them. I guess they think

7:54

they're on a roll with some Republicans

7:56

getting traction, sort of the normies as

7:58

Sarah Longwell calls them. Like Mike Turner.

8:01

That are holding the traditional Republican views

8:03

of pushing back on Russia as an

8:05

adversary and they wanna give us much

8:07

ammunition as possible and never democrats are

8:09

saying they're going about. You know, like

8:11

last time we were sort of in

8:13

this situation where a speakership with on

8:15

Malign Kevin Mccarthy said i do not

8:17

want democratic votes, I do not want

8:19

Democrats to support me and my chances

8:21

not doing that he had our kids

8:23

are without the Democrats. Yeah. He

8:25

can't do without. You might happen this time there

8:27

been any democrat votes to pass this, but there's

8:29

a reporting and and punchbowl that they may try

8:31

to put a rule six and one of these

8:33

bills. the House Leadership bubblegum. Leadership to get rid

8:36

of the one votes clause that allows one person

8:38

to bring a speakership into quests. Yeah, that's like

8:40

a big gamble that seems real hard to pass.

8:42

I don't know I'd say it'll depend on which

8:44

one they put it is out. Surrogacy. I think

8:46

you'd have different vote totals on the is. I

8:48

think you're gonna have a lot, lose lot more

8:51

democratic votes on the Israeli aid and then you're

8:53

going to get. I think of a. Bigger portion

8:55

of the republican votes on that then you

8:57

will on the Ukraine, so it's it's. gonna

8:59

be really interesting to watch. by the way,

9:02

I think the strategy that much Johnson did

9:04

by going down them are lago in some.

9:06

Going out with. That. That

9:08

guy with your and say i get it

9:10

was fascinating to me that what's the decided

9:13

to do their with have a press conference

9:15

say we want to make what's illegal illegal.

9:17

I know I'm in a press conference it

9:19

is a line out and vote. If you're

9:22

not a citizen of this country already anywhere

9:24

in America, it's illegal And so then a

9:26

conference at We didn't do. We're going to

9:28

say again that it should be illegal and

9:31

wouldn't even acknowledge that what they're advocating for

9:33

is already the second That just as they

9:35

can like Continued to say that while they.

9:37

didn't pass that bill there for the be illegal

9:40

activity when it's already exactly what is and the

9:42

law at at our and that trump did not

9:44

have the skies back by the way you know

9:46

know yeah i mean trump that asked about my

9:48

johnson yesterday and are you going to continue support

9:50

him because he's bringing up this ukraine eight and

9:52

trump's a said after you know my tonsils i

9:55

go i went on a moral ago drugs got

9:57

my they can trump the my back in some

9:59

said We'll see what happens. Yeah,

10:02

we'll see what happens with that. Mike Cink's

10:04

hanging at Mar-a-Lago is Superman's cape. I

10:06

got news for him. And

10:08

that cape won't let you fly once

10:10

you get back to Washington. So ask

10:12

Kevin McCarthy how that worked out for

10:14

him. Totally, yeah. All right, so let's

10:16

talk a little bit about Iran and Israel if

10:18

we were in the room. What would you be

10:21

telling the campaign as it relates

10:23

to Iran's attack on Israel and

10:25

what they should be doing in

10:27

light of those ever-escalating tensions

10:30

there? I mean, if I was

10:32

the political strategist, I would say the president

10:34

should be the president. He should be doing

10:36

what he's doing, which was there's like such

10:39

an important U.S. leadership moment when the U.S.

10:41

helped the Israelis beat 99.9 percent of that

10:43

attack back. But keep it off the trail.

