Flimsy Case Against Trump Heads to Jury After Outrageous Prosecution Tactics, with Arthur Aidala and Mark Eiglarsh

Megyn Kelly
Welcome to the Megyn Kelly show live on SiriusXM channel 111 every weekday at noon east.

Hey, everyone, I'm Megyn Kelly. Welcome to the Megyn Kelly show. Wow.

Now we've seen the prosecution's case in full against Donald Trump, and it's even more outrageous than we knew. There's a reason Alvin Bragg was playing cutesy with us on what this case was built upon from the moment he indicted Donald Trump.

And we heard that reason for the first time during closing arguments in this case. Donald Trump was not afforded due process in this case, not by a long shot.

They refused to tell the defendant, who had to answer to criminal charges, what they were charging him with. We only found out hours ago after his defense attorney sat down and had no additional chance to address the jury. This is an outrage.

This is disgusting.

It was done with the cooperation and complicity of Judge Mershon, who is supposedly an independent, fair minded jurist. It's a lie.

It's a lie. No defense attorney in America would disagree that this was an unfair position to put any defendant in, at least if they were being honest and not letting politics drive their analysis.

I'm going to get to exactly what's been done here.

The case is officially in the hands of the jury, in the first criminal prosecution ever of a sitting us president ever over this, over whether he properly documented a payment to a woman claiming that they'd had an affair and she wanted to tell the media in exchange for a non disclosure agreement.

Those are the norms that we crossed. And that was just the beginning.

Twelve jurors have the case. The additional 16 must, six, I should say, must sit around on standby in case one of the actual jurors gets sick or cannot perform his or her duties as a juror.

The man who had been seated in the first jury seat was by default, the foreman of this jury. From the moment it was picked. He is the four person and presumably will lead the deliberations, which began at 1128 eastern time this morning.

Last night, closing arguments in this business records case dragged on and on as the prosecutor, Joshua Steinglass, fell more and more in love with the sound of his own voice, delivering his summation for more than 5 hours.

5 hours.

Court wrapped up at 08:00 p.m. jurors returned to court this morning to receive the ever elusive jury instructions, which we've finally kind of been able to get a glimpse at. Not yet publicly released. But those who heard the judge reading the instructions were following along with those that had been submitted by the parties and in tweets were learning, this is what the judge struck out. This is what he allowed. This is no way for the media or the public, which has to make a decision on whether to elect Donald Trump or not, should have to follow along in this case.

But this is what we've been reduced to.

So we've tried to figure out the jury instructions in this first ever criminal prosecution of a former president from tweets by those inside the courtroom. And we, too, followed along on the proposed jury instructions, but a lot of changes were made. So that's a big warning in what we're going to go through in these next 2 hours.

I will show you and tell you where it is. We think we're unsure, and now we wait.

A verdict could come at any moment.

It could literally come within the hour.

They could go back, they could all agree, and they could come right back out. Trump is on standby yet another day. He will not be on the campaign trail because he has to sit there.

It's been weeks, and it could be weeks, alternatively, until this jury reaches a verdict, if it ever does.

There's some speculation there might be one guy, one guy on the jury that's worrying people who want to see Trump convicted reports it's all tea, leave reading. I mean, honestly put no stock in this, but for whatever it's worth, reports that he was kind of smiling when Michael Cohen got embarrassed on the witness stand, that he's making more eye contact with Trump defense lawyers.

This is, this could mean nothing.

But all Trump needs is one.

In order to reach a guilty verdict or a not guilty verdict, the jury must be unanimous. All twelve must agree. But Trump only needs one for a hung jury, which is the same for him as a not guilty. There's no time, nor will there be any realistic possibility of him getting retried if this jury is hung. AlVIn BrAGg this has been a political play from the beginning. He's not going to retry this case. He doesn't actually think Trump violated the law. The whole thing is an election play.

So if he gets a hung jury, there's no chance realistically of retrying him before election day, and therefore it will go away. It's exactly the same as a win, as a not guilty for Trump and his purposes.

There's a lot to go over today, and I'm thrilled that we've got our Kelly's court all stars. Martha. Martha's here with us. Arthur Idala, trial attorney, managing partner for Idala Bertuna and Kman's, and host of Arthur Idala Power Hour and Mark Eiglarsch, criminal defense attorney for iglars law, which you can find@speaktomark.com. dot credit card rewards, like cash back, can empower families with extra savings while they deal with the rising price of groceries and gas. But our sponsor, the electronic Payments Coalition, says some DC politicians are partnering with corporate megastores to take the cash back rewards away from families during skyrocketing inflation. What specifically, they say the Durbin Marshall credit card bill would take billions from American Families lining corporate pockets instead. Learn more@electronicpaymentscoalition.org and see for yourself if you want to protect credit card rewards. And to tell DC politicians to oppose the Durbin Marshall credit card bill. That's electronicpaymentscoalition.org dot guys, welcome back. Let's just start with a point I opened with. This was Alvin Bragg right after he indicted Donald Trump. He came out and said, I'm indicting him for falsification of business records.

People said that's a misdemeanor and the statute of limitations is expired. How can you bring that? He said, well, it becomes a felony with a longer statute of limitations. If it was done the falsification to cover up an underlying crime, then the press asked the question we all had on our minds, what was the underlying crime? What was he, was he trying to cover up? And here is that moment.

Joshua Steinglass
34 felony counts of false crime, business records in the first degree. It is a felony to falsify business records with intent to defraud and intent to conceal another crime. 34 false statements made to cover up.

Mark Eiglarsch
Other crimes, and they were done to conceal another crime. But indictment does not simply say what.

Joshua Steinglass
Those crimes were, what laws were offered. The indictment doesn't specify that because the law does not so require.

Megyn Kelly
I don't have to tell you.

I don't have to tell you.

It wasn't until closing arguments yesterday when the prosecution got up second. Because under New York law, unlike in most places, the prosecutor, the defense has to go first and the prosecution goes second.

And after the defense attorney had already sat down, that's when we finally learned what the underlying crime was.

He got up there and while he cast a wide net, still saying it could have been a tax violation, it could have been falsification of other records, like double falsifications.

But really, they're hanging their hats on the violation of federal election campaign law, campaign finance law, federal election law. It's called FICA. FECA.

That's what the prosecution drove home. That's the principal basis for this entire case. He didn't want us to know because that's a federal statute. And Alvin Bragg, this DA, doesn't have the jurisdiction to enforce federal election law. The federal DOJ had already said there's no case here. The Federal Election Commission had already said there is no case here.

Only Alvin Bragg resurrected this alleged violation as the underlying basis for this entire criminal case. And I'll ask you, Mark Eiglarsch, what kind of a position that puts the defense in in a New York courtroom when they've already had to sit through the entire case without ever being told what the underlying offense is? And only when they're no longer allowed to speak does Bragg lift the dress up for the first time.

Mark Eiglarsch
It nauseates me. And not because I'm a Trump lover, but I'm a lover of the criminal justice arena where like cases should be treated alike. I have never heard, in 32 years of litigating cases, not knowing what the theory of prosecution is until after we rest our closing arguments. It's absolutely insane. Now, that said, and I'll take some heat for this. Anytime I ever try to keep it fair and balanced, I always get the ugly mail. I don't blame the judge for this. It sounded like you were blaming the judge and even the prosecutor. It sounds like the law is the problem. The law in that jurisdiction which allows them not to specify what specific crime, the two wit part which we see all day long here in Florida and in federal court, we know what exactly matters. The law allows that to occur.

Megyn Kelly
It doesn't matter. I don't give a shit what was written in the New York statute. There's this thing called the US Constitution that requires due process, and the Constitution reigns supreme. The Constitution requires that a defendant has due process for forwarded to him before we throw him in jail, take away his liberty, or convict him of a crime, and there is zero chance any statute that allows the prosecutor to play hide the felony all the way through closing would ever be upheld.

