As witness testimony continues in Donald Trump’s New York criminal trial, jurors heard from former Trump advisor Hope Hicks and longtime Trump Organization controller Jeff McConney. Veteran prosecutors Andrew Weissmann and Mary McCord discuss the impacts and the significance of exhibits 35 and 36 on the case. Plus, a stern warning to Trump from Judge Merchan as he rules on another gag order violation, And an update on the Florida classified documents case.
For further reading: Here are exhibits 35 and 36 which Andrew and Mary discuss in this episode.
View this graphic on msnbc.comAndrew Weissmann: Hi, welcome back to “Prosecuting Donald Trump.” It’s Tuesday, May 7th, and as we are doing these days, because the news is so fast and furious, it is 10:11 a.m. I’m Andrew Weissmann, and I’m here with Mary McCord.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: So, Mary, you know, it’s so funny when we were talking, because we actually do talk a little bit just before we start in case --
Mary McCord: Like moments.
Andrew Weissmann: -- I know it sounds like we don’t prepare at all. We actually do a lot of reading.
Mary McCord: Yes.
Andrew Weissmann: But we actually spend a few minutes discussing how we’re going to approach today. And one of the things both of us were saying is, well, we really do need to talk about Hope Hicks, even though both of us were like, isn’t that like four --
Mary McCord: Ancient history.
Andrew Weissmann: We’re like, isn’t that four years ago?
Mary McCord: I know. It feels like it.
Andrew Weissmann: It does because both of us have so much to say about what happened in the trial yesterday with Jeff McConney, the Trump Organization’s controller. But we do actually want to talk about Hope Hicks. Mary, I’m dying to hear what you thought about her. And then we are going to talk about Jeff McConney and sort of what we anticipate going forward. We are very much going to be about the New York trial, but we have more on our plate than that, Mary. What else are we going to talk about?
Mary McCord: Well, yes, we will talk about the additional fining of contempt by Judge Merchan --
Andrew Weissmann: Yep.
Mary McCord: -- and his very explicit warning to Donald Trump that these fines of a thousand dollars apiece, if they’re not adequate to prevent him from violating the order and impacting the fair administration of justice, then he’s going to really consider incarceration. So we’ll talk a minute about that.
And then we’ll talk a little bit about what’s been going on in the last week in the Mar-a-Lago case, a few developments there. And, you know, the other cases, honestly, nothing is going on. They’re just sitting there, so -- waiting.
Andrew Weissmann: Like a led balloon, that’s because we’re all sitting on tenterhooks with respect to the DC case. We’re waiting for --
Mary McCord: The Supreme Court.
Andrew Weissmann: -- the Supreme Court decision.
Mary McCord: Yes.
Andrew Weissmann: But with that, should we turn to Hope Hicks and her testimony, and maybe I can frame it this way, which is I was very much thought that she was a really devastating witness for the state, and I thought she filled a very important hole that was developing with respect to the case. And I really didn’t understand some of the arguments, which was, oh, she sort of gave stuff to both sides. I mean, it sounds like she doesn’t have anything for the other side, but I just thought that was the wrong take. If I were the defense lawyer, I’d have choice words that we don’t use on a PG --
Mary McCord: Yeah.
Andrew Weissmann: -- podcast. But, Mary, what did you think?
Mary McCord: Well, I agreed that she was very powerful witness for the people, in support of their argument. You know, I mean, you and I can both put on defense hats and you actually have been a defense attorney. I actually have not, but I feel like my job as a prosecutor was always to think how would the defense argue it?
Andrew Weissmann: Yeah.
Mary McCord: I can think about the things that they would argue. But just first of all, the reason she is so important is because unlike some of the other witnesses, well, really unlike Michael Cohen who we’re going to hear from, unlike Stormy Daniels who apparently is on the stand, she is somebody who is very, very close to Mr. Trump, and went and got her own attorney as opposed to other Trump Organization or former Trump Organization employees, such as those we’re going to talk about who testified yesterday, who are having their attorneys paid by Trump Organization.
She doesn’t have an axe to grind with Mr. Trump. She’s not biased against him. So, you know, in terms of credibility, she’s somebody, if you’re the prosecutor, who’s so important because the impression will be that she’s very credible. It’s clear she doesn’t want to be there, from what the reporting has been. She broke down in tears at one point. So this is the kind of witness that just exudes credibility in front of a jury. So that’s one reason I think that she was powerful.
And certainly, she also made powerful points that support the prosecution’s case. You know, namely, I think that when the “Access Hollywood” tape broke just a couple of days before the debate, the presidential debate, and very shortly before the actual election, this was a big, big deal. There was a big concern that this would be devastating to Trump’s campaign, particularly with female voters, but just in general.
And notwithstanding that she testified that Trump himself sort of brushed it off initially as locker room talk, it became clear as they did the debate preparation, that this was a big, big deal. And, in fact, the first question posed to Trump during the debate was about that “Access Hollywood” tape.
And so, the fact that that was such a big deal and she was able to explain, and I think she called it a crisis, right, what a crisis it was for the campaign, really helps to explain why when just a few days later, she gets a call from the Wall Street Journal to comment on a story they’re about to break, about Karen McDougal and also mentioning Stormy Daniels.
This seemed like something that really had the potential to be devastating and caused her, of course, to call Michael Cohen, called David Pecker, et cetera, and sets up the entire motive and intent that the prosecution opened on, which is that, of course, Mr. Trump ultimately participated with others in creating false business records, with the intent to conceal other crimes. Those other crimes being election fraud, based on the catch-and-kill scheme. He had conspired with Mr. Pecker and Mr. Cohen as far back as, I think, it was August 2015.
