Welcome to a special twohour edition of the beat. Im katie phang. Were nearing the end of the first Criminal Trial of a former u. S. President donald trump. Next week the case could be in the hand of the jury. Before that happens, Michael Cohen will be back on the Witness Stand Monday for a third day of cross examination by trumps defense attorney todd blanche. The defenses focus so far has been to try and portray the states key witness as a serial liar, someone who cannot be trusted and who is only out for revenge against his former boss. The word lie was used more than 60 times in court yesterday. Through what felt at times like A Meandering Cross Examination Blanche may have been able to poke a hole in cohens credibility as a witness during questioning about one of the phone calls from october 2016 that cohen testified earlier in the week he had made with trump, allegedly telling him the payoff to Stormy Daniels was being handled. Yesterday cohen admitted that he was having trouble recalling his phone calls on specific dates back in 2016 after being presented that the phone call might have been with trumps body guard about a completely different issue. The defense has so far failed to raise on cross examination any questions about the many documents presented as evidence about the falsification of those Business Records in order to hide the reimbursement to cohen of that 130,000 hushmoney payment. The prosecution are not relying solely on cohens testimony, but have been spending the last few weeks presenting the jury with corroborating evidence to nearly Everything Cohen has testified about. The lawyers for both sides have told the judge they expect to be finished with cohen by monday. The prosecution indicated as of yesterday, they do not expect to call any other witnesses. Thats handing over the case to the defense. For their part, the defense said theyre Still Deciding whether or not they will call any witnesses, including donald trump. That will only leave Closing Arguments, a final opportunity for both sides to tell the jury how the evidence supports their theory of the case. For the defense, it may be a high bar given that during their Opening Statements todd blanche told the jury, quote, youre going to learn that the money paid to cohen by trump was not a payback. The 35,000 a month was not a payback for cohen for the money that he gave to ms. Daniels. He was President Trumps personal attorney. But the evidence presented so far tells a completely different story. Joining us is lisa rubin, harry litman and joyce vance. That is a promise that blanche made to the jury that he has not only failed to deliver on, but the prosecution brought out evidence to prove that this payment was a reimbursement to Michael Cohen. Theres handwritten notes showing the Wire Transfer to Stormy Daniels. Theres trumps signed 2017 public Financial Disclosure report that says that Michael Cohen was reimbursed. And trumps own tweet from may of 2018. Will the prosecution cover this on redirect or wait until closing to tie it all together . They have a very good choice here. Blanche is a prosecutor by background. You are taught as a prosecutor never, never, never over promise in the opening. This is tailor made for an absolute bludgeoning of this very point. Will they bring it home . Its already clear to the jury really that its been a reimbursement. New york is a little different. In new york, the prosecution will go last and the defense first. The evidence seemed so clear from the start thats what this was. I think its a bad selfinflicted wound. Joyce, biggest blow thus far to cohens credibility was that october 24th, 2016, phone call. But that was only one of at least six other calls that month in October Of 2016 that Michael Cohen testified during which trump gave him directors about how to deal with and to do the Stormy Daniels payment. None of the other calls have been brought up by the defense yet. Were not heard any questions during cross about meetings Michael Cohen had with donald trump where they discussed the whole scheme. This is only a problem for the prosecution if they dont fix it on redirect. As you have pointed out, there are other calls. Theres a call two days later on the 26th thats far more important, because thats the day that Michael Cohen forms the Shell Company thats used to transfer money to Stormy Daniels. That happens after a couple of calls with trump early in the morning. So on redirect the prosecution will be able to support his credibility. He takes a hit here, but it doesnt need to be a fatal one. To harrys point, i may just be a Country Lawyer from alabama, but one thing i know from having tried 40 or 50 cases is that something that juries hate is when a lawyer makes a promise to them and breaks the promise. I think the broken promise from the defenses Opening Statement will matter a lot more in the final analysis for the jury than some sort of temporary damage to cohen that will be fixed by the redirect. Another part of the defense is that Michael Cohen