Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Katie Phang:

Todd Blanche is upset because he knows that he looks like a fool right now, representing Donald Trump. It is the stupidest opening to a cross-examination I have ever heard, and I have heard a lot of stupid stuff.

Preet Bharara:

That’s Katie Phang. She’s a former prosecutor and the host of MSNBC’s The Katie Phang Show on Saturdays at noon. She’s been in the courtroom throughout Former President Donald Trump’s criminal trial in Manhattan. Michael Cohen, Trump’s former attorney, fixer and friend, who flipped against the former president testified this week. Katie joins me to discuss this highly-anticipated witness and other news out of the trial that’s coming up. Stay Tuned.

THE INTERVIEW

The Manhattan DA’s prosecution of Donald Trump continues this week with testimony from Michael Cohen. Katie Phang, host of MSNBC’s The Katie Phang Show, joins me to discuss the latest news from court. Katie Phang, my friend. Welcome to the show.

Katie Phang:

Thanks for having me.

Preet Bharara:

How are you?

Katie Phang:

I’m great. I’m a little tired, but still exhilarated to have been a part of one of the most interesting, I think, things that’s happened in our judicial system in a long time. That trial, that thing that’s going on in New York right now.

Preet Bharara:

Is there a trial going on in New York? I haven’t heard much about it.

Katie Phang:

No, nothing. No coverage whatsoever. It’s shocking.

Preet Bharara:

Well, we’re going to spend some time talking about it, and I know you’ve been there for large portions of it. Before we get to the substance of anyone’s testimony or the trial strategy or anything else, could you just paint us a picture of what it is like? Is it a zoo? Is it a circus? Is it some other kind of metaphor? Getting in, getting out? Just tell us what the scene is like.

Katie Phang:

So, I hate to disappoint some people, but it’s definitely not any of those words. And I think the adjectives that would apply for this are actually orderly. And all kidding aside, it’s because the court staff, court security, NYPD, they’ve been very careful about ensuring a very orderly process to make sure that everybody is okay, but I was surprised because I did expect … because I’ve been there since the beginning. I mean, I haven’t been in court every day, but I’ve been there since the genesis of this. And there haven’t been throngs of people and hordes of protesters, and there hasn’t been any of that drama.

In fact, to the contrary, there’s been maybe four, maybe five people that are, quote, “Pro-Trump supporters.” I mean, I surmise that they are based upon what they’re saying and what they’re shouting at us sometimes, but there are definitely not a lot of people, but the crowd that you find that comes is media. So, I don’t know if we’re feeding the monster in some way, but it’s us. It’s the members of the media that are lining up to go-

Preet Bharara:

It’s your job. You have a job to do.

Katie Phang:

Well, yeah, but it’s because there’s no cameras inside.

Preet Bharara:

Yeah.

Katie Phang:

If there were cameras inside, I think you might see less.

Preet Bharara:

Yeah. No, I’ve been bemoaning that. So, I have some particular questions about the courtroom first.

Katie Phang:

Sure.

Preet Bharara:

How cold is it? Because The former president keeps complaining about how cold it is.

Katie Phang:

It’s not that cold.

Preet Bharara:

It’s not that cold?

Katie Phang:

And I’m from Florida, so I know everything is all relative, but it’s not that cold and he’s got more padding than I do. So I’m not-

Preet Bharara:

Adding layers. Okay, so that was myth-busting. Number one. How shabby is the courtroom? Because that’s also a word we’ve heard from the former president.

Katie Phang:

Well, that one’s a tough one. So, I grew up in state court, so I’m fond of state court courtrooms. You have a different experience in federal court. Your courtroom is a lot nicer.

Preet Bharara:

The federal courtrooms in the southern district of New York are each fairly majestic.

Katie Phang:

Majestic is not the adjective for this one.

Preet Bharara:

It’s not, but is it serviceable?

Katie Phang:

Yeah. Listen, and that’s the point, right? It’s supposed to get the job done and it does. And then some, and I will say my colleague Rachel Maddow said it’s smelled like old soup and that is accurate. The smell is 100% old soup.

Preet Bharara:

Campbell’s or Progresso?

Katie Phang:

Generic.

Preet Bharara:

Mom’s soup? Generic.

Okay,

Katie Phang:

Generic, but it’s not as dingy as the former president says it is, but it’s definitely not as clean as he’s a germaphobe famously. So, it’s definitely not as clean as he would like it to be.

Preet Bharara:

How large is it? How many people can sit in there?

Katie Phang:

So I’m really bad on space, but it’s very small and that is why we’re all kind of within feet of each other. So, for example, if you’re sitting in one of the pews … there’s only a few rows of pews behind counsel’s table. If you’re sitting in one of those pews directly behind Secret Service, et cetera, you can actually see over Trump’s shoulder and you can actually see what he’s reading.

Preet Bharara:

So I was going to ask you the next. Where does the press sit and what are you able to see directly? Can you see the judge? Can you see the jurors? Can you see the witnesses who are testifying easily? And can you ever get a glimpse of Trump’s face itself?

Katie Phang:

So I will give you the inside baseball on this. So, there’s two different orientations that apply if you are there to watch this trial, if you’re media or public. Within the courtroom itself, you mainly just see the back of Trump’s head and the back of counsel’s head. You see the judge’s face and you can see the jurors, you can see the witness at the witness stand, and you can see the rest of the people that are there with you as you sit alongside them within the pews. But the vantage point is mainly good when you’re in the courtroom to be able to see the jurors, to look at their faces, to see if they are … look at their body language. Are they taking notes? Are they particularly captivated or interested or maybe even disgusted by the testimony that they’re hearing.

When you’re in the overflow room, which is a mere two or three doors down, that’s where they have this incredible setup with these huge monitors on the wall as well as one dead center in the middle of a courtroom. So, they took a courtroom and they made it the overflow media room, but it’s also open to the public and you are able to see the front of everything. So, it’s as if you were sitting like Judge Merchan. So, that is your vantage point. So, you actually see the people in the pews, you see Trump, you see the lawyers. You see the lawyers at the podium, but you don’t see the witness testifying and you do not see the jury. And that is obviously to maintain and respect the anonymity of the jurors.

Preet Bharara:

Is it preferable to be in the courtroom or in the overflow room for you?

Katie Phang:

So for me, I like being in the courtroom to see the jurors because as a former trial lawyer, being with the jurors is the best thing that I could want to have as a lawyer who’s a part of this, but I do enjoy the overflow room because I also want to gauge the reactions of the lawyers. I mean, you can look at Trump and the most shocking thing has been day in and day out. I don’t know if he’s sleeping or if he’s disassociating because he just doesn’t believe that this is really happening to him. But it is interesting to watch him and his facial expressions and to see when he also is engaged or interested in what’s happening, which is not often at all. I like looking at the lawyers because sometimes their poker faces don’t exist.