Mark Eiglarsch
Hold on, I'm with you. I told you I think it stinks. But here's my question.

Did the judge do anything unlawful? Did the prosecutors do anything that the law did not allow them to do by not revealing what specific crime it was? Yeah, they do.

Megyn Kelly
They did because they're there. As you know, their obligation is the pursuit of justice. That's their obligation. It's not to get a conviction. And they did everything within their means to prevent Arthur Donald Trump from knowing exactly what he was defending against so that they could surprise him. So that they could keep him off balance and so that they could surprise when no one else could stand up on behalf of Donald Trump, say, this is a federal case. We're here. We're wolves in sheep's clothing. We're actually the feds trying to enforce this completely amorphous, difficult to understand statute after we've already kept out, through all of our arguments, any federal election law expert from testifying so this jury or any of us could understand the fundamental foundation of the entire criminal case.

Mark Eiglarsch
I can't wait to hear what Arthur has to say on this. And, Arthur, keep it. Listen to what I said. Okay? It does suck. But is it?

Go ahead.

Megyn Kelly
Go ahead, Arthur.

Mark Eiglarsch
Here we go, Arthur.

Joshua Steinglass
Mark, I am going to. I'm going to rely on my supreme leader when it comes to the law, who last night on a phone call with me, under the same words that just came out of Megyn Kelly's mouth, my father.

Megyn Kelly
Who's your supreme leader?

Joshua Steinglass
My father.

Megyn Kelly
Your dad. Okay.

Joshua Steinglass
Okay. He was a lawyer in the Frank Hogan's in the Manhattan DA's office in the sixties and the seventies and his practice there for decades, literally. He's been a lawyer over 660 years.

He said what you just. The exact words you just said, megan, that the job of any prosecutor is justice. It's not just to obtain a conviction. And Mark, I will tell you what is standard operating procedure here in New York is there is a bill of particulars. And for those people who don't know what that is, is after a defendant gets charged with a crime, you request a bill of particulars. And what you're asking for is, what are the particulars? What are you saying my client actually did? Don't just give me the elements of the crime. Tell me what my client actually did. And, Mark, they give those out like cotton candy in state court. Our friends in federal court are like, oh, that never happens. You're right. In federal court. It doesn't happen in New York state court. It happens all the time. And I'm going to give you the example that everyone here is using. It's burglary. So burglary is basically a trespass with the intent to cause a crime they're in. And the people, the prosecutors don't have to prove the crime they're in beyond a reasonable doubt.

They almost always tell you what the crime is therein.

Mark Eiglarsch
Yes.

Joshua Steinglass
To commit a lawsuit, to steal something, they trespass to commit sexual assault inside the property, they trespass to commit a physical assault here. They did not do that. And look, I don't want to say you are.

Mark Eiglarsch
Oh, it sucks. They should do it in the name of justice. I agree with you, Megan. I agree with you, Arthur. I'd be livid as a defense attorney. The question is, why didn't the defense lawyers seek a bill of particulars to find out what the prosecution is relied upon?

Joshua Steinglass
They did. And in a very unlikely move, or an unconventional move, judge said no. Well, by law, they don't have to do it. So I'm not having them do it. Supposed to. If I was the judge, I would say, listen to me, we do it in every other case with some Tom, Dick and Harry. You got the president of the United States here, lobel in particulars. But Judge Rashad did not do that.

Mark Eiglarsch
Wait a second.

Megyn Kelly
Why didn't the defense. Let me ask you this. Let me ask you this, Mark. Let me ask you this, Mark.

You're Todd Blanche Trump's defense attorney. You try this whole case to the best of your abilities. He made some mistakes for sure, but to the best of your ability, then it's time to do closings. Yeah, you're told you have to go first.

You're like, what am I arguing?

What's like? Can you say to the judge, judge, you got to make him go first. I'm going to reserve my time for a rebuttal. Like, what do you do to preserve the record for an appeal?

Mark Eiglarsch
Right.

Megyn Kelly
To start laying the foundation for, my client's been deprived of his due process rights. There's a us constitution at play here. I don't give a shit what the statute says. This is wrong. I've never seen a prosecutor do this to a defendant. And I'm not getting up there and defending a case I have no idea, even on closings, what it's about.

Mark Eiglarsch
Okay, so you don't say all of that, but you say to the jury, look what they've done here. Add to the list of things that they've done, like getting into the detail of Stormy Daniels and all the things that they did throughout this trial where it's win at all costs. They're not here to seek the truth. The worst thing is that I'm up here. We've all been here for weeks. We've been listening and we don't know what this other crime is. They're going to wait until after I sit down to get up here to tell you objections to state. I'm not saying that they have an obligation, but folks, if they're here to seek the truth, if they're here, if this is really about due process and the truth they would have told us and not waited until I sat down. It's because they don't feel comfortable with this case. Put it out there, and I'd be able to tell you they didn't prove this case beyond a reasonable doubt.

Megyn Kelly
So I like that. Go ahead, Arthur.

Joshua Steinglass
Logistically speaking, the defense did know what the prosecution's theory is because there was a charge conference last week, and in that charge conference, they requested, and the judge gave the three theories. Either violation of federal election campaign law.

Megyn Kelly
Falsification, spaghetti against the wall. I have that. I have that. We're going to go through that in detail. But that is a spaghetti against the wall approach. Like, it could be one of 20 felonies. I was saying yesterday, it could be New York law, it could be federal law, it could be Murphy's law. Have no idea. We're just gonna say, like, any possible law.

And by the way, he also ruled that they don't have to find. The jury doesn't have to agree on which law was violated. Three could think it was federal law. Two could think it was New York state law. The others could think it was, I don't know, irish law. I have no idea what they might think.

Fine. He had some knowledge. He was keeping the wide net as of Thursday. That's not good enough. All right, let's go through the, what we understand to be the actual charge. All right, on. Because that's what's really interesting. This is it. This is what the verdict is going to come down to. This. And the verdict form.

As the jury, as the audience knows, it's a business records case. It's the principal charge is that Trump falsified business records in the first degree.

Again, all this has my caveat that I said at the top, but this is what we think the charge was. We weren't in the room, and I wasn't taking shorthand listening. Okay. The first count pertains to. Well, they have multiple pieces of business records. They have the invoices from Michael Cohen. They have the checks as written out by Trump, and they have the internal Trump organization business, legal expenses record.

But none of this was ever shown to anybody, by the way, none of who was defrauded. The Trump books were defrauded. They never circulated these documents to anyone. They sat on the shelf at Trump Tower. That's who was defrauded. The Trump books. We know that now with the case having closed.

Okay.

Falsifies business records, pertains to an invoice, for example, from Michael Cohen.

Okay, under our law, a person is guilty of falsifying business records in the first degree when with intent to defraud.

That includes an intent to commit another crime or to aid or conceal the commission thereof. The person makes or causes a false entry in the business records of an enterprise. So did you falsify a business record with intent? Intent to, in this case, conceal the commission of another crime. Did you falsify the record, and did you do it with intent? Yeah. And there's two parts. And did you do it with the intent to either commit another crime or to conceal one? Go ahead, Mark.

Mark Eiglarsch
Okay. To help people understand, there's the misdemeanor, and then there's the felony or not guilty. So the misdemeanor, he had to have the requisite intent to falsify records. Okay, there's your misdemeanor, but then it had to be done with the intent to conceal or commit this other crime. So they can find that, well, it didn't get to that point. He did it to hide it from his wife, or he did it because he has a brand and he doesn't want it getting out there that he allegedly, the story, even, that he had this, this crazy type of liaison with this porn star.

If they find that, then there's no felony. The question is, did we get to the first part? And that involves Cohen. I think you have to believe Cohen to get to that part, that, well.

