Preet Bharara:

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

Rikki Klieman:

The defense is he didn’t commit a crime because he didn’t have the intent to commit a crime, and the defense is also that even the documents aren’t false because Michael Cohen was working for the Trumps. So it’s not a case that is indefensible at all.

Preet Bharara:

That’s Rikki Klieman. She’s a CBS news legal analyst, attorney, and bestselling author. She’s been covering all things law for her entire career, including most recently, the legal troubles of former President Donald Trump. She joins me to discuss the start of trial this week in the Manhattan DA’s hush money prosecution of Mr. Trump. We cover jury selection, general trial analysis and predictions and how defense attorneys can rankle difficult clients like Trump. That’s coming up. Stay Tuned.

Before we get to the episode, a quick programming note. Next week we’ll be covering the presidential immunity oral arguments at the Supreme Court in Trump’s January 6th case. The arguments take place on Thursday, so in order to bring you the most up-to-date coverage possible, we’ll be taping right after arguments conclude and airing the Stay Tuned episode on Friday of next week. Now let’s talk about this week’s trial in Manhattan.

THE INTERVIEW

Trump’s hush money prosecution is the first ever criminal trial of a former president. Rikki Klieman helps me break down the latest trial developments. Rikki Klieman, welcome to the show.

Rikki Klieman:

Thank you very much. I’m glad to be here.

Preet Bharara:

It’s so great to have you. Obviously many folks, including me and my colleagues and my former colleagues are focused on this very first criminal trial against Donald J. Trump. My first question is, are you at all surprised? Do you find yourself saying, whoa, I wasn’t sure we were ever going to get here?

Rikki Klieman:

No. I actually felt that at least one case would go to trial before the November election, and it seemed as cases were falling by the wayside by virtue of motion practice or going up to a higher court, that the quiet one, the one that there wasn’t a lot of activity happening was the New York case and Alvin Bragg appeared to be very determined that he was taking this case to trial, whether first, second, third, or fourth. And it turns out he’s first.

Preet Bharara:

Yeah, well, he filed it first, so there’s a certain logic to it, certain symmetry to it.

Rikki Klieman:

He certainly filed it first, and I think we have to recall that at the time of the filing and the hubbub that was created by the surrender of Donald Trump in New York, that there was a lot of criticism of this case. That this was not the case that should have been brought first. And then when it came around a year later, there was still some of that criticism that it isn’t the best case to try first. But a lot of that criticism has gone away because I do think that when you bring jurors into the courthouse that the solemnity of the historic moment of trying a former President of the United States, let alone one who is campaigning to be a president again, dawns on people that this is all very serious.

Preet Bharara:

Can you remind people in your own words what this case is about? Is it about a hush money payment? Is it about election interference? Is it about the intersection of those two things?

Rikki Klieman:

It is about the intersection of those two things. And in simple language, the charges are 34 felonies. And what they are would have been misdemeanors. That is 34 acts of falsification of business records, but they are allegedly done to conceal or commit another crime, and that raises them up to felonies. And what that other crime allegedly is was, as you put it, election interference, keeping information from the public back at the 2016 election.

Preet Bharara:

You’re familiar with the phrase jury appeal. We would talk about that all the time in the US attorney’s office, you bring cases that are righteous or meritorious to bring, but we would sometimes say, does this case have jury appeal or not? Does this case have jury appeals?

Rikki Klieman:

This case has jury appeal in an odd kind of way. It has jury appeal, unfortunately, I would say as a lawyer, it has jury appeal because the basis is salacious. The basis is titillating. The basis makes people want to know about the sexual life of Donald Trump with a porn star, Stormy Daniels, with a relationship with a Playboy model, Karen McDougal. That kind of tawdry detail has jury appeal that’s different from the question of whether or not we should look at this as 34 felonies that have been brought against Donald Trump, which certainly many legal scholars and lawyers would simply say is really overkill in this case.

Preet Bharara:

Is it?