And especially, looking at defense counsel’s table and looking at how far away Susan Necheles, one of Trump’s lawyers, places herself at the far end of the table from Donald Trump.

Preet Bharara:

Is there any pattern that you notice with Trump as to when he’s engaged and when he is not or is it random?

Katie Phang:

The default position for him is slumped in a chair with his eyes closed. And as you know, having been in trials, Preet, I find that to be the most offensive. It’s not the testimony, it’s not the evidence. It’s not him, basically making Trump Tower a seat of criminal conduct and then, taking it to the White House. It’s the lack of respect. He shows the process and to the jurors most specifically. And I think the jurors … they’re not going to. They see him slumped in his chair with his eyes closed.

Preet Bharara:

Yeah, and do you think that they take umbrage at that or might Donald Trump be trying to get across the message, this is so dumb, this is so beneath me, this is not meritorious in any way, so I’m not going to pay it respect? Do you think that’s what he’s surmising and is he misunderstanding how the jury is going to react?

Katie Phang:

So I think I can’t gauge the former because obviously, we don’t have any insight into it, but I would say that he’s severely miscalculated, if it’s the latter. And if he’s trying to convey a message to the jury that, “Hey, it’s okay for you not to care because I don’t care,” I think those jurors will never have made it to the jury, right? I mean, if you really thought that this was a stupid case or it was beneath you to serve on this jury, you would’ve found a reason to get off because they made it very easy at the very beginning of jury selection to opt out of this.

Preet Bharara:

Yeah, they did.

Katie Phang:

Yeah. You could just say, “I don’t believe I can be fair and impartial.” And they excuse you immediately. They didn’t even try to go through, the true challenges on it. So, I think that he’s severely miscalculating, showing … if it’s feigned, disinterest, Preet, then it’s still not working. If it’s real disinterest, which is totally possible, it’s definitely not working.

Preet Bharara:

So you mentioned seeing the faces of the jurors when you’re in the courtroom, what’s their demeanor generally? Are there particular jurors you think are more intently focused on the trial, certain of them less intently focused? Are they taking notes, are they not? What’s their general demeanor?

Katie Phang:

So I’ve talked to a number of other peoples in the media, people in the media, and the jury is definitely interested. There have been a few times when they’ve kind of looked like they’re zoning out, but that obviously happens when there’s a little bit of the duller testimony. There’s about three or four jurors that since the very beginning have been furiously taking notes and for people to understand when … I’ll say when I was growing up as a trial lawyer, note-taking in court wasn’t a thing from the jurors. It wasn’t really an option, but now, it’s offered to the jurors, they’re given their own notebook and their own pens and they can write in them, and then they have to leave them at the end of the day when they take a recess at the end of the day before they come back.

There’s maybe three or four jurors that are furiously taking notes and paying attention. And truth be told the other day, with the cross between Michael Cohen and Todd Blanche, it definitely had that back and forth tennis match energy with them looking back and forth between the lawyer at the podium, which was Todd Blanche and Michael Cohen at the witness stand.

Preet Bharara:

Yeah. We’re going to talk about that, at some detail.

Katie Phang:

Sure.

Preet Bharara:

This is a total guess, but I want to ask you anyway, because you have a lot of experience in the courtroom. If you’re the prosecution or the defense, do you have a preference for a focus note-taking juror or the other way around?

Katie Phang:

Okay, so I’m going to answer a real lawyer. It depends. So, in this instance, we have two lawyers that are on the jury, and I remember I asked you this question, Preet, on my show, which you felt about having lawyers on the jury, because I also would like to ask you about the law in this case, but I actually like the note-taking jurors in this particular case because A, there’s a number of witnesses and even I kind of … the days bleed together and I kind of forget things here or there. So, if you’ve got a note-taking juror, I’m inclined to believe that they’re doing so because they’re trying to be conscientious. And when you have this much evidence, I think it’s important. On the flip side, the smoking gun evidence we’ve heard and seen so far is just so big.

It’s kind of inescapable and they’re going to have it in the jury room. So, I feel like maybe you don’t have to take fastidious notes in this case, but I would say as a general proposition, I would go with the note-taking juror.

Preet Bharara:

Let’s talk with the most recent testimony that’s still ongoing. You and I are recording this in the 2 PM hour Eastern time on Wednesday, May 15th, so people have a time stamp. There’s no trial today. There is trial tomorrow and the cross-examination will continue. Last witness for the government, was that a good strategy to end with Michael Cohen or not?

Katie Phang:

So I’ll say that I think the prosecution made a game-time decision to make Michael their last witness, Michael Cohen. They had announced to Judge Merchan last week that they had two witnesses left. So we thought it was going to be Michael Cohen and then, they were going to end with an FEC campaign violation expert witness. Part of me was worried if that were going to be the case to end with that expert because I don’t know who the expert is. And I have this fear that they’re going to end with some womp-womp kind of boring expert. And I was going to be very disappointed if that’s what they did with their case in chief. It was a game-time decision because we all expected to hear from somebody else after Michael.

And the reason why we’re trying to pay attention is because as you note, there’s no court today, but there’s also no court on Friday because Donald Trump purportedly will be attending his son’s graduation. We do know he’s going to a rally.

Preet Bharara:

Wait, I’m very confused. Donald Trump proclaimed through social and all his allies did that he was being denied the opportunity to see Barron Trump’s graduation. I remember reading that. What?

Katie Phang:

Can you hear my shocked face? I know you can’t see it, but can you hear my shocked face? Yeah, that would, by the wayside.

Preet Bharara:

It’s an example of the way in which people are receiving information about the trial, right? Because there are no cameras, and Donald Trump lies about decisions that are being made and things that are happening in the courtroom, and his supporters just believe it. I mean, he made everyone believe that the court had decided definitively` not to let Trump go to the graduation, and that was not true. That was a lie. And I just wonder … we’ll get into this later, how there’s such a distorting effect based on how people are getting their news about the trial.

Katie Phang:

So I’ve always been … the team always have total transparency and access because those courts are the people’s court, no pun intended, there’s for the people. That’s the reason why when we have adjudications of disputes, criminal or civil, they take place in a courtroom. And the biggest shame, Preet is that we don’t even have audio. I mean, I would love it all. I mean, the luxury of Fulton County in Atlanta that I get especially, that’s my beat, that’s the case I’m covering too really, really in a big way. As in Judge McAfee, he has a YouTube channel and he puts it all on YouTube and we can see and hear everything. And as you know, when there was the big motion to disqualify DA Fannie Willis, so that big evidentiary hearing, it became a big evidentiary hearing because it was televised, right?