10:45

And they tried to protect Pennsylvania and those

10:47

three days there from being sort of a foreign

10:50

policy-free zone. Eventually,

10:52

this is going to have to become a campaign issue. And

10:54

as long as you can keep it at a distance from

10:56

the trail, I think that's the right thing to do. I

10:59

don't know. Maybe that's not realistic. What do

11:01

you think? Horrible thing for Israel that this happened. The

11:03

good news is that the Defense Forces of Israel and

11:05

the United States and other countries basically

11:08

negated any huge negative

11:10

impact from this attack. And in a weird way,

11:12

although I would never say it's a good idea

11:14

for Iran to attack any other country,

11:17

in a weird way, it helps

11:19

Biden reset the table that Israel

11:21

does face real danger from

11:23

Iran. And it kind of removes

11:26

a little bit of, we should be

11:28

ignoring Israel because of the way

11:30

they are really carelessly prosecuting

11:32

the war against Gaza and killing thousands

11:35

and thousands of civilians in the process.

11:37

So probably not overall. It gives him

11:39

a chance to be part of the

11:41

de-escalation talks, which I think he's doing. And

11:43

overall, I think this is a win for

11:45

him in terms of the category you always

11:48

talk about, being president. Yeah, right, right. The

11:50

part of the job, the job of running

11:52

for reelection, being a good one while you have

11:54

the job. We're going to take a

11:56

quick break. But when we return, former U.S.

11:58

attorney and law professor Mayor and

12:01

he gets some context for the first

12:03

ever criminal trials of a former presidents

12:05

and fact that in a moment. Or

12:15

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You can do this when you Angie

13:01

that. Welcome

13:07

back! You know it is thin wall to

13:09

wall coverage of the trial of the people

13:11

of the State of New York vs. Donald

13:14

Say Trump in Manhattan this week That

13:16

you know I know and I've already had

13:18

people say to me where Birdie sick of

13:20

hearing about it by I don't think we

13:22

should gloss over the sack Did this

13:24

really is history and this is something that

13:27

will be. In history, books will be

13:29

written about for. Decades and decades and

13:31

decades to come. so it deserves the kind

13:33

of coverage is getting. So he wanted to

13:35

get a sense of what is important to

13:38

watch for. As the jury selection continuous and

13:40

testimony soon began said to help us with

13:42

that choice fans joins us Now she's a

13:44

former Us Attorney for the Northern District of

13:46

Alabama and a law professor at the University

13:49

of Alabama Choice. Thanks so much for joining

13:51

us I'm so excited Be with ya. I

13:54

choice. I was in Northern Alabama this weekend. Where

13:56

were you? Are muscle cells? Ah

13:59

were you there? for music? I was

14:01

there to see you. You probably

14:03

know your fellow Alabamian,

14:05

Jason Isball, the musician.

14:07

Yes. Yes. So

14:10

his manager, Tracy Thomas, is a good friend of mine. You know,

14:12

I love music so much and it was just the

14:14

coolest, so fantastic. Well, I hope you had

14:16

a good time, Jen. Next time you're in

14:18

Alabama, I expect you to come down to

14:20

Birmingham. Oh, I know. It's the coolest too. Okay.

14:23

So I will apologize right now. And

14:25

I've already warned Jen that she needs

14:27

to interrupt me and use sharp elbows

14:29

because it's true. This is where I

14:31

nerd out. This is where I want to hang out.

14:33

I've picked a lot of juries in my life.

14:36

I'm sure you have two choice, but

14:38

I did a huge number of criminal

14:40

trials back in the days before

14:42

prosecutors even had second chairs. And

14:44

this was obviously back when looking

14:46

into jurors' backgrounds was much more

14:48

challenging than it is today. Yes,

14:51

I remember those times before the internet when

14:53

we struck juries based on a feeling and

14:55

a hope and a prayer. Exactly.