Rikki Klieman:

I think it might be. I think if you look at it, you’ve got 11 checks. They are matched by 11 invoices, and then we have 12 ledger entries. So instead of it being charged in a big picture, it’s charged one by one by one. And the idea of having 34 separate felonies when it really could have been a much tighter case, and we could look at it as a conspiracy with Michael Cohen as the actor, as the fixer and the lawyer for Donald Trump. Or look at it as an agreement of those two people with David Pecker who was the publisher of AMI or the National Enquirer. I think the idea of the conspiratorial agreement from the prosecution point of view makes it much more serious sounding and perhaps more palatable to grasp than saying 34 separate felonies for those 11 checks that match 11 invoices, etc.

Preet Bharara:

Does it matter at all or does it make the case more serious either as a matter of jury appeal or public perception that the checks of reimbursement that Donald Trump personally signed were done while he was president? And I think in the White House in the Oval Office?

Rikki Klieman:

There are a few of the checks that Donald Trump has signed while he was president. And at the time of the indictment, I remember the conversation being very, very thoughtful amongst lawyers of saying, well, maybe this should have been the basis for an impeachment because they were done in the Oval Office while he was president. So there was a lot of talk about that at the time. In terms of the case itself as it’s going to be tried to a jury, I don’t think it makes a wit of difference.

Preet Bharara:

Really? You don’t think it raises the stakes or makes it more consequential that some acts and furtherance of the crime were committed by a sitting president in the Oval Office?

Rikki Klieman:

I think it’s another tawdry fact. It’s another ugly fact. But in terms of whether or not a jury says guilty or not guilty, the real question is did he sign the checks and did he know what he was signing in terms of the falsification of business records? And that’s what’s important, and that is what the focus should be on whether he signed them in the Oval Office or he signed them in the backseat of a car.

Preet Bharara:

So if you’re a layperson and you’re hearing what the case is about, and you might have a view about whether it’s a worthy case or a serious case or a necessary case, the bottom line is the allegation as I think has been explained and by the judge to the jury pool itself, and we’ll get to jury selection in a moment, the case is you have records that show payments made that were characterized as legal fees and/or a legal retainer, and that’s not what they were. They were reimbursements to Stormy Daniels. So if someone might ask the question, well, what’s the defense here? How is that not open and shut? They said they were one thing, they were actually for something else. Isn’t that a falsification of a business record?

Rikki Klieman:

Well, that’s a simplification of it, certainly from the prosecution point of view, what is not so simple is that Michael Cohen was working for Donald Trump and his family and the business at the time. So you also have from the defense point of view [inaudible 00:09:28]-

Preet Bharara:

Right. And he was a lawyer. And he was in fact a lawyer.

Rikki Klieman:

He was in fact the Trump’s lawyer.

Preet Bharara:

Right. And He was in fact doing legal stuff, right?

Rikki Klieman:

Correct. And he told people, including I believe the southern district of New York that he was working for the Trumps at the time. So from the defense point of view, for Donald Trump to be signing checks that were put in front of him for Michael Cohen would not have been something extraordinary. It would’ve been something usual. You also have the fact that the business, the Trump organization business, which was supposed to have been run separate and apart from Donald Trump while he was president, it was just functioning along.

And so there were entries put in the books and there were checks made, and there were invoices received as a matter of course of doing business. And that Donald Trump would have had not only no knowledge of why this was happening, if as President of the United States, he shouldn’t have even been looking at what was happening. So the defense is he didn’t commit a crime because he didn’t have the intent to commit a crime. And the defense is also that even the documents aren’t false because Michael Cohen was working for the Trumps. So it’s not a case that is indefensible at all.

Preet Bharara:

Right. So not only was Michael Cohen Trump’s lawyer and doing legal work, some of the checks that were made out went to Michael Cohen as legal fees. Isn’t that right?

Rikki Klieman:

That is correct. The main problem here is in terms of what the defense is going to do, not only with the records, the records are simply pieces of paper and they say what they say, and it will be the defense that, as I say, it’s a course of doing business, things were put in front of Donald Trump, he signed them. But all of this was really being done at the Trump organization level. But the real question I say, Preet, is when Michael Cohen takes the witness stand, he’s the key witness in this case, and he must explain not only all of Donald Trump’s actions as he perceives them, but he has to persuade the jury that he is telling the truth about his own actions. And we remember that Michael Cohen is a convicted perjurer. That is no small factor here, and one certainly that runs in favor of the defense.