I mean, it was made for TV or must-see TV. In this instance, we don’t even have the audio. And I find it to be really tragic that the court system hasn’t kept up and is not with the 21st century. I’m not saying if you have to do it all, if you’re not inclined to it all, but there are ways to mask the identities of the jurors to keep them protected sufficiently. And in this instance, to your point, everything is being filtered these days. And I’ll own what I own. I mean, I’ve been accused of being a partisan about stuff. And yes, I have an interest in democracy, so blame me for that. The fact that Donald Trump doesn’t allow the truth to be seen, and he uses a very, very kind of bastardized filter to be able to disseminate information to the public is a shame.

And then, he uses surrogates like we saw yesterday in Speaker Mike Johnson and Senator Rick Scott the other day, et cetera. And even they as surrogates are not saying the truth. And so, I’d give my kingdom for audio because then at least we’d have that, but we don’t. And it’s been a bad deal, but we’re so far early, and that’s the reason why, by the way, let me be clear, Trump’s going to this graduation on Friday allegedly, because we are way ahead on schedule, than we were expected to be.

Preet Bharara:

I want to talk about the pace in a moment, but by the way, just another example of how much disinformation there is, I don’t know if it’s in good faith or bad faith, I tend to think bad faith, combined with ignorance of people. I saw some conservative Twitter account post a clip of now Congressman Dan Goldman, talking about Cohen’s testimony at the trial. And in talking about that, he talked about his own personal experience. He talked about how he had prepared Cohen for testimony, right? And all the responses in the quote tweets are, “This is outrageous that a partisan democratic congressman prepared Michael Cohen for this trial. It’s a cabal. And obviously, he had nothing to do with the freaking trial.

He was talking about preparing Michael Cohen five years ago or six years ago in 2018 when he testified in the house, when Dan Goldman was a staffer in the house. So, he brings to bear some prior experience with this person as a witness. And again, this is a larger and different question, but even the most basic facts about who’s doing what and for what purpose and for what reason, get lost in ignorance.

Katie Phang:

Well, I’d say that the Stupefaction of America is really kind of going down only one path of a party, but it’s amazing because what I have been doing as of late, I try to make a distinction between what is fact and opinion, what is news and opinion, especially when it comes to me dealing with trials and the coverage that I’m doing. So for example, if you follow me on social media, I give you a pretty much live tweet or live post of what is happening in this trial. And the number of people that are following along has been fantastic. And it’s because a lot of them, this kind of dovetails with what we just talked about. They don’t have access to the information during the day because it’s not being televised.

I mean, you and I both know if it was televised, it would be plastered all over the screens ala OJ, et cetera, right?

Preet Bharara:

And even if it were televised, you might not be able to watch it.

Katie Phang:

But you could play that later.

Preet Bharara:

If you’re work, in a boring meeting, you can follow Katie’s Twitter feed.

Katie Phang:

Well, yes, but the point is when I’m doing it for … and this is a great example actually, I’m glad you brought up the Goldman thing too, because here’s the thing. So, I’ll actually put the name of an exhibit, the people’s exhibit blank, and I’ll say, this was the text between Michael Cohen and Donald Trump or whatever. And I’ll be accused by the Right and Trump supporters of lying. And I want to scratch my head and say … I mean, if you really think that I’m making up evidence, it’s in a freaking courtroom. You think I’m making up the evidence, really? Okay, but see, I’ve learned they don’t want to know the truth. There’s a certain subset of our population that is so comfortable in the cocoon of disinformation that Trump provides them, or the far right provides them to hell with the reality of truth and facts.

So we’re never going to penetrate that cocoon, and their reality is January 6th was a tour guided visit of the Capitol. So, I still will put the information out there. When asked, I’ll provide my analysis on it and I’ll be clear that it is my opinion and my analysis, but if you’re thinking that I, like Dan Goldman are doing something nefarious, then you got another thing coming.

Preet Bharara:

I’ll be right back with Katie Phang after this. So, let’s get to Michael Cohen and I have some strategy questions to ask you about. So, the cross begins with my former colleague, Todd Blanche, a defense lawyer for Donald Trump, talking to Mr. Cohen. And here’s how it begins, according to the transcript. “Mr. Cohen, my name is Todd Blanche. You and I have never spoken or met before, have we.” Cohen, “We have not.” “But you know who I am, don’t you?” “I do,” And then Blanche says, “As a matter of fact, on April 23rd, so after the trial started in this case, you went on TikTok and called me a crying little shit, didn’t you?” Cohen, “Sounds like something I would say.”

Prosecutor, “Objection, your Honor.” The court, “Sustained, sustained.” And my question to you, as someone who has not only covered this stuff but has been in these positions both on the prosecution side and on the defense side, why would you begin that way? What do you think his strategic thinking was? And then let’s discuss whether or not that was smart or not.

Katie Phang:

I know this is a PG program, but I’m going to say it’s because he’s butt hurt. Because Todd Blanche is upset because he knows that he looks like a fool right now representing Donald Trump. It is the stupidest opening to a cross-examination I have ever heard, and I have heard a lot of stupid stuff in court and outside. I would never have started a cross of a major prosecution witness. My client is the former President of the United States. He’s looking at 34 felonies. He could go to prison for a long time. I would never start a cross like that. And I don’t know what the mentality is of doing it. You know what, even if I’m being generous in an interpretation of it, and I would say Todd Blanche was maybe trying to highlight that Michael Cohen is an immature person.

He kind of went there later by saying, the prosecution can’t get you to shut up on TikTok, which Cohen had to admit, he’s been asked to shut up and he hasn’t. Wait, why not just do that? I mean, they’ve done it a few times, Preet, in this case. They made a big stink about the level of details that Jeremy Daniels went into, claiming that it was grounds for a mistrial because it was so salacious in nature that it was 403 … it was more prejudicial than probative.

Preet Bharara:

Yeah.

Katie Phang:

And the judge just looked at them and said, are you joking? One, you never objected … you didn’t object, and number two, everything is going to be prejudicial, but it’s not to that level where it’s more prejudicial than probative. And it’s the same thing though, because then when Susan Necheles got up on cross-examination of Stormy Daniels, she went all in. She leaned into those salacious details. And so you can’t come out of it and move for a mistrial and say that there was a problem. And I knew that they were going to do that because it was an inescapable thing for them. They could not avoid it. It’s like they took the bait. And they did the same thing with Michael, even though Michael Cohen on direct, never said anything that was targeting Todd Blanche or any other lawyers for Donald Trump.

Except I’d say … No, you know what? Actually, Preet, he didn’t even go after Rudy. He went after Robert Costello and for good reason, that was a really horrific thing that they were trying to do between Cohen and Costello. Otherwise, he didn’t go after anybody. Cohen was very much in his lane. He was very calm and reasoned.

Preet Bharara:

So just again, this opening gambit with Cohen, what I don’t understand is why not begin with something that shows his bias towards Donald Trump and the way Todd Blanche tried to defend the questions which were objected to, and the objections were sustained, and we learned from the transcript of the sidebar with the judge, the judge is annoyed, because why are you making it about yourself? Why are you making it about you? Which is a great question, when there was all sorts of fodder that he got to eventually, that might’ve shown Michael Cohen’s bias towards Trump, and the record is replete with that stuff. I thought a fascinating question and answer, and I don’t know if you were in the courtroom for this particular moment, that was powerful for the defense was, “Do you want President Trump to get convicted in this case?”

