Good morning. 11 00 a. M. Eastern, 8 00 a. M. Pacific. I am jose diazbalart. Any moment now, testimony will resume in former president trumps hushmoney trial. The National Enquirer publisher, david pecker will be back on the stand detailing what prosecutors call a conspiracy to win the white house in 2016. Trumps lawyer denied any willful violation of the judges gag order. Trump faces 34 counts of falsifying Business Records related to a hushmoney payment made to an adult film actress, Stormy Daniels. With us now to talk more about this, nbc news correspondent, vaughn hillyard, outside the courtroom in manhattan, and senior fbi official, gerald coleman, and a former prosecutor, and a former new york Assistant Attorney General who led the investigation into Trump University. So as we await, vaughn, court to resume, take us what we have been seeing this morning so far . Reporter over the course of nearly an hour and a half, the gag order hearing that was in the works for the better part of a week came into order here. The jury was not in here for this part of the morning, but this was the opportunity for the prosecution to make their case to judge merchan that trump had repeatedly attacked witnesses, but also not to make public statements about potential jurors, and nearly the course of the hour and a half, the prosecution went through each of the media post, and it was todd blanche, trumps attorney, that met the scorn of judge merchan. He said you are losing all credibility, you are losing all credibility with the court. I have to tell you. The words of the judge to Donald Trumps attorney. Todd blanche was struggling to respond to two specific points in his defense of social medias Social Media Posts. Number one, for those in the words of donald trump, he was saying his client was responding to the attacks against him from the likes of Stormy Daniels and Michael Cohen, and he was unable to give specifics, and then there were multiple reposts and todd blanche was not able to specifically answer if donald trump was endorsing those, other than saying they were not statements by donald trump. For historys sake, the prosecution said social media has boasted in the past of how many people read his posts, and he was asked in 2021, he said, yeah, i think thats right. Do you want me to say no . I retweet for a reason. They are currently in break here and about to reconvene, the court, in which david pecker, excuse me, will take the stand again. As to the gag order, jose, judge merchan said he will reserve his judgment on whether donald trump has violated it and its not his timeline on when he will make the determination if donald trump is find and he could warn donald trump that he could serve jail time. Unbelievable, charles, and this is in the morning before the first witness takes the stand. How would you describe the morning . This is not the start you want if you are donald trump, and i have been talking to a number of us on the panel, and i am surprised that todd blanche did not have a better explanation and response for some of the questions that judge merchan has thrown at him. These are not complicated things. While i understand that you are primarily focussed on donald trump and his defense at trial, you have had several days to put together a plausible arguments as to why you should be able to win this hearing against the prosecution and their motion, and in the response that he was responding to Stormy Daniels, you could put together a few tweets if this was the answer that you planned to give. Quite frankly, i am surprised. This is not a good thing. The fact that the judge said you are losing credibility as a Defense Attorney and Trial Attorney this early in the trial is not somewhere you want to be. What do you say if you are trumps attorney and the judge is asking you for specifics about a gag order that was very clearly written and specified . You have to have the answers. Theres no excuse for walking into court unprepared. One thing i never heard in all my years as a prosecutor, from any judge, and many of whom denied my motions, is that i was losing credibility with the court, and thats a dagger for anybody in a court of law. If you lose your credibility, jose, its very, very hard to get it back. By the way, you may need it at the end. So i dont envy mr. Blanche for a number of reasons. He should not just he, but anybody walking into court should be prepared and it was not that difficult to anticipate what the questions might be. There were not that many tweets, and as trumps lawyer its your obligation to know that and explain it, and you might lose but you dont want to lose and lose your credibility. Just the four of you that have vast experience, do you recall a time or more than once when a judge early on in a case said to one of the litigants, either the defense or prosecution, you are losing credibility with this court early on . Do any of you remember that happening . I have seen judges admonish attorneys, and i have seen the Body Language and all of that being the sentiment, but never have i heard it expressly said, youre losing credibility. I have heard this is not a plausible argument. Im suspect thats different. Thats different than a judge stating, you know, when everybody is under, you know, the judicial proceedings underway, to say you are losing credibility. What do you see there . Thats reputationally damaging. I have never seen it happen to a colleague or opposing counsel and i am thankful i have not. It can be detrimental to ones reputation. The thing about it, too, but the comment and to say it in front of ones client is equally damaging, and the client is trump, but, my goodness, even though todd blanche is a wellrespected attorney, having your client hear you being admonished by the court, my goodness. What does the defense team do now and how do they overcome the clear obstacle . I mean, from the bench, the judge says you are losing credibility. If i were them, i would probably be trying to pull together some sort of letter to the judge, Something Else to basically say, look, your honor, based on the