but first, a moment in court the judge called outrageous and simply not allowed. good day. i'm chris jansing alongside andrea mitchell and katy tur and they are back in the courtroom. >> the judge is now planning to issue a new instruction to the jury after trump's defense attorney made a remark that the jury, quote, cannot send someone to prison based on the words of michael cohen. the judge did not like that at all and blasted todd blanche for even raising the idea of trump going to prison. it's not in the jury's purview. >> and of course, you can't unring the bell and now we are all watching to just see how the prosecution tries to rebut the defense's portrayal of michael cohen as someone with an ax to grind and quote, the greatest liar of all time, that he called the gloat. >> vaughn hillyard is with us, danny, catherine christian. both are msnbc legal analysts. okay, they are already back, as we said. we have a little bit of color from inside the room. all the attorneys are present. donald trump has been chatted with todd blanche and emil bovey. his family is here today. tiffany, lara, eric and don jr. are back in their seats. merchan takes the bench and says, people, do you have proposed instructions and susan hoffinger, who is on the prosecution team says this. not only was mr. blanche's comment inappropriate, the comment where it was suggested that the former president of the united states could go to prison, but your honor specifically precluded any argument by the defense about potential punishment. mr. blanche was certainly on notice. blanche said reference to prison. on notice, this was improper. mr. blanche misstated the law in new york to the jury. at best, it is california law and we request that it be stuck. merchan, i have a copy of the proposed instruction. todd blanche, your honor, the proposed jury instruction is fine. on the retainer agreement, we very much believe we have not misstated the law. our arguments were that the witnesses testified about their understanding. we request permission the brief on a potential instruction on that topic tonight. so they're getting into a number of things, but where is this going, catherine? >> two things. one, if you've tried enough cases as a prosecutor, you've always had at one point some defense attorney slip in the don't send my client to prison argument. what you do is what the prosecutors are doing. ask for an instruction. it's outrageous, oh, my gosh. i didn't lead a charmed life as a federal prosecutor. you're used to every once in a while that happening and the judge will give a firm instruction. punishment is not your concern. sympathy for the defendant is not your concern. for this retainer agreement -- >> can i just stop you there and ask you does it need to be stronger? they're not talking about someone unknown. putting them in prison. they're talking about as todd blanche very clearly said -- >> he knew what he was doing. >> former president of the united states. >> he knew what he was doing. but he will give the instruction. it was outrageous, but not shocking. as i said, i had that happen more than once. a defense attorney. >> merchan is saying i think that to actually talk about it, i think would simply call more attention to it than it's worth. >> exactly. exactly. >> danny, you're reacting. >> so it ends up being a freebie. there's that dilemma. same thing with objections. if someone says something objectionable, do you object, and draw more attention to that issue, or do you need that corrective instruction. and this year, i have to tell you, i'm surprised, too. and lest you think i don't make these kinds of mistakes. i've made plenty of mistakes in closing arguments. >> mistakes? >> truly true mistakes. >> this was not accidental. >> that's right. i'm trying to give the defense benefit of the doubt here, right? i do not see a way where you can utter the words prison in closing argument and say oopsie later on. there are oopsies during closing arguments. >> is the judge wrong to say we'll draw more attention to it than it's worth. as angry as he was from what we heard and heard from those in the courtroom or overflow room, this now will not be instructed. >> i can imagine the prosecution agreeing with that because really, it ends up being something that is unfixable with the fix or i should say the fix is sometimes worse than the sin itself. so, it happens a lot. i think catherine would agree with me that even though it was inappropriate by having a curative instruction, you could possibly draw more attention and make it worse. and that's exactly, that's a dilemma that goes on in trial all the time. somebody on the other side does something they're not supposed to do. but if you get a curative instruction, now here we are talking about that thing longer than we should have in the first place. i just have to tell you, i have never accidentally stepped into the area of talking about punishment. it's never allowed. i've made plenty of true mistakes in closing argument. i don't go for the extra, really because i'm afraid of getting yelled at by judges but i still get yelled at. if you utter the words, prison, you can't chalk that up to a mistake. >> clearly intentional. just no way. and mr. blanche did it because he knew he could get away with it and judge merchan, he's a very experienced judge. he is absolutely right. to take time now and quite frankly, you may have had jurors that didn't even hear that part. to highlight it is a good decision. >> he just says jurors, before we hear the government, you heard mr. blanche ask about sending the defendant the prison. ask that you not send the defendant to prison. that is improper and you must disregard it. if there is a verdict of guilty, it will be up to me to impose a sentence. so, listen. we're following a document that i think can be hard to follow because they're updating it in realtime and our team inside the courthouse and overflow room are working so hard. how quickly they're typing, there's like four of them in there filling in this document. so sometimes, we don't get everything correct in the moment but we're trying to correct it now. merchan does appear to be giving the warning to jurors. why don't we -- >> he'll say it again, too. >> was it a good idea to tell the jury this is not up to them, it's up to him? >> it's never a good idea to stray into the issue of punishment. >> for the judge. >> he's just given the instruction to the jury. >> in my view, i'm a fan of curative instructions because i don't like to leave anything out. >> and to do it now rather than during his instructions, in the moment. >> it's