And Cohen says, “Sure.” So, as initial matter, that’s a striking statement from a witness. I mean, usually cooperating witnesses are prepared to say, I don’t have a dog in this fight. I was instructed just to tell the truth, the whole truth, and nothing but the truth. It is unusual to have a witness at a trial who’s an incriminating witness, say that you hope the person gets convicted. Maybe some victim witnesses say that from time to time, but my understanding is from the reporting, that when he was asked, “Do you want Trump to get convicted?” And Cohen said, “Sure, the jurors laughed, is that what happened?”

Katie Phang:

I don’t think it was as audible as a laugh. There were a few moments where the jurors definitely enjoyed the off the cuff quips of Michael Cohen because Todd Blanche would tee up questions that he thought were going to be zingers and Cohen would serve him back with a slap. That would be funny, but to your point, Preet, about … it’s kind of surprising to hear a witness or a cooperating flip almost in a way, right? Flip defendant, to say that, would you have wanted him if you were the prosecution to deny it? I mean, it would fly in the face of all the other stuff he’s already said publicly and otherwise. So, I think he has to own it, right? He has to say that.

Preet Bharara:

Yeah. From a sort of theater standpoint or a connection standpoint, what seems to have worked about that answer … and I don’t know if it was plotted or not, and I’m just guessing it. He didn’t say, “Yes, I do.” He said, sure, and that is a little funny and that is a little amusing for the exact reason that you point out everyone knows that that’s true. That’s the basis for impeaching him, that he’s on a campaign to destroy Donald Trump. As Todd Blanche said in his opening, his very livelihood is dependent on attacking Donald Trump. So, you’re right, he can’t run from it, but he did it in kind of a semi coy way that a little bit took the sting out of what would normally be, not necessarily a great exchange with a witness, right?

Katie Phang:

Yeah, but it’s also because Susan Hoffinger, on behalf of the prosecution, did an exceptional job towards the end of the direct examination of Michael Cohen, to draw the sting out of these potential Achilles heels of Michael Cohen. She spent time walking him through the grievances that he has against Donald Trump. She made sure that she walked Michael Cohen through the allegations of him changing his story from his guilty plea to perjury, et cetera. And by the way, I’m not saying that Michael Cohen is out of the wilderness yet, right? I mean, he has not been crossed on those points.

And it’ll be interesting to see how he dances with his answers to those issues about whether he really thought he was guilty when he pleaded guilty to certain federal offenses, and thereafter, has now said that he was lying when he said certain things. I mean, it’s a really thorny issue, but I don’t mean to sense so casual about it because credibility is the only thing you have in and out of court, but with somebody like Michael Cohen, why would anybody be surprised that the guy would’ve been a convicted perjurer? Just like, I don’t know, Allen Weisselberg, who’s still in the fold and hasn’t been cast out into exile because he’s still taking care of Donald Trump. It all makes sense, right?

It all fits together, and the jury is not going to hear from Allen Weisselberg, but you really thought that you were going to get Lily White, completely pure Michael Cohen to be the 21st century Roy Cohen for Donald Trump. No way, which is why Cohen is almost straight out of the casting call for a Donald Trump lawyer. So, you get what you pay for, I guess in this instance, when you pay $420,000 for $130,000 reimbursement, Donald Trump gets a criminal case.

Preet Bharara:

You get what you pay for trued up, as the phrase goes, as we’ve been talking about on the podcast. So, I guess to ask him more directly, how is he overall. Obviously, understanding that he still has some time left on the stand on Thursday, is he coming across as kind of a charming rogue? Is he coming across as a sleazeball? Is he coming across as both? Is he coming across as credible? How do you think he’s affecting the jury?

Katie Phang:

He did a spectacular job on direct examination. And of course, as … you’ve done this, when you’ve law and prepared witnesses for hearings, especially at trial, he clearly was prepared for hours, if not days, if not longer. The good news is it didn’t sound rehearsed. I was fearful that there was going to be kind of a patina of rehearsal that came from it. That wasn’t the case. What was really fascinating, Preet, was the fact that we all know that Michael cannot stop talking. So Susan asked … Susan Hoffinger, and I want to make the distinction here because there’s two Susans here in this case. Susan Hoffinger for the prosecution. She asked so many leading questions, Preet on direct.

And there were no objections from the defense. And I almost wonder if there was some behind the scenes agreement between the sides that I promise if I ask the leading question, it’s going to make it happen faster, but because the leading questions were asked, Cohen’s answers were relegated to sometimes a yes and a no, and it made the presentation of the prosecution’s case so much cleaner because there wasn’t the added commentary from Michael Cohen that you usually get. He has lost his cool-

Preet Bharara:

Would you object to more?

Katie Phang:

Yeah. The defense waived so many objections, it was stunning, in a bad way for them.

Preet Bharara:

So I don’t understand how that’s to their advantage.

Katie Phang:

It’s not. I don’t know. Everybody said because they didn’t object to Stormy Daniels said it was to their advantage, or they thought it was to their advantage. I’m like, “What? Is that a joke? If you don’t object, you don’t preserve for appeal. I don’t know why you’re not objecting.” And then, if you notice, the second day, Blanche actually objected more, and a decent number of them were sustained, and we had sidebars. We had no sidebars on Monday, none. Not a single one, of Michael Cohen on a direct examination. Not a single sidebar.

Preet Bharara:

In your estimation to date, what’s the most important testimony for the prosecution that Michael Cohen gave?

Katie Phang:

His use of the secretly recorded conversation with Donald Trump about the Karen McDougal payment was, I think the most damning. Because even though the felonies are not predicated on the Karen stuff, they’re really predicated on the Stormy Daniels payment. To hear Donald Trump’s own voice booming through the speakers in the courtroom and in the overflow room … and I’m saying booming, it was loud. The jury got to listen to the audio for the second time during this trial. And they may or may not have heard it in their homes or outside of the courtroom before this trial, but it’s playing. And Michael is using that audio and the transcript, Preet of the conversation is being displayed on a screen so the jurors can have the transcript at the same time and read along.

And to hear Donald Trump make some side comment about, “I hope, he gets hit by a car.” We don’t even know who he’s … or truck. We don’t even know who he’s talking about, Preet, but to have him say that so flippantly, I’m like, “Oh, yeah,” but then to have him say, well, what’s it going to take? What are we going to have to do? And how much is it going to cost and pay cash? Pay cash for what? Pay cash for what? Just when you hear that, what’s your excuse? What is your defense going to be? I invite you, Donald Trump, to take the stand and testify in your own defense, because you’re not going to. So as we know, that becomes uncontroverted evidence. It sits there and the jury gets it.