things you said in court, here are other things we brought to bear to control the damage, and its reputation overall, fine. Todd blanche made his bet that hes riding on the trump train now and thats his decision. Reputationally, that opens up a whole lot of things that are not worth talking about right now. What does it mean in the context of the case . Every time he stands up to object, he has less credibility. Anytime theres something that comes up with a piece of evidence, he will have less credibility. If this gets to a conviction and we are in are a sentencing phase, he will have less credibility. None of those things are good. All of those things are bad. He has to get into the damage control, quick. The judge said he will reserve the decision on the Gag Order Violations and what to do about it. What do you think about that . Its going to be tough. If he doesnt make a decision right away it runs the risk of trump continuing to engage in potentially violating behavior. The judge is basically saying, let me digest the arguments and take time and speak to the law clerk and look at the law again, and he is being conscientious. And he has stated to trumps counsel, hey, you are losing credibility, and hes still making a con conscientious decision. The break, and they are resuming, and they have not as of right now started the testimony of david pecker. During that time, heres what was coming out of truth social and former president trump. Lets look at that together. I am going to highly conflicted, to put it mildly, judge juan merchan has taken away my constitutional right to free speech. Everybody is allowed to talk and lie about me, but i am not allowed to defend myself. This is a Kangaroo Court and the judge should recuse himself. Thats an interesting tactic. Well, it is. The gag order by itself permits mr. Trump to criticize the judge, so that is probably not a violation. I am a baseball fan, jose, and i think it would be a bad strategy to stop by home plate and tell the umpire he sucks, and that doesnt make a sense and there are nine innings to play. That does not help you at trial. You have to try and right the ship. Maybe you apologize apologize about what though . I was not clear, your honor, and i do think theres an argument to be made for mr. Trump. Hes running for president , and that puts him in a different category than any other criminal defendant. I agree with you that some of these tweets and reposts are troubling, but i dont think they are violative because my client did not intent to violate your order. You try and pull it back. You dont start screaming at the umpire before you have thrown a pitch. When the umpire makes an aside, and you scream again and insult him again, i mean, is there logic to this . Before the trial begins, yes, this is a strategy that we have seen donald trump employ in all of his criminal cases, and i would like to call it to further your Sports Analogy, and i have been using the same one, and putting pressure on the refs. Donald trump is aware theres no judge that wants to be responsible for putting him in jail, and its a logistical nightmare for anybody to hold him in jail for contempt. Hes aware of this. If a judge decides to do that, he has created an appealable issue in his mind, or one he will contest. Before trial, i understand somewhat the logic. Do i like it or agree with it as a strategy . No. But i get what hes trying to do. On the one hand, if he gets penalized he becomes more of a martyr as donald trump the candidate, and if he doesnt, hes donald trump the defendant. Judge merchan said he would be back on the bench at 11 00 a. M. Eastern time, and 13 minutes have passed and he yet has to reenter the courtroom. Donald trump has shown a willingness to play only one playbook and thats to attack judges and prosecutors and folks who were called just in the last year, and it led to a Defamation Suit against e. Jean carroll, and she fed an additional lawsuit. He since has continued to make the statements that led to the very Defamation Suit that cost him 87 million in the first place. The other one was if we go back to the civil fraud trial, and donald trump would recall donald trump was fined of judge engoron. After he repeatedly attacked the law clerk to the judge, he was find 10,000 and held in contempt for violating that gag order. Donald trump has a history predating this trial that hes willing to attack, and as you read from the social media post, he clearly has not been punished for violating the gag order yet, and even during the recess, he got on his phone and continued to attack the individual that could put him in jail if he is to continue to violating that gag order. We are not yet seeking incarceration he says this as a winwin, and this is straight from trumps playbook, and hes got this is really one of his main things is to attack, attack, attack, and he says it as a winwin. Either he goes too far and they do stick him in detention for a night or whatever, and then he really gets to play up the martyr thing, and this is how hes raising money for his legal defenses, hes going to his supporters and passing the hat and saying, oh, whoa is me, i need your money. Or he uses the unwillingness of judges to send him to lockup, and he pushes that envelope as far as he can knowing they will probably backup and hesitate and hes working the refs, and thats where hes seeing the winwin there. It speaks to the fact he knows on the legal merits he doesnt have a great case. Why does he do all these things . He cant win clean if its on the merits, and i talk about it in my book, and he cant win clean so he has to win dirty, and thats where all of this comes from. What are the judges options . I know we can talk about the legal options, but what are his real options, because i mean, is it possible for a Gag Order Violation you put somebody in prison, when, comma, its donald trump running for president . I think it speaks to both points, what is the outcome . If you want to put them in jail, theres so much going into that just from a procedural integrity standpoint, security and et cetera, not