Megyn Kelly
First of all, the, the defense spent more than half of its closing trying to prove there was no falsification. That is a big element. What was a business record falsified by Donald Trump? But, of course, the other piece of the charges. Or did he cause the falsification, which is good enough.

Mark Eiglarsch
And with the intent, though, you had to have the right.

Megyn Kelly
Yes, but I'm just saying, like, it's not just that Michael Cohen submitted the invoices. You know, the prosecution's argument is, yes, Michael Cohen submitted the invoices that were incorrect, but Donald Trump told him to do it. They sat down together, Cohen, Weisselberg, and Trump, at a meeting preceding all of this. They came up with a scheme, that's their word, by which Michael Cohen would falsify the reasons for which he was getting these repayments, which were repayments and not payments for go forward legal services. As the Trump defense contendant. Arthur, did you want to say something?

Yeah.

Joshua Steinglass
I mean, just don't leave out, because this is really what hurts Trump the most, in my opinion, is the acting in concert charge. So in other words, the prosecution doesn't need to prove beyond reasonable doubt that Donald Trump made out the checks that put them in the books, filed them away. Yes. They have to act. They have to prove that he acted along with others. So if Michael Cohen came up with the scheme and Weisselberg did, did the, did the books, that's enough. They don't need to prove that Donald Trump actually was the hands on participant.

Megyn Kelly
Okay, so they go on.

That's. So the falsification. We've heard a lot of evidence on.

The defense attorney went through all of it yesterday. It was a legal expense.

Yes. He wrote per a retainer.

There was a retainer to make Michael Cohen do Legal Services in 2017.

No, it wasn't written down. It had never been written down in Michael Cohen's history as a lawyer for the Trump Organization. They never had a written retainer. So it's not unusual they didn't have one in 2017. And indeed, he did do some work.

Joshua Steinglass
That is a violation of the rules of ethics in the state of New York. Anything over $33,500 has to have a written retainer just for the rest.

Megyn Kelly
Shocked. Shocked. These two violated the.

Mark Eiglarsch
I'm sure Trump knew that.

Megyn Kelly
Come on.

Michael Cohen.

Joshua Steinglass
Michael Cohen did that. I mean, if I'm the defense attorney, I would have thrown him under the bus for that.

Megyn Kelly
You know, that's a lead to that guy sins. That's the least. Okay, but anyway.

No, but the defense. The defense is that the defense didn't throw him under the bus on that because they're. Cohen is saying there was no retainer. It's a lie. It's the defense that's saying, no, it wasn't a lie. There was one. It was just oral. Anyway. Okay, so Trump is claiming he did do some work for Trump in 2017 while Trump was president. Minimal. But he did some. And it was a fee to keep him on retainer. You know, like, Arthur, you and I used to have this organization, this representation. You and Marianne represented me on some stuff, and I would pay you a certain amount every month. You weren't necessarily doing a bunch of legal stuff for me every month. I have this within. This is something people do. You keep a lawyer on retainer.

Joshua Steinglass
I didn't violate attorney Clive privilege right there. You did.

Megyn Kelly
So I. I did it. It's fine.

So that's Trump's argument. The prosecution says, how does B's.

Mark Eiglarsch
Megan, Megan, I'll charge half. Come on.

Joshua Steinglass
Come on.

Megyn Kelly
Okay. He was. He was local, Mark.

The prosecution says that's all B's.

Michael Cohen did negligible work for Trump. And the organization, it was like he looked into, like, one copyright. You know, he did not get paid 260,000 the 130 times two for that B's. Nor was it important to Trump to keep this, this lawyer on staff just in case he needed him. Trump is a cheapskate. He wouldn't have paid those kinds of monies to Michael Cohen just to keep him on staff for some random legal call.

It's a lie. It was repayment. And they show the notes from Allen Weisselberg and the Trump Organization CFO in his handwriting, sketching out the math, like the 130 plus the 50 to reimburse Cohen for this payment he made to a polling firm, plus another piece of it. And that added up to the 420,000 that was repaid to Cohen over the course of those months with Trump's handwriting on the checks.

All right, so that's falsification. The jury's. Trump's got a shot on that. He's got a shot on the falsification. They may find they wrote down legal expenses. They're paying a lawyer to reimburse him or not. Those are legal expenses. We're good. And that would be the end of the case. Speaker one.

Mark Eiglarsch
Megan, I like the idea that Trump even said it himself. If it was going to be fraudulent, I didn't want anybody looking at it. I'd put down construction costs. I put something that was so different that nobody would even know. Legal is in the, is in the arena of acceptability, probably more than campaign expense. I find this not to be a campaign expense. You know, more of that.

Joshua Steinglass
Since you brought up construction costs. The analogy I would have made to the jury is we all know that Donald Trump is a developer. You think when he has to write out a check for 100,000 or a million dollars to the actual contractors who's putting up one of his skyscrapers? Because now I'm getting into his background a little bit. To the jury, he breaks it down item by item. $100,000 for cement, $100,000 for bricks. Or do you think he just puts down a million dollars construction expenses for 123 Main street the same way he did Michael Cohen? He put it down. This was the amount of money, legal expenses. Michael Cohen handles it. He's handling the money. It's his money. He wasn't trying to falsify anything.

Megyn Kelly
Speaker one.

Mark Eiglarsch
I like that argument. I'll go one step further. I don't think when Donald Trump is spending money on construction. Cause he's in the weeds deciding how to label it. I think the best argument here is fix it, mister Fixer. You deal with it, Cohen. And Cohen decides how to label it. He hasn't a guy with a lawyer degree who's supposed to put things down and do it legally. The only way that you prove that Trump was in the weeds and he knew precisely with evil intent that what he was putting was false was from Cohen. How dare.

Megyn Kelly
That's right.

Joshua Steinglass
That's where Trump not testifying. That's where Trump not testifying, in the minds of the jurors, might hurt him. Mark and I both tried cases, and we didn't get the result we wanted. And in the hallway, the jurors tell us afterwards, well, if your guy really didn't do it, why didn't he tell us? Well, he doesn't have to under the law. Okay, from the world that we live in, we like to hear both sides of the story. So if Trump didn't know, why didn't he take the stand and just tell us? Look, I was running. I was being the president of the United States or running for presidency. I just said, deal with it, and they dealt with it, and I had no idea.

Megyn Kelly
What about Weisselberg? Weisselberg is the key to all of this. The Trump CFO, he's in Rikers. We talked about this last time. He's literally in jail right now for other alleged crimes not having to do with this.

And the prosecution didn't call him. The prosecution did not call him. And so what would you have done with that, Mark? Because I've heard people like Dershowitz has been saying they should have asked for, like, an instruction to the jury that they could draw an adverse inference from this.

Mark Eiglarsch
You can't do what you want to do. How dare they not call him? It shows what, that they're afraid of what he would say. It would help exonerate my client. You can't do that because you equally have access to subpoena power. And you could have brought him to court. In fact, there's an instruction.

Megyn Kelly
Or he would have just plead the. He would plead the fifth if the defendant called him. Only the state can immunize him.

Joshua Steinglass
Correct.

Mark Eiglarsch
But you can't make the argument if you didn't try to subpoena him and call him.

Joshua Steinglass
You in New York, you absolutely can in New York. I don't have to prove anything to you folks. They have the burden of proof. Where's Weisselberg? I would have had a stand up cut up of him. You know, folks, when we played the game as kid, where's Waldo? Where's this guy. They made it. I think it's number 35.

Mark Eiglarsch
You don't have a halibut.

Joshua Steinglass
Where is he? Where is he? We are absolutely allowed to make the Florida.

Mark Eiglarsch
You can't do that. You're not allowed to.

Why didn't they call witnesses? So we have that here. If you can do it there, then absolutely.