Preet Bharara:

He’s not only a convicted perjurer, I believe he’s on record on a regular basis, including during the pendency of this case where he has known that he would be not only a witness, but as you put it maybe a central or key witness. He’s been talking about the case, he’s been talking about Trump. He’s been using language that suggests he wants retribution against Donald Trump. How helpful is that to the prosecution’s case?

Rikki Klieman:

Well, I guess as you laugh, I will laugh with you. I mean, not helpful at all. The difficulty with a witness like Michael Cohen who at one point was the most loyal person probably on the face of the planet to Donald Trump and was his, in essence, his “fixer,” he made everything right, made everything bad go away. But that all of that fervor in support as he would’ve said it at the time, “Well, Mr. Trump says, and I’m doing this for Mr. Trump.” That was how he would always talk about it, that he’s now gone to the exact opposite extreme where everything that Donald Trump has ever said or done is horrendous. So you have someone who has what we call as lawyers bias, and that bias is fair and constitutionally fair cross-examination. So Michael Cohen, although he is the most important witness, is certainly potentially a wild card.

Preet Bharara:

What do you think that cross is going to look like and how lengthy do you think it’s going to be? Is that going to be the highlight of the trial?

Rikki Klieman:

Don’t you wish you could do it? I mean, I look actually you may not have wanted to do it, but from my days of prosecuting, I would certainly say when you have schemers, often your witnesses that you must rely upon are very sullied. They’re difficult people. They’re people who’ve had problems in the past. They may have had a whole litany of crimes, but after all, when you have a criminal scheme as a prosecutor to prove your allegations, you must rely on the witnesses that you have faults and all. On the other hand, from my days as a defense lawyer, a witness like Michael Cohen is a defense lawyer’s dream. There are defense lawyers probably across the country who are practicing their pretend cross-examination of Michael Cohen. I think he is highly vulnerable. And you have to remember, as you noted during the pendency of this case, well, before the case was filed, but while all of the alleged shenanigans were going on, Michael Cohen was out there telling everyone that anything Stormy Daniels said was not true, that this agreement never happened.

So you’ve got someone who has conversations, public statements that have gone from being devoted to Mr. Trump, against Stormy Daniels all the way across the spectrum to the opposite pole. And so you have a lot of room for cross-examination. The interesting thing is you have to be careful as a defense lawyer during the course of this trial about how you cross-examine Michael Cohen. As I have often said, in order to call a witness, literally a liar on the stand, even if he or she has committed perjury and admitted to it in the past, you have to earn the right to literally look them in the eye in front of the jury and talk to them about the fact that they’re lying now, and you earn that right, not by banging the witness over the head with a sledgehammer. You earn the right by picking at the witness with a stiletto.

Preet Bharara:

I will be right back with Rikki Klieman after this. Let’s talk about what the nub of Michael Cohen’s testimony might be. If the defense is in part or in whole or a large part that Trump didn’t have the proper state of mind, he had a lawyer, the lawyer was a fixer or whatever you want to call him, but he was a lawyer and from time to time he requested a fees money, and Donald Trump did that. And in his own mind, the defense would go something like this. “I wasn’t drawing a distinction between pure fees or pure legal retainer or what other kinds of things and expenses and other costs were incurred by my lawyer. I sent him money upon his request for money and he as a lawyer did things for me.

And if during the course of that representation he had to pay a communications person or he had to pay a paralegal or he had to pay a courier, or in this case a little bit of a stretch, or he had to pay a former adult film actress, in my mind, it’s not a false business record because he’s my lawyer and I paid him as I was asked.” If that’s the nub of the defense, then the nub of the testimony from Michael Cohen has to be, “No, no, no, no. Donald Trump knew exactly perfectly well that the money he was paying me was not a legal fee. It was not a legal retainer. It was money that was supposed to go to Stormy Daniels and that’s why he’s guilty.” Do I have that right?

Rikki Klieman:

You have it 100% correct.

Preet Bharara:

And so how is that going to work you think on that fine point of Donald Trump’s mental state about what the money was for and whether it was or was not a false business record?