withstanding supporting trumps own narrative, and you could fine him and restrict his courtroom privileges. These are all things the judge could do. What is the purpose of a gag order . Its to make sure that the integrity of the criminal proceedings are not threatened. What should probably the judge consider doing is sequestering the jury to make sure they dont see or hear these things. Thats only going to fix a portion of the problem that is dealing with tainting the jury, but what can the judge do to make sure witnesses dont feel threatened and that will take more consideration when trump is attacking some of the witnesses. Remind us, if you would, what are the rules for sequestering a jury or not . In this case, its suspected this will be up to a sixweek trial, and the jury will be able to go home at the end of the day. Could every jury be sequestered . As a judge, that would be one of the last things i would want to do. Really . Its very hard on jurors, i mean, jury duty and service of itself is asking quite lot of ordinary citizens, and they work and may be primary caregivers in their lives, and locking them in a twostar motel for six weeks seems like a bad idea. If you have no other options, well, then, maybe, but to the other point, it doesnt take care of the other part of the equation. You are not sequestering witnesses. Judges dont issue orders for fun. They issue orders so they are abided. By preference would be to punish the wrong doer and not the jurors. Exactly. And i know it sounds like a statement that sequestering is a punishment, but its a hardship. We had jurors that needed protection and anonymity, and we have had jurors transported to the courthouse by u. S. Marshals so they would be safe and secure, and sequestering the jury is going too far. I understand that the judge is we are coming up to 20 minutes past the hour, hes now back in the courtroom and the situation is now starting to get back underway. Dont have the details yet on what is the first order of business, and sorry to interrupt but wanted to let you know thats what is happening right now. To the point of preserving the integrity of the trial and the proceedings, and we started this conversation about talking to donald trump and todd blanche specifically not having the greatest response, and you asked chuck what do you do to show yourself as being compliant with the court and its wishes, and you come in with an answer that has a framework with how do we preserve the framework of the trial. Thats an important point because regardless of the responses you have to the allegations of violating the gag order, you want to give the judge a framework he can use to move forward or borrow some idea so you dont lose everything for your client, and at the core of the framework, you make preserving the integrity of the trial your north star and use that as a means of trying to get out of this alive because it doesnt seem that todd blanche and company has done a good job of strategically thinking, look, donald trump is not going to change who he is and its only going to get worse as we go along because the pressure is going to build, and how do i create a threshold, because this is going to continue to get bad for me and for him. In a very real way, and i am going back to you and what you wrote in your book, trump has a Trump Reality for his supporters, and its never defense, always offense. Right. How does that, you know, benefit him or not in a criminal jury trial . Yeah, so lets get back to blanche. I think this is a good point. The kicker there is he does not quite fit the mold of some of the other attorneys we have seen trump use lately. Branch is somebody who is a bit your accomplished and has a bit more of a track record of clients and matters pretrump. What is happening here, for people that followed blanche and people that told me about his reputation, it seems very unblanchelike, perhaps, that he came in unprepared, and its possible, and i will throw this out there, its because trump is basically saying, no, you are not going to defend these things. You are not going to explain. You are not going to try and apologize not even indirectly for any of my comments. You are going to say, he has a right to do this. The arguments you want to see him making on that side, he cant make because trump is not letting him. I would propose that there. At the end of the day, being counsel for donald trump means you are the conduit for him rather than you are your own independent counsel. We are seeing right now that david pecker has just taken the stand, so he will begin right now a series of questions and answers, and we will, of course, as this comes through to us, we will share it with you. We are all living through this live at the same time. I wanted, kristen, your thoughts on the fact that trumps main attorney does have experience and a lot of it, but on the prosecution side. This is his first criminal case, right, as a defense lawyer. Does lack of experience on this side of the judicial bench matter . You know, its interesting that you say that, because whenever somebody comes to me as an attorney and says i need a criminal Defense Attorney, i always say your best criminal Defense Attorney is a former prosecutor. Why . Because we have to prove the case Beyond A Reasonable Doubt and that doesnt mean putting together the pieces of the puzzle to make out the elements of the crimes. It involves anticipating any potential defenses, right . And rebutting it every step of the way. Just because he has not had any experience as a criminal Defense Attorney, his prosecutorial experience will help him excel in this case. So now as pecker takes the stand, what is it that the prosecution is going to try and establish when we realize that the other kind of bigname star of the prosecution is Michael Cohen, who has a certain amount of credibility issues . Well, mr. Pecker is important to set the context. What mr. Trump wanted to do was kill a story about an extramarital affair, and mr. Pecker helped him do that, not just with Stormy Daniels but also with karen mcdougal. You st