And that, I thought was the most damning part of it, to have that audio played and for the jury to hear it. And then, what Susan Hoffinger did on the prosecution side is she broke down key components of that audio, secretly audiotaped conversation. She had Michael explain more in detail what all of it meant. And it just all made sense. It all kind of clicked so much better, and that was a defining moment in my opinion.

Preet Bharara:

And the upshot of that part, the breakdown that the prosecutor did for the listeners was what?

Katie Phang:

Because gosh, if it wasn’t obvious, when you heard it the first time, when it’s broken down in a way to have it seen, not only through the lens of Michael Cohen, being an active co-conspirator participant in it, but to also have it be broken down so that they understood that this was one of the rare instances that we get a glimpse into the Donald Trump who’s not speaking in code. We’ve been told by people who have worked for and around and with Donald Trump that he’s fond of speaking in codes. He likes to dispatch others, as we’ve seen with Michael Cohen, Allen Weisselberg and others, Rudy Giuliani, et cetera. He likes to dispatch others to do his dirty work. He doesn’t want to get his hands dirty.

And that is a quintessential … and this is something that you know more than me, that’s a quintessential mafia move, right? He’s the highest guy in the food chain. He’s not going to get his hands dirty on this. He’s not the one putting the heads of the horses in the beds. So, to have this almost open, the curtains look behind, and to see this and to have Michael say, “Well, this is what that meant, and this is why he said it,” it was one of those, “Oh yeah, I’m in the room.” I’m literally … if I’m a juror, I’m in the room now. I’m a part of this. I am that fly on the wall, and I am experiencing the conspiracy as it’s happening. And again, even though it related to the Karen McDougal thing, the Karen McDougal thing was a huge part of the bigger scheme to protect the campaign.

Because the timing of it, the chronology of it, is really what is so impactful. It was this race against time to save this campaign from possible disaster and what Trump and others did to protect it.

Preet Bharara:

I wonder also, if … and other people have said this, the prosecution did a very good job of partly intentionally, and partly just because it’s the way it is, expectations were so low for Michael Cohen, right? He kind of became this caricature of a figure who people talked about being a scumbag and a sleazebag and a liar and convicted, and all these things that the bar was pretty low for him. Do you think that played into how the jury reacted to him when he finally showed up in the flesh?

Katie Phang:

So that feeds into how honest our perspective jurors when they go through jury selection, because the jurors were asked about the breadth, the depth, the extent of the exposure to this case and to the people in this case, right? And that was a component of the jury selection process. And majority of them purportedly did not have any real exposure to what was going on in terms of the facts in this case, et cetera, et cetera. So, if they did go in with some measure of an idea of what Michael Cohen was like, I think that that was dispelled immediately when he started testifying on behalf of the prosecution. I mean, Preet, it was, “Yes, ma’am. No ma’am,” to Susan Hoffinger. And that’s quote unquote his lawyer.

I mean, even though it’s not his lawyer. I mean, he’s one of the star witnesses for the prosecution. I will say too, before Michael took the stand, we heard from witnesses like Hope Hicks, Keith Davidson, who was the lawyer for Stormy Daniels and Karen McDougal. We heard from David Pecker, the former CEO of the National Enquirer. And they all had not flattering things to say about Michael Cohen. A lot of them said that … even Hope Hicks when told by Donald Trump that Donald Trump knew that Michael Cohen had made the payment to Stormy Daniels or others, to silence them or whatever. Hope Hicks was asked, “Did you believe it?” And she said, “No, because I never thought Michael Cohen would be particularly generous that way.” I mean-

Preet Bharara:

That was devastating testimony.

Katie Phang:

Yeah, I mean, it was just like, well, heck yeah, Michael is not the kind of guy who’s going to roll out the dough for you just because he’s going to give you the shirt off of his back. That’s the message. And so he would obviously be doing it for the boss as he defined Donald Trump. So I think the juror, if the jury legitimately came into this trial not really knowing anything about Michael Cohen, but then they thought, “Oh my God, this guy is so distasteful,” as they hear it through the prosecution, prosecution’s other witnesses, and then they heard from him. I think they were very pleasantly surprised with the Michael that they saw on the stand.

Preet Bharara:

Can I ask another question? You’ve alluded to this already, and I’ve talked about on the podcast, this idea that you have an important witness who has an interest as he admitted on the stand in an outcome in the case, notwithstanding all of that, and notwithstanding instructions from the prosecutors to keep his mouth shut, and notwithstanding the fact that the guy who went on trial is subject to a gag order, kept talking to the press. At one point, he’s asked if prosecutors have repeatedly asked him to stop talking about the case, and he says, “Yes.” And I’m thinking to myself, what kind of an a-hole … can I use that word? Is that very dad-like not to curse?

I mean, it’s crazy to me that he’s defying the prosecutors in that dynamic, and he’s also doing it against self-interest and his self-interest as he stated forthrightly and take it the way you will, he was not increasing the chances of the outcome he wanted by mouthing off to the press what gives.

Katie Phang:

Again, it’s a part of-

Preet Bharara:

It’s Pathological.

Katie Phang:

Well, yeah, I mean, listen, I am going to practice medicine without a license for a hot second right here, right? I mean, there is a craving and a need, I think on Michael Cohen’s part for his value to be defined by somebody like Donald Trump. I mean, you could even hear it on direct examination, he waxed about how lovely his time was at the Trump organization, which I don’t know how that could have possibly been, but he said it was like a family. And he said he was so honored and he felt like it was a privilege to work for Donald Trump. And then, he realized that it wasn’t. And listen, listen, that’s what happens in cults, right? Sometimes people, the fever dream and the fever breaks and he realize-

Preet Bharara:

He used a cult word. He used the cult word, did he not?

Katie Phang:

He did. He said it was like a cult. And so he found his way out and he was deprogrammed like one does when they leave a cult, but it is par for the course with Michael. It’s almost like he’s one of those characters in a book or a movie that you love to hate, but you almost root for him because he becomes the underdog, because he’s the one who you know, knows all of the skeletons in the closet and where the bodies are buried, and he knows the real Achilles heel or what it’s going to be for … for what it’s going to take to take down the bad guy. And that is Michael Cohen. And I think when you hear something like he wouldn’t keep his mouth shut despite the prosecution telling him.

There’s a part of me that says, “You know what? Ladies and gentlemen of the jury, doesn’t that just go to show you the loyalty that man had for Donald Trump, that over the span of 10 something years, if not more, the stuff that he knew about Donald Trump, that Michael Cohen maybe could have done on his own, to hell with the NDAs?” I mean, the stuff that Michael Cohen has seen and heard, what does it tell you about the level of loyalty that he had for Donald Trump? That he didn’t say a word, that he didn’t say a single thing. Instead, he took $130,000 out of a HELOC and paid it to a porn star, but it just fits, right?