Rikki Klieman:

I think you have two things that the jury is going to have to look at here. Number one is the timing of the payment to Stormy Daniels having to do with the election. We always have to remember that in order to bump this up to a felony, there’s the element of intent of falsifying the business record. But to up it to the felony, there’s the second element of intent, which is to conceal the election crime, if you will, of election interference that is keeping relevant information away from the voting public. This is within two weeks of the election following right on the heels of the publication of the Access Hollywood tape, which is very incriminating about Donald Trump’s attitude about how he can touch women inappropriately simply because he is a celebrity. There were lots of people who thought that Donald Trump’s chances of becoming president once that tape went into the public domain, that his chances went substantially down.

So the idea is that Michael Cohen as well as by the way, David Pecker, who is head of AMI or the National Enquirer, that there’s this frenzy that they have to keep everything else away from the public because that could be the death knell in the last two weeks before the election of 2016 for president. So you have a double intent to prove for the prosecution, but it’s the circumstances of the timing that really become suspect. In addition, my second point is that Michael Cohen pleaded guilty to this campaign violation that is paying the money off to Stormy Daniels and keeping it from the American public and not declaring it in any way as a campaign contribution.

That that plea of guilty is part of an indictment that says he did all of this at the direction of individual number one who is not named in the federal indictment, but who is according to the government and Michael Cohen, Donald Trump. So we have those two factors that run in the government’s favor, and Donald Trump is in the position of either having to testify, which frankly most criminal defense lawyers would say would be a really bad idea, or he’s in the position of somehow through the cross-examination of witnesses getting out the fact of what was his usual course of business and what his real intent may have been, which may have simply been to pay his lawyer for what legal fees there were.

This is not easy from the defense point of view, and it’s a lot easier from the prosecution’s point of view, but they have a vulnerable witness. And if you look at David Pecker, he’s also a vulnerable witness because he gets immunity to come in and talk about the catch-and-kill scheme that he and Michael Cohen said that Donald Trump engaged in with them, that they would bury bad stories and that bad stories about Donald Trump and they would lift up and publish bad stories about his opponents. So you’ve already got two pretty vulnerable witnesses, but this is how life is. When we’ve seen organized crime prosecutions, when we’ve seen drug prosecutions, the witnesses are unsavory and they’re vulnerable to cross-examination, but prosecutors seem for the most part to be able to get convictions. In case it’s different.

Preet Bharara:

It’s different because as I’ve had experience with this and talked to people who have done mob and violent gang prosecutions, it doesn’t sound intuitive as an initial matter, but you’d rather have an honest murderer or violent person testify than someone who’s been convicted of lying.

Rikki Klieman:

I agree.

Preet Bharara:

Yeah, because what the whole ballgame is credibility and believability, and there are many people, I hate to say it, who’ve committed violent acts that come across as totally truthful on the stand.

Rikki Klieman:

Well, yes, because they often are very free about admitting their violent acts. One of the things that comes up here, Preet, that we have to always remember is that the burden of proof in this case, as in all criminal cases, is on the government, and it’s to prove the case beyond a reasonable doubt. So that’s no small burden, and you know that from your former life as a brilliant prosecutor that if a jury, I mean my favorite argument that I gave over and over again as a defense lawyer, you can guess he’s guilty. You can think he’s guilty. You can suspect he’s guilty. You can believe in your heart of hearts that he’s guilty, but you must still acquit unless he’s proven guilty beyond a reasonable doubt. And the verdict of not guilty means not proven guilty. It does not mean innocent. And any good defense lawyer has got to drill that into the jurors heads. The government needs 12 jurors to come to a unanimous decision. In this situation, Donald Trump only needs one. He needs one juror to hang that jury because the-

Preet Bharara:

To live another day.

Rikki Klieman:

Not to live another day, to be able to run for office in November without a felony conviction.

Preet Bharara:

I was wondering about that, and I have a couple of follow-ups to the things you said a second ago, which were very interesting. If you hang this jury in four or five or six weeks, couldn’t you conceivably retry the case before the election?

Rikki Klieman:

Yes. Well, there are many problems. Alvin Bragg could say, and I’ve been in this position before from the receiving end, okay, the jury couldn’t reach a verdict. Let’s meet the first of next month and we’re going to impanel a new jury or even next week.

Preet Bharara:

Yeah, that’s what I think he will say.

