Right before they took a break, the prosecution in Donald TrumpsHush Money Case reminded the jury Michael Cohen is not the one on trial here. Despite a crossexamination that got heated, just as he was finishing, and yet an admission by trumps former fixer on the stand did leave the d. A. s office with some clean up to do. Im Chris Jansing alongside my colleagues, Andrea Mitchell and katy tur. Sorry, Michael Cohen acknowledged under oath that he stole 60,000 from the trump organization, that he did it out of anger that mr. Trump cut his bonus. The prosecution is trying to use their second shot at questioning Michael Cohen to redirect the focus back to the former president. Were going to bring you live updates as we read them when Michael Cohen returns to the stand in just a few minutes after the lunch break. Nbcs Yasmin Vossoughian is live at the courthouse. Catherine christian is still with us. Also with us, andrew weissmann, former lead prosecutor in Robert Muellers special counsels office. Good to have all of you here. So since you just joined us, where would you pick up . Lets just take the 60,000 that Michael Cohen said he stole. You know, this is the kind of thing that catherine and i when we were prosecutors and put on witnesses who had done lots of bad things, the defense wants to, and has an obligation to bring out a lot of the bad acts of what they have done before. But very often those bad acts, evidence of it is the witness, in fact, saying it himself or herself. Here, Michael Cohen is the one who provided the evidence of it, and the amount of evidence is one single witness, Michael Cohen, and one of the things you will probably hear is what we used to argue to the jury, which is when Michael Cohen says something bad about himself, that should be believed. Take it to the bank. And when he says he stole money, which, by the way, the only way people know about it, the state knows about it, the defense knows about it, is because he admits it. That you should take to the bank. As soon as he says something thats corroborated, that you cant believe. Thats the back and forth. I know catherine and i are thinking about, how is this going to be used in summation. You have been talking about how you think the has a really strong case. How did you think the defense did on their crossexamination . You know, this is one where i hold them to sort of a lower standard because, you know, a lot of times the Defense Lawyer will try lots and lots of different things, and a lot of it may not work. But they dont need a lot of it to work. Its okay if just some of it works. And they, i think, scored a valid point respect to the October 24th Call to raise. If the only issue in the case was what happened on october 24th, i think they raised doubt about that. The problem is and theyll try and say thats what the case is about. In general, all of the things we knew about how sort of difficult Michael Cohen would be as a witness we knew even before he took the stand and certainly was confirmed by his direct examination, and further confirmed on his crossexamination, which is, if all you had was Michael Cohens testimony, i dont think the state would have brought the case, and this would not be something where you say its proof beyond a reasonable doubt. Is what youre saying, this could be a one score, to put it in your words, one score with one juror, thats what theyre hoping for. Absolutely. What theyre hoping for is that all 12 actually agree. Of course. Yeah, you know, a hung jury is something the defense always is like that second best, and you know, all they need is one juror. Remember, it takes 12 to acquit. It takes 12 to convict, and if theres anything less than the 12 to convict, you have a hung jury. When we come back from lunch, well find out whether and to what degree that cspan clip or still photo will be admitted in. Will that be enough to cast doubt on what the defense was trying to do and corroborate the possibility that Michael Cohen is telling the truth, that he did call and reach Keith Schiller coming off the stage with donald trump. There was time for both issues to have been raised, the 14yearold, as well as letting trump know we have taken care of stormy. I think if youre an adult and dispassionate, theres no question that Michael Cohen, and probably the d. A. s office made a mistake in thinking that only one thing happened on that October 24th Call, and during crossexamination, he was saying, well, i still think thats the call and it must be that two things happened, and frankly, 96 seconds is time to do that. I was talking about if i were the prosecutor, i would count out 96 seconds to the jury to show how long that is. The Tape RecordingMichael Cohen made of donald trump is 90 seconds long, theres a lot of ways to argue it. On the other hand, i think the prosecution with this exhibit, which is going to come in in some form. If it doesnt come in right now, they will be allowed To Authenticate it. The judge says its clearly relevant. Its a question of the rules of evidence about authentication. Its not one for one, but it helps, it supports the idea that the two of them were there and the call could have been happened with both of them. Lawrence mentioned a moment ago that the trump team didnt go anywhere near the weisselberg notes on the trump stationary, exhibits 35 and 36. We talked about them a ton here. Why did they not try to poke holes into that stuff . I mean, that seems like pretty strong evidence. Wouldnt you want to