And also, to cover up other potential violations like tax fraud, and this is going to become important in a few minutes when we talk about yesterday’s witnesses who really established those fraudulent business records, including tax records. So, anyway, the point is that she sets up the intent for Mr. Trump to want to squash this and to be willing to pay to squash this, because he wanted to conceal this.
She also puts out there another motive, which is to conceal this from Melania Trump. She does say that when Mr. Trump heard news of the story breaking, he asked her to make sure that the papers would not be delivered to the private residence so his wife wouldn’t see them.
Andrew Weissmann: I totally agree with everything you said. The other thing that I thought she was very good at giving the state was she was asked about when the story broke in the beginning of 2018, about the Stormy Daniels --
Mary McCord: Right, way after the fact, after Trump is president.
Andrew Weissmann: -- threats. Yes.
Mary McCord: Yes, exactly.
Andrew Weissmann: Yes. So the story breaks and she has a conversation directly with Donald Trump. And he says a couple of things, but one of them is he makes it clear that he’s aware of the catch-and-kill scheme. So at some point, according to her testimony, he is aware of it because he says, I know that Michael Cohen made these payments and that essentially, thank God, this story broke after the election, not before, as a result of Michael Cohen’s payments.
So she has it directly coming from his mouth that he is aware of that at that time. So the only issue is at what point --
Mary McCord: That’s right.
Andrew Weissmann: -- did he become aware of it, not did he become aware of it? And the reason that’s important is until her testimony, people would recall that the agreement with Stormy Daniels and Donald Trump had three, but not four signatures. Donald Trump did not sign. And Michael Cohen had said to Keith Davidson, per Keith Davidson, that Michael Cohen might just have to pay this himself directly. And in fact, we know he did pay through Essential consulting.
So the issue became sort of like what was Donald Trump’s role? What did he know? And Hope Hicks makes it clear that he certainly knew by 2018, that Michael Cohen had made these statements to him and that he was aware of the hush-money payments. And also, it was noticeable what she’s not saying. He didn’t say, oh, my God, I can’t believe he paid. Isn’t that awful? I wish I’d known about it. This was without my approval. In fact, it was the opposite, which was, thank God, he paid because it avoided this coming out before the election.
So it continues with a motive, but it puts a key piece of knowledge in his head that she is testifying to directly. And that, I think, as you said, is so credible. I don’t know that I would say that all of her testimony was totally credible. But from the state’s point of view, she is a very reluctant witness too. It sounds like somebody who has a motive to curry favor with the state.
She has every reason to be friendly to and not hurt Donald Trump. In fact, that’s at the point she started crying after giving that testimony. So he thought she was just so critical at nailing down. The only open issue now with respect to the hush-money payment is when Donald Trump learned of it, and that’s going to fit in with the next witness we’re going to talk about, Jeff McConney, which I think gives us more indirect evidence, from which you can infer when Donald Trump would have really had to have known.
Mary McCord: Right. And just to go back to everything you were saying, I was finding it in the transcript because I think the words there are really important. So Hope Hicks is talking about a conversation that she had with Mr. Trump, the morning after Michael Cohen gave a statement to “The New York Times,” saying that he had made the payment to Stormy Daniels without Mr. Trump’s knowledge, right?
Andrew Weissmann: Yep.
Mary McCord: And so, this is when and I’m just reading from the transcript. This is when she talks to Donald Trump, “President Trump was saying he spoke to Michael, and then Michael had paid this woman to protect him from a false allegation. And that, you know, Michael felt like it was his job to protect him, and that’s what he was doing and he did it out of the kindness of his own heart. He never told anybody about it, you know, and he was continuing to try to protect him up until the point where he felt he had to state what was true.”
This is what Hope Hicks testified that Donald Trump told her. And Hope Hicks then is asked some questions about whether it would be out of character for Michael Cohen to spend his own money out of the goodness of his heart. And she answered, “I did not know Michael to be an especially charitable person or selfless person.” And then her concluding statements right before the end of direct examination, and this is something when you’re a prosecutor, you sort of want to end on something powerful and I think this was something powerful.
The question was, did he, that’s Mr. Trump, say anything about the timing of the news reporting. And she answered, “Yes. He wanted to know how it was playing. And just my thoughts and opinion about the story versus having the story, a different kind of story before the campaign, had Michael not made that payment. And I think Mr. Trump’s opinion was it was better to be dealing with it now, now being after the election, and that it would’ve been bad to have that story come out before the election.” That’s a pretty powerful way to end, and that’s what actually appears to have caused her to break down into tears as the cross-examination was starting.
Andrew Weissmann: So on this issue of Michael Cohen and she makes it clear she didn’t believe --
Mary McCord: Yeah.
Andrew Weissmann: -- what Donald Trump is telling her, a couple points. One, all of the defense attacks and, frankly, the state’s attacks on Michael Cohen, actually you can flip the script on that. All of the fact that he’s a louse, to put in the vernacular, actually is going to be part of the state’s argument.
Mary McCord: Right.
Andrew Weissmann: Now, he’s not a paragon and that is precisely why he wouldn’t have done this.
Mary McCord: Right.
Andrew Weissmann: He has every interest in currying favor with his boss and not doing behind his boss’s back, nor is he that kind of person. So all of the descriptions by the defense about his character actually get to be flipped on their head.