Megyn Kelly
Arthur, why didn't the defense get up there and say, where is he? He's the crux of this whole thing. Where's Keith Schiller, the bodyguard? He's the one who was allegedly there, who handed his phone to Trump so Cohen could say, payment complete. I took care of it to store me. Boss. Where Schiller? Where's Weisselberg?

Joshua Steinglass
So it's just me and you and Mark talking right now, right, Megan, to be honest about what happened?

Mark Eiglarsch
Yeah. Yeah.

Joshua Steinglass
Just I don't, I go out of my way not to speak poorly of any other lawyers. And by all accounts, Todd Blanche is a smart person who's a really nice guy. I believe this is the first time he is giving a summation in a state trial. He has trained the federal lawyer and the federal court is much different. It's much more dainty. It's much more like having a pleasant parlor conversation with scones and tea. Going to the state courthouse is rough and tumble stuff. We say things in state court because the defense is allowed to put on a defense in state court where it's federal court. You're not really allowed. You're supposed to go in and plead guilty. So I don't know why he didn't say it, but I'm going to be shoving it up their nose. But they have the burden of proof. The ones who are supposed to call Weisselberg. They're the ones who are supposed to tell you what this piece of paper is. They want you to take away someone's liberty by guessing what all these numbers mean. Supposed to, using their power, put him on the stand and have him explain to you what they mean. And why didn't they? Because they were afraid. Because he doesn't fit their narrative. That's why you didn't hear from him.

Megyn Kelly
Yes. You'd say you don't think they went down to Rikers and had a talk with Allen Weisselberg to figure out whether he had a story that would help them or called Keith Schiller, the bodyguard, to figure out whether he would verify that he handed that phone to Trump? You know they did that. Of course they did that. And they didn't get the answers they wanted, which is why those two guys didn't testify. It all comes down to Cohen. The gloat right? As he call, as Todd Blanche called him in the closing speaker one and.

Mark Eiglarsch
Megan, to take Arthur's brilliant argument, assuming again we could not make that argument here in Florida, Halliburton is the case that says no. If the witness is equally available to you and you didn't call him, you can't make that argument. But if you can make that in New York, then you then take it home and say reasonable doubt can be found from the evidence itself. The lack of evidence or the conflicts in evidence and the fact that they didn't call him is a lack of evidence.

You need to hear from him. What if he was waiting right here at the door and he was willing to come in? Would you want to hear from him? That's reasonable doubt. If you say no, we've got this wrapped up. Cohen was so solid, like a busload of nuns testifying. He's so credible. We don't need anybody else. We're good. That's not how you feel, folks. That's reasonable doubt. That's not guilty.

Megyn Kelly
All right, the next point, let me.

Joshua Steinglass
Just add, because I know Professor Dershowitz has been saying, talking a lot about a missing witness charge and it was not given, but apparently the reason why it was not given was the judge a week ago or so, gave the defense an opportunity to talk, to bring Weisselberg in and have a hearing outside of the presence of the jury and see if he was going to take the fifth, see if they were going to give him immunity. And I believe the defense passed up on the opportunity to do so. Therefore, they lose their ability to get a very powerful missing witness charge.

Megyn Kelly
Speaker one, do they lose their ability to argue in closing the way mark just outlined?

Joshua Steinglass
Speaker one no, they don't lose their ability to argue it, but they lose their ability to get that charge, which is a big deal coming out of the judge's mouth saying the fact that he wasn't here, you can hold that against the prosecutor.

Megyn Kelly
Okay. All right. Stand by because the next item up is intent to defraud. And now we're really going to get into it because we'll talk about how they prove that and we'll talk about these absurd underlying surprise felonies that he's, I guess, being charged with. So says the prosecution as of yesterday. More with Martha right after this quick break.

Assuming the jury gets passed. Yes, some records were falsified.

Either the Michael Cohen invoices, the Trump internal drop down menu of legal expenses or the checks themselves that Trump's signed were falsified, then they've got to figure out whether Trump had the intent to commit or the intent to defraud.

And here's in part how the instructions read. In order to prove and intent to defraud, the people need not prove that the defendant acted with the intent to defraud any particular person or entity. A general intent to defraud any person or entity suffices.

Now this is interesting. The prosecution wanted the inclusion of a general intent to defraud. Any person or entity, including the government or the voting public, suffices, which is just ridiculous if that's the law, and we're still, frankly, in this boat. But it would have been even more explicit then any politician who tries to cover up any bad news about themselves has violated the law.

Joshua Steinglass
Right?

Megyn Kelly
Like there's some obligation to let the public see your dirty laundry. I mean, that's really, that's what the prosecution is arguing with or without this clause being included. Okay? But anyway, the way it was charged was a general intent to defraud. Any person or entity suffices. Now here's the. And then they go on to say intent to defraud is also not constricted to an intent to deprive another of property or money. In fact, intended to fraud can extend beyond economic concerns. Now here's what's interesting to me on this. If you've been following Andy McCarthy's writings over the past year, we've been, he's been talking a lot about this, writing a lot about this, saying the Supreme Court last summer issued a pair of rulings in connection with a couple of losers connected with Governor Andrew Cuomo in New York. And the ruling said it is not sufficient to prove a general intent to defraud for all fraud claims, and that if it's specific to a person.

No, let me restate it.

If you're stating a mere general intent to defraud, then you do need to show that it's about money or economics. If that's your fraud theory, a general intent to defraud, it actually must be about money, a financial matter, in order for us to recognize it. They don't like when Congress uses the fraud laws to try to like broad net, wide net, just general bad behavior, especially by politicians around elections. They don't, they don't want Congress doing that. So I don't think this instruction is going to be upheld. And it doesn't look to me like the defense objected to it.

I don't think they objected to it, which is a fucking nightmare. Sorry, but I think they missed me. I'm sorry. Oh, God. Forgive me, misses Aidala. We already said all those nice things about your husband.

I think this is a misstatement of the law and what needs to be proven, but I'll keep going. All right, so you've got to, according to this judge, have a general intent to defraud anyone. I just feel like I'll defer, be a defrauder. Today is good enough.

And then they go on to say, the intent to defraud here must include an intent to commit another crime or to aid or conceal the commission of another crime. Now we're back to that initial language that we kicked it off with. Why was he lying on the business records? If you find he was lying, he. You have, the prosecution must prove he was doing it because he was concealing another crime or he was in the process of committing another crime.

And it seems to me they're using the conceal more than anything else.

And they go on to say, under our law, although the people must prove an intent to commit this other crime or to conceal one, they need not prove that the other crime was in fact committed, aided or concealed. In other words, you just have to prove that he intended to. He intended to do it. Okay, so that gets us to.

So I think. Do you guys have any thoughts on whether they've correctly stated intent to defraud and what needs to be proven? Go ahead, Mark.

Mark Eiglarsch
Here are my thoughts. There's a couple of parts before we hold him responsible for that. First, his position is, I'm running the country, man. I'm doing my thing. I'm not in the weeds deciding how things should be carried out. So the first thing is they have to believe that he was in on the specifics of what was done. That's the first thing. That's just knowledge. And I don't know that they've proven that beyond a reasonable doubt or refusing.

Joshua Steinglass
Let me address that, Mark. Let me just tell you what I.

Mark Eiglarsch
Got the second point.

Joshua Steinglass
Yeah, let's do one by one. So what, the prosecutor is relying on that? His testimony from his secretary, I believe, I think both the White House secretary and the Trump Tower secretary saying that when he had to buy a present or the secretary had to buy a present from Tiffany's, they got to get approval for spending dollar 650 on a picture frame. And is that enough or not enough? That's what they're relying upon to show how deep in the weeds he was when it came to money.

Mark Eiglarsch
Got it. So the second question is, and that's helpful, but that doesn't necessarily get everybody where they need to be. The second question is, okay, how specifically are we going to list this payment? Right? And listen, I've been practicing for 32 years. I'm still not sure what the proper thing to put down. I'd refer somebody to another lawyer, I don't know. And Cohen was the only one he had doing this. So when Cohen says, all right, well, we'll label it as a legal fee, the question now becomes, does Donald Trump know that labeling it a legal fee is nefarious, meaning it's fraudulent?