sow some confusion in the jurys mind there . You want to. Just to be clear, mary and i spent an entire episode of our podcast on exhibits 35 and 36. When we saw that, we latched on it, as former trial lawyers, oh, my god, that is devastating. And in so many ways, its corroborative its got the 130, its got the times two. All of the things that todd blanche did today would be fine arguments if you didnt have those notes. The answer to your direct question or to directly answer your question is sometimes theres not a lot you can say and you try and nibble around the edges, but, you know, i dont know what he can do about it. Its a guy that wrote down the payments to Michael Cohen, a guy currently in prison for continue to go lie for donald trump, continuing to hold his water. I mean, i feel like thats strong circumstantial evidence just on who Allen Weisselberg is. The jury doesnt know hes in prison, doesnt know why. Thats something we know. If they were paying attention to the news before this, they would know. That is true, although its a low information jurors. Heres one of the reasons, if the Defense Lawyer doesnt have a lot to say, one of the things they want, as few times as possible, do they want exhibit 35 and 36 shown to the jury. We have to go back to the courthouse because we have a mini bit of Breaking News with Yasmin Vossoughian. To the question we havent talked about in the last hour, which is will he or wont he, donald trump, we got some, i dont know, info, opinion, what did we get on it . Reporter a little bit more than a mini bit of Breaking News, chris, a little bit more than that. Alina habba talking to fox news, when asked the question or what is going into the decision on whether trump is going to testify. Her answer was well, hes got to listen to his attorneys. Its not as much as what he wants to do. We know he wants to testify. He is willing, he is able. He has nothing to hide. It would be quick in terms of the questions asked because he had no part in this. 90 seconds of testimony in the e. Jean carroll defamation case, four hours of deposition offered up in the trump civil fraud trial. The thinking going into whether or not the former president is going to testify, we have said over and over again, its ultimately up to donald trump, in fact, to testify, and i do believe that. Of course hes going to take the counsel of his attorneys alina habba is telling us here. Bradley smith, former fec commissioner to possibly testify. Now it seems iffy. It seems as if both the prosecution and the defense are going to confer on the limitations to his testimony and or offer up guidance to the judge as to what should be included in jury instructions, and if, in fact, they both agree on the jury instructions, they wont need Bradley Smith to testify. The line of questioning, quick reminder here, bob costello, an attorney who in 2018, Michael Cohen thought about retaining, was encouraged by donald trump to retain. Bob costello, Rudy Giuliani as well. A friend of Rudy Giuliani as well, and just during direct testimony, Michael Cohen was asked, did you tell the truth to bob costello, he said no, im paraphrasing here because he did not question him at the time. Can i talk about brad smith, the other Expert Witness regarding the fec. A former commissioner. I have interviewed him for a show that Jacob Soboroff and i did called the swamp, talking about campaign finance, and dark money. He is an emphatic arguer that citizens are people. That dark money does not negatively affect campaigns. He is very good with words. Very good at pushing his points. He can talk you in circles in order to get his point out. The judge said hes not going to let him testify to the law, that is for the law in his charge to the jury. It if he did allow him, hes a convincing person, very good with pushing what he believes to be correct. So i understand high they would want him as a witness. Hes very argumentative and can be effective. I couldnt understand. We talked about what the defense did not do. Why didnt the prosecution try to in direct rebut something catherine was talking about earlier, yes, i stole and the Brown Paper Bag of cash. Why did they let that come out in cross . It probably would have been a good idea to pull the teeth on it and do i think we have talked about this, like, you know, there are different schools of thought. Im a big believer in on your direct examination, like basically just letting it all hang out there in detail. So it kind of leaves the defense with not a lot to do in terms of just bad acts. But, you know, its one of those things. I think it all is really going to come down to how you argue it. One good thing about Michael Cohen on all of that stuff. Hes just admitting it. Its not like they have to drag it out, and he has actually said it. The reason the defense knows is because its in reports that were written. One comment about Just Alina Habba and donald trump testifying is that i strongly suspect that because its the defendants decision, not counsels decision to testify or not testify, most judges and i suspect it will be true of judge merchan, hes an extraordinary judge. He is going to in court say mr. Trump, is this your decision. So i dont think hell be able to say, oh, you know what, my counsel made the decision, and hide behind that. He can say i considered the advice of counsel. He will have to say in court how often does that happen . Any good judge, you know what, they dont want an appeal issue where later