just made this 130,000 payment on his own accord without any guarantee of ever being paid back. But we have other witnesses that say it is definitely not something Michael Cohen could or would even hope to do. Did the idea that Michael Cohen made a payment to Stormy Daniels out of the kindness of his heart, would you say that consistent with your knowledge of him . Hicks, that would be out of character for michael. I didnt know michael to be a selfless person. Hes the kind of person who seeks credit. We have in david peckers testimony, you told us that Michael Cohen told you the boss would pay you back. How did you feel about that . Pecker, over the years that i worked with Michael Cohen, i know he didnt have any authorization to spend or disperse any funds from the trump organization. Every time we went even out for lunch, i always paid. He never paid. I didnt think that he had any authorization to spend any acquire. Without mr. Trumps approval . Pecker, without mr. Trumps approval. How important is it that we have corroborating testimony from protrump witnesses . Its huge. Michael cohen represented that he was stiffed on his bonus at the end of 2016 by almost twothirds. David pecker in his testimony testified that Michael Cohen shared with him not only that he had been stiffed on his bonus but his outrage that trump by Late December of 2016 hadnt repaid him. He asked pecker, could you talk to the boss about this . Pecker said he then had a conversation with former President Trump in which trump never answered him directly but mentioned Michael Cohens significant wealth outside of the trump organization, including through his taxi medallion. So they said cohen paying on his own would be out of character and beyond any authority that he had and that he complained to pecker specifically about that, thats huge in terms of corroborating cohens testimony. Theres also the recording of Michael Cohen and trump discussing the karen acdougall payment. I spoke to allen about it when it comes time for the financing what financing well have to pay. No, no, no. Todd blanche tried to make a Big Deal About Cohen secretly recording a client. That ended up falling flat that said theres a Crime Fraud Exemption to any kind of confidentiality. This is an especially difficult jury to read. They file in like soldiers. They dont chat with one another. The answer is, it doesnt matter. Whatever they think about that and about the ethics of taping whatever, trumps words responding immediately how are we paying including blanche also tried to say, well, maybe cash versus check, has to do with the method of financing. Again, an extraneous detail. What we hear is trump acknowledging, knowing whats going on. The same thing when he talks to hope hicks later. He knows he is reimbursing this phony bologna scheme. Thats what stands out. Joyce, you wrote about that moment yesterday regarding that october 24th phone call we just discussed. You write, before trump defenders get too excited, they need to remember this is just one moment in a long, drawn out cross examination. Will the jury remember it by monday when cohen is back on the Witness Stand for a fourth day, let alone during Closing Argument . Pundits debating whether this was a home run or a yawn, but it will be the jury that decides whether to keep them from trusting cohens testimony. There was a lot of chicken little yesterday about people being freaked out about that moment with Michael Cohen. I didnt think it was that big of a deal. I dont see where the punches are being landed here. To your point, even if there was a glancing blow that was landed, is anybody going to remember it five days later . I know some people have been very critical of todd blanche, but i think he has one insight that may be valuable. Thats that sowing chaos and making the case difficult to follow is the sort of environment where perhaps you could convince one or more jurors there is reasonable doubt. Hes been scatter shot all over the place. Well see him make what he can of that in Closing Argument. It all comes down to whether there are one or more jurors looking for a reason to find reasonable doubt, because the governments case has been tried really well to this point, far better than expected. You know, we have two lawyers on this jury. Theres different schools of thought on whether or not it makes sense that its good for the prosecution to have two lawyers on the jury, because there are some more complex legal issues at play during deliberations. What are your thoughts . I do think its good to have those lawyers on the jury when it comes to deliberations not necessarily because of the sophistication of the legal concept. Remember, this is a lot about the negotiation of what are standard corporate deal documents done for anything but a standard corporate purpose. The fact were talking about, for example, payment of a retainer without any retainer agreement, both of those gentlemen you referred to are understood to be in private practice. The fact of representation