Megyn Kelly
That's right.

That's the question. That is the question right there. There's been no proof of that, Mark, that the, the prosecution has an evidence, Michael Cohen saying, there was a meeting, as I mentioned, between Trump, Weisselberg and Cohen where they said, all right, we're going to pay her off and you just submit it to us as legal expenses. And so Trump gave the order. He gave the order, and then the minions ran off and obeyed Weisselberg, Weisselberg's underlings and Cohen. And that that's sufficient. But what they did not have Cohen testify to was that Trump did that because he understood if he had properly documented it, reimbursement to lawyer for hush money payment, it would have been a violation of the federal elections law. They missed that piece entirely.

Joshua Steinglass
Arthur speaker one also, the whole purpose of a non disclosure agreement is that it doesn't get disclosed. So you don't really write everywhere, oh, yeah, I'm paying all this money so that this person doesn't tell that person that I did x, Y or Z. So the fact that it's somewhat like covered up through a shell company or whatever, I mean, that's not crazy. The whole purpose of all of this is to not let anybody know what's going on. Also, the fact that Trump signed the checks, that they definitely proved beyond a reasonable doubt. I mean, they got into how the checks got there, who signed them when they were signed, et cetera. But how the secretary then goes into the drop down menu and where she puts those things, nobody testified and 22 witnesses, no one said, oh, yeah, and Trump told me under legal expenses, as opposed to what? Guess it supposed to be reimbursement to Michael Cohen for the money, as opposed to just paying Michael Cohen's retainer agreement.

Megyn Kelly
And, but even that just goes to falsification. That goes a falsification. Like, how do we prove what was in Trump's head and he knew, oh, shit, this is going to be a federal election law violation. I better mark it down as a retainer and a reimbursement of legal expenses. There was no testimony or evidence at all putting thoughts, anything like that in Trump's head. Mark. Speaker one.

Mark Eiglarsch
Yeah. What Arthur just said so eloquently is what I would spend most of my closing on, because you don't get to part two, you don't get to anything else unless that is proven. So I kept saying to anchors, I'm waiting for the big video or the audio or in Trump's words, him saying to Cohen, listen, I know we should list it under something else, but just put it under legal fees.

There was none of that. That, to me, is the missing link that gets you to proof beyond a reasonable doubt. Otherwise, in the best case scenario, prosecutors get to, he probably knew, maybe he knew. And then you say, folks, that's not enough. You come back and you say loud and proud, not guilty because they didn't prove it.

Megyn Kelly
Here's the one piece of evidence they did have on Trump and the federal election law was an alleged discussion that Cohen testified to. That happened in 2018 when this story broke and Cohen got arrested for a bunch of stuff and they tacked on this charge. But at that point, it came up, was this a violation of federal election laws? And at that point, Cohen says, Trump says something like, don't worry.

You know, I've got, like, you don't have to worry about it. Like, the attorney general is going to take care of it. For me, it wasn't. I think, if my memory serves correctly, it wasn't until that became a national news story with Cohen and Weisselberger and with Packer that Trump was like, don't worry. We're not. That's not going to be a problem for us. But there's been zero testimony that Trump said this at the time they came up with the alleged scheme. Is that your understanding, too, Arthur? You've been following it closely.

Joshua Steinglass
Yes. That's what they needed 5 hours to sum up yesterday, because they're trying to connect all these dots. They're trying to put all these pieces of the puzzle together. And as much as they want to run away from Michael Cohen, it's only assumptions and presumptions that you have to garner from Michael Cohen's testimony to cross over the bridge to get to where the prosecution wants you to get because of what mark just said and what you just said. There was no, like, holy cow. Moment. Like Trump said, make sure you hide this or make sure no one knows about this. It doesn't happen. He just says, michael Cohen. The worst thing he says is you take care of it. If I had a dollar for every client who told me, Arthur, I'm paying you, you take care of it. Who wouldn't have to be here right now while you're paying mortgages. So. But here, look, I hate to like, you know, we're all here basically on the same page. But Megan, we're in Manhattan.

I've been at that courthouse. I've been in that courtroom.

This case, and I hate to say this, because I love the system. It is going to fall on political lines. I really believe that.

Megyn Kelly
I hate to say I agree with.

Joshua Steinglass
You, but the Biden people are going to find, say he's guilty. If there's one or two Trump people in there, they're going to say he's not guilty. And then there may, I mean, it's just like the election, and then there may be one or two undecided folks in there and it's going to be a battle of the wills. And, you know, again, I do not rule out some sort of a compromise verdict, even though it may be a repugnant verdict, that it doesn't make sense. I could see them saying, look, definitely proved he signed those checks. So that's twelve counts. Let's all agree we could find him guilty of that. And let's throw the other, whatever it is, 22 things or 20. Yeah, 22 things out the window. I will just be hung on them or leave it alone after the judge. Speaker, three?

Megyn Kelly
I don't think so. I think a compromise verdict is the least likely. I think there is a chance that there's a Trump supporter on that jury. How he got on, I know. Not ok. But there's a chance. There's one. And if it's a true Trump supporter, there is zero chance that he will vote to convict on anything. It will be a hung jury 100%. Or she. But I know I'm going off of, like, these reports that there's one guy who's, you know, was amused when Cohen got tripped up. Who knows? We've all tried to make these predictions, looking at juries and been wrong so wrong so many times. This is like junk science.

Mark Eiglarsch
And we don't, we don't know. But here's what we do know, and I agree with Arthur. You know, the NBA Finals are happening now, so I'm big into basketball. Whether it's a charge as the guy is going towards the rim or whether it's a blocking foul, hinges upon what team you're supporting. The same exact activity can be perceived so passionately differently based upon what team you're on. And I think that's the same that goes with how you look at this evidence. When prosecutors say, use your common sense, what they're saying is, we don't have the evidence through Cohen. But just imagine, use your common sense. You don't think this guy knew that what Cohen was up to was nefarious? Of course he did.

Megyn Kelly
All right, so just finishing up on this piece of the intent, the jury's got to ask itself, was the intent of the Cohen invoices, which said retainer, legal expenses or the Trump organization's drop down menu, selection of legal expenses, or the Trump checks? The checks themselves didn't say anything of substance, but the stubs said retainer was the intent of those documents to conceal another crime, another possible crime.

And then the judge looked at the jury and said, you'd have to figure out what crime that was. This is the hide the felony piece of Alvin Bragg's case. There are three possibilities that were fed to the jury today, but in closing, only one was hit over and over by the prosecutor.

One, federal election law violations, meaning this was a campaign contribution by Michael Cohen to Donald Trump.

Under the law, you can only make campaign donations of $2,700. As an individual.

This was $130,000. Therefore, it was a violation. That's why it wasn't disclosed and so on.

That's number one. Number two is a tax law violation, and number three is falsification of other records. This is new to me. I hadn't even seen this one coming. But the DA did spend some time, Ada, yesterday speaking to it, saying Michael Cohen had to set up this shell corporation through which the bills were going to be paid. And Michael Cohen had to do some other preliminary financial setup stuff to make sure the payment got from him to Keith Davidson, Stormy's lawyer, and then to be whatever. And that's like the underlying falsification of business records that the big whopper of the falsification was meant to cover. This is all brand new. Good luck to the defense. Brand new for you. It's too late for you to speak to it. Um, but the federal election law violations are the big mcgill.