14:58

I mean, people don't realize the wealth of

15:01

information that is available to the lawyers now

15:03

on both sides in terms of picking a

15:05

jury. But why don't

15:07

you briefly summarize

15:10

what you think this trial is about

15:12

and what you think the narrative that

15:14

the prosecutor needs to establish both in

15:16

vaudir, which is the technical word for

15:18

picking a jury, and in the opening

15:21

statements? So, you know, there is so

15:23

much there. And I'm so glad you

15:25

want to be nerdy about jury selection

15:27

because it's one of my favorite places

15:29

to be nerdy. I think we're a

15:31

dying breed prosecutors who have struck a

15:33

lot of juries both on their own. And

15:36

then later, as you get more experienced, you

15:38

sometimes get a second chair. But I think

15:41

jury selection is much more art than it

15:43

is science. And that's an

15:45

important thing to remember here. These prosecutors are

15:47

using their cumulative years of judgment

15:49

both to create a narrative during

15:51

vaudire and to get a jury that

15:53

they think will be willing to listen to

15:55

them. You know, the difference between the

15:58

prosecution and the defense is the defense. just

16:00

need the holdout juror. They need someone who will

16:02

prevent a conviction. The prosecutor

16:04

needs to have every juror on

16:06

their side in order to get a conviction.

16:08

And that's why as prosecutors, we often begin

16:10

to tell the jury the story of our

16:13

case while we're still selecting them. And

16:15

here the narrative is, this is not

16:17

just a case about a porn star

16:19

and hush money. This is a case

16:21

about election interference on the eve of

16:23

this election. The Access Hollywood tape

16:25

was out there. You know, people don't remember

16:27

that moment with clarity, but there

16:30

were Republicans, conservative Republicans who were

16:32

backing away from Trump, people in

16:34

the faith community, members of

16:36

Congress. Martha Roby, who was the

16:39

Republican Congressman from Montgomery, Alabama, had

16:41

publicly repudiated Trump following the release

16:43

of the Access Hollywood tape. The

16:46

campaign knew that the Stormy Daniels

16:48

story would be a death knell. And so they

16:50

went to extremes to keep her from

16:52

releasing it. That's why they had to

16:54

have the coverup. And it wasn't just the

16:56

false business records. The prosecutors will tell

16:59

this jury. It was the fact

17:01

that they were used to conceal

17:03

campaign finance violations, tax violations. That's

17:06

what makes this a felony case.

17:08

It's a serious case of election

17:10

interference, not the hush money narrative

17:12

or the misdemeanor business records narrative

17:15

that Trump has tried to push. And part of

17:17

this choice, so I certainly remember it well because it

17:19

was October of 2016 and I was

17:21

working for Hillary Clinton at the time. It's

17:23

hard to reconcile what I know now with

17:26

what I think I knew then, but I

17:28

think we heard rumblings that the National Enquirer

17:30

was working on something about, you know, that's

17:32

gonna be very bad for Trump, but nothing

17:34

ever materialized. So part of this, there are

17:36

34 counts that

17:38

are relating to various payments and business records. But

17:40

part of this is also a catch and kill

17:42

scheme with David Pecker from AMI, which

17:45

is part of the conglomerate that owns the

17:47

National Enquirer and how that piece came together,

17:49

what they need to explain there. Yeah,

17:52

so I think this will be the centerpiece of

17:54

their case. A lot of folks have speculated that

17:56

Michael Cohen is the key witness. I think it

17:58

might prove to be David Pecker. and

18:00

others who understand the catch and kill scheme.

18:03

What prosecutors have alleged is that there

18:06

was an ongoing conspiracy to both

18:09

promote through the National Inquirer,

18:11

my favorite supermarket tabloid journal. You

18:13

know, we all see those headlines when we're checking

18:15

out in the supermarket, right? It's a

18:17

great place to do what Trump wanted to

18:20

do, both to push good stories about Donald

18:23

Trump and bad stories about his

18:25

opponents. And part of

18:27

that was the National Inquirer systematically

18:29

acquiring the rights to stories

18:31

that were bad for Donald Trump and

18:33

then keeping them from seeing the light

18:35

of day. That's the origin of the

18:37

scheme that they used with Stormy Daniels.

18:40

And when AMI decided not to pay

18:42

for her catch and kill, that was

18:44

when Trump and Michael Cohen took over

18:46

and came up with the scheme that

18:48

ends up being criminal. You know, paying

18:50

someone hush money, not a crime. Donald

18:53

Trump does it all the time. Virtually

18:55

everyone who's ever worked for him

18:57

has a non-disclosure agreement. That's not

18:59

what prosecutors are alleging here. What

19:01

they're alleging is that he fraudulently

19:04

concealed these payments in his business

19:06

records to avoid revealing what was

19:08

in essence a contribution to his

19:10

campaign, the way Michael Cohen donated

19:12

through and Trump's tax violations

19:14

under New York state law. So

19:16

let me ask you this question.