Preet Bharara:

Yeah.

Katie Phang:

It’s almost like, “Yeah, you know what, Michael, you don’t shut your mouth, but you know what …” Yeah, that’s Michael. That’s what he does.

Preet Bharara:

I mean, he kind of seems like a character out of succession. Which character might he be, Michael Cohen?

Katie Phang:

So I don’t know if he fits necessarily into one particular character. I mean, that’s the thing. I mean, I actually think that he’s more … I think he’s less secession and more La Cosa Nostra, right? I mean-

Preet Bharara:

Yeah, but he’s also hapless, right? He’s one part hard charging fixer. On the other hand, he has these delusions of grandeur thinking that he’s going to be the chief of staff to the president of the United States of America with his background. And I just wonder if at those moments people are like, “They said this guy was some crazy high level top order fixer,” but in that regard, given how hurt he was, and given how much his feelings were spoiled by Donald Trump not treating him well, and how much anger he has, and these illusions of becoming the chief of staff to the president or maybe attorney general, he’s kind of pathetic.

And if you’re pathetic, it’s not the same as being a conniving liar to orchestrate the conviction of your former boss. Does that make any sense?

Katie Phang:

Yes. And so to your question, I think it would be a fair statement that there’s a little bit of that kind of wistful Kendall kind of, I really want my dad to love me. So I really want Donald to love me. And then there’s a little bit of the Kendall of I have this self-important view of myself, that I would be able to be the king of an empire when clearly his father doesn’t think he could do it, but I also think there’s a little bit of that annoying kind of Tom energy too, right? Who’s always there and kind of cloyingly there, but then there’s also, I think a very conniving, very smart, very ominous, street smart save my ass energy, which is a little bit of a shiv or a little bit of a Roman. So, I feel like that’s … that’s why you can’t really peg him to one character, which is why I also feel like he fits more squarely in your stereotypical Mafia La Cosa Nostra family.

It’s, when you say fixer though, I don’t know if anybody ever thought, Preet, that Michael Cohen was ever the high level fixer. I think he was middle management, right?

Preet Bharara:

He wasn’t like the wolf in Pulp Fiction. And by the way, didn’t hope Hicks testify that by fixer, it kind of meant he would break something, attempt to fix it, right?

Katie Phang:

Yeah, and what happened to Hope Hicks when the world came crashing down and she got that access Hollywood inquiry from the Wall Street Journal, David Ferenhold, who did she go to first? Who’d she go to first?

Preet Bharara:

Who are you going to call Michael Cohen?

Katie Phang:

You’re going to call Michael Cohen. So, “Hey, hope, how are you doing, right? You want to talk trash about him?” And yet when … you know what hit the fan, you ran to Michael, and then, you kept on using Michael. As we saw in Michael’s testimony, there were the emails that she was sending, and she was asking him, please help me vet the response on how we’re going to deal with this. So, if you were so capable, Hope, why didn’t you do it? You were too busy pressing Donald Trump’s pants.

Preet Bharara:

Mic drop. Stay tuned. There’s more coming up after this. So, there are two things as a legal matter that are going on. The first is to be able to prove … the prosecution has to prove falsification of business records, and that’s a misdemeanor. And if that falsification was done in furtherance of another crime or to conceal another crime, then that’s a felony. I have question about each one of those, with respect to the first. I have said on the show before that there is, I think, overwhelming evidence beyond a reasonable doubt, that they’ve proven the first part, the misdemeanor.

That those documents did not reflect legal retainer or legal services being rendered in a host of ways. My first question is, do you agree with that? And what possible defense do they have to the ID that these were falsified documents?

Katie Phang:

So my personal legal opinion is the falsification of the business records as a misdemeanor is a no-brainer and has been established beyond and to the exclusion of every reasonable doubt, because I think you’ve had … no, I think we have entered into evidence all of the records that were truly business records. They were a Trump organization, business entry for the general ledger and for the invoices, et cetera, et cetera. That is in and of itself right then and there, your business records. The falsification of it, whether the jury agrees or not. You have heard from the controller, Jeff McConney of Trump organization, you have heard from him and others that there was no legal retainer.

That the invoices were submitted pursuant to a directive from Alan Weisselberg to Michael Cohen to do so. And then, you heard that they were booked as a legal expense, even though we know that they weren’t illegal expenses. And then Michael Cohen brought it home over the last couple of days by explaining that Alan Weisselberg told him, and then, they used the essential consultants bank account statement, and they wrote down the gross up that got them to the 420 for the 130. Then the coup de grace was them walking into Trump’s office immediately thereafter, they being Allen and Michael and Donald Trump gracing it and blessing it.

And not arguing over it, which suggests that Allen Weisselberg and Donald Trump had discussed it because you and I both know that self-professed penny-pinching, micromanaging cheapskate, Donald Trump would never ever bless a $420,000 payment for something that cost Michael Cohen only $130,000, unless he, as in Donald Trump knew that it was a bad criminal payment that was being done. So, that leads you to the second subject offense, which is how do we get it to the felony? And again, that meeting-

Preet Bharara:

Before we get to that, I want to probe you more on this part.

Katie Phang:

Sure.

Preet Bharara:

So it seems to me, with respect to the falsification of documents, the only way they have to go, or a couple of ways they have to go is to try to impress the jury with a doubt that Donald Trump really knew about it and that Michael Cohen was kind of a rogue and off on a detour and frolic and doing these things on his own, which I guess was part of the point about the fact that Michael Cohen defied the prosecutor’s demands not to make statements, and he did so anyway, that he’s the kind of person who goes off and does things on his own, which I think is not a very compelling way of going about it. Address the issue of how far that defense can get that Donald Trump really didn’t know anything about this.

Maybe they’re false, maybe they’re not, but Donald Trump didn’t know about it given the evidence that’s come in so far.

Katie Phang:

Well, but Donald Trump knew about it because that’s what Michael Cohen said. I mean, you’d have to believe Michael Cohen-

Preet Bharara:

So that’s an example, right? Where there’s a little bit more of a question about corroboration or not.

Katie Phang:

That’s to get you elevated to the felony, though. I feel like that, you don’t need … I almost equate the misdemeanor falsification as almost like a strict liability crime. It’s like-

Preet Bharara:

His signature’s on the checks-

Katie Phang:

His signature’s on a check, yeah, and it’s on his personal account, and it’s also on the revocable trust account that he’s the beneficiary of, right? I mean, it’s a signature.

Preet Bharara:

The other defense, and it’s not a proper defense you can mount, but the other dynamic that could play out is one or more jurors, just think, you know what, what are we doing here? You’ve got this liar. You’ve got that liar. You’ve got unseemliness. It’s gross. Is this how the government and the state should use its power? I just think the whole thing is terrible. Michael Cohen is a convicted liar. Maybe he’s corroborated, maybe he’s not. And I just think the case stinks. And so I’m not going to convict this guy who did what maybe other people might do in the face of these allegations and nullify. They can’t argue for nullification, but that seems to me the only other possibility or path for them. Is that right?