It's, again a bait and switch, because Alvin Bragg has no jurisdiction to enforce the federal election laws. This is the way he's sneaking it into this case, and we're going to do it. And I'm going to take a break because that's a longer discussion. When we come back, we'll pick it up with what the judge told the jury when it comes to federal election law, Martha stands by. I'm Megyn Kelly, host of the Megyn Kelly show on SiriusXM. It's your home for open, honest and provocative conversations with the most interesting and important political, legal and cultural figures. Today. You can catch the Megyn Kelly show on Triumph, a SiriusXM channel featuring lots of hosts you may know and probably love great people like Doctor Laura, Glenn Beck, Nancy Grace, Dave Ramsey and yours truly, Megyn Kelly. You can stream the Megyn Kelly show on SiriusXM at home or anywhere you are. No car required. I do it all the time. I love the SiriusXM app. It has ad free music coverage of every major sport, comedy, talk, podcast and more. Subscribe now, get your first three months for free.

Mark Eiglarsch
Go to siriusxm.com Mkshow to subscribe and get three months free. That's siriusxm.com mkshow and get three months free offer details apply.

Joshua Steinglass
I would say, in listening to the charges from the judges, as you know, very conflicted and corrupt because of the confliction, very, very corrupt.

Mother Teresa could not beat these charges.

These charges are rigged. The whole thing is rigged. The whole country is a mess between the borders and fake elections. And you have a trial like this where the judge is so conflicted he can't breathe.

He's got to do his job.

And it's not for me that I can tell you. It's a disgrace. And I mean that. Mother Teresa could not beat those charges. But we'll see. We'll see how we do.

Megyn Kelly
Mother Teresa could not beat these charges. That was President Trump this morning after the jury went in to deliberate. Joining me again, Arthur Idala, trial attorney, managing partner for Idala Bertuna and Cayman's PC, and Mark Eiglarsch, criminal defense attorney at Iglarsh law. So just to wind back to the one point of doubt that we all had, or I had, and Arthur, you said you were, I was right with what I was saying. I was right, and you were right, too.

The issue of whether this could potentially have been a federal election law violation, this payment to stormy did not come up, at least according to any of the witnesses who took the stand in this trial until 2018.

And here was the testimony on it. When trial began, David Pecker testified that Michael Cohen told him not to worry about the FEC probe into the payments that Ami had made to Karen McDougal and the doorman. Um, there was an FEC complaint once this story hit the news and some well meaning citizen, I'm sure it was a Trump lover, filed a complaint with the FBC saying, hey, they violated something. So the FEC did look into it. And apparently Pecker was a little worried and talked to Cohen. And Cohen said, don't worry about this because he, Cohen, according to Pecker, said Trump has AG, Jeff Sessions, quote, in his pocket. When Cohen took the stand, he confirmed that he told David Pecker, Jeff Sessions would take care of this. The question prior to saying that, had you been told that by President Trump? Yes, ma'am.

And then he went on to say that at first, David Pecker was very concerned about this. And so I told him I would assist.

And I ultimately told him after conversations with the president, don't worry, we have it under control. It'll be taken care of. What did you tell him? I told them the matter was going to be taken care of. And the person, of course, who was going to be able to do it was Jeff Sessions. So this is not even Michael Cohen claims that the conversation with Trump happened at the time they were ginning up their scheme, which doesn't prove, that doesn't help him in the effort to prove that Trump had the intent to defraud when he said, let's document the books, let's falsify the books so we can cover this up, because we're trying to cover an underlying federal election law crime. It doesn't work. It has to be in Trump's head at the moment of the alleged scheme being concocted. And none of us think that they've proven that intent was there.

You know, I saw on CNN the other day they had a debate about whether it's even been proven beyond a reasonable doubt that Trump knew anything about it, that he knew, forget getting to intent and what was in his head when he was concocting the scheme where, what is the proof that he knew anything about it other than Cohen's word? Look at this, miss pretty extraordinary to see for the record as a black woman defense attorney talking to Jake Tapper. That's exactly Biden's demo, by the way, black women voting for Trump, for Biden almost overwhelmingly in all the polls. But she's here talking to Jake Tapper, who I must say has gotten a little bit more fair since he got appointed as the first debate moderator. I like Jake, but boy, oh, boy, if I watch him today, you think he was straight down the middle. Okay. Anyway, listen to their exchange.

Mark Eiglarsch
I don't know that they have proved beyond a reasonable doubt that Donald. That even if you believe the prosecution's theory of the case, that Michael Cohen was doing this and Alan Weisselberg was doing that and Makani was doing this and all these people were doing all this stuff. I don't know that they've proven that Donald Trump knew.

Joshua Steinglass
They have not. Yeah, they absolutely have not. And I think, you know, time and time again, people keep talking about what might be missing or what's not quite there. That is, in fact, reasonable doubt when things aren't missing, when there are facts.

Megyn Kelly
That you want to hear and you.

Joshua Steinglass
Look to the prosecution and say, so where is that thing? That means, unfortunately here, he should be acquitted.

Megyn Kelly
She owns her bias right there. Explicitly, Arthur. Unfortunately, it means she should be acquitted. And that's just on the subject of knowledge. Did he know anything about this as he was writing these checks out?

Joshua Steinglass
I've been following things pretty closely. I've been in the courtroom.

I mean, look, he's the secretary's actually, whatever the politically correct term is, his assistants, special assistance.

They did testify that he had his fingers on the pulse of a lot of the finances, even when he was in the Oval Office, that they would send him checks to sign, and then the White House secretary would send it back to the Trump Tower secretary, and there would be checks that were unsigned because Trump refused to pay certain bills. So his fingers were on the pulse. Now, the counterargument to that, which I would have shoved up the jury's nose, and I don't think that happened yesterday, is, yes, ladies and gentlemen, they want you to believe that he is such a micromanager of free nickel that comes out of his pocket talking about Tiffany picture frames, and yet he didn't notice that $30,000 went in Michael Cohen's pocket that was supposed to go to the media company or the technology, red Finch. So how close is he really monitoring his money? How much is his fingers on the post? $30,000, folks. Not 3000, not $330,000. In the middle of this exact theme that the prosecutor wants to call it. Just filthy this whole thing up so much more than we even knew about in opening statements.

Megyn Kelly
All right, now, I would have said to that, mark if I were the prosecutor. How was he supposed to know that Michael Cohen was stealing from him? Like, that's. That wouldn't have been reflected on the documents that Trump poured over. By the way, it was 60 grand he stole from the Trump Organization because they doubled it for tax purposes. So it was 60 grand that was paid out by Trump. That Cohen wasn't entitled to.

But I think you could make the argument as the prosecutor, just, yes, he was a line by line kind of guy, but there's only, there are limits to any human's abilities. And determining that Michael Cohen actually secretly did not get 50 grand from Red Finch. He only made them pay 20, and he took, or he did get the 50, but he only made them whatever he stole. 30 is the way I'm trying to say it.

How would Trump know that? But wait, but one other point on it, because the other, I think, the best evidence that Trump knew anything about the storm repayment is the tape that he, that proves he knew about the Karen McDougal payment. You know, Mark, because that's the thing we heard on tape, him and Cohen discussing the Karen McDougal payment that Ami paid. And Trump claims that it was, you know, clipped and there might have been more on the tail end, but on that, you can clearly hear them discussing the payment, and Trump's happy that it got made. They're talking about how's it going to be paid, cash, what, blah, blah, blah. I mean, it, I can see as a jury, as a juror saying, all right, what are the odds he knew that much and that level about the Karen payment, but not the stormy payment, which was weeks before the election.

Mark Eiglarsch
Which is why if I'm handling this case, and I've said it from the beginning, number one, I don't insult their intelligence and say that he did know that these people were being paid off. Secondly, I go one step further. While I wouldn't say that he had the affair, I would say we're not going to turn this trial into whether he did or he didn't. And the reason why I do that is because that's better than what happened to get Stormy Daniels to come in there and make it seem like Trump is lying about the affair. And I think that the prosecution won on that issue because she got into all those details. And it just, it just seems so believable.

