Failures of Biased Judge in Sham Trump Trial, with Alan Dershowitz and Mark Geragos

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Megyn Kelly
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Hey, everyone, I'm Megyn Kelly. Welcome to the Megyn Kelly show. We're staying on the Trump trial today with two of our favorite legal experts, Alan Dershowitz, author of Get Trump and of Course, professor emeritus at Harvard Law, and Mark Garagos, host of the Reasonable Doubt podcast, who has a long and very storied career as one of the most successful criminal defense attorneys in America.

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Megyn.

Professor Dershowitz, I shall start with you. Give me your, your quick take.

Alan Dershowitz
The only thing worse than the jury instructions is the failure of the defense attorneys to object to them, which precludes raising many of them on appeal.

These were horrible, very, very pro, prosecution instructions. Now I haven't read every word of them. I'm taking my cue from the media. But if the judge hasn't given the missing witness instruction, it's outrageous. Here you have.

Megyn Kelly
Wait, can I, let me interrupt you on that and say what Arthur Idala, your friend and mine, said in our last segment. He said the judge couldn't give the missing witness instruction because he had offered to let them bring in Weisselberg in a closed door hearing. And both of them ask him questions to figure out whether, you know, they wanted him or not. And the defense declined.

Alan Dershowitz
Well, then it's on the defense. It's on the defense. They should not have declined.

Here. The crucial conversation that occurred is witnessed only by Weisselberg and by Cohen. And you have to believe Cohen. And you're entitled to argue that the failure of the prosecution to give immunity to Weisselberg and to call him as a witness should create an inference that it would have been unfavorable to the defense. I don't know how the defense can fail to focus on these two crucial meetings, the phone conversation and the conversation that took place in the hotel. Without those conversations, there is no any corroboration of the key point. Now, there is corroboration of the fact that money was paid, and there is corroboration of the fact that these items were listed as legal expenses and, you know, retainers. But there's no evidence other than Cohen that Trump ordered it, directed it, knew it, other than the uncorroborated claims of Cohen. And that ought to be the central point in the defense. And so I don't know what happened in the closed sessions or anything of that time, but for the jury to deliberate without understanding that the key witnesses have not been called and have not testified leaves an enormous gap in this case. The other thing that should have been objected to, and I don't know if Mark has ever heard of this, the idea that the defense goes first is insane.

Megyn Kelly
Is such a case, huh?

Especially in this case. I mean, like, how do you defend.

Alan Dershowitz
Yourself when you don't even know what the charge is of the second crimes are?

And it creates the impression that the defendant has a burden, either a burden of going forward or a burden of proof. So I think the New York procedure is clearly unconstitutional in violation of the 6th and the Fifth Amendments. And I don't know, again, whether there was an objection to that. You know, lawyers often don't object to things that are routine, but things that are routine are often held unconstitutional. And so I'm very unhappy with the defense in this case. That doesn't mean they're going to lose. This is a New York jury.

Who knows how it will go. They may win, but they won't win, I think, as a result of great lawyering.

Megyn Kelly
Mark, what's your take?

Mark Geragos
You should have had the camera on while Alan and I were talking before we came on air because.

Megyn Kelly
Well, tell us. We want to know.

Mark Geragos
Well, first, to Alan's point, which is interesting to me, the idea of the defense going first, normally what happens is the person who has the burden of proof, it's a criminal case, it's the prosecution of the government. If it's a civil case, it's the plaintiff. That's why they get to go last. If you don't have something to argue against, then in essence, you have waived your burden. And to my mind, that should be a directed verdict, even though that doesn't technically exist in a criminal case. I've had cases, I don't know if Alan's ever seen it, where prosecutors got up and said, I'm going to waive my closing statement. And my response to that is, that's fine, I'm going to get up, I'm going to give my closing. But you don't get to reply because you waived. So there is that issue there, to Alan's point. And I don't know. I didn't listen to Arthur. So, Megan, you can correct me. I've been entirely frustrated in this case because New York state criminal defense practitioners are loathe to criticize this judge. One of the reasons I have been, I think, transparent in saying that this guy is nothing more than a prosecutor in a robe is because I don't practice in the state court. This judge, some of these decisions which are being heralded on the left, I mean, if you turn on MSNBC at night, you would think that this judge is the second coming of some great judicial mind. He has. He, I just don't even understand half of what he's doing in this trial. I don't understand what he did with Costello, which to me is beyond outrageous that you would take one of the defense's only substantive witnesses and basically telegraph to the jury that you're not buying a single thing that he's selling, and then create this hubbub, the idea of finding the defendant summarily in contempt for statements that were not made in your presence, which I've done a fair amount of contempt cases and politically charged cases.