Rikki Klieman:

That’s certainly what I would say if I were a prosecutor. However, we then go through another round of motions about how can you possibly try the case now when the greater country, let alone the greater New York area, has now been exposed to daily publicity. And so you have to have a cooling off period. You really cannot possibly try this case for a minimum of six months, and of course that would get you past November. The other thing is you’ve got competing trials here. You have two federal prosecutions, one in Washington, one in Florida, the one in Washington, of course, about January 6th, the one in Florida about the classified documents at Mar-a-Lago, and then of course you have the Georgia election interference case, which mirrors the January 6th case. That’s the federal case. So you have all these other prosecutions swirling about, and some of them, if not all three of them should be looking for a court date, for a trial date. So you have those prosecutors who are trying to get in line and they want to get in line before Alvin Bragg tries the case again.

Preet Bharara:

It’s big disaster of scheduling.

Rikki Klieman:

It is, and we have to go back again to 2023. The disaster of scheduling in 2024 is a direct result of indicting Donald Trump four times within a short period in 2023. So it’s no wonder these cases are cascading upon one another all in a horse race, not only to be first, but to just get before November. Now, there’s even an argument, which I do not agree with. There’s an argument that you don’t have to try it before November. You have to try it before January if he is elected. But I discard that argument,

Preet Bharara:

That transition period is an odd interval.

Rikki Klieman:

It’s an odd interval, and I just think it’s not a righteous position for a prosecutor to take if he is elected, and what the public needs to remember is this, the prosecutors are racing against the clock for the November election. That’s if Donald Trump were to be elected. If Donald Trump is not elected in November, then these cases can still all be tried.

Preet Bharara:

Yeah, there’s no rush.

Rikki Klieman:

No rush. And they can be tried in 2025. So the rush is these prosecutors all want to say, and I’m sure they would all like to be first, but they’d all want to say that they got the felony conviction before the November election and that the public interest is to know at least on one case, whether or not the person they may be voting for or not is a convicted felon. The clock is ticking.

Preet Bharara:

Whether that helps him or not.

Rikki Klieman:

Correct.

Preet Bharara:

I mean, the presumption has always been that is information that would be negative about a potential candidate in this case I think the rules are upside down.

Rikki Klieman:

Well, yes and no. I mean, I think that the polling, at least the most recent polling I’ve seen is that there are a number of voters, I don’t know what the percentage is today, who would have voted for Donald Trump, who would not, if he’s convicted of a felony, and one of the things I wonder about that statement that comes out in polling is any felony the New York felonies, or do they really mean the federal felonies?

Preet Bharara:

Yeah, it’s hard to know. I want to talk about this prospect of Donald Trump testifying. He of course, as always suggests that he will testify. He wants to testify. As you point out, that’s usually foolish. I think it’s foolish in this case. My question is A, what’s the likelihood, and B, given your experience, even though it’s not permitted to draw any inference from a defendant’s declination to testify, it’s a core fifth Amendment right against self-incrimination. Is there some natural human expectation that when you’re talking about someone like Donald Trump as opposed to a garden variety defendant who makes his living by speaking and talking about himself and defending himself in all sorts of forums, on television, on social media, at campaign rallies, that there is some expectation that he should testify or would testify as a psychological matter, even though it’s a legal matter, that’s not a permissible consideration? Do you follow my question?

Rikki Klieman:

I follow your question completely.

Preet Bharara:

Yeah.

Rikki Klieman:

Number one, he should not testify if I were representing him. And if I were representing him and he decided against my wishes that he was going to testify, I would make sure that outside the presence of the jury, obviously, that it was put on the record, that I strenuously advised him not to testify and that he’s doing it against my advice. The danger for him to testify is obvious to lawyers. It’s that cross-examination would be beyond extraordinary because first of all, you are dealing with allegations of this catch-and-kill scheme and his treatment of women.

So there are a number of what we call prior bad acts that is allegations about Donald Trump by other women that are not coming into this trial because they’re not relevant to this trial and are even if thought to be relevant, they’re unduly prejudicial. However, if he testifies, there’s a new ballgame here and even something like E. Jean Carroll, which I would think many of these jurors would know about, which was a civil case where it was alleged and then proven that he had sexually abused her, which is the New York term under the law in a dressing room of Bergdorf Goodman, but that finding of liability of $5 million for the abuse and then another 80 plus million dollars for denying the abuse over and over and over again. That’s just the tip of the iceberg of what would come in to cross-examine him and then he’d have to start denying it again.