I would never have turned this trial into, was Trump telling the truth about the affair and, or he didn't know anything about the payoffs? The specific issue is how the payoff would be handled. He wasn't in the weeds. He deferred to Cohen on that. And he then didn't know, even if Cohen told him that somehow that was unlawful and he wasn't supposed to put down legal fees as opposed to something else.

Megyn Kelly
Okay, I like it. All right, so here's what actually happened. Now we're onto what crime was he trying to conceal. And the first step in this is Bragg's understanding that he's not a federal prosecutor and doesn't have the jurisdiction to enforce federal election law. He tries to pin it on. Well, he was trying to. He was trying to cover up. Basically, he violated a New York law. It's New York law. Section 17 dash 152. And it goes as follows. It provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means, and then one of them acts on it shall be guilty of conspiracy to promote or prevent an election. This is so ridiculous. I mean, everybody who's running for public office acts in concert with somebody else to promote or prevent the election of somebody. It's the unlawful means that this statute hangs its hat on. All right, well, what are you doing? You know, are you.

I don't. Are you stealing ballots out of people's boxes? Oh, that. That would qualify. That's unlawful means. But this is.

Well, I don't know. That's the question. What is the awful unlawful means? And that's where we get to these three possibilities.

It's like, um.

What was that show you guys we watched back in, like, the seventies where the doors would open? You have to pick door one or door two or door three.

Let's make a deal.

Right? It's like, let's make a deal. Which door do we want? No, behind door number one. It's a federal election law violation. Behind door summation.

Joshua Steinglass
That would have been a great analogy for the defense summation. I'm dead serious.

They want you to pick a theory. Like, this is let's make a deal. But it's not, let's make a deal. It's somebody's life and somebody's liberty. It's not a game show. It's real life.

Megyn Kelly
Yeah, you. You tell us. You make them tell you which one. What did he violate specifically? So number one is, well, let's dispense of the other two. First, falsification of other business records and violation of tax laws. Here's what the jury got charged on tax laws. Under New York State and New York City law, it is unlawful to knowingly supply or submit materially false or fraudulent information in connection with any tax return.

Same thing under federal law. And then they say under these federal, state, and local laws, such conduct is unlawful even if it does not result in underpayment of taxes.

So the theory is they. They doubled. This is the prosecution's theory.

Cohen paid 130. They doubled that 260, so that he could. And made it look like income so that Cohen could actually get back 130. The Trump organization was out more money than it needed to be. Right. If they had just submitted as reimbursement because it paid the tax on all this money and that that was false. It wasn't. They didn't write down reimbursement, and they didn't treat it for tax purposes. On Michael Cohen's bills like a reimbursement, they treated it like a legal expense. And even though no one was hurt, the New York State tax Department got more money than it otherwise would have. It's a crime to lie on that form. They ripped off the mattress tag, mark. That's basically. They ripped it off.

Mark Eiglarsch
You know, this feels like I just started teaching my law class again. And this feels like a law exam where you get points for every issue that you spot. You know, he could have done it for this purpose. Oh, point there.

Megyn Kelly
Yes.

Mark Eiglarsch
That's very creative. But then I would say, but just be mindful. In the real world, this wouldn't fly. And in this particular case, yeah, in theory, all these things might possibly have occurred, but weren't proven.

Megyn Kelly
It's mattress tag territory.

Joshua Steinglass
Arthur, can I ask you, I would like to ask you guys somewhat of a hypothetical here. If Trump was about to run for president and a construction company who Trump did not owe money to. So let's just say he didn't have sex with Stormy Daniels. He didn't owe money to. But this construction guy says to his, one of Trump's underlings, Trump owes me $100,000. And if he doesn't pay me the $100,000, I am going to tell the whole world that he's a deadbeat and you can't elect him president of the United States. And Trump says, fine, Michael, take care of it. And Michael Cohen stupidly takes out a home equity loan and takes it out for 100 grand, and he pays him, and Trump gives him 200 grand back. And now they sign a general release, and there's no more. No one calling him a deadbeat while he runs for president. Is that a crime? Is that the same thing without the salaciousness?

Megyn Kelly
Yeah, it's not a crime. Same as the stormy thing is, once again, not a crime. I mean, a payment and settlement of a possible legal dispute is a settlement. You know, like, if the person's saying anything other than I may sue you, or, like, then they're extorting him, right? Then they're committing the crime.

Joshua Steinglass
There's the word I've been dying to hear. You know, I was on CNN last night with Stormy's lawyer, and I have no problem admitting to my two friends here I didn't have the guts to use the word extortion. But once the host did, he's like, extortion. And he's like, no, that's ridiculous. Nobody ever used the word extortion. And I'm thinking it's just a sweet way of doing extortion. Well, I'll either sell it to the National Enquirer or I'll tell the whole world so you can figure out what you want, want to do. But I'm sorry. You can either pay or I'll just give it to the National Enquirer. I'll tell the whole world it's only a form of extortion. No if, ands or buts.

Mark Eiglarsch
Certainly you could argue that and let.

Megyn Kelly
There was a but.

Mark Eiglarsch
Yeah.

Joshua Steinglass
What's the but?

Megyn Kelly
All right. Glash. I'm surprised you didn't get, I'm sorry.

Joshua Steinglass
I'm a little slow.

Mark Eiglarsch
I'm busy thinking about my next thought. Sorry.

Megyn Kelly
Come on. That's, that's your department.

Joshua Steinglass
Mark. Megan, this show getting more and more racy. I want to tell my mom not to watch. Sorry.

Mark Eiglarsch
Yeah, I was thinking about my next point, which I should make.

If someone had come to Arthur or me, and let's say there was some benefit in listing this as a campaign expense.

I don't know that we would have signed off on it, but I don't know. Really. You paying stormy daniels, you're going to put that on as a campaign expense? And let's say he really wanted to put that down as a campaign expense because there was some benefit to him.

I don't know that I would say it's a campaign expense.

Megyn Kelly
We're going to get to that. You're getting the carpet for the horse because right now we're on whether this is a violation of tax laws. This has been submitted to the jury and they've been told, this is what they've been told, that if you put materially false or fraudulent information in connection with any tax return, that even if it didn't result in an underpayment of taxes, you've committed a crime. So that one's in front of them. The other one is falsification of other business records. And they list the bank records associated with Michael Cohen's account formation paperwork for the resolution Consultants LLC and essential Consultants LLC accounts. These are the ones through which he did the stormy payments, the bank records associated with his wire to Keith Davidson, that's Stormy's lawyer, and a couple of other petty any shit. I don't even understand what they are. But they're small things that came in to evidence in connection with Michael Cohen's setting up of the payments system.

All right, let's get to the big.

The federal Election Campaign act.

Here is what the jury was charged.

Okay, Drumroll.

I know. Drumroll.

Under the Federal Election Campaign act, or FICA, it is unlawful for an individual to willfully make a contribution to any candidate with respect to any election for federal office, including the office of president, which exceeds a certain limit. In 2015 and 2016, that limit was 2700.

It's also illegal for a corporation to do it.

Okay.

That's what they're telling the jury. Then they go on.

The terms contribution and expenditure include anything of value, including any purchase, payment, loan, or advance made by any purpose, any person, for the purpose of influencing any election for federal office.

Under federal law, a third party's payment of a candidate's expenses is deemed to be a contribution to the candidate, unless the payment would have been made irrespective of the candidacy.

The candidate's status as a candidate for federal office does not have to be the sole or only motivation for the third party's payment, so long as the payment would not have been made but for the candidate's status as a candidate for federal office. They seem to be offering a 51% more likely that it was to help Trump win the election and 49% for Melania's feelings.

Possibility to the jury. Like, it's fine if there was a dual purpose, so long as you believe that if he weren't running for president, he actually wouldn't have cut the checks. Melania's feelings didn't matter to him that much. That seems to be, that's how I interpret this instruction, and it's legally erroneous. Go ahead, Arthur.

