The Megyn Kelly Show - 20240515_biden-agrees-to-debate-trump-cohen-crushed-in-cros
Aired: 2024-05-15
Duration: 01:20:28


=== Trump Trial Debate Plans (03:51) ===

[00:00:00]  FIKEN presenterer et superenkelt regnskapsprogram for alt det regnskapsgreiene til bedriften din.
[00:00:08]  Det var enkelt.
[00:00:09]  FIKEN.
[00:00:10]  Et superenkelt regnskapsprogram.
[00:00:40]  Yesterday was former Trump fixer Michael Cohen's first day of cross-examination.
[00:00:45]  It began with a bang, as you could argue this entire case did, allegedly.
[00:00:51]  It was feisty, and it's expected to continue throughout much of the day tomorrow when they're back on.
[00:00:57]  He will be the prosecution's final witness.
[00:00:59]  We now know the prosecution has said that.
[00:01:01]  The defense is expected to call only one witness on Monday.
[00:01:05]  It's not going to be Donald Trump.
[00:01:06]  They haven't said so explicitly, but he's not testifying.
[00:01:09]  That's not happening.
[00:01:10]  So, this thing could wrap up next week.
[00:01:14]  And there was big breaking news this morning: President Joe Biden has finally agreed to debate former President Donald Trump.
[00:01:21]  I can't believe it.
[00:01:23]  I did not think he was going to admit to agree to this.
[00:01:26]  I did not.
[00:01:27]  I'm stunned that he actually says he's going to do it.
[00:01:30]  I mean, it happened like this.
[00:01:32]  It's the fastest booked pair of presidential debates in U.S. history, I think.
[00:01:38]  I don't know.
[00:01:39]  It's my feel.
[00:01:39]  It's my gut feel from having been 20 years of news.
[00:01:42]  I've never seen it come together so quickly.
[00:01:44]  There are some caveats.
[00:01:46]  And this thing is happening soon.
[00:01:48]  No sooner had Joe Biden released this video saying, I'll do it and I'll do it in June and I'll do it one in September.
[00:01:56]  And it has to be with a news organization that has hosted both a Republican primary debate in 16 and a Dem primary debate in 20, which would limit it to CNN, ABC, CBS, and one other.
[00:02:08]  Then Trump immediately responded, Telemundo, saying, I'll do it.
[00:02:12]  I'll do it.
[00:02:13]  And they set the June date, and then soon thereafter set the September date.
[00:02:16]  June's going to be the 27th, hosted by CNN.
[00:02:20]  September, what's the date, Steve?
[00:02:23]  In September 10th, hosted by ABC.
[00:02:26]  So we've got two debates, two presidential debates.
[00:02:29]  We went from zero to two in about two minutes.
[00:02:31]  This is exciting.
[00:02:32]  I'm thrilled this is happening.
[00:02:34]  I'm a little shocked that Trump so quickly agreed to CNN.
[00:02:39]  I'm not going to lie.
[00:02:40]  I've got some pals over there who might be in the running for this, but CNN in general has been absolutely disgusting to Donald Trump.
[00:02:48]  And I do wonder about whether there's going to be some head scratching on the right about why he would agree to these networks in particular.
[00:02:57]  There's not going to be a Trump-friendly moderator among them.
[00:03:00]  There will not be one moderator who's voting for Donald Trump, if history is any guide.
[00:03:06]  And what the Biden team was saying was: we require that these news organizations, and again, now we know it'll be CNN and ABC.
[00:03:14]  Trump's calling for two more debates in addition that hasn't been agreed to yet.
[00:03:18]  And that's not including the vice presidential, which both sides I think have said they want, but that's not scheduled.
[00:03:24]  Trump's calling for it to happen before a live audience.
[00:03:29]  And Biden is calling for these news organizations not to bring in a ringer, someone who doesn't actually work at the organization, to ask the tough questions.
[00:03:40]  I feel like he's talking about me.
[00:03:42]  Just kidding.
[00:03:43]  There's no way CNN or ABCA would ever bring me in, but they should if they want ratings and they want a hot debate.
[00:03:50]  Okay, there's a lot to get to.
[00:03:51]  And we're going to talk about the Trump trial.