I don't understand any of this. I don't understand him jamming the defense after the southern district dumped the discovery upon the defense and only given them 30 days, and only because the prosecution conceded that they should get 30 days. I don't understand these evidentiary rulings where he's imposing or interposing his own objections.

But I do understand from a practical standpoint why New York practitioners don't want to comment on him. But it's outrageous, frankly.

Alan Dershowitz
But, you know, there's. The judge made one mistake. He allowed me to stay in the courtroom when he kicked out all the media and everybody else. And I stayed in the courtroom and I saw the Robert de Niro moment where this judge looked like the psycho and taxi driver and turned to Costello and said, you talking to me? You talking to me? You looking at me? You raising your eyebrows at me? You're staring at me. I'm going to hold you in contempt. I'm going to strike your testimony. First of all, a judge has no power to strike the testimony of a witness unless the defendant did something wrong. If the witness did looked at him funny, you don't get to strike the defendant's key testimony and then to have telegraphed it in front of the jury. The judge's real self came out when he threw the media out, you know, he's a benevolent despot when the media is there and when the jury is there, but when they're out and when only a few of us are back in the courtroom, the real judge marchand comes out and the bias seeps through, just reeks through everything he's doing now.

Megyn Kelly
Will, it's pretty amazing because the judge got so mad at Costello. He cleared the courtroom. He only let counsel stay. And Dersh was sitting in the front row and he let him stay. He got, I think, confused that Dersh was part of the defense team or something, or just knew him as a storied lawyer and said, you can stay, didn't kick you out. And before he knew it, you were on your show reporting about everything you'd seen and heard.

Alan Dershowitz
Part of me wanted him to throw me out. I would have refused to leave. I would have said, your honor, the 6th amendment not only protects the defendant's right to a public trial, but it protects the public's right to see the trial. I'm the public. I'm not leaving unless you absolutely.

Megyn Kelly
That would've been amazing, Garagos, you'd be defending him. He'd be getting bailed out. You and I would be getting him out of jail.

Mark Geragos
I would gladly defend him because Allen is absolutely right. The 6th amendment, you don't get to pick and choose when you want to show who you really are. And I am just, I'll say it again, I do not understand the, these rulings that he's making. I don't understand the evidentiary basis upon all of this. And frankly, I don't understand what's been reported as the jury instructions. It's the whole thing to me.

Megyn Kelly
Speaker one let me ask you a question about that. Okay. Let me ask you something, garagos on that, because one of the controversial things among many the judge let in was the fact that Michael Cohen pleaded guilty to a federal election law violation. He was already going away on his taxi medallion scheme and his tax violations. And then the feds were like, oh, and also, how about this federal election law violation? And by that point, Cohen was like, fine, okay, I'll plead guilty to that, too. And the judge allowed that in. And he, wait, let me finish. And he also allowed in that David Pecker of AMI struck a cooperation agreement with the feds around these same federal election law alleged violations. Now, he let the government bring that stuff out on their own witnesses. Normally that would be like a garagos or an Alan Dershowitz cross moment. Like, you pleaded guilty to this bad thing, didn't you? But the, but you wouldn't do that here because Trump doesn't want any of that in front of the jury because it makes it sound like they're all guilty of the thing they cooperated with Trump on. Go ahead, Mark.

Mark Geragos
Speaker one well, then he compounded it because they put forth a witness. If you look at what Trump keeps posting, he keeps posting. I had a witness. I wanted a witness to opine on these issues, Brad Smith, and he excluded the witness. I don't, I mean, to me, there's been a lot of things, you know, I don't disagree with Allen that there's been a lot of waiver here inexplicably. But maybe I'm always hesitant to criticize the trial lawyer in the middle of the fray. But I will tell you that the idea that you allow in all of this stuff with the idea and then allow in closing, which happened yesterday, to talk about federal election, federal election crime. Federal election crime. But knowing at that point that you've excluded you, the judge has excluded their proffered witness who would have opined that there was no election law violation. Right.

Megyn Kelly
And the judge today, Alan, I'll give it to you 1 second. But the judge today, Alan, said he tried to fix it with a limiting instruction to the jury, saying, I let all that stuff come in about Michael Cohen's guilty plea to federal election law violations and the cooperation agreement with David Pecker not to prove that they, that they're actually guilty or that Trump's guilty of anything, but because it goes to their credibility. But it's like, okay, it was the prosecution's own witness. The prosecution brought it up. It was all used against Trump.

And that Bell had been rung. The jury had heard that two of the star witnesses had already basically pleaded guilty or admitted to the crime. Go ahead, Mark, and then I'll go to Alan.