Second, the statement that he didn’t tell anyone, I’d ask our listeners, remember that because we’re going to talk about the Jeff McConney, Allen Weisselberg documents, Exhibits 35 and 36, because we know that that statement that Michael Cohen didn’t tell anyone is not true.
Mary McCord: Right.
Andrew Weissmann: Not just that he told somebody in 2018, he told them at that time, and we have actual written --
Mary McCord: That’s right.
Andrew Weissmann: You don’t have to take anyone’s word for it. That statement to Hope Hicks, that he did not tell anyone, not true. We have documents on that --
Mary McCord: Right.
Andrew Weissmann: -- that really can’t be controverted.
Mary McCord: So the point you’re making, which I think is a great one, which is like the defense has tough time here, right, because they want to make Michael Cohen out as a louse and a liar on everything, except this. This would be the point where he didn’t lie, right?
Andrew Weissmann: Yeah.
Mary McCord: He was very, you know, particular about --
Andrew Weissmann: Charitable.
Mary McCord: -- when he lied and when he didn’t lie.
Andrew Weissmann: He’s charitable.
Mary McCord: Exactly. Yeah. So you kind of can’t have both of that.
Andrew Weissmann: Mary, let’s go back to your point which I thought is so right, which is to talk about Melania. So I just first wanted to point out, there’s a difference between why you’re doing something at that time and when the story breaks in 2018, being concerned about how your wife is going to take it.
Mary McCord: Right.
Andrew Weissmann: That doesn’t mean why you pay the hush money is because when the story comes out, you’re actually concerned then about, well, my wife might be angry. Because just remember, he wasn’t concerned about Melania in this story before the “Access Hollywood” tape came out. And we’re going to have evidence that he was trying to not pay the money at all until after the election, because he wouldn’t have to pay at all.
Mary McCord: That’s key. That’s key.
Andrew Weissmann: And so, it seems like basically, it’s like he’s not concerned before “Access Hollywood,” and he is not particularly concerned if he either wins or loses the election if he can avoid paying, which means he’s not really concerned about Melania. Now, when the story breaks, the fact that you would be concerned at that point is not really a defense.
So, I think, Mary, one thing that might be useful, and I know we’ve gotten a question or two on this, is what if Donald Trump was thinking 50 percent, just hypothetically, he was thinking about the campaign as to why hush-money payments should be made to keep the story away from the electorate? And what if he was thinking 50 percent that he was worried about his wife? I mean, you could tinker with the hypothetical.
Mary McCord: Right.
Andrew Weissmann: So it might be useful for people to understand the law. But before that, just you know, we have a listener question that is directly on that.
(BEGIN AUDIO CLIP)
Listener: If the jury concludes, unanimously concludes that there were two independent motivations for Trump to pay off Stormy Daniels and cover it up. And the two being, one, to shield his wife and family from the information about her, have made allegations by her. And the second, to promote his presidential campaign and keep it free from another bad piece of information.
If the jury concludes that either one of those would have been sufficient, that they were both true, is he still guilty of a felony of trying to aid his campaign?
(END AUDIO CLIP)
Andrew Weissmann: And so, Mary, what’s your understanding of how the judge is going to instruct the jury on this issue? And just you know, this does come up under New York law because, for instance, we’ve talked a lot about this, that you can commit false business records, with an intent to commit another crime. But what if your intent is to commit that other crime, but also to do it for personal reasons?
Mary McCord: Right.
Andrew Weissmann: It’s like the analogy under New York law is burglary versus trespass. If you just trespass into someone’s home, but you’re not intending to rob that home, then that’s just simple trespass. But if you have an intent to commit another crime, it’s a more serious --
Mary McCord: Which could be robbery. It could be a sexual offense. It could be --
Andrew Weissmann: Yeah, exactly.
Mary McCord: -- multiple things, destruction of property.
Andrew Weissmann: Right.
Mary McCord: Yeah.
Andrew Weissmann: Right. So what if you have multiple motives?
Mary McCord: Yep.
Andrew Weissmann: That’s what we’re getting at.
Mary McCord: Yep.
Andrew Weissmann: So what’s your understanding of how the judge will instruct --
Mary McCord: Yeah.
Andrew Weissmann: -- the jury on that?
Mary McCord: So we haven’t seen jury instructions yet in this case. But, generally, in cases like burglary, like federal election crimes where there can be mixed motives, the jury is usually instructed that, you know, the government doesn’t have to prove, just take this case, the intent to conceal some other crime was the sole purpose or the sole motive of the person.
And he will probably instruct that people rarely have, you know, act with a single purpose in mind. Oftentimes, there are mixed motives. And mixed motives are okay, the government just has to prove that one of the motives really was to commit this other crime and that he wouldn’t have sort of not done the thing at all, except to commit the other crime. There has to have been a driving force, even if it was not the sole driving force.
So the upshot of all that is jurors don’t have to think that Mr. Trump didn’t care about whether his wife knew or not. They don’t have to think the only thing he cared about was covering up election fraud, or federal election campaign finance violations, or tax fraud. They can think he wanted to cover that up and, you know what, he really probably didn’t want Melania to know about this either. That’s okay.
Andrew Weissmann: And there are nuances, Mary, in what you’re saying, which we’ll get to when the --
Mary McCord: Instructions. Yeah.
Andrew Weissmann: -- judge does the instructions, whether it has to be a significant purpose, whether it has to be what’s called the but for the purpose. Now, I really feel like people are super in the weeds.