a judgment call. again, when i want a curative instruction, i want it cured right a way. i don't want to wait a day or two or whenever the jury gets the case. this is an appropriate way to fix it. i subscribe to the idea that a curative instruction is better than nothing but other people disagree. >> he also says a prison sentence is not required in the event of a guilty verdict. that's important to understand. it is not required that donald trump go to prison if he is found guilty. there are a lot of other options. >> and josh is now starting the prosecution's summation. >> your honor, members of the jury, in his opening, mr. colangelo told you the case is a conspiracy to corrupt the 2016 election and hide that conspiracy by hiding records to pay off miss daniels for her silence. three things, steinglass said, need to be proven by the people. so here he goes right at the beginning, danny. he's starting with this is what we told you we were going to prove and this is how we proved it. >> philosophically, a totally different thing is going on during a prosecution's closing argument. when a defense is closing, they're pot shotting. calling up pieces of evidence they think are the weakest and highlighting those. that's because the defense has no burden at all. pot shotting is how they get to an acquittal. the prosecution has a far greater burden. they have all the burden and they have to build an entire house of evidence, brick by brick. so that's why, and i say this glibly sometimes, but i understand why. that's why prosecutors are the ones who are often using powerpoints. they need to put those pieces of evidence in front of a jury to build a foundation because they have the burden and it is the highest. >> they need to do it clearly. one of the things all of us have talked about in every show is talk about how complicated it might be to help people understand how you go from a misdemeanor to a felony in this case. three things he said need to be proven by the people. can't get more simple than this. that there were in fact false business records. that the false business records were intended to cover up a conspiracy related to the 2016 election that the defendant himself was involved. is that an accurate and understandable telling of what the people need to prove? >> it is. he could have done more with saying it was, you have to prove that he caused it with the intent to defraud, with the intent to commit or conceal and say what that conspiracy is, but that's just nitpicking me. what he has to do, and i know josh, he's not a wind bag. i'd be surprised if he does four and a half hours, but he has enough skills to understand that if he's going too far and boring them to death, he knows how to stop and get around it. >> that's what i was struck by when listening to the defense this morning. didn't start off as tight as this. blanche wound his way through an argument and bits and pieces here, bits and pieces there. it was hard to follow. and it went on for nearly three hours. you didn't get the sign post at the start of it. and lisa rubin said a moment ago that the cardinal rule is you have three points, maybe five. not ten. like todd blanche ended up. >> similar to the way they did direct and cross. journalists and writers, all of us know about the magic of three points and not five and not ten. >> well, here's three. ready? >> steinglass says to the jury, focus on the facts and logical inferences and the hard evidence. notes voice recordings. we ask you to remember the tune out the noise and if you did that, you will see the people have presented powerful evidence. before we get to what the case is about, let's talk about what this case is not about. they are questioning the integrity and suggesting call summaries were trimmed down. the phone records themselves are all evidence. don't fall for the suggestion that these call summaries were trimmed down to mislead you. so here he is right away in essence defending what we heard todd blanche say. the people on the stand were liars and some of the evidence -- >> and that, a good prosecution summation, some do it different. some just start out with their case then say and now what would the defense have you believe. josh is right up front saying you just heard from mr. blanche. don't let him mislead you. and that's exactly. then he's going to get to, you'll see. it won't be pot shots. it will be very organized, complete narrative. >> one of the things the defense did a good job with with michael cohen was sewing doubt that michael cohen had the conversation he said he did with donald trump on the day he said he had it about the stormy daniels payment. they brought up phone records, said he spoke to keith schiller about this 14-year-old who bullied you and in the moments before, you had a phone call with keith schiller. could you not have had just a conversation about that. and michael cohen said well, okay, maybe. later, the prosecution brought up a picture of them the moment they were having the conversation. steinglass is getting to that here in talking about the phone records. he says the defense can point to any call they want you to look at. they double counted half the calls on the costello chart, calls that michael cohen made to robert costello. nor should you accept the defense's argument that we somehow hid. they were free to and did make their own exhibits. keep something else in mind. not every call is reflected in those exhibits. not by a long shot. he says there are 11 different members in cells for donald trump. we don't have his office land line at the white house. there are no outgoing calls to that number. phone companies told us they only keep those records for three years. the absence of a phone record does not prove a call never happened. no records of encrypted calls of conspirators either. some of the conversations in this case took place in person so there would be no record. the fact there isn't a record of a particular phone call does not mean that a particular conversation did not take place. i think that this is, you tell me if i'm wrong, but underscoring how just because there's not direct evidence about conversation that happened in person, it doesn't mean it didn't happen. they're talking about the circumstantial evidence. >> the absence of evidence does not lead to you voting not guilty. >> but does that help the defense? because all they need is a little bit of doubt. >> that's what the defense job is. to create that doubt. as danny said, pot shots. reasonable doubt. not any doubt. they're going to be instructed what it means. doesn't mean beyond all