Mark Geragos
He let the prosecutor argue it. He excoriated over and over for saying liberty. I mean, by the way, I haven't ever done a criminal or civil trial where I haven't talked to the jury about the difference between fighting over money and fighting over liberty. Since when is that verboten that you're going to get excoriated by a judge by saying send somebody to jail? It's a colloquialism. You're not telling them that they're going to do the sentencing, which is, but the fact that he allowed the prosecutor to argue these things and to argue them, that's why he gave the limiting instruction, because he realized in my mind that that was reversible.

Megyn Kelly
They argued it a lot in closing yesterday, the prosecution did. It was outrageous. They compounded the injury. Go ahead, Alan.

Alan Dershowitz
Remember that Cohen not only pleaded guilty himself, but he basically said hearsay.

And so Trump is guilty, too. He's my co conspirator. And the federal government, complicit with the state in this case, compelled Cohen to make a kind of hearsay accusation of Trump that could then be used against Trump. And that's why it was so imperative that the expert witness be allowed to testify. No, there was no violation of federal election law here. First of all, the idea that somehow voters would be defrauded because they all believe that Donald Trump was this virgin, this man who's never had any sexual misconduct in his life. And then the prosecution arguing essentially that he would never have been elected if the material about Stormy Daniels had come out. First of all, voters of New York voted against him overwhelming. Second of all, everybody knew that Trump was a player. And whether or not it included Stormy Daniels is totally irrelevant. First of all, whether he had sex with Stormy Daniels is irrelevant. But it kept him off the witness stand because the only issue was whether or not she attempted to extort him and collect money from him and threatened him to expose it. That's the only relevant issue. There was another accusation by a doorman that maybe Trump had fathered a child. They paid him off, too, even though it turns out that accusation was totally false. So it absolutely didn't matter.

Megyn Kelly
Here's what he said.

Here's what the assistant district attorney Steinglass said about this. In closing, he talks about how the access Hollywood tape broke, that Trump decided he would call it locker room talk, which they said was Melania's suggestion. And then Steinglass argued the following.

This is important because at the same time this access Hollywood tape comes out, the defendant was attempting to muzzle a porn star, Stormy Daniels, during the final month of the campaign.

Stormy Daniels was a walking, talking reminder that the defendants behavior, I guess, was not only words, she would have totally undermined his strategy for spinning away the access Hollywood tape. Meanwhile, Ellen, the access Hollywood tape said, when you're a celebrity, women will let you grab them by the p word and you can get away with it.

It wasn't speaking to, you can have consensual sex with porn stars who come to your hotel room in the middle of the night while you're on the road. Like those actually aren't two of the same things.

I don't think this is actually true. But what do you make of his argument? She was a walking, talking reminder that he was not just about words. She would have totally undermined his strategy for spinning away the excess Hollywood tape.

Alan Dershowitz
And according to that theory, whether they actually had sex or not, you can threaten somebody with disclosure of a sexual relationship that didn't occur, and that's called extortion. And if it was done to avoid a lawsuit, then it's not extortion. But then it's a perfectly legal legal expense.

Then he can't be charged with mislabeling it. Unless, if it's extortion, then she should have been prosecuted. If it's not extortion, then the money he paid is a perfectly legitimate legal expense, maybe even deductible from taxes. And I think they even argued that he had in his mind that two years from now, maybe he would deduct this from his taxes and that would be tax fraud. I mean, these combination of made up crimes that they don't have to prove beyond reasonable doubt and they don't have to agree which ones has turned this into such an injustice. How does the jury begin to deliberate if you have three jurors saying, well, maybe he intended to impact the state election, three jurors saying, well, maybe he intended to cheat on his taxes. Three jurors saying, well, maybe he wanted his wife not to know about it. And then you get a verdict that just says guilty.

It's very hard to challenge that on appeal or in a motion after the trial. So, you know, the judges has really invited the jury in this case to convict.

Megyn Kelly
And that's, he's complete complicit. He's complicit. He is a prosecutor and a judge's robe, Mark. He's out there at every turn, as I said to somebody yesterday, trying to lead this jury right to the fountain of guilt. Right, like lead the horse to water. They're leading them right to the fountain of guilt. Like they're not going to have these instructions. What they're going to hear is Michael Cohen pleaded guilty to election law violations. David Pecker was accused of election law violations and entered into an agreement with the prosecutors not to be prosecuted. Donald Trump is accused of that, too, as one of the many underlying crimes. And we don't have to agree on which crime he committed. And by the way, we don't actually have to agree that he committed the crime, just that he intended to commit the crime and that if he intended to commit the crime and then he intended to conceal it by documenting these. I mean, this is insane, but they're going to go in there and be like, well, the others pleaded guilty. I guess it was a crime. He covered it up, done.

Mark Geragos
Well, look, there's two other things that I would be remiss if I didn't mention as well that just drive me crazy about this trial. One, that the defense opened the door.