Mary McCord: Yes.
Andrew Weissmann: Welcome to law school. But I think we’re going to come back to that. But I think for this purpose, keeping it at a high nerdy level --
Mary McCord: Yep.
Andrew Weissmann: -- as opposed to the low nerdy level --
Mary McCord: Yeah, right.
Andrew Weissmann: -- is mixed motives are fine.
Mary McCord: Yep.
Andrew Weissmann: You don’t get off because you happen to also be thinking about your wife. That’s why when there were articles talking about, well, she said that he wanted to keep the newspapers from Melania, I was like, that is legally just --
Mary McCord: Of course, he did. Yeah.
Andrew Weissmann: Yeah, of course, any normal person would, but that’s just not a legal defense here, or a factual defense. So with that, let’s take a break --
Mary McCord: Yep.
Andrew Weissmann: -- and come back and talk about McConney and the two exhibits that I love --
Mary McCord: Yes.
Andrew Weissmann: -- in this case.
Mary McCord: Very important.
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Mary McCord: Welcome back. Now, Andrew, I’m excited to dig into the testimony from yesterday, Monday’s testimony, because this is when really for the first time, we got into the business records, the fraudulent business records or alleged fraudulent business records. And we heard from two really important witnesses who had been; one, a former Trump Organization employee; one, a current Trump Organization employee, and that is Jeff McConney and Deb Tarasoff.
So Jeff McConney was a long time, something like 34 years at the Trump Organization. He was the controller. And then, at some point, I think he had an even higher level title. He worked directly with Allen Weisselberg who, of course, was the chief financial officer.
And Deb Tarasoff was the accounts payable person. And at least for a good part of her 24 years, there was like the entire accounts payable department. I think she now supervises someone. So she’s the accounts payable supervisor. But, again, it tells us sort of like notwithstanding there being a lot of Trump Organization entities, what a small sort of central office it was, you know, one accounts payable person.
At any rate, their testimony was super important because remember here, what the prosecutor has to prove is that these business records were produced and that they were fraudulent. And so, Mr. McConney did have to go through the entire process of who can approve an invoice. And of course, he said Donald Trump himself, but also Weisselberg sometimes had authority if it was for less than a certain amount of money. If it was more --
Andrew Weissmann: $10,000.
Mary McCord: $10,000. It was changed over time. But at the relevant time, $10,000. And when it was more than that, it would either have to be Donald Trump himself, Donald Trump, Jr. or Eric Trump would have to approve invoices. He talked about how those invoices, when they were approved to be paid, would go to Deb Tarasoff to actually print a check. The check would then go with an invoice, she testified, stapled to it, to whoever was going to sign for it.
And she made it very, very clear that the monies were coming, after the first couple of payments, from the Donald J. Trump Revocable Trust. Once Mr. Trump became the president, those payments were being made from his personal Trump account and they had to actually mail or probably UPS or some delivery service, the checks and invoices down to the White House so that Mr. Trump could sign them.
But every time, she made it clear, the invoice, right, and here we’re talking about invoices coming from Mr. Trump every single month saying, you know, directed to Mr. Weisselberg, that this is an invoice for legal services, $35,000. That would be stapled right there to the check for $35,000 that Mr. Trump signed. So super, super important in terms of just proving up the actual physical, what had to happen for these records to be made.
Oh, and I left out a part, when Deb would get the invoice, she would then, per the direction from Jeff McConney, make the note in the general ledger that this was for legal expenses. She didn’t question that. She didn’t look behind that. She just did what she was told to do. So that’s sort of the mechanics of it.
And one thing also I want to say about the mechanics of it is if you were sitting in court or if you read the instructions, this gets really boring because they have to go through this for every single check. They went through it with Jeff McConney for every single invoice and put the invoices up on the screen, and what happened to them for every single month of 12 months.
They did the same thing with Deb Tarasoff. But that’s because it’s the government’s burden to prove beyond a reasonable doubt every single count. And every count of the 34 counts in this indictment relates to one of those documents, the invoice, the voucher, the check. And so, unlike us on this podcast where we can say, here, we’ll read you one count. All the rest of them are just like that count. They can’t do that. They have to actually go through every single one. But beyond that, that’s --
Andrew Weissmann: Yeah. We’re not proving up each of our statements beyond a reasonable doubt.
Mary McCord: Exactly. Right, right. When we had Robert de Niro read the first count, we then said, okay, you don’t need to read the other 33 counts. That would just be boring. So that’s the mechanics of sort of what they need to establish. But what was so important in addition to that, and that was critically important, was explaining what these payments were for, because this is where Jeff McConney and this is where Exhibits 35 and 36 are so important. Andrew, and I know you just barely can sit still because you want to talk about these.
Andrew Weissmann: So we will put in our show notes, links to Exhibits 35 and 36 so that people can see those backdrops, the cover-up part of the case. After we’ve basically been dealing with sort of the election fraud scheme, the cover-up part is describing the reimbursements as legal fees, as opposed to having a bunch of paperwork saying here’s the money that I used to pay off the porn star. So it was disguised as legal fees. And to make it legal fees because there’s our income to the lawyer, Michael Cohen --
Mary McCord: Michael Cohen.
Andrew Weissmann: -- he would have to pay taxes on it. So he has to be paid twice as much because he’s in a 50 percent bracket. So to get paid $130,000 reimbursed for that, you have to get paid 260. And so that’s the issue. Are they truly legal fees, in which case there’s no crime? Or are they, in fact, just reimbursements?