doubt. it means reasonable doubt. >> i think it's interesting they talk about 11 different phone numbers. whoever he happened to be with, they would hand the phone to him. donald trump at the white house. i mean, he has his own personal phone but that's not the only way you could get in touch with donald trump. >> michael cohen's testimony and as it relates to these phone calls, more and more is really being reduced to really a single jury instruction that these jurors will get. in latin, it's called falsis in unum. if you find a witness to be not credible, you can choose either to not believe them on that one issue or completely disbelieve them. and michael cohen is sort of the living embodiment of that principle. they may find him credible. they may go back into the jury room and say michael cohen is the kind of guy donald trump did business with. we believe him because they were in the business of being deceptive or may disbelieve him as to a single phone call but to everything else or may decide you know what, everything he says is garbage because we think he lied on one particular issue. >> steinglass says you don't get to falsify your business records because you think you've been victimized. in other words, even if you were daniels and her attorney were trying to extort from him, not a defense for falsifying business records. you've got to use your common sense here. consider the utterly damning testimony of david pecker. it alone establishes one of the three things we have to prove here. the conspiracy to unlawfully influence the 2016 election. you don't need michael cohen to prove that one bit. pecker also eliminates the whole notion that was politics as usual. the defense took one question out of context and put that on the screen, but it was part of a whole series of questions. keep in mind, mr. pecker has no reason to lie. no bias toward the defen dent. this was neither politics nor journalism as usual. at ami was something with catch and kill that none of us were really aware of until this case came up. >> it also occurs to me they were very busy over the lunch break. they are going point by point on the things they say uh-huh. that's not what happened here. >> they knew michael cohen would be the subject. they're not going to throw him under the bus because they called him, but they are going to point out as he said, you have david pecker. they're going to go through all of the corroboration for different things that michael cohen testified to. and add that you know, why he can believe about what happened in the oval office in trump tower. >> and catherine, he says hope hicks, graph, westerhout, these people like the defendant but each provides critical pieces of the puzzle. building blocks. if anything, they have the incentive to skew their testimony to help the defendant. other witnesses want to see the defendant held accountable. they're angry and want to see him convicted. >> don't just trust michael cohen. it's everybody else. that their case goes well beyond cohen. >> and there are people who testified who like him and want to defend him, but their testimony only backs up what michael cohen initially alleged. >> hope hicks cried because clearly, she still has some, you know, feeling for her former boss. >> i wonder how that reads with the jury. i've been thinking about that a lot. seeing her cry and understanding she doesn't have a relationship with donald trump any longer because he's been angry at her for a couple of years now, does the jury look at that and think, god, this woman steamed his pants while he was wearing him and now she and he don't have a relationship because he's angry over this, that or the other? does that read well to the jury that this man is an em pathetic and at his core a nice guy if hope hicks is crying over a lost relationship? >> obviously parts were good for the prosecution but the idea that someone is that loyal to donald trump, that they cry at remembering the relationship. i mean, that could humanize the defendant, but it could also show the jury, hey, maybe this guy was as much of a tyrant or had a hold over his employees that even now years later, they're still sad or upset. in a sense, is she kind of a michael cohen figure? someone who was willing to do anything for this man including bad things. >> now, he's trying to deal with the stormy daniels issue. the defense has tried to shame her saying she changed her story. she lived 2017 in pure silence. michael cohen came out and said sex never happened. she felt compelled to set the record straight. he says there were part of her testimony cringe worthy. so he's dealing with that. that whole episode in the suite, that was uncomfortable. what it looked like, the toiletry bag, those details kind of ring true. the kind of details you would expect someone to remember. you don't have to prove sex took place. that is not an element of crime. the defendant knew what happened and it reenforces the incentive to buy her silence. >> i also wonder -- >> to discredit her for testimony so irrelevant, why did they work so hard to discredit her. so going to the fact that it was that cross-examination, a lot of us and lawyers felt went too far in putting her on trial. >> it doesn't remind the jury that she didn't say the sex in her estimation was exactly consentual. >> i think daniels as a witness was a mistake for both sides. in other words, the prosecution called stormy daniels and they didn't necessarily need her. they didn't need to get into the same detail steinglass is discussing now. in my opinion, her testimony may represent the strongest case on appeal and that, just my opinion, it's about the only issue that the judge himself commented on was problematic. they may have waived that on appeal. >> have to show she knew a lot of details to prove her credibility. >> no, just because -- i've heard that as proposition. i tend to disagree with it because there are lot of things made more believable if you provide details but they may be issues that are inappropriate. for example, if something is extra prejudicial, too prejudicial to be admissible, i could give you a ton of details about it. just my opinion, this may be an appealable issue. this stuff he's talking about, the detail of the tiling and whether they had dinner or didn't. yes, those are details. and yes, they may tend to show that her story is more credible. but is it a story that should have been told in the first place? again, that's not me. that's justice merchan. >> steinglass says her story is messy but says that's kind of the point. the display the defendant didn't want the american vot