19:18

Explain as simply as you can,

19:21

because you're good at this. Explain

19:23

why the business records part has

19:25

been somewhat controversial in terms of

19:27

the charging, the need to have

19:29

something to elevate parts of the

19:32

charges to a more serious crime. Walk

19:34

our listeners through that so they understand

19:36

why with some people they saw this

19:38

as a riskier case in terms of

19:40

the legal framework than some of the

19:42

other cases that the former president is

19:44

facing. Yeah, this is such a good question.

19:47

This New York statute makes it

19:49

a misdemeanor to make false business

19:51

records or to cause others to

19:53

make false business records, which I think

19:55

is what the evidence will show here. And

19:57

so I think we should flag, Claire, and

19:59

maybe. Maybe we do or maybe we

20:01

don't want to talk about lesser included

20:03

offenses, which usually takes my first year

20:06

law students a while to get up

20:08

to. This is the base offense here,

20:10

this misdemeanor concealment of business records. Prosecutors

20:13

though have charged all of these counts

20:15

as felonies. To turn that misdemeanor into

20:17

a felony, the misdemeanor, the

20:20

business records crime, has to

20:22

be committed to conceal or

20:24

aid in the commission of another felony.

20:26

I think of it just as a

20:28

math problem, right? The misdemeanor is A

20:30

plus B, the other felony you're trying

20:33

to conceal equals a felony charge. And

20:35

this is a quirk of New York law, by

20:37

the way, that I really struggled with. Prosecutors

20:39

weren't required to reveal in the

20:42

indictment what that other crime

20:44

was. But we learned through their pleadings

20:46

and through what they've said publicly that

20:49

the other crime that the business

20:51

records violation was committed to aid

20:53

and or conceal is either New

20:56

York state tax violations or federal

20:58

or state campaign finance violations. And

21:00

that's the evidence that they will

21:02

have to prove to the jury

21:05

beyond a reasonable doubt. Otherwise, there's

21:07

a risk and Donald Trump's lawyers

21:09

will certainly ask the judge to instruct

21:11

the jury that the government has

21:14

failed to prove a felony and

21:16

that if they're going to convict at all,

21:18

they should convict on the simple misdemeanor charge.

21:20

So they'll get the lesser included instruction also.

21:23

I think so. I think, you know, they're entitled

21:25

to it any time that you've got a

21:28

lesser offense that's a subset of

21:30

the elements required to prove the

21:32

higher charge, the felony charge here. The

21:34

judge is supposed to give that instruction

21:37

to the jury. Are they able to

21:39

plead and argue either or on the

21:41

elevating felony that pushes

21:43

up the business records to a felony

21:45

in terms of conceal or the

21:47

two elements that you laid out? Does the

21:49

jury get to pick which one they proved?

21:51

Or do they have to choose one lane

21:54

and stay with it during the trial in New

21:56

York law? Yeah, we used to say in my

21:58

office, let me see if I can do this right. that

22:00

you charge in the indictment

22:02

in the conjunctive, but you

22:04

have to prove in the disjunctive, which

22:06

means that you can charge aided and

22:09

concealed, but really you've only got

22:11

to prove one of those to the jury. Right.

22:14

And I don't think you have to pick,

22:16

but Claire, I wonder what you think about

22:18

this. I've been struggling with this notion of

22:21

not specifying that accelerated charge. I think the

22:23

judge may have to use a special verdict

22:25

form that asks the jurors which

22:27

of those charges, the campaign finance

22:29

or the tax, they unanimously agree,

22:31

converts the misdemeanor into a felony

22:33

if in fact they're going to

22:35

convict. And that's fairly standard. You'll

22:37

often see these verdict forms that

22:39

include special interrogatories where they ask

22:42

the jury, you know, which of

22:44

these crimes, other crimes do you

22:46

believe the defendant committed? Yeah.