Katie Phang:

Yeah. I mean, jury nullification is always a risk, in any case, criminal or civil, frankly, right? You get a jury that says the elements have been met for the offense or the cause of action, but I just don’t give a … it’s the I don’t give a you know what? So I’m just going to sit there, but here’s the challenge. You’d have to do it across the board for 12, wouldn’t you? I mean, unless we’re having a conversation, Preet, about a hung jury, right?

Preet Bharara:

We are. We are. That’s exactly the conversation we’re having. I actually think … people keep asking me this question and we’re getting ahead of the game. I think the likelihood of an outright acquittal on all the counts is very unlikely. I think it’s uncertain about whether there’ll be a conviction on multiple counts, and I think there’s a reasonable prospect, because you just never know. And this case has a lot of weirdness in it of at least one juror saying, “I’m not going to vote to convict.” How do you think about that?

Katie Phang:

I mean, I think it’s an all or nothing proposition in this case.

Preet Bharara:

You do?

Katie Phang:

And I am springboarding a little bit off of the defense’s opening statement. I’ve gone back and reread and I invite people to do this that are tuning in. I have gone back and reread the opening statements focusing on really the defense because I get the prosecution. I hear your argument. I know what you’re saying here. And now, that secondary offense that makes it a felony, you’ve make it even clearer. You’ve sound post it even more so that it’s a campaign finance issue. I get it. I understand it, whether you can get there. I get it. The defense took a position, Preet in the opening statement that I thought was foolhardy. And listen, you’ve heard it in criminal defense cases often. They said, Mr. president is innocent, right?

He’s innocent. That’s what they said. He’s innocent, and part of me thought that he should have actually been the, I’m so busy as a CEO of a company or the owner of a company that I wasn’t paying attention and signed these checks. The whole underlying kind of scheme to pay back Michael Cohen was just between Alan and Michael, I had no idea, I just signed the check. Kind of like I was the patsy who had his signature on the checks. And I know that sounds wild, like why in the actual hell would anybody ever want to own up to that in an opening? The reason why I think it was a problem for the defense saying, absolutely, there’s no crime here.

Nothing bad happened is there has been no credible explanation provided for why those checks were made payable to Michael because he was no longer working anymore. There was no actual legal services provided by him, who has provided evidence that has happened

Preet Bharara:

None. In fact, they took a number, they divided by 12, and on a going forward basis, they paid a certain amount every month. So, it would look like that. And you’re right, there’s zero evidence that any legal work was done in the following year when Trump was signing checks in the Oval Office.

Katie Phang:

Yeah, and listen, and for those of you that don’t know in private practice or whatever-wise, as a lawyer, your invoices usually are not “Here, pay me $35,000 and have absolutely no work product to show for,” right?

Preet Bharara:

They go on for pages and pages and pages.

Katie Phang:

Which is why Preet, I want to go back to something that you and I talked about on my show and that we talked about a little bit ago in your show, which is the lawyers on the jury. These are lawyers who you and I both know have an accounting department that rides in them every month to make sure that they have turned in their billable hours. I mean, there are lawyers that have to account … as lawyers, we account for our time now, maybe these lawyers think it’s totally kosher that you would turn in the, quote, invoice. And we saw those invoices and Cohen said that they were fake, but he was given the directive.

Preet Bharara:

Yeah. You’re making a really, really important point that I hadn’t thought about quite in this way until a minute ago, because you asked me about on your show how I feel about lawyers and the jury, and I am anti that. I always think it’s a problem because they can hijack the jury because they might be given undue deference. This is a case in which, as you just mentioned, that one of the central questions in the case is what is and what is not a legal service. And if the two lawyers on the jury have a view on that, and I think if they’re reasonable, good faith lawyers, they’ll come to the conclusion that these are not legal services.

Because they understand how legal services work, or even if they’re not litigators or criminal prosecutors or defense lawyers, their lawyers who are engaged in the business of providing services for which they bill in a certain tradition, the rest of the jury, if it deliberations unfold this way, will defer to those folks’ opinions. Don’t you think?

Katie Phang:

Yeah, and in New York, the four person is by default, the first juror that was selected. And so, we have a four person already selected versus maybe in other jurisdictions where the jurors that go into the deliberation room, the first thing they’re charged to do by the judge is to select a four person to preside over the deliberations. In this instance, excuse me, those two lawyers are going to be looked at with a lot of deference, I think by the other jurors, A, because the explanation of what you and I just walked through, the misdemeanor being elevated to a felony based upon the intent to commit one or several other offenses, I think a juror is going to want to have a lawyer explain it to them.

Kind of like what you and I are doing right now. Then, I also think when it comes to, “Hey, Mr. Lawyer on the jury with me, look at this exhibit from the people of prosecution. Is this what a legal bill usually looks like? Is this what usually happens?” I mean, that’s a fair question for them to talk about, right? I mean, you’re not supposed to abandon your common sense at the door when you become a juror, and you’re also not supposed to abandon your practical life experiences, right? You’re allowed to use them. So those lawyers and their ability to explain how no one just submits a piece of paper says, pay me 35 grand, and they get 35 grand for 12 months is going to work, especially when there’s no evidence from the defense.

You remember, this is a Trump organization entity, and the people that would have the records evidencing the work or the value of the work provided by Michael Cohen as a legal service would be the Trump organization and/or Donald Trump. There has been nothing presented by the defense. Now given, we’re not at that point yet, but we know Preet that they’re not going to a person from Trump organization to submit exhibits because we would’ve seen them in Michael Cohen’s direct examination from the prosecution, right? We would’ve seen them presented to Michael as a piece of evidence and to have the prosecution walk him through and say, “Well, did you actually do the read and review of such and such whatever, line item entry?”

We didn’t see that because it didn’t exist because he, as in Michael, remember, he was prompted by email, “Hey. Hey, Michael, submit that invoice we talked about,” right? You mean to tell me that you had to remind Michael Cohen of all people that he had to submit an invoice to get paid? Please, please. There’s a lot of common sense here that may be specific pre to, our world of law, but I don’t think that it’s so far beyond this jury’s capability to understand that this is how they wanted to paper a crime. I mean, they wanted to document it this way.

Preet Bharara:

So to get from a misdemeanor to a felony, you have to show that the falsification was done to commit another or conceal another crime. And I know you said there’s been some signposting, and a question that I have in my mind that I’ve gotten from other folks is doesn’t the prosecution have to be somewhat specific in putting forward what that further crime is? Is it a state law, election crime, a federal law election crime site, what the statute is and proved that all the jurors are agreeing upon what that further crime is for this to be a sustainable conviction or am I missing something?