at that kind of money without a retainer agreement, that might strike both of them as the sort of thing that is anomalous and as to the credibility of the d. A. s case, given their particular life experiences. Dont go anywhere. We look ahead to the Closing Arguments in the trump trial starting as soon as next tuesday. Stay with us. Starting as soon as next tuesday. Stay with us makes trading easier. With its customizable options chain, easytouse tools and Paper Trading to help sharpen your skills, you can stay on top of the market from wherever you are. E trade from Morgan Stanley power e trades easy touse tools make complex trading less complicated. Custom scans can help you find new trading opportunities, while an Earnings Tool helps you plan your trades and stay on top of the market. E trade from Morgan Stanley do you want to close out . Should i . Normally id hold. But. Taking the gains is smart here, right . Feel more confident with Stock Ratings from j. P. Morgan analysts in the chase app. When youve got a decision to make. The answer is j. P. Morgan Wealth Management. I love that my daughter still needs me. But sometimes i cant help due to burning and stabbing pain in my hands, so i use nervive. 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Its ultimate speed for ultimate business. Dont miss out on our fastest speed plans yet switch to Comcast Business and get started for 49. 99 a month. Plus, ask how to get up to an 800 prepaid card. Call today joyce, we have talked a lot about primacy, the idea that you start strong and end strong in your case. The prosecution will end their case in chief on Michael Cohen. Its surprising. We didnt anticipate that in advance. This whole primacy and recency thing comes from psychology. We know that jurors remember best what they hear first and what they hear last. It suggests prosecutors were confident that cohen would stand up on cross examination. Of course, theyll get a final shot. Harry pointed this out earlier. New York State Court is a little bit different from what were used to. In most states the prosecution goes first, followed by the defense, and then the prosecution gets a rebuttal. Here in new york, though, the defense lays out their case, the prosecution lays out theirs and thats it. The prosecution goes last, because of course, they bear the burden of proof Beyond A Reasonable Doubt. They will have that last chance to make an impression on the jury. Lisa, the defense in this particular case is donald trump. One question which remains open ended is whether or not donald trump will take the stand. Conventional wisdom says no. Remember, this is donald trump. He has an outsized presence to influence his lawyers to take positions in court at times that are a little bit absurd. I think theres probably something around a 15 to 20 chance that donald trump testifies because of who he is and because of the most recent trial donald trump has been a defendant is one in which he did testify, albeit in a very circumscribed way. Thats E Jean Carrolls second trial. Because any good Criminal Defense Attorney would say to him, this is not a good idea. I have no doubt that todd blanche and Susan Nneckeles are saying that to him. I wouldnt be shocked if donald trump at his own insistence takes the stand. If this man takes the stand, i actually think it would be really great, but not because of the media value, because i think he would do himself in. With Closing Arguments, the judge will read the jurors the instructions. This is from the New York Times. Prosecutors do not have to prove to the jury Beyond A Reasonable Doubt that mr. Trump committed the crime. His explanation will be important in the outcome of this complex case. Harry, how did this issue from elevating it from a misdemeanor to a felony, how does that get teed up to the jury . Putting aside Closing Arguments, how does the jury get this and take this to deliberation . It is tricky. I dont disagree with lisas point about the upside, but if youre thinking about trumps conviction, this is a downside. Lawyers can take very seriously what might otherwise leave regular jurors befuddled. Did he do it with the intent of covering up the other crime . It does get slippery. Theres an interesting strategic choice for trump. They can request a lesser included offense, which would essentially be conceding guilt on the Misdemeanor Charges but would not the felony. One of the best pieces of advice i ever got was write your summation or Closing Argument first and take it from there. In a big case like this, they have really been pointing so much evidence toward how it will be on summation. A good example, we saw those paralegals on the stand who got stuff in and nobody knew what was going on in Closing Arguments that will be part of a Powerpoint Presentation that will really march through things. Its going to be really tying everything up in the summation. Thats what much of the evidence has been presented for in the first place. Lisa wrote something that was really great too about t