22:49

So they could actually argue both campaign

22:51

finance and tax. They can present evidence

22:53

of both campaign finance or tax. And

22:55

then the judge will have to sort

22:57

out how he instructs the jury in

22:59

terms of them explaining on which of

23:01

those or both they had a unanimous

23:03

verdict on. I get that. And you did

23:05

explain it very simply. And for the vast

23:07

majority of people out there, they now know

23:10

and understand this much better than they have

23:12

for the last several months. Okay. So

23:14

I know we've got to take a break here

23:17

in a minute, but Jen, what I'd love to

23:19

tackle when they come back is I'd love to

23:21

talk a little bit about why this took so

23:23

long. A lot of people got questions about that.

23:25

Joyce has heard me rail with

23:27

some discomfort, I think. My friends that

23:29

appear on television with me that spend

23:31

a lot of time in the federal

23:33

system, they are much more comfortable with

23:35

delay than somebody who had to respond

23:37

to 911 calls and

23:40

had to make a decision on charging a murderer within

23:42

48 hours or they had to be

23:45

let go. And so this is a

23:47

state case. It's not a federal case, but

23:49

I'd love for us to talk about because

23:51

that's the defense he's basically using is really

23:53

bolstered by the idea that it took so

23:55

long because he's saying this is just to

23:57

stop me from getting elected. We'll take a

23:59

quick break. Pause here, but stick around for

24:01

more on what to expect in Trump's criminal

24:03

case in the weeks ahead with former U.S.

24:05

attorney Joyce Vance. We'll be right back. This

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project's done well visit angie.com You can

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do this when you and. You that. Welcome

25:05

back. We've been speaking with Joyce Vance.

25:07

She's a former U.S. attorney for the

25:09

Northern District of Alabama and a lot

25:11

professor at the University of Alabama. Rolled

25:13

eyed. Rolled eyed baby. Rolled

25:15

eyed. I just like to say it to this clear

25:18

off. Although like I come from an Ole Miss family

25:20

but you know I can say it. So

25:22

as I mentioned before the break Joyce. Why

25:25

the hell did it take so long to get this case in front

25:27

of a jury. You know it's such a good

25:29

question. You were saying before the break that

25:32

you have less of a tolerance for

25:34

delay than federal prosecutors do. And I

25:36

think that's fair. I don't view the time

25:38

federal cases take necessarily as delay. I

25:40

just view them as the practicality. You know

25:42

you don't see on the surface it

25:44

takes time to issue a grand jury

25:46

subpoena. You have to wait for the grand

25:49

jury to be in session. Banks who

25:51

you need records from get a period of

25:53

time to return those records to you.