Katie Phang:

So yes, there has to be the specificity which was given. There was an actual citation to a New York statute dealing with what you just said, which is the elevation to the felony. There’s been-

Preet Bharara:

That citation came when?

Katie Phang:

That came in the openings, I want to say, I want to say. I think, was it the opening?

Preet Bharara:

What the prosecutors say is not evident. I mean, that’s why I was a little surprised that we don’t have a final sort of wrap up witness about this legal question.

Katie Phang:

Well, that’s why the defense may put on the former commissioner of the FEC as a defense witness to say that there was no campaign finance violation. So, I think if you see that happen next week or at the end of this week with the defense after Michael Cohen testifies and the prosecution rest, then I think that that’s what they’re focusing on. It’s not a question mark. I think the fact that you’ve heard evidence that AMI, American Media Inc., which is the parent company of the National Enquirer, entered into that conciliation agreement with the FEC and that David Pecker talked about the FEC and even Michael Cohen wrote that note having to explain to the FEC that it was his money that was used to pay Stormy Daniels.

I mean, the campaign finance violations are what the prosecution is signposting to the jury, is what they were trying to conceal, the fact that they were getting something of value or they were procuring something of value and not reporting it to the FEC. The biggest challenge for the prosecution is having the jury understand that the prosecution is under no obligation legally to have to prove that second crime. So, that’s the real thing. You can prove the underlying misdemeanor falsification to make it a felony. You have to prove that there was the intent to commit another offense, but that’s all you have to do. You don’t have to have to prove that secondary offense.

Preet Bharara:

Yeah. I guess the only point I’m making is maybe it’s a legalistic one, that given the importance clearly to the prosecution that this not result in just a misdemeanor conviction, but also, a felony conviction that there has been a lot of time on the falsification and arguably disproportionately less on the second part, because I think they will view themselves to have failed, if at the end of the day it’s only a misdemeanor conviction. Don’t you think?

Katie Phang:

So, let’s be a little inception-esque about this. I mean, maybe that was always the intent in some way. I mean, maybe they kind of were shooting for the moon and would they be happy with the misdemeanors? I mean, I don’t know. I still think, again-

Preet Bharara:

They’re not going to be happy with a misdemeanor conviction.

Katie Phang:

I would not have been happy with a misdemeanor conviction, but here’s the thing. I still go back to what I said a few minutes ago. The defense taking the position that it did in the openings, means that they are inviting the jury to make it an all or nothing proposition. It’s either he committed these felonies wholesale across the board or nothing. And I guess, I think another part of the legal analysis is are these the, quote, lesser included offenses, these being the misdemeanors that are put on the table for the jury to consider, or if you’re the defense, do you not even try to pursue that? Do you just say whatever? It’s either the felonies or bust. I mean, that is something that I would really want to dive deep into.

Do you psychologically make an exit ramp for the jury where they don’t have to come back on the felonies, but you give them the option of the misdemeanors or if you’re the prosecution and you don’t even think that that’s a solution or a remedy, you just say, “Screw it.” So, everybody just says, “We’re just going to do the felonies or bust.” I mean, I guess that’s the next thing we’re going to have to see from the charging conference, right? When they sit down and they agree with the judge on the final jury instructions, whether or not that the misdemeanors as a lesser included offense is going to be a part of it.

Preet Bharara:

Final question, and I think I heard you answer this question earlier, but just to put a fine point on it, and this will be readily provable or not, the accuracy of your prediction soon, Trump testifies or no?

Katie Phang:

No. I mean, there’s a small part of me that thought that Todd Blanche, that he’s kind of the puppeteer of the marionettes of Todd Blanch and Susan Necheles and Emile Bove, but no, he’s not going to do it. He’s crazy like a fox. I mean, I think he’s seriously mentally having issues going on, but I don’t think he’s that far off planet Earth one yet, that he doesn’t have enough wherewithal of self-preservation to say, you know what? Me taking the stand is a bad idea.

Preet Bharara:

Yeah. I mean, the only thing that gives me 1% pause is I also, have not believed that Donald Trump … in a totally different sphere and context. I have not believed that Donald Trump would debate Joe Biden, and we had breaking news today, Wednesday, May 15th, that at least in principle, Trump has agreed to debate Biden on two occasions before the general election. Now, he can change his mind, and he’s done that before, but at least for now, he has formally said he is accepting the debate challenge, and I wonder if any of that would rub off on his testimonial decision in the criminal trial. I don’t think so, but anything is possible.

Katie Phang:

Well, here, I’ll add a wrinkle. If ironically, because you and I are proponents and advocates of cameras in the courtroom, if there were cameras in the court room, I would pause greatly before answering the question because if there were cameras and the world, quote-unquote, could tune in and watch, I could see a situation where Donald Trump takes the stand and he just uses it. Although Judge Merchan, the judge in this case, he suffers no fools. So, he’s kind of like Judge Lewis Kaplan who presided over the E. Jean Carroll cases, and Justice Arthur Engoron from the New York Attorney General’s fraud case. I mean, Merchan has made it clear he doesn’t suffer fools.

So I don’t think Trump would’ve been given the leeway to be able to take the stand over that way, but I think if Trump thought he’d have access to the masses, he may be tempted to take the stand. The other thing that I think also we need to think about Preet is, he clearly tells his lawyers what to do.

Preet Bharara:

Yeah, 100%.

Katie Phang:

I mean, I know you worked with Todd Blanche, but Susan Necheles, for example, who is a … by all accounts from descriptions from others, because I don’t know her as a seasoned, prepared, very good criminal defense lawyer, I have been underwhelmed with her performance as well in this case. So I feel like Trump makes his lawyers take positions, as we’ve seen with John Sauer, for example, on the criminal immunity case where he says that you could dispatch SEAL Team six as the president of the United States to assassinate a political rival, and he says it with a straight face to the Supreme Court.

Preet Bharara:

Yeah.

Katie Phang:

We’ve seen his lawyers take positions that are untenable and just be on the pale, and they’ve done it because Donald Trump wants them to. So, I don’t know how hard they’re fighting him to say, but I will let the folks tuning in to know, yesterday in court, the transcript has reflected at a sidebar, Merchan did ask the defense, will your client testify to which Todd Blanche responded, “We don’t know yet.”

Preet Bharara:

That’s also a typical response. People don’t always want to signal one way or the other-

Katie Phang:

Tip their hands.

Preet Bharara:

And you never know, and people make a decision. At the last minute, I had a case where there was no expectation the defendant would testify. We went to lunch after the government rested, we came back from lunch, and then, the defense called the defendant. So, you never know. That’s a good note to end on. Katie Phang, thank you for your insight. Keep up the dispatches from court. We look forward to them.

Katie Phang:

Thank you for the honor. I appreciate it.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Katie Phang. If you like what we do, rate and review this show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @preetbharara with the #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner and Jake Kaplan. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay Tuned.