Preet Bharara:

Yeah. So bad idea, bad news, but do you think there’s an expectation the defendant like Trump should testify?

Rikki Klieman:

Yes. However, your question leads me to two different answers. Yes, there is an expectation because he is a public figure and because he does talk a great deal about his cases, write a great deal about them through social media, that of course if he would do all that, that the jurors would naturally expect him to testify. And I mean, he’s running for President of the United States. I mean, it’s not like he can go somewhere and be silent outside of in a courtroom where he has a Fifth Amendment right to be silent. However, I have really found that when the judge instructs a jury about the Fifth Amendment privilege and that a defendant has an absolute right not to offer any evidence and not to take the witness stand and that no adverse inference can be drawn against the defendant that I’ve found that jurors take that instruction very seriously.

We have to remember the person that the jurors identify with most in trials is the judge. That the jurors believe the judge is the purveyor of truth. That the judge is instructing them, that the judge’s court officers are taking care of them, and that when the judge says, you can’t discuss this, you cannot think anything bad about any defendant including Donald Trump who is running for President and Donald Trump who is a celebrity, that you cannot draw any adverse inference against him I think they follow that. I think jurors are truly serious when they take their oath.

Preet Bharara:

I think that’s right. Stay tuned. There’s more coming up after this. I want to ask before we get to jury selection, how are people going to consume this trial? I have said a number of times now on the podcast and on television and in writing that it saddens me and it’s regrettable that this trial won’t be televised so that people can make their independent judgments. They don’t have to listen to Rikki Klieman or Preet Bharara or Fox News or MSNBC alone. They can watch the witnesses themselves. They can have a lack of filter so they can determine whether or not they think as sort of armchair jurors around the country, whether the charges were fair, the evidence was compelling, and the verdict is fair or just or not. And just two examples of why I think that’s not going to happen because people are going to get a filtered reaction of what happened at trial, is there was this moment that multiple reporters including Maggie Haberman from The New York Times, but several others from other outlets as well reported that Donald Trump fell asleep at his trial.

And I tweeted that something like I’ve never heard of a defendant falling asleep at his own trial, particularly on the first day. And some people told me, well, they have experienced that, so I stand corrected. But the point is the responses to that tweet from Trump supporters was interesting to me. How do you know he fell asleep? That’s fake news. He didn’t fall asleep. Maybe he just closed his eyes. That even something as simple as an observation made by multiple news outlets from the courtroom about his falling asleep was not believed. And then second Trump himself lies about the proceedings. He garnered a lot of sympathy by proclaiming untrue social that the heartless judge, the anti-Trump heartless judge has refused to let Trump have a pause in the trial to attend the graduation of his son, Barron. And that’s a lie. The judge hasn’t yet ruled on that. I predict he will let him go to the graduation. And so all these people on the Trump side don’t believe what they’re being told. They believe falsehoods about the proceedings themselves that are being uttered by Donald Trump. Do you have a reaction to that?

Rikki Klieman:

I do have a reaction to that. I know that anytime that I appear on television, radio, or streaming, and I’m talking in any way about any proceeding involving Donald Trump, that I get barraged from the left and the right, which means I must be doing something correctly. That everybody hears it through their own ears and their ears have filters just like they see things with their own eyes, which also have filters. I made the comment on air about the sleeping comment that I have had defendants in court whose adrenaline is so high that when particularly this is the first day of the first criminal trial of a former president and [inaudible 00:36:45]. And so the adrenaline is so high that sometimes the adrenaline crashes and you close your eyes for a second or you just slow down. And that’s as reasonable an explanation to me as that he fell asleep or he didn’t fall asleep.

I want to go back to the camera. Many of your listeners may be old enough to remember and many may not. There was a trial involving police officers in the shooting of a young African-American man named Amadou Diallo. And at that point, New York was not allowing cameras in the courtroom and it was a huge cause celeb, and there was a change of venue out of New York City and into Albany, or I think it was Albany or a town near Albany. And the judge made a decision to have the trial televised. And boy was that smart because people would not have accepted a verdict of any one of those police officers being acquitted if they had had filtered reporting. But what they got was what you describe. If you are able to be the 13th juror, you are able to watch it, then you can make a reasonable decision for yourself. Anytime it’s filtered through a reporter, a correspondent, an analyst, it is their view of what the truth is.