25:55

Forensic accounting which we use exhaustively in

25:57

federal white collar cases takes time. So there

25:59

is. There is some delay built into

26:01

the process, but it's not the bad

26:03

kind of delay. And I think the

26:06

question that you're asking is, was there

26:08

bad delay here? And look, I think

26:10

we all know that this started as

26:12

a federal case involving Michael Cohen and

26:14

that Trump was named as an unindicted

26:16

co-conspirator in the Michael Cohen indictment that

26:18

Michael Cohen served prison time on. So

26:21

what the hell happened is a legitimate

26:23

question. It seems relatively clear from what

26:25

we've learned after the fact that Bill

26:27

Barr, when he was the Attorney General,

26:29

did a lot to squelch the

26:31

case. But at the same time,

26:33

it was reconsidered after there was

26:35

a change in management in the

26:37

White House. And the SDNY still

26:40

decided not to go forward, possibly

26:42

because SDNY, unlike many other federal

26:44

prosecutors' offices, has this weird standard

26:46

for cooperating witnesses where they have

26:48

to disclose every ounce of criminal

26:50

activity that they're aware of, be

26:52

willing to plead and testify against

26:54

others. And it may be that

26:56

under that standard, SDNY decided that

26:58

they were not willing to use Michael

27:00

Cohen as a witness. And I would just say

27:02

SDNY is the Southern District of New York for

27:04

people who don't know. And is

27:06

that because of a history of trying mafia cases? Or is

27:09

it, you know, is there something unique

27:11

to New York that puts them in

27:13

that situation? You know, it's just an

27:15

office culture thing. My office in North

27:17

Alabama, where we lovingly refer to the

27:19

SDNY as the sovereign district of New York,

27:21

because they're a little bit cowboyish. Every

27:24

Barara, my Obama-era colleague and dear

27:26

friend certainly deserves that moniker. But

27:29

we actually did something similar. We

27:31

would, on occasion, make exceptions. But you

27:34

know, my standard patois sitting down with

27:36

a cooperating witness was, you need to

27:38

tell me everything that you've ever done. Let's

27:40

start at the beginning. And sometimes that meant

27:42

that you would spend more time with that

27:44

cooperating witness before you put them on the

27:46

stand than you did with your family for a

27:49

couple of weeks. But we viewed it as imperative

27:51

to know everything that they had done to make

27:53

sure that we were not letting

27:55

other criminal conduct slide. SDNY really

27:57

does that just as a cultural

27:59

norm. perhaps because of the mafia cases,

28:01

Jen. I'm not sure what the origin

28:04

is. But I suspect that that led

28:06

to the decision in this case. So

28:08

the Manhattan DA's office has to pick

28:10

it up, and there's a change of

28:12

management in the Manhattan DA's office. There

28:15

was a little bit of a flurry

28:17

of excitement there when a couple of

28:19

prosecutors left after they believed their investigation

28:21

was being shut down. But then as

28:23

prosecutors looked at the evidence and evaluated

28:25

what was there, this case developed. I

28:27

don't see anything wrong with that. It

28:29

was brought within the statute of

28:31

limitations. Would it have been

28:33

better if it happened more quickly? Sure it

28:35

would have. And same holds true for that

28:37

mysterious first year that DOJ appeared, did not

28:40

be pushing the case that was ultimately indicted

28:42

in the District of Columbia. But here we

28:44

are, and there's nothing improper about it, although

28:46

Trump will argue it as a defense to

28:48

guilt in the court of public opinion at

28:50

least. What about his demeanor in court? What

28:52

do you think? Is it going to have

28:54

an impact on the jury? I've certainly seen

28:57

defendants whose demeanor was interesting when I talked

28:59

to the jury afterwards. They spent

29:01

more time talking about what the defendant was doing

29:03

in the courtroom than they did the evidence I'd put

29:05

on, which was always a blow to my ego. But

29:08

how do you think the way he is handling himself

29:10

in court is going to play out in

29:12

this? You know, jurors are human beings, and

29:14

they react to people, right? I

29:16

mean, we all react to people,

29:18

what they wear, how they act.

29:20

A defendant who makes a jury

29:22

feel threatened is a defendant that

29:24

they will carefully evaluate the evidence

29:26

against. But I have this fundamental belief

29:29

in the jury system. I think that when

29:31

12 everyday Americans take an oath to serve

29:33

and hear the judge tell them that they

29:35

have to decide the case based on the

29:37

evidence that they hear in the courtroom and

29:39

set aside prejudice and bias, I believe that

29:42

they will do that in virtually every case.