And I hate that term, by the way. I've never talked to Alan about it, but my father, who was a former prosecutor, used to hate it as well and imbued it in me. Opening the door as if the evidence code gets run over because you opened the door that somehow they opened the door to the salacious details of this newly minted story by Stormy Daniels in the opening. At the same time, he's giving the jury instructions that you're not supposed to take as evidence anything the lawyers say. And so therefore, then he's going to allow the prosecution to run roughshod over violations of more prejudicial than probative, to be salacious and to have her create this kind of fantasy land of what transpired. Then to tell the Susan Nicholas that she didn't object enough and to say that is mind boggling against the backdrop of Harvey Weinstein's conviction being reversed. And I got this from Alan because I was thinking it at the same time. How in the world do you read that opinion by the highest state court in New York and say to yourself, hey, now I'm going to do the exact same thing to Trump. I'm going to tell him, if you get on the stand, all of this is fair game, right after the highest court in New York just told you that we're going to reverse, and we did reverse hard, Harvey Weinstein's conviction on the very same grounds that it unnecessarily imperils your right to get up and testify.

Alan Dershowitz
Very simple.

Mark Geragos
I just don't get it.

Alan Dershowitz
I get it. Very simple. Everybody knows there's a special law for Donald Trump and the law, even Weinstein.

And that was a great victory for Arthur Idalla. I consulted on that case. I'm proud of my role in that case. I'm proud of contributing to the reversal in that case. And people attack me for it. But that's what it means to be a criminal defense lawyer, Mark, as you know, as you know very, very well. But it's only the kind of chutzpah that could come from saying to yourself, the New York Court of Appeals is not going to reverse the Trump conviction. We don't care what the facts are. We don't care what the law is. They're not going to have to go home to their family and their friends and say, we're the responsible for Trump being the next president of the United States. I know that from personal experience, people hold me responsible for Trump being possibly the next president because I defended him, his impeachment.

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Conan O'Brien
Hey guys, Conan O'Brien here to tell you about some of the stranger things we've been doing recently on my podcast. Conan O'Brien needs a friend.

Recently we had an episode where I sat down with some of the writers that I worked with on Conan O'Brien must go. That's my travel show on Max, and we talked about everything that goes into those shows and a lot of very insane anecdotes from our travels and adventures. There's another episode you might want to check out where I discuss with my physician, Doctor Arroyo, about my experience on hot ones. We talk about my near death experience and his complete inability to help me because he may or may not be a real doctor.

That's just some of the stuff that's been going on. And if you feel up to it, check it out. So catch up on all things I've been up to on Conan O'Brien needs a friend wherever you get your podcasts.

Megyn Kelly
So Alan, you were saying that they're worried about blowback. All these jurors are real people who are gonna have to worry about blowback. The judges on the appellate court and on down the line, none of them wants to be kicked out of all their polite social circles for being the ones who saved Trump and not democracy.

Alan Dershowitz
And the jurors names will leak eventually, and jurors will have to do some splaining, and there's no explanation. The people on the hard, hard left, the hard progressives, think of Donald Trump as Adolf Hitler, and they think of me as Himmler or Goebbels, having helped him and facilitated him. They don't remember that I voted for Biden, that I'm a liberal Democrat. And there are a lot of not enough liberal Democrats and people who are nonpartisan who think this trial is a disaster. But to ask a judge who has to run for office occasionally to be the one responsible for making Trump president, to ask jurors, to ask anybody, I just know what happened to me, to my family, to my wife, to my children when I defended Trump on constitutional grounds. And just multiply that by many times, when you think of a juror having to justify, or a judge having to justify why they allow Donald Trump to run for president and perhaps be the next president of the United States, that's the dynamic that's operating in this case. And unless you understand that, you can't comprehend why the prosecution did so many things it did, why the judge made the rulings he made, and why appellate courts may conceivably even affirm this disaster of a verdict if there is a guilty verdict.

Megyn Kelly
Meanwhile, Margaret, when you hear the press describe what actually happened here, it's insane.

What happened was he got threatened, he paid off this woman through his lawyer, and she went away until she decided she was going to tell her story anyway. That's what Trump did. And then he wrote down legal expenses in a book that no one saw. A book that no one saw. The book never left the shelf at Trump Tower. This is his big fraud that he committed. I pulled it up.

We'll play it this. I'll just put up, play it off my phone, and my team will fix it later. But listen to the New York Times and their daily podcast is called the Daily today. Describe Trump's evil crimes. Okay, just listen to this.

Mark Geragos
It's the last time the lawyers get to address the jury.

And for the defense lawyers in particular, it's a day that comes with really serious stakes, because this case has been really prosecution driven. Right? They've charged Donald Trump with falsifying business records 34 times.