And that view is not pure. I was an anchor at Core TV. That’s how I went into television decades ago and was hired and then went to cover the O.J. Simpson case. It was really remarkable in that day and age, because we’re going back to 1994, ’95, that people watch that trial pretty much gavel to gavel. And if they were working during the day, they taped the trial to watch it at night. And so you had people who could make assessments, judgments, evaluations for themselves. I really think that it is a shame that the only one of these four cases that currently has the ability to be tried before a camera is in Georgia.

Preet Bharara:

Now, what most people have been talking about nonstop the last few days is jury selection. And I should note for the audience that you and I are taping this in the lunchtime hour on Wednesday, April 17th, Wednesdays are a day off from trial. In the first two days, the first day went a little bit slowly, second day picked up a great head of steam. There have been seven jurors seated by the time people listened to this. There may be more, there may be the full complement of jurors seated in the box. How do you think jury selection has gone and how do you answer the question that people ask, which is given the stakes and given the venue and given how famous Donald Trump is and how much pre-trial publicity there has been, how does he get a fair trial?

Rikki Klieman:

I think that jury selection, frankly, has been too fast. And the reason I say that is because in this case with this particular defendant, that it takes time to drill down an individual voir dire to really try to see if someone is harboring some bias that they don’t want you to know about or what I call the stealth juror. The juror who says, as some of those chosen have said, I get my news from The New York Times, The Wall Street Journal, and Google. So we have someone who gets it from the left, gets it from the right and then gets it wherever they get it on Google, which could be left or right. You have another person who says, “I get my news from The New York Times, the Daily Mail and some Fox News and MSNBC.” Well, that’s a rather perfect answer.

Preet Bharara:

You don’t think there are such people?

Rikki Klieman:

Oh, I do think there are such people. I have no issue with the fact. I’m one of those people who shops around because I need to know what both sides are thinking. But I think there are two methods of judges selecting jurors, and I tend to prefer, I’ll strike that. I prefer the method where instead of saying we’re choosing number one, number two, all the way to number seven, but that instead you are going to select 12 jurors, six alternates, that’s 18. Each side has 10 strikes. So that is, if you add that up, that’s 38. I prefer the judges who will create a mass of 38 jurors who have not been stricken for cause out of the group who have been vetted painstakingly, and then that the lawyers can use their strikes. That is often done-

Preet Bharara:

At the end of the process.

Rikki Klieman:

At the end of the process.

Preet Bharara:

I vastly prefer that too. And that was my experience in federal court.

Rikki Klieman:

I was just about to say, that’s the federal court experience that you and I have both gone through. And why do I prefer that, and perhaps you? You know what your ultimate pool is, the way this is being done. At some point, both sides are going to run out of peremptory challenges. They’re going at it very fast. And then you got to take the next person who comes up.

Preet Bharara:

Who could be terrible.

Rikki Klieman:

Terrible from either side. If they’re not struck for cause you are stuck with them. So that bothers me. Another thing that bothers me, and I know the intent is to get people who say they can be fair and impartial, but you’ve got people here who have had social media postings in the past. They could be pro-Trump, they could be anti-Trump, but they were by virtue of how long ago their social media post was or by how they explained their way out of it, that when one side or the other challenged them, that the judge asked them if they could be fair and impartial and after all, that’s long ago and they’ve said they could be and he wouldn’t strike them for cause. So he has forced the sides to use peremptory challenges. When if I were running the world, which I am not, in a courtroom, if someone has ever made a social media posting pro-Trump or anti-Trump, just get rid of them.

Why take any chances? You are dealing with basically 100 jurors a day. You’ve got plenty to choose from. The other thing is the process of individual voir dire that is questioning by each side. A half an hour a piece on each side is not a long time. If you are a good, if not great selector of jurors, if you’re trying to discover bias they don’t want to admit. So I am not in favor of the method, but it is a method that is used by many judges and certainly is used by Judge Merchan has used it with the trial of the Trump organization, Allen Weisselberg. It’s how he and many other judges pick a jury. I just don’t prefer it. The difficulty of someone trying to be too fair as a juror, the one who sees everything or doesn’t see anything, I don’t talk to anyone about politics. I don’t know that he even has charges somewhere else. Those jurors make me very suspect.