Now, this is where there is so much evidence of the fraud that these are not legal fees. Let’s leave aside that Hope Hicks, going back to what she said. She has a conversation in 2018 with Donald Trump, where he says, I know that Michael Cohen paid off the --
Mary McCord: Paid these.
Andrew Weissmann: Paid these and was --
Mary McCord: Or paid off Stormy Daniels.
Andrew Weissmann: Right.
Mary McCord: That’s what we’re really getting at. Yeah.
Andrew Weissmann: And was reimbursed. Donald Trump himself, on various forms, and as we talked about last episode in this California civil case, in various tweets, he has said he reimbursed Michael Cohen for the hush-money payments. So there’s just up one side and down the other. There’s Donald Trump saying, I reimbursed him for the $130,000. So that’s not legal fees. That’s a reimbursement. And the others, if you’re reimbursing somebody, and this came out over and over again --
Mary McCord: Yeah. So this was in testimony.
Andrew Weissmann: -- in Jeff McConney direct.
Mary McCord: Yeah.
Andrew Weissmann: Which was when you reimburse somebody, if you lay out $10, you get paid $10. You don’t get paid $20.
Mary McCord: And I think this is important too because you alluded to this that this is income to Michael Cohen, so he needs to pay for his tax liability there. But it also means that it generates from the Trump Organization, a tax document, a 1099 that they have to send out to Michael Cohen, and that Jeff McConney testified about, which again is a false tax document here because he was not an employee anymore from Trump Organization. Michael Cohen, he was now supposedly Trump’s personal attorney. But that 1099 went as sort of a non-employee services.
Andrew Weissmann: Yep. So, why are we both so like love as in our former prosecutor hat, which is like firmly put back on our head, why do we love Exhibits 35 and 36? Well, exhibit 35 and 36 contain handwritten notes. Jeff McConney describes in 36, his own handwritten notes based on a conversation with Allen Weisselberg. 35, he says contains on the left-hand side, Allen Weisselberg’s handwriting, which he says, I know because I’ve worked with him for 35 years.
Mary McCord: Mm-hmm.
Andrew Weissmann: So that’s his handwriting. They contain notes describing how the calculation was made. And so they say, essentially, 130 times 2. That is not how you bill like a legal fee. You don’t lay out $130,000 for your client and then multiply it times 2. It is, however, totally consistent with the idea of a reimbursement, where you’re going to pay taxes on the reimbursement if it’s now being declared as legal fees.
Mary McCord: Just to clear things up because the times 2 might be getting confusing to people because 130 times 2 would be 260 and that’s not what the notes reveal, right? Because it apparently, Cohen claimed at the same time that he would do reimbursement for some other services which are noted on this and we can talk about to the amount of 50,000.
Andrew Weissmann: Yep.
Mary McCord: So that jumped the 130 to 180.
Andrew Weissmann: To 180.
Mary McCord: And that’s what they did the times 2 and then added a bonus.
Andrew Weissmann: Yep.
Mary McCord: So just so that people don’t confuse about --
Andrew Weissmann: Yeah
Mary McCord: -- 260.
Andrew Weissmann: And by the way, that 50, keep your eyes on that 50 because I think it’s a sleeper. Not that this document is so devastating, but that other 50,000 was for a company called RedFinch. And it was according to Michael Cohen and we know this from opening, that’s $50,000 which he paid to get a poll to be more favorable to Donald Trump. So, again, both of these relate to campaign expenses --
Mary McCord: Right.
Andrew Weissmann: -- that they wanted to keep off the books.
Mary McCord: Right.
Andrew Weissmann: This is why Michael Cohen is the bank doing this.
Mary McCord: Yep.
Andrew Weissmann: So that it could be done on the side and then be disguised as legal fees. So the idea that the 130 and the 50 are both together being described that way is part of the -- it’s not like the 50 was legitimate.
Mary McCord: Right, right, right.
Andrew Weissmann: It is just as devious in terms of what it was about, where this was -- okay.
Mary McCord: Otherwise, they probably would have just reimbursed him 50 and not called it legal expenses and doubled it.
Andrew Weissmann: Exactly. By the way, Allen Weisselberg puts his notes on the bank statement that Michael Cohen uses, to prove that he actually paid the 130 hush payment. It’s not like a piece of paper, that scratch paper.
Mary McCord: Nope.
Andrew Weissmann: Like, if you’re wondering, gee, I wonder if this is related to the hush-money payment, it’s on the frigging bank statement --
Mary McCord: Yep.
Andrew Weissmann: -- that shows the hush-money payment.
Mary McCord: Yep.
Andrew Weissmann: I mean, like, what is it? Just hanging around for a few months? Just, oh wait, where’s the scratch paper I have? Oh, wait, why don’t I just use the bank statement?
Mary McCord: Yeah. Well, it makes a better record.
Andrew Weissmann: But it has nothing to do with the hush-money payment. It just was like that piece of paper just hopped out of my desk. And I mean, it’s just so preposterous. Of course, that’s there to show that the payment had been made.
Mary McCord: And that also is consistent with McConney’s testimony that when Allen Weisselberg provided this to him, we still haven’t set everything on it, he was like, for the files. Remember?
Andrew Weissmann: Yes.
Mary McCord: The intent was to keep it for the files as a record. And just because listeners are not viewing what we’re talking about, when you we the bank statement, this is the bank statement, remember, where he opens and we heard from the banker about opening this account.