And they've charged Trump with a conspiracy to suppress negative news about himself to aid his path to victory in the 2016 election.

Megyn Kelly
A conspiracy to suppress negative news about himself to aid in his election. Mark, I'd say you can't make it up, but they just did.

Mark Geragos
Well. And by the way, you know, you described it as a book. What the evidence showed is it's just a drop down in the old quickbooks where you hit it. It says, legal expense somebody, you know the old expression garbage in, garbage out, couldn't be better. A better description of what happened here. To Alan's point, this judge, once again, I'm going to put it on him. He, during jury selection, had a potential juror come back and overnight said, I am too scared that somebody's going to find out who I am. I'm too afraid of what my decision is going to be, and I can't be fair. Well, if you're a judge, do you just excuse that juror? Yes, but then do you just go on your merry way? No.

There is a remedy for that. You either continue the case until such time that it's not as politically overheated six months out from an election, or you do what other judges do, which is you sequester the jury so they don't go home every night and hear or be exposed to all of these things. Neither of those was done. They had every, I will tell you, if the government had said, just for a second, do this mind game, if the government had come into that courtroom and said, on the eve of trial, the defense just dumped on us terabytes worth of information directly relevant to this case, and the defense expects us to go to trial in the next 30 days. There isn't the mother of the judge who was born who wouldn't grant the prosecution's motion to continue and overrule the defense's speedy trial rights, yet here, the defense, who's willing to waive their speedy trial rights in order to put this case over, is pooh poohed and said, no, you can go through the terabytes of information. You'll get ready. It doesn't matter, because the prosecution's got the burden of proof.

It's outrageous, frankly. And I'll give you one other thing, that just because this happens all the time, Alan will, I think, agree with me. The prosecution gets to investigate these cases and not just trump any case for as long as they want within the statute of limitations. And then they're the ones who say, on your mark, get ready. Go. And then the defense has to take what is normally years worth of investigation, digest that, do an investigation, get ready for trial. You got to do all of that against the backdrop of somebody who's being prosecuted in four different jurisdictions and trying to run for president at the same time. And you're supposed to get his attention, take him off the campaign trail, get ready for trial, and have a massive document dump on the eve of trial. And out of all the days in the last four years, 365 days times four, we need to get this case to trial on this date. Why? Why do we have to do that?

Alan Dershowitz
And why do you have to?

Megyn Kelly
Because he engaged in a conspiracy to suppress negative news about himself before the election. It's insane. Go ahead, Alan.

Alan Dershowitz
Well, first of all, everybody tries to suppress negative news about them, every contest, and they with more than one person. So it's a conspiracy. The other thing the judge could have done and should have done was to change the venue, move it to Rockland county, to Staten island, to places where there is at least not an 85 or 90% jury pool who voted against Trump and would do anything to avoid Trump becoming president again. There are so many options to have made this a fair case. Obviously, Mark is correct, postponing it until after the election, and he couldn't have pardoned himself. This is a state charge, not a federal charge, but they wanted it to interfere with the election. This case is a paradigm of election interference. They wanted a down and dirty conviction to influence some independent voters, even though it might be reversed on appeal. They wanted a gag order to prevent him from attacking the witnesses and the witnesses, some of whom are democratic activists. And they wanted to sequester him, essentially in the jury, in the courthouse during four days a week. And if they succeed in this, we're in Putin land. Putin goes after his political opponents, obviously in a much worse way. He kills them. Here. They're just trying to use, weaponize the criminal justice system to influence the election. And again, as a liberal Democrat, I want to see my side win fair and square. I don't want them to cheat. I don't want an elbow on the scale of justice. And that's what we're seeing here.

I want to see an election.

Megyn Kelly
Let me ask you a follow up question, Alan, because Trump was tweeting or truthing about some of this earlier today. And one of the things he raised, and this is how we started our show, with a point similar to this. But he wrote, can you imagine that I, as a defendant and not a allowed to rebut or correct the many lies told during the five hour filibuster just put on by the Soros back DA's office in the Manhattan court. What a disgraceful performance of misrepresentation it was.

Okay, Annie McCarthy has just, this just forwarded to me, has just dropped an article on National Review. Judge Marshawn and Trump conceal and.

Well, let's see. Oh, yeah, yeah. He's saying Judge Marshawn and Trump counsel, I think, conceal the holes in Bragg's case. And he says it's highly likely that Trump is going to be convicted. He says, first with the help of Judge Juan Marshawn and also none other than Donald Trump. He says these prosecutors from this DA's office, Alvin Bragg, have effectively concealed what should have been fatal holes in their case. And he's talking, I think, here about the fact that Alvin Bragg hid the felony. He played hide the felony. He didn't want us to know the underlying crime until the big closing argument where he was like, surprise, it was federal election law or maybe tax law. He could consider that, too, or maybe another business record he falsified, but federal election law, and the point is, because he doesn't have the jurisdiction to enforce that.