29:44

And I think this jury will watch Donald

29:46

Trump's shenanigans, and then they will decide this

29:48

case based on the evidence. So what do

29:50

you feel? I mean, Claire thinks there's going

29:52

to be a hung jury, and partly because

29:55

there's, what do we call it? The jury

29:57

that is like a stealth, a stealth, a

29:59

stealth jury. You know, the

30:01

jury selections move relatively quickly this week. How do

30:03

you feel like that's going? What do you feel

30:05

about the possibility of a stealth juror who acts

30:08

as if they're objective but really is there to

30:10

be a hung jury and be on the side

30:12

of Trump? Yeah, I mean, a stealth juror is

30:14

a risk. I think that we have to be,

30:16

you know, candid about that. Maybe

30:19

there will be one or more jurors who will

30:21

simply refuse to vote to convict. But by

30:23

and large, when you get jurors in the

30:25

room, and sometimes you see this happen, in

30:27

the federal system, we call it an Allen

30:30

charge. When you have a jury that's hung,

30:32

often the judge will bring them back into

30:34

the courtroom. They have this similar jury

30:36

instruction that judges in New York read. I

30:39

looked it up earlier this week and quoted

30:41

from it extensively in my newsletter because it

30:43

goes on and on and on. And the

30:45

judge says, we have no reason to believe,

30:47

you know, that any other 12 people would

30:49

do a better job of evaluating the evidence

30:51

than you would. And you have an obligation

30:54

to deliberate in good faith. And I think

30:56

that something we haven't talked about enough is

30:59

the pressure that can be brought to bear on

31:01

a stealth juror. If there are 11 other jurors

31:03

in that jury room who want to convict,

31:05

maybe that one juror does hang up and

31:07

maybe there is a mistrial and the case

31:09

has to be tried again. But those 11

31:12

jurors are going to go out and tell

31:14

the story that this was a Donald Trump

31:16

stealth juror. And that will become part of

31:18

the public narrative of Donald Trump's guilt, even

31:20

if he's acquitted or, you know, he won't

31:22

be acquitted. It will be a hung jury.

31:25

My expectation, by the way, is that if

31:27

that does happen, that team at

31:29

the Manhattan DA's office will tell the judge that

31:31

they are ready to go immediately, right? Judge,

31:33

give us a couple days. We're ready to strike

31:35

a new jury. So it won't be much

31:37

of a reprieve for Donald Trump. So how many

31:40

times do you think that the Manhattan DA's office

31:42

is willing to try this? We should explain

31:44

that when there's a hung jury, that doesn't mean

31:46

that Donald Trump walks away. That means the prosecutor

31:48

now has a decision to make whether they

31:50

try it again. And Joyce references that they would

31:53

say, let's go. They would basically be saying, let's

31:55

get more jurors up here and let's pick

31:57

a new jury and we're going to do it all

31:59

again right now. now or just as soon as

32:01

you're willing to do it. And then the issue

32:03

is if it hangs again, how many

32:05

times would they be willing to keep trying it?

32:07

What do you think Joyce? Joyce Rose It's a

32:10

hard call. I was going to say I had

32:12

a civil rights case when I was a U.S.

32:14

attorney. It was a horrible case in Huntsville, Alabama,

32:16

where we were trying a white police officer on

32:19

a civil rights violation and we knew it was

32:21

a risk. We had a juror the first go

32:23

round who simply refused to deliberate and

32:25

the other jurors felt that his

32:27

stance was he was never going to

32:29

convict a white cop. And we

32:31

tried the case a second time and had

32:33

that same result. And the judge shut it

32:35

down at that point in time. My team

32:37

wanted to go again. They were angry that

32:39

the judge essentially said that the case couldn't

32:41

be tried a third time, which federal judges

32:43

can do. You know, I just think it's

32:45

tough to predict. I think that this team

32:47

in the DA's office, and I know one

32:50

of the folks on this team, well, we've

32:52

worked together in the past, I think that

32:54

they believe in their case and that they

32:56

will want to try it to a verdict.

32:58

And so part of the answer to your

33:00

question will depend on the judge's tolerance. Nicole

33:02

Pacheco So a lot of people think that,

33:04

you know, it's like, oh, this child doesn't matter.

33:06

It's the wrong trial because it's not the serious

33:08

trial. It's not the one about January 6th. Or

33:10

it's not the one about classified documents. And I

33:13

just don't think that's true. You know, when elections

33:15

are this close, people say nothing matters. It's like

33:17

everything matters. Elections are this close. I think everything

33:19

matters. And, you know, I want you to try

33:21

to play out for us how the case

33:24

is likely to move from here in terms

33:26

of witnesses we're going to hear to give

33:28

us a sense of what the public is

33:31

going to be absorbing for the next few

33:33

weeks as trial continues. Nicole Pacheco Yeah,

33:35

you know, I think the DA's office

33:37

will tell the jury, here's Michael Cohen.