Andrew Weissmann: The First Republic banker, Mr. Farro.
Mary McCord: That’s right. Gary Farro.
Andrew Weissmann: Yeah.
Mary McCord: Right. It talks about beginning balance, zero; total deposits, 131,000; total withdrawals, 130,035. And what does it say is paid? It’s paid, withdrawals and debits, domestic wire funds to Keith Davidson for 130,000. Oh, the $35, that was the wire transfer fee, right? So totaled withdrawals $130,035.
So right now, we’re already like, oh, here, we got the corroboration that Michael Cohen opened this account. He put $131,000 in. He sent $130,000 to Keith Davidson. Then you have all the handwriting on it. We have Allen Weisselberg’s handwritten notes, really telling for the files, as he tells Jeff McConney what they’re going to be making payments for. He takes the 180, right, which is the 130 plus the 50 for these tech services. And then he writes gross up to 360, add annual bonus 60 equals 420. And then he specifically says that’s 35,000 per month starting in 2017. So it’s just right there. It’s as plain as can be.
Exhibit 36, as Mr. McConney testified, was from his own meeting with Weisselberg when he was writing down notes, describing how they were going to make these reimbursements to Michael Cohen. Basically with all the same thing, we’re going to start paying when he actually leaves the Trump Organization effective January 27th. And then he lists them out, the bonus, but he got it wrong. He wrote 50. He says later, I got it wrong. It was supposed to be 60, 180 plus 180. And he even writes on there times 2 for taxes, right? He writes times 2 for taxes equals 420, divided by 12 is 35,000 a month.
Andrew Weissmann: So on cross-examination, Jeff McConney was asked, well, did you have any direct conversations with Donald Trump about this? No, I didn’t. So you don’t know what essentially Donald Trump knew about this from your own personal knowledge? No, I didn’t.
On redirect examination, it’s like, well, you, frankly, very often don’t have conversations with Donald Trump. You just take your orders from Allen Weisselberg. Yes, that’s true. In other words, he just was doing his job. This is the kind of thing. This is a summation document. It is as close to a smoking gun as you’re going to get, even without it being something that was written by Donald Trump. As we talked about, it just is so impossibly that this would be going to on without Donald Trump knowing, really devastating.
Let me just do, Mary, a little bit of what I used to do when I was in the U.S. Attorney’s Office, which was like a little impromptu summation on how absurd it would be for Allen Weisselberg not to have told Donald Trump at that time, what he was doing. So the defense wants to say this all was happening behind Donald Trump’s back, that nobody told him this.
To believe that, you would have to believe that somebody who worked for Donald Trump for years and years, and years and years, who has been his chief financial officer and devoted to him for a really long time, would decide that it was in his best interest to not just approve $130,000 going to Michael Cohen, which he would need to get approval for, because it’s way over 10,000.
Mary McCord: Over 10,000. Yep.
Andrew Weissmann: That he would do that on his own. And not only would he approve that, he would double it to 260 and he would give him a bonus. And he would do the other 50,000 and double that.
Mary McCord: And double that.
Andrew Weissmann: And do all of that, where the reaction if Donald Trump found out that he had violated this rule and given away the store, which -- and by the way, it’s already been in the record that Donald Trump is a cheapskate.
Mary McCord: Yep.
Andrew Weissmann: You know, he watches every penny and is a micromanager. So he’d have no reason to do this at the risk of his job. Like, what’s the benefit to him to do this? So there’s no evidence that Weisselberg and Cohen were somehow in cahoots and we’re cooking up a scheme, and this was like some kickback scheme. There’s nothing like that, but there’s more.
So he would be risking his job. To do this scheme, the actual invoices and checks go to Donald Trump. So what do you think the reaction would be like, I’m sorry, you want me to pay for what? And you approved what? And why are you doubling it? So there’s none of that.
And wait, Mary, there’s more. We know from Hope Hicks that he knows that there was a hush-money payment and reimbursements. We know that Donald Trump says, I did reimburse for that. What part of that story consists of, I cannot believe these people did it behind my back?
Mary McCord: Not to mention month after month, Donald Trump just signs a check for $35,000 that says legal services, without ever asking what are these legal services for?
Andrew Weissmann: Right. So notorious cheapskate who watches every penny, which by the way, David Pecker said he was really careful and frugal. By the way, the defense opened on that saying --
Mary McCord: Yep. Yes, they did.
Andrew Weissmann: -- he’s really careful. Why would he pay so much money if he only had to pay 130? I mean, I don’t know why Todd Blanche made that argument because that’s actually a prosecution argument, not a defense argument. So the idea that this was something that he wouldn’t know, when he is signing the checks, that this was a scheme that they thought they would get away with, without telling him for over a year. And we know his reaction afterwards is thank goodness, we were doing this. And he sort of, according to Hope Hicks is even fabricating his story.
Because the other thing that these documents show, Exhibits 35 and 36, is the story from Donald Trump that Michael Cohen didn’t tell anyone about these hush-money payments is not true --
Mary McCord: Yep.
Andrew Weissmann: -- because that’s what these documents show. There’s no way around it.
Mary McCord: To be clear, they show he told Weisselberg at a minimum, right?
Andrew Weissmann: Yeah, at a minimum. Exactly.
Mary McCord: These alone don’t prove he told Trump. But everything else you just said, plus all the evidence we’ve heard from David Pecker and that we have yet to hear from Michael Cohen, you know, corroborates that. And to your point about signing the checks month after month, one of the things Deb Tarasoff said is like, sometimes he’d send something back and say, no, I’m not signing this. He’d write void on it.