Alan Dershowitz
Speaker one. But you'll never be able to appeal that because the other side will be able to say, no, no, no. Some of the jurors may have done state election law. Some of the jurors may have done a state tax law, so you can't appeal it.

Prosecution made a direct misrepresentation, which to my mind raises ethical questions. They said that the claim that Donald Trump knew, knew that this was being listed as legal expense and that all this occurred is corroborated. And I look very hard at this case and I challenge anybody to find me where that conversation is corroborated. That's only Cohen. It could have been corroborated again by Alan Weissenberg, but it wasn't corroborated. There is no evidence other than Cohen's to prove the fact, if it's true, that Donald Trump knew or facilitated or in any way participated in entering the record. Now, we're not talking just the entering of the record, the drop down, which he didn't do, which some underling did. And that's the missing point, because without that, you don't get to the felonies because you have to first get the misdemeanor. And the misdemeanor requires an intent to defraud. And unless Trump knew about how it would be listed, there can be no intent to defraud. So you don't even get to the felonies.

Mark Geragos
Alan, I have a question. Why didn't they request, why didn't they request that the jury make a determination whether it was a misdemeanor or a felony, and why wasn't that given? And I'll tell you why that's important. Because if they find that it was a misdemeanor and not felonious, the statute of limitations would have expired and that would have been the end of this case. And so the jury should have been given or some kind of a verdict form that has the ability for them to distinguish between the felony and the misdemeanor. And if that's the case and they choose misdemeanors and they should have been able to argue that to the jury, then this case would be over because the statute is run.

Alan Dershowitz
I don't know whether or not there's a verdict form in New York beyond guilty or not guilty. As you know, in federal courts and in other courts, there are long verdict forms that make you check the boxes.

I'm not sure what it is in New York, but there should have been a verdict form in this case. But you're absolutely right. If they say misdemeanor, it's out as a matter of law.

Megyn Kelly
But no, that wasn't an option. Because what made this a felony? That was that he resurrected the dead misdemeanor by charging it as not just the falsification of business records, which would have been a misdemeanor, but the falsification of business records with intent to commit or cover up another crime, which is what makes it a felony. So, I mean, maybe you could have come up with something that would, style number one, tell us whether there was another crime that was being covered up. That could have been question number one. And if not, then. Then the falsification of business records would be bumped back down to a misdemeanor. But they went the other way. They did falsification first.

Mark Geragos
The US Supreme Court has specifically said in the criminal context, you can't revive an expired statue of limitation in a criminal context. So why? Why can't you have? And why shouldn't you? I think you should be compelled to have the jury make that finding. You can't give them an either or when you've revived a case that should have been dead by something that doesn't make any sense in terms of this theory. Fine, give the prosecution, let them have their felony approach, but you should give the jury the ability to make that finding.

Alan Dershowitz
The prosecution argues that, no, this wasn't a misdemeanor turned into a felony. It was always a felony, because at the moment he made the entry, which alone would have been a misdemeanor. He had this intent in his mind. We've psychoanalyzed him. And while some secretary did a drop down, somebody must have intended that this affect the election, even though we're not going to let an expert come and testify that that wouldn't constitute a crime or a tax expert come in and testify that as far as I know, the tax returns hadn't even been filed yet. And the idea that you can indict somebody or charge somebody with intending to perhaps in the future engage in tax fraud by deducting these expenses, which may very well be deductible again, is a bridge too far.

Megyn Kelly
Mm hmm. Meanwhile, you'll appreciate this, Mark, as somebody used to go on CNN a lot, they are covering the prosecution's closing, which was, it did feel like a filibuster. It went on forever as though Jesus had come down.

I'll just give you a little sample. Here's Nicole Wallace.

You know, to sort of steal Ari's analogy, you know, one person has to write like Shakespeare, the other one like a Trump tweet. Right? But I don't even think they did that. And what the prosecution had going for it today was the ability to say, take the sex. Sex happened in zero six. Why do you think they paid for it two weeks before election day?

Shakespeare. It was Shakespeare. Whereas that loser defense attorney only had to come up with the equivalent of a Trump tweet.