Joshua Steinglass
The evidence that they. That they're going to use, or at least they did use to some degree, was that was stormy Daniel's feeling. Her testimony was, and they have her on tape somewhere saying, and other witnesses testified, if he be trivial, we have to settle this case. I need to get my money before the election, because after the election, it doesn't matter. So if you believe what's in her mind was in Donald Trump's mind, then it's a problem for Donald Trump if you believe, I don't need, I don't need my wife hearing this. I don't need my brand, my apprentice tv show, or anything else hearing about this then I agree with Mark. If someone came into me and said, you know, I want to make this payment and put it down as a campaign expense, I would have to really read that law and be like, I'm not sure about that. Because you'd be making this payment regardless. It's really.

Megyn Kelly
Hold on, on that. Hold on. Because Michael Cohen also tests that Trump told him, allegedly. This seemed like an obvious lie. Said to him, oh, I don't care if Melania leaves me. How long do you think I'll be on the market? Sure. Sure, Jan. Sure. He did. Okay. But there's another piece that I didn't read. Fica's. This is part of the jury instructions. FICA's federal election law definition of contribution and expenditure do not include any cost incurred in covering or carrying a news story, commentary, or editorial by a magazine, periodical, publication, or similar press entity, so long as such activity is a normal, legitimate press function. So if you, I don't know, had to pay a news organization, I'll pay 20 grand for your reporter to come out here and cover Mister Trump.

Mark Eiglarsch
Trump.

Megyn Kelly
Even though that would be ethically problematic as a journalist. They're saying that wouldn't be a campaign contribution, and the prosecution wanted more in there about what would be allowed and what wouldn't be allowed under the so called press function. Anyway. The jury's been told that certain payments, certain contributions are allowed with respect to media, but it's not going to encompass what was done with AMi. Here's the problem with all of this. All, all of this is wrong. It's wrong, wrong, wrong. It's not a 51 49% analysis. It's not, so long as the payment would not have been made but for the candidate status as a candidate for federal office. I mean, that's kind of it. But they've misstated it in a way that's too confusing. It's the nature of the payment. It's not what was in Donald Trump's head or Michael Cohen's head or anyone's head. It is the nature of the payment that determines whether it falls under campaign, federal campaign finance law. That's it. Is this the kind of payment that can ever be made outside of the electoral context? That's the question. That's how the jury charge should read. I give you, once again, former federal election committee chairman Brad Smith, who, FYI, said this on my show, but has been saying this for years. He was appointed by Bill Clinton. He's been saying this for years. He said it when Michael Cohen got indicted. He was like, I saw him on C SPAN saying, I don't like the charges. This. These payments, they're not of the kind that could ever be classified as a campaign finance expense, to your point, mark, and then yours, too, Arthur.

Like, we wouldn't allow someone to use campaign coffers to pay this kind of thing. Therefore, it's not a campaign finance expense, and we can't use it against somebody when they don't classify it as a federal campaign expenditure. And here he is on my show.

Brad Smith
Explaining that, let's suppose I decide to run for Congress, and I say, you know, I need to be in a debate, and I need a really good suit. So I go out and I spend, you know, $2,000 on a suit, which I would never otherwise do, right? It doesn't make it a campaign expense, even though my purpose was to do it to influence the election. Campaign expenditures are things that no one would spend money on unless you're running for office. So, again, it's not the subjective reason why Trump made the payment. It's the actual nature of the payment itself.

Mark Eiglarsch
John Edwards was prosecuted by the feds for something just like this. He had an outside.

Some rich folks who are paying off his mistress so that he could help win the election. They kept paying off the mistress even after the election, and his wife had cancer, and it was clear that he didn't want her to know. How, then, were the feds able to prosecute John Edwards under the same set of facts?

Brad Smith
Judges are not experts in campaign finance law. Most prosecutors are not. And I think it was just a wrong decision. But there is a lot of Supreme Court precedent emphasizing that idea that you have to use objective standards for campaign finance law, not subjective standards. Sort of the only logical reading of the statute, because otherwise, you know, take a person like Hillary Clinton, right? One could at least theoretically argue that everything she did between 1976 and 2016 was for the purpose of influencing her election as president.

Megyn Kelly
There it is, right there. It's not subjective. And Arthur Idala was part of that panel. It's not subjective. And these jury instructions have a subjective standard, so long as the payment would not have been made but for the candidate status as a candidate for federal office. This is wrong. This is completely legally erroneous, and it will be reversed on appeal if he gets convicted.

Joshua Steinglass
Well, you just made my point, as we all, the three of us know, but many. I don't know if I could say most, but many cases that are overturned on appeal hinge on what took place today in the Trump trial. And that has to do with jury instructions. And 99.9% of the time, jury instructions have been, you know, tried and true over the years. And judges mess up a little bit. This is a brand new thing. We're in brand new territory. No jury has ever heard a jury charge like this in the history, definitely of New York. I can't say the country off the top of my head, but I can say for a fact in the county of New York, here in Manhattan, no jury has ever heard this before. So the appellate division, there'll be five judges losing randomly out of, they think the 23 who are going to hear this, I don't know, six or nine months from now if there's a conviction, and they're really going to have to see what took place here. This will not be an easy appellate argument.

Mark Eiglarsch
I agree with Arthur. Most of the things that people are yelling about, that's reversible error. These issues that Stormy Daniels brought up, that's going to reverse the trial, I disagree with. They'll write that off as harmless error, but the jury instructions, that's going to be key. And keep in mind, you just read this jury instruction, and if your viewers are a little confused and lost as to what you said, yeah, you're not allowed. It's very confusing. Don't expect that you understand what just flowed from Megan's lips. Here's the worst part. That's one instruction amongst many, over an hour long. The jurors are listening. You think they have the attention span to hear that? Worse, they're not given the, it's a joke.

Megyn Kelly
They don't get to take it into the jury room with them. Good luck. Good luck. That's why, as Arthur said, it's going to come down to, are you wearing team blue or are you wearing team red? Okay, then we know what to do.

Joshua Steinglass
What they were able to take into the jury room, and I don't remember having a trial where this has happened, but I could be wrong. They were able to take into a cleaned off laptop when I think no Internet access, where all of the evidence is. Normally we get notes saying, we'd like to see the note with Weisselberger, we'd like to see this piece of evidence. But apparently they have all of the evidence on a laptop in the jury room. The prosecutor, Picara legal, and Todd Blanche sat there with two members of the jury and instructed them how to find everything. So they have all of that. What they would have to ask for in a written note is the judge's instructions again, or any testimony they want to hear. Again.

Megyn Kelly
They have been in there for, I don't know, 2 hours. They have not asked for anything or sent out any notes. CNN is officially running a deliberation clock because this is their Super bowl, even though the ratings are in the toilet. Notwithstanding Arthur's amazing analysis, you're the best thing that's happened to CNN in years. You're the only reason to tune in over there, my friend. Great to see you both, guys. Thanks for being here.

Mark Eiglarsch
Thanks, man.

Joshua Steinglass
Thank you. I'm heading there right now, Megan, that just for the record, I'm going to.

Megyn Kelly
Good luck. The number of the eyeballs and ears that will be listening and watching and listening to you will fall precipitously.

Joshua Steinglass
That's where I'm going.

Megyn Kelly
All right, text us if you hear anything and let us know if there's any action over there.

Joshua Steinglass
All right, thanks, Megan.

Megyn Kelly
All right, guys. Love ya. Thanks for coming on.

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

Flimsy Case Against Trump Heads to Jury After Outrageous Prosecution Tactics, with Arthur Aidala and Mark Eiglarsh | Ep. 804

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1. Opening Remarks

2. Legal Analysis

3. Jury Deliberation

4. Broader Implications

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