Preet Bharara:

Because they may not be telling the truth or they’re so divorced from what’s going on in the world that how can they be a good juror otherwise?

Rikki Klieman:

My fear is that they’re not telling the truth. You have people who will want to get on famous cases because they want to write a book, because they want to be famous themselves. You don’t want those jurors. Neither side wants those jurors.

Preet Bharara:

Can I ask you a question that I’ve been struggling with and that is, so all the jurors have been and will continue to be once they’re all picked, admonished to not follow any news stories, read any press about the case. If you use social media or watch television in good faith to just figure out what’s going on in the world, watch sports, anything at all you do when you pick up your phone, you’re going to see incidentally headlines and stories about the case. It’s the biggest story in the country. Where if you get The New York Times or The Wall Street Journal or The Washington Post or any newspaper delivered to your home, the front page, many, many days from now until the end of the trial is going to have some assessment of what happened at trial or have information that was not supposed to be in the hands of the jury. How do jurors abide by that instruction in this case?

Rikki Klieman:

Rather difficult I would say.

Preet Bharara:

I would say so.

Rikki Klieman:

Even if their intent is pure. Let’s say you have the most serious jurors in America, people who really take their oath seriously. They really would have to look at nothing. That even if a newspaper is, because some of us still actually read the newspaper, even if a newspaper is delivered to your home, have someone else pick it up at the door. But you really could not turn on a TV. Well, the real problem is you really can’t turn on your phone.

Preet Bharara:

Can turn on your phone.

Rikki Klieman:

It’s almost impossible in this situation, even with the most well-intended jurors. So the best you can hope for if you are the judge, let alone if you are the lawyers and the client, the best you can hope for is that they will really try very, very hard. The other issue is you’re not supposed to talk to anyone about this. Well, it’s fine if you abide by that rule. What about everyone around you? You come home, you have your spouse, you have your children.

Preet Bharara:

Yeah. Everyone’s going to want to know what happened in court today.

Rikki Klieman:

Right. And everyone has an opinion. And so unless you’re cloistered, I’m not a big fan frankly, of locking up juries as we used to do because we had much more resources. That is money where you could literally sequester a jury throughout an entire trial. This would be a good case if you had the resources to have the jurors sequestered for whatever it is, five, six, eight weeks. And the problem still exists. Unless you could get televisions that were only programmed to show them drama and comedy and no true crime, I don’t know how you even locked them up and they’re not exposed, and you certainly cannot prevent someone from using their phone unless you gave them all flip phones, which don’t have any kind of access to Google or social media. It’s nearly impossible.

I wanted to add one thing that was on my mind about the good thing that Judge Merchan did in terms of jury selection, in terms of going forward for speed, which I think other judges ought to think about and follow his lead. Which was in the first 96 he said, if any of you feel that you cannot be fair and impartial, you can leave the room now. There’s no questions asked. There is no problem. Please, you’re free to go. That probably saved days if not weeks. I think that’s a smart move.

Preet Bharara:

Rikki Klieman, what a pleasure to have you. What a treat to speak with you about all of this. Maybe you’ll come back because this trial is going to take a while. Thanks so much.

Rikki Klieman:

Thank you so much, Preet.

Preet Bharara:

My conversation with Rikki Klieman continues for members of the CAFE Insider community. In the bonus for insiders, Rikki shares her thoughts on the other three pending Trump cases.

Rikki Klieman:

I don’t believe there is time to get in one of the other cases before the election, but I do think that the lawyers will try to do so.

Preet Bharara:

To try out the membership for just $1 for a month head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Rikki Klieman. If you like what we do, rate and review the 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 at Preet Bharara with the hashtag #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 was Tamara Sepper. The Technical Director was David Tatasciore. The Deputy Editor is Celine Rohr. The Editorial Producer is Noa Azulai. The Audio Producer is Nat Weiner. And the CAFE team is Matthew Billy, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.