Mark Geragos
Said, I turn it on at night. It's been my habit for many years, as you know. And it's. I don't know. Alan shares my frustration with this. I don't know what's happened to the party that I grew up with. When did they flip and become cheerleaders for the prosecution? When did all of the sudden the, everything that Alan and I were bitching and moaning about in the nineties when the Republicans were coming at Bill Clinton during Whitewater. I mean, I remember trying that case with Susan McDougall back in Little Rock, Arkansas, on obstruction and justice and contempt charges and saying to myself, this is so outrageous. I can't believe this. What a political show, trial, blah, blah, blah. Everything that we were saying and Alan was, that's where we bonded in the nineties. Everything we were saying now then is what's happening now, but it's just the shoe on the other foot.

Alan Dershowitz
Sure. Professor Lawrence Tribe is the leader of that pact. It's only good if it's good for the Democrats. This is the perfect case for why all trials should be televised. We should be able to have seen Judge Marchand, we should be able to have seen all the actions, all the witnesses, and be able to judge for ourselves instead of having to see it through the prism of CNN and Ms NBC.

You know, when you, when you flip the channels, it's as if you're seeing descriptions of two different cases. They bear no resemblance. And the american public has the absolute right to make its own judgments. Who are you going to bly, me or your lying eyes? And I would hope that this would increase the movement toward having trials, particularly trials of this dimension and magnitude on television so that everybody can see it. Mark, I think you'll agree with me. We've done trials, both of us, that have been on television. You don't even remember that the camera is on. You focus so much on the fact finder, whether it be a judge or a jury. I argued some of the motions in the OJ Simpson case on television. I argued the appeal in the von Bulow case, which is on television. Never occurred to me in a million years to focus on the cameras. I wanted to focus on who was going to decide the case. So, so this is a perfect case for why everything should be on television.

Mark Geragos
You know, it's also interesting, Megan, I think I've mentioned this before. You know, Shepard v. Maxwell, which is decided some 70 odd years ago, was the US Supreme Court case that talked about and was originally designed, and that's where F. Lee Bailey, speaking of the OJ Simpson case, made his career on, or the first thing that catapulted him into it, that was originally designed to protect the defendant. And it has been so perverted over the years into something that is virtually unrecognizable, where now we do not televise. And one of the biggest mistakes I ever made in Scott Peterson, I've said it repeatedly, is that I agreed with the prosecution not to have cameras in the courtroom. There should have been cameras in the courtroom because I would go home at night. I would watch people reporting from New York what was happening in San Mateo county, and it was unrecognizable, recognizable to what had actually happened in the courtroom. That's the same thing. Alan's kind of summary of what it is happening now is the exact same thing. I can pick up or turn on one I know instantly by where the source of the news is, what their spin on the cases, I can't get any kind of an accurate historical view of what actually happened in the courtroom unless you read the transcript. And even then, that doesn't tell you what the, it doesn't give you the nuances.

Megyn Kelly
You know, the interesting thing, frustrating. I want to say one other thing. Let me, let me say one other thing. Jonathan Turley, who you know is a legal contributor on Fox News, he was raising a point. I'm just following up on her Shakespeare comment. So Shakespeare, also known as Steinglass, the ADA, got up in front of this jury and lied. He lied repeatedly in that closing of his. And Turley did a great x thread on it, for example, saying that Steinglass got up there and said, it is a fact that these were campaign violations, that the federal law had been violated. Nothing from the judge reading here, quoting nothing from the judge and nothing from the defense. This jury has now been told dozens of times that the payments were campaign violations and the judge is letting that false claim stand uncontradicted. He literally said that Trump lied in denying that these were campaign contributions, because they are, they were, in fact, campaign finance violations. Judge Mershon is treating all of this as argument. However, Steinglass is making a statement of law that is contradicted by a wide variety of experts. Of course, we all know those experts were denied entry to this courtroom to actually instruct on the law. And when Judge Mershon took a shot at it defining what the federal election law actually does require, he whiffed and did not state the accurate description of how we determine whether something falls within the campaign finance laws. It has nothing to do with the defendant's subjective belief or desires in paying it.

It has only to do with the nature of the payment. Is this the kind of payment that can only ever be paid within the context of a campaign, polling, rallies, that kind of thing? Or is this the kind of the pay, a payment that might be, might be paid to advance a campaign, but also is made many times outside of the electoral context? That's a hush money payment. That's this case. Go ahead, Alan.

Alan Dershowitz
No. The prosecutor made a serious mistake which will result in reversal if this conviction, if there is a conviction. He said that it's a fact. If it's a fact, then you are allowed to have expert witnesses to dispute that fact. The only basis on which you can't have an expert witness is that it's the law, not a fact. But if the state concede, I would open my brief that way if I were doing an appeal. The state has conceded that the issue of whether or not this was a campaign contribution is a fact, yet the judge excluded a fact. Witness that over objection. That's clearly reversible error. But, you know, they're so arrogant. They know that this is Trump and that whatever the law is for other people, it doesn't apply to Donald Trump. But once you allow that to happen, the next person it doesn't apply to could be you. And that's why this is so dangerous for all Americans and why some decent civil libertarians who are Democrats or liberals are so upset about this and they're not following the path of professor tribe and others for whom the only issue is, is it good or bad for the Republicans or the Democrats? You know, when I used to come back from a baseball game, a Brooklyn Dodger game, I'd say to my old grandmother, who was a polish immigrant grandma, the Dodgers won. And she would say, yeah, but was it good or bad for the Jews? And that's the Lawrence trial.