33:39

He's a big witness in this case.

33:41

We didn't pick Michael Cohen. Donald Trump

33:43

did. I don't think this is a

33:45

case where they will, you know, sometimes you have

33:47

a witness who flips, who sort

33:49

of becomes friend of the prosecution. This

33:51

is not that case. And so I

33:54

think a lot of the case will

33:56

involve carefully corroborating with other witness testimony

33:58

and documents, everything that comes up. comes

34:00

out of Michael Cohen's mouth. You know, this is

34:02

one of those great cases, because it is in

34:04

large part a paper case, you get to tell

34:06

the jury the story twice. You get to show

34:09

them the paper and talk – or probably you

34:11

start with the narrative from the witness and talk

34:13

about what the witness saw and observed. And then

34:15

you go through the paper getting your evidence admitted

34:17

in front of the jury and you get to

34:19

tell the story a second time. And I think

34:22

to what we discussed earlier, the catch-and-kill

34:24

scheme, that's the context for what happened

34:26

here. You know, lawyers talk about you

34:28

get to admit, and the judge has

34:30

said this, anything that's essential to telling

34:32

the story of the crime, in essence

34:34

part of the whole ball of wax

34:36

of the crime, and so the catch-and-kill

34:38

story will set the stage here. This

34:41

jury will hear that Donald

34:43

Trump was willing to cheat to

34:45

win an election, and that's the

34:47

overarching theme. So last thing before

34:49

we let you go, and by the way, this

34:51

has been terrific. We're so grateful that you took

34:53

the time to do this. Do you think any

34:55

of these other cases have a prayer of seeing

34:58

a jury selection process before the first

35:00

Tuesday in November? I think we'll know

35:02

a lot more about that after April

35:05

25th when the Supreme Court hears

35:07

the immunity appeal. It seems

35:09

to me that that's the most likely case

35:11

to go, but that would depend on the

35:13

Supreme Court moving quickly and in the government's

35:16

favor. But here's my wildcard pick, Claire. You

35:18

know, I am no fan of Judge Aileen

35:20

Cannon in the Southern District of Florida. I

35:22

think I've made that pretty clear in my

35:24

writing. I think that there is some chance

35:27

that she will cue this case up for

35:29

trial so that she can kill it after

35:31

the jury is in the box, and that

35:33

would let Donald Trump claim a victory. I

35:35

mean, you know how this works. Once the

35:38

jury's sworn in, double jeopardy

35:40

attaches, and if the judge

35:42

dismisses the case, the government is out

35:44

of business, and I am increasingly worried

35:46

about the movement down there. She's

35:49

been slow. The case isn't ready. I don't think that's the case.

35:51

I'm worried that she will be out of business. I

35:54

don't think so. I think that's really scary. Yeah.

35:58

But I'm watching that one carefully. That is really scary. speak

36:00

that into existence, Joyce. Really, seriously, I

36:02

mean, because I don't think she's the

36:04

brightest light in the marquee anyway. So

36:06

I think there's a chance that she

36:08

may not have figured that part out,

36:10

you know, and that would really piss

36:12

me off if she did that. Here's

36:14

why I'm worried. She came out of

36:16

the appellate division in the U.S. Attorney's

36:18

Office in Miami. That is one of

36:20

the most highly regarded appellate divisions in

36:23

the country, you know. She knows her stuff.

36:25

Oh, my lord. We're grateful

36:27

to have you here. Thank you so

36:29

much. Now I have another thing to toss

36:31

and turn about. Thanks

36:33

for having me. You guys are better than an hour

36:36

of therapy. Yay! We're

36:38

for you. And

36:40

we're free. In fact, we're cheap.

36:44

You don't even get paid anything. God love you.

36:47

Thanks so much for listening. And remember to

36:50

subscribe to MSNBC's How to Win newsletter to

36:52

get weekly insights on this year's key races

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in our show notes to sign up. This

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show is produced by Vicki Virgolina.

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