Remember she said, she stapled the invoice to every check for him to sign. And these invoices, every one of them, were from Michael Cohen to Allen Weisselberg for these legal services rendered, or the retainer for legal services. And he signed them all with no questions asked. So really important testimony from these folks.
Andrew Weissmann: The other thing is the invoices small point say that it’s for ongoing work during that time period.
Mary McCord: Right.
Andrew Weissmann: So they’re really couching it as this is for the work that was done during the time period of the invoice. There’s nothing in it to suggest, oh, we’re just calling the hush-money payment legal fees because that’s not how it’s described. It’s described as ongoing work. And that is over and over again sent to Donald Trump and to his son. So this is all, without even getting to Michael Cohen’s own testimony about this, but it just tells you how corroborated the Michael Cohen story is.
And maybe a final point, Mary, is, you know, Michael Cohen is the person who sort of blew the lid on all of this and sort of revealed this is what’s going on. And he famously testified before Congress and was asked about this whole thing and talked about the doubling of the 130 and how the scheme worked. He could not have known at that time. Like, Jeff McConney was taking notes of a conversation with Allen Weisselberg, and would have as Jeff McConney called it chicken scratchings.
There’s the Exhibit 35 and 36. So it is such strong evidence that there’s this independent corroboration from two witnesses who are not aligned with Michael Cohen as to what Michael Cohen was saying.
Mary McCord: Yep.
Andrew Weissmann: Okay. Mary, let’s take a break, come back, and we’ll talk about what else is going on.
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Andrew Weissmann: Welcome back. So let’s just briefly talk about the gag order findings, what wasn’t found, and then turned to Florida. So the day started yesterday with Judge Merchan issuing his decision for alleged gag order violations. He found one, the one that we all anticipated, which was respect to the conversations about the jury, and said that was proved beyond a reasonable doubt. He said he couldn’t find the others beyond a reasonable doubt for various reasons.
But the main thing that he did is he looked directly at Donald Trump and orally told him, I really do not want to put you in jail. There are all sorts of ramifications for putting in jail somebody who was the former president, who could possibly be the future president, and then all of the mechanics of it. I don’t want to disrupt the trial. He said, there’s lots and lots of reasons against doing this, but I have a job to do and I have a job to protect the integrity of the judicial system and this process. And you need to know, and I am putting you on notice now, that if you violate again, if appropriate, jail essentially is the next step. That’s me paraphrasing.
He obviously isn’t going to say that is what I’m going to do because he obviously wants to hear the facts and wants to hear from the defense. But that was about as clear a warning as you could imagine. And, you know, there is some reason to think it is working and that Donald Trump is curtailing some of his speech. It’ll be interesting because I think he gets that there is a significant chance that, at least, for some period of time, even if he’ll just --
Mary McCord: Right.
Andrew Weissmann: -- step back into the holding pens of the court, because that’s where prisoners are kept while they’re awaiting court appearances. So he wouldn’t actually be going to the prison building.
Mary McCord: Right.
Andrew Weissmann: He could be kept in the lockup of the criminal courthouse. But that is something that you can see Judge Merchan was explicit.
Mary McCord: Yeah.
Andrew Weissmann: He said, fines are not working.
Mary McCord: Yep, yep.
Andrew Weissmann: I mean, he came right out and said that, not working. You know, he made sort of a number of finings in the record that are pretty ominous for Donald Trump. Do you have any thoughts on that, or any other ways you thought about what he did?
Mary McCord: No. I mean, I think he had basically foreshadowed that he was going to say something like that this time around. He said he didn’t want to do it, but the fines were not sufficient or had not appeared to be sufficient. I mean, I think there’s other options as we talked a little bit about one possible option --
Andrew Weissmann: Yep.
Mary McCord: -- would be like home detention, which wouldn’t be like a muzzle on him, but it would mean he couldn’t be out doing campaign rallies. Another option is he, you know, imposes incarceration, but stays, you know, the actual enforcement of it. Mr. Trump actually, you know, being stepped back. That’s our terminology --
Andrew Weissmann: Yes.
Mary McCord: -- stepped back into the holding cell until the end of the trial or some further date, and potentially says, look, if you behave yourself, I’ll reconsider this sentence. I mean, there’s various options. And we’ll also have to see what the prosecution does, because remember the prosecution hadn’t even asked for jail time this time around. So we’ll see if there is another statement that they believe is contemptuous, will the prosecution ask for it, or will they ask for something else?
My guess is, you know, folks are talking already with Secret Service about how would this work, if it were to happen and I think we’ll see. But I do think it is having some impact and I think he will stay away from commenting about jurors at least, because that’s I think one of the things that Judge Merchan --
Andrew Weissmann: Yeah.
Mary McCord: -- is the most concerned about.
Andrew Weissmann: And to put it in New York terms, it’s a third rail.
Mary McCord: Yeah, and it should be.
Andrew Weissmann: So, Mary, because I’m too triggered by Judge Cannon, let me turn it over to you --
Mary McCord: Yeah.
Andrew Weissmann: -- to talk about Florida --
Mary McCord: Yep.
Andrew Weissmann: -- which, you know, I think is a lost cause in terms of it getting trial before the election, even though it easily could have. But just briefly tell us --
Mary McCord: Yes.
Andrew Weissmann: -- what did Judge Cannon do?