Is it good or bad for the Democrats? If it's good for the Democrats, it's the law. If it's bad for the Democrats, it's crazy, it's bizarre. And that's the language he uses. He has totally, totally become a partisan when it comes to the law. And you must maintain neutrality. And I hope Mark and I, and you, Megan, are among the few that maintain a kind of neutrality and objectivity without regard to the partisan implications. It's so important that those principles remain intact.

Megyn Kelly
Yeah. All right. Well, I know you don't like to give predictions, Allen, on what a jury will do. You will predict what a judge will do, and you have either a perfect record or almost perfect record, but.

Okay. So on that note, I'll start with Mark.

Mark, any predictions on what this jury is likely to do, how it's likely to come out? I won't hold you to it because we all know, none of us knows anything on this front.

Mark Geragos
The one thing I do know is that jurors in cases like this generally will come back Friday afternoon after lunch. And if they don't come back Friday afternoon after lunch, then the odds of a hung jury are much greater. You've got, as we sit here today, you've got basically 55 hours for them to not deliberating the whole time, but until you get to Friday after lunch. But Friday after lunch, 03:00 is the bewitching hour. If they don't, that's good. They don't convict by then. Then I think the odds of the hung jury increase dramatically if they come back next week.

Alan Dershowitz
You know, I was in court trying very hard to watch the jurors and I couldn't get anything from them except when Cohen admitted stealing $60,000. They raised their eyebrows. I'm amazed the judge didn't hold them in contempt for raising their eyebrows. But the one thing I did notice when they were walking in, and they walked in a lot because the judge kept throwing them out, they didn't seem to like each other. They didn't seem to have a camaraderie. And that, I think, increases the possibility of a hung jury as well.

Megyn Kelly
New Yorker thing, as you know, in New York, like, you're considered a freak if you make eye contact with somebody else. So it's could just be, though they've been together for six, seven weeks now. So you'd think, go ahead, Mark, I'll give you a last word.

Mark Geragos
I was just going to say, if I'm going to handicap this, I'll get even more speculative. You've got two lawyers and you've got somebody who consumes their news on truth social who.

Megyn Kelly
No, it's not true. We looked up that claim. He just said he sees everything, he reads everything, and he has seen some of Trump's truth social posts on Twitter. On Twitter.

It's not what his mothers are claiming.

Mark Geragos
I'm not so sure that that's a guy that I would necessarily want. The two lawyers, to me, are the wild card. I mean, big firm lawyers.

If somebody is going to drive a hum jury, that to me, seems to be the most likely candidates.

Alan Dershowitz
I know. I agree with that. Except you think a juror is going to want to go back to his or her law firm. Exactly.

I'm the one who made him president. That's going to be a problem.

Megyn Kelly
Exactly right. The odds are much more likely that one of those lawyers, it was very sympathetic when the draft opinion in Dobbs was leaked by someone and who probably was going right on sister. Whoever did it anyway, we'll never know. Or maybe we will. Maybe someday she'll take credit. I have a feeling it's a woman. Guys, you're great. Thank you both so much for being here.

Alan Dershowitz
Thank you.

Megyn Kelly
All right. And we will bring you the verdict if and when, as soon as it comes, we'll have it all covered for you. See you next episode.

Thanks for listening to the Megyn Kelly show, no b's, no agenda, and no fear.

Conan O'Brien
Hey, guys. CoNAN O'BrIEn here to tell you about some of the stranger things we've been doing recently on my podcast. Conan O'Brien needs a friend.

Recently we had an episode where I sat down with some of the writers that I worked with on Conan O'Brien must go. That's my travel show on Max. And we talked about everything that goes into those shows and a lot of very insane anecdotes from our travels and adventures. Theres another episode you might want to check out where I discuss with my physician, Doctor Arroyo, about my experience on hot ones. We talk about my near death experience and his complete inability to help me because he may or may not be a real doctor.

Thats just some of the stuff thats been going on. And if you feel up to it, check it out. So catch up on all things ive been up to on Conan O'Brien needs a friend. Wherever you get your podcast, you can.

Alan Dershowitz
Start your day off right.

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Failures of Biased Judge in Sham Trump Trial, with Alan Dershowitz and Mark Geragos | Ep. 805

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