a defendant says i didnt understand i had the weight. They dont want a Speech Rallying outside the courthouse not the jury but the judge will ask it outside of the presence of the jury. And he could say exactly that. What do we make of this lineup of possible people that they could call to the stand, smith, costello, a paralegal, put in a phone chart which is expected to be very quick. Theyre giving some thought to it. Whats your best estimation. I dont see The Point Of Calling mr. Smith if he cant really testify to anything. What he talked about with you, hes not going to be allowed. That would be pointless. Costello is a problem for them and a gift to the prosecution. It opens the door to him allegedly trying to prevent Michael Cohen from flipping, his relationship with julianne. That is a pandoras box. He cant be on direct. Hes going to be cross examined by the prosecution. Why is Keith Schiller not being called . Thats on the prosecution. Why arent they calling him . Do you think the defense the prosecution would get to crossexamination him. The defense is best not calling any witnesses. They dont have to prove a thing. And the prosecution cannot comment at all in their summation about why didnt they call this person and that person. The judge is back. Theyre going to have the Charging Conference where they decide how to instruct the jury tomorrow afternoon. That is still subject to change. He mentions hes not crazy about going down for a week, but thats just the calendar, and unfortunately thats the way the calendar is working for this trial. The discussion regarding admitting the cspan videos, i saw the peoples submission. I had the opportunity to read through the testimony to see what kind of foundation can be laid. He points to page 1,664. What is your position at cspan. This is the testimony that the cspan Executive Director gave them. They say Executive Director of the cspan archives, did you travel to testify. He says, yes, i did. What is cspan is the question. What do you do with the october 2016 archives. Does the Camera Operator Record the event in realtime . Yes, producer watches video from the beginning to the end, is video camera tested ahead of the event . Yes. Signal test . Yes. Audio test . Yes. When video is being transmitted, does cspan record then save the video. The testimony is yes. Describes Everything Telecast on cspan. Why is he bringing up this specific testimony . To put in evidence you have to lay a foundation and show its a Business Record kept in the ordinary course of business, and there already had been a cspan witness. The judge is going over what that person said. For the audience, The Big Picture is although defendants and their counsel do not have to stipulate to anything, 99. 9 of the time, it is, they stipulate on both sides. You do not have to do this. This is an unusual trial where the defense has not stipulated to anything. What does that mean . Usually you can just say here are Phone Records and you dont have to call the Telephone Company and say yes, i work for the Telephone Company, here are the records of the Telephone Company kept in the ordinary course of business. The other side says i agree theyre telePhone Records. I can argue about what they mean that courtesy extends both ways. This is the unusual trial where the defense has not stipulated to anything. Having worked with susan necheles, as a prosecutor. In any normal case, of course. A defense that has continually complained and the defendant has complained hes off the Campaign Trail and they have had any number of witnesses to do exactly what this witness would do, which is to prolong the trial for things that under most circumstances would have been just, yes, we agree. Theres no question. Do you think its because of the client not wanting them to agree can i correct, andrew, thats federal court. State court, at least in manhattan, we were trained as prosecutor, you better know how To Authenticate documents and videos and that. Theres just no stipulation, why if youre the defense. Really in that courthouse, no. I dont see anything wrong with it. As a prosecutor, of course theyre not going to stipulate. Youre trained as a prosecutor in manhattan, the d. A. s office. You can expect the defense is not going to consent. Its a very different world. Were going to get an answer on whether hes going to allow this video to be admitted. Hes asking hes still reading from the testimony from the cspan. While were waiting for that, can i ask a quick question, and you can certainly weigh in. There was thought this morning as the journalists were waiting in line for hours and having the conversation about what judge merchan would decide in terps of a schedule. They could do closings on thursday, begin deliberation. He would have let them do that. They would be off friday, saturday, sunday, and monday. Friday is a holiday too. So four full days. Maybe started a little bit of deliberation, and had to wait four days to come back. Was there any way any judge would think judge merchan thought about it over the weekend, and i believe a juror said he cant come on thursday in the afternoon. Thats right. It really would not be a good thing. They have a week off. Merchan says hes not going to allow the videos. He says i can appreciate the case law that the photo is relevant, testimony is foundation, and hes highly qualified in exhibits he was going to produce to suggest that a paralegal cannot testify To Authenticate the videos, and i dont think we