Mary McCord: Yeah. So first, I want to start with what Trump’s attorneys and others attorneys have done. But, yes, let’s remember there is no trial date set in that case. There’s never been a trial date set, except the original one in May that was, you know, taken off the table a long time ago. And even though the judge had a hearing on March the 1st, ostensibly to set a new trial date, no new trial date has been set.
However, there was a date this week that was supposed to be the date of a CIPA filing. That’s the Classified Information Procedures Act, where the defense has to basically tell the court and the government what, if any, classified information the defense wants to use in its case in defense against the charges. Mr. Nauta came in, asking for an extension of time to file that.
And in response to his motion for all kinds of reasons that look a lot like delay, delay, delay, the government, on Friday, filed a response to that saying that he doesn’t need any more time and revealing one of the reasons now they had ask for more time is he was claiming that when he went to examine the documents in boxes, that everything wasn’t in the exact same place as it had been when the boxes were first obtained, pursuant to the search warrant of Mar-a-Lago.
The government revealed in its filing, here’s the procedures we went through. When a filter team went into Mar-a-Lago, filter team remembered to make sure that the prosecutors wouldn’t see anything that was attorney-client privilege. And they filtered out certain things, and they put placeholders in boxes. They, you know, marked every box. They marked every document that was in every box.
Maybe every document in every box is not in the same order it was in when we first did the search. Some things were on small little pieces of paper. Some things were on big pieces of paper. There are various things in boxes. The boxes weren’t full. And even though we have good records about what was in each box, it’s possible that the order of how things were in each box is not the same.
And the government says, that shouldn’t make a darn bit of difference to Mr. Nauta because Mr. Nauta isn’t even charged with any mishandling of classified information. So he certainly doesn’t need any extra time. But Mr. Trump’s attorneys pounced on it and said, oh, my goodness, now we have new information of discovery violations and spoliation, which is a fancy legal word for maybe you destroyed documents, maybe you tampered with evidence, et cetera.
And so, now, not only do we need to have a stay of this CIPA filing that was due May the 9th because how do we know now what we’re going to want to get into evidence from those boxes, because they’re all out of order. So we need to stay of that and we’re going to be filing lots and lots of motions now for all the things that the government did wrong.
What Judge Cannon did late last night and said, I’m temporarily staying this filing deadline of May 9th. She didn’t say I’m setting it off for like two months, but she wants to be able to, I guess, hear back from the government in response to Mr. Trump’s motion before she rules on when the CIPA Section 5 will be due. And so it’s a temporary stay.
Yes. Does this mean it’s all the more unlikely that this case goes to trial before November? Yeah, probably, but I didn’t think it was a high likelihood of it going before November, anyway. So I’d say minimal impact on that.
Andrew Weissmann: Yeah.
Mary McCord: I mean, there’s just still a lot to be done in terms of these CIPA proceedings and the way that she takes a lot of time. There’s also a lot of other pending motions and things like that.
Andrew Weissmann: Yeah. So this is like another data point for why this case is not going to go to trial before the election is that we needed more data points.
Mary McCord: Yeah.
Andrew Weissmann: But, okay, I’m breathing.
Mary McCord: Yep.
Andrew Weissmann: I’m breathing. It’s frustrating.
Mary McCord: It’s frustrating.
Andrew Weissmann: Yep.
Mary McCord: Yep. And we could go on and on about these boxes, but we won’t because we are at the end of our episode.
Andrew Weissmann: By the way, you could tell that we’re both trial lawyers because getting into the weeds, you know, this is like what we do --
Mary McCord: Yeah.
Andrew Weissmann: -- is think about cases and proof. I’m going to give a final point which is I think it’s sort of clear from the way we talk about it, just so you know sort of what’s in my head and I’m pretty sure, Mary, because you’re an appellate lawyer and a trial lawyer, is I always am thinking about the closing.
Mary McCord: Yeah.
Andrew Weissmann: And in fact, when you’re putting the case together, you’re supposed to really have thought about your closing, and you structure the entire case from opening and all of the witnesses. In terms of the closing, what you need for the closing.
Mary McCord: Oh, yeah.
Andrew Weissmann: What arguments you’re going to make? And so when I hear these witnesses, I’m thinking about what pieces of hard proof does it give me, but also how is it going to fit into the arguments at closing? And it’s all sort of working backwards from that. And so that’s why, you know, when I did this mini summation, that’s sort of because I’m thinking about --
Mary McCord: Yep.
Andrew Weissmann: -- okay, how is this going to be used and thinking backwards from that. And I just think as a sort of practice point for a nerdy, that I think we’re going from law school to sort of like a practicum.
Mary McCord: Yeah.
Andrew Weissmann: That is very much the way I like to think about, as I’m hearing evidence, is how is this going to play out?
Mary McCord: Yep, 100 percent.
Andrew Weissmann: Okay, Mary, I think it’s time to wrap.
Mary McCord: I think it’s time to wrap. Yep. Next time we talk to everyone, we will be able to talk about Stormy Daniels’ testimony. So there we go.
Andrew Weissmann: Absolutely. Okay. I’ll see you Friday.
Mary McCord: See you Friday.
Andrew Weissmann: As the trial continues in New York, Mary and I will bring you new episodes twice a week to keep you up to speed. And we want to answer your questions as we did today. We answered a really great question. So please send us any questions. You can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@nbcuni.com. Thanks so much for listening. We’ll have another episode for you this Friday.
So this show is produced by Vicki Vergolina. Our associate producers Janmaris Perez. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.