=== Jail Time Predictions (15:31) ===

[00:03:52]  We're going to talk about this and some other amazing legal stories that are on the docket today.
[00:03:56]  Joining me for all of that, managing partner of Garagos and Garagos, Mark Garagos, and former prosecutor and New York Times best-selling author, Marsha Clark.
[00:04:05]  Welcome back to the show, guys.
[00:04:07]  What do you make of the news that we're going to have at least two presidential debates, Mark?
[00:04:13]  You want to know what I think, the cynic in me, is that the reason that Trump agreed and he agreed so readily to CNN is that this is three-dimensional chess, and he knows he's going to get, or it's most likely he's going to get convicted in most state courts in New York included.
[00:04:33]  If you get convicted of multiple felonies, most judges will remand you immediately into custody pending sentencing.
[00:04:40]  He's forestalling.
[00:04:41]  He's going to dare this judge.
[00:04:43]  You put me in custody.
[00:04:44]  I've got a presidential debate.
[00:04:46]  You have definitely interfered with the election.
[00:04:49]  And here you go.
[00:04:50]  I want it in June.
[00:04:51]  I think that's exactly what's happening.
[00:04:54]  That's so interesting.
[00:04:56]  I hadn't even considered that.
[00:04:57]  Wait, could that happen?
[00:04:59]  So if we, if they wrap both cases by Monday or Tuesday, they have closing arguments maybe on Thursday because they're off on Wednesdays.
[00:05:08]  The jury gets the case and we have a verdict potentially within two weeks from now.
[00:05:13]  You're telling me the judge, if he's convicted, could immediately sentence him to go to jail?
[00:05:18]  Ask Marsha if she can name 10 cases where somebody has been convicted of multiple felonies while being cited for contempt during the trial.
[00:05:31]  And any name a judge who has not remanded that person pending sentencing.
[00:05:38]  It's almost virtually unheard of.
[00:05:41]  True.
[00:05:41]  Marsha?
[00:05:42]  Very, very true.
[00:05:43]  With all that he's got going on, with all not just this case, but a judge looks at the entire picture of what this guy's got going on.
[00:05:51]  And it's a lot of cases and there's a lot of jeopardy.
[00:05:54]  He's also been cited for contempt a million times.
[00:05:57]  He's shown that he has no regard for the law.
[00:05:59]  And someone like that, if you don't remand them, you're incompetent.
[00:06:04]  So I have to say, no, I've never seen a case where they haven't.
[00:06:07]  However, this would be the one where it doesn't happen because it's Trump.
[00:06:11]  And I think the judge will probably not remand him.
[00:06:14]  He may take his passport and do the kind of interim things you can do to control someone, their movements, and prevent him from leaving town, maybe even give him an ankle monitor.
[00:06:26]  But I don't think that he's going to get remanded.
[00:06:28]  We could have a presidential debate with one of the presidential candidates wearing an ankle monitor.
[00:06:34]  Wait, let me give you one.
[00:06:35]  Let me just add one little kind of twist to this.
[00:06:38]  So you've got a presidential candidate who's being tried in the Supreme Court of New York, who I think the odds are his best day is a hung jury.
[00:06:48]  I don't think there's any chance of an acquittal given the jury.
[00:06:52]  And he potentially faces being remanded into custody.
[00:06:56]  That is a real possibility.
[00:06:59]  If he was anybody but Trump, he would be in custody.
[00:07:02]  And you now have, as of yesterday, Hunter Biden scheduled not for one, but two criminal trials in June as well.
[00:07:11]  So the son of the current president and the leading contender for president, both dealing with criminal jeopardy in the same single month.
[00:07:22]  I'm dead.
[00:07:23]  I died.
[00:07:26]  I can't.
[00:07:27]  Can you just explain, Marshall?
[00:07:28]  I'll give this to you.
[00:07:29]  Explain remand.
[00:07:32]  That means being taken into custody.
[00:07:34]  So when they say remanded into custody, he is sent back to the custody of the jailer, whoever that is, county, state, whatever it is, federal.
[00:07:43]  So Marsha, why don't you describe what happens in the courtroom when they read the guilty verdict?
[00:07:49]  You'll see them take off the watch, take off the pen, take off the belt, put their hands behind their back, get cuffed and walked in the back door.
[00:07:59]  Yeah.
[00:08:00]  In the courtroom?
[00:08:01]  In the courtroom.
[00:08:02]  In the courtroom, right into lockup.
[00:08:04]  It happens every single time, absent some extenuating circumstance.
[00:08:10]  Yeah.
[00:08:10]  In state court.
[00:08:13]  In state court.
[00:08:14]  That's right.
[00:08:15]  I can't vouch for what happens in a federal trial, but this is a state trial.
[00:08:19]  So, and I would imagine New York follows what we do, Mark.
[00:08:21]  I mean, it's the same procedures.
[00:08:24]  They absolutely do.
[00:08:25]  Federal court is more civilized.
[00:08:27]  Generally, if you've been out on bail or on release, they will put the case over force sentencing.
[00:08:34]  They'll order the PSR, the pre-sentence report, and you'll be allowed to stay out of custody pending sentencing.
[00:08:41]  State court, completely different.
[00:08:44]  You are remanded.
[00:08:45]  What about a court like this, where a case like this, where most legal experts I've read do not predict Trump will be sentenced to jail?
[00:08:53]  But even under those as somebody without a record, even under those circumstances, would the likelihood be if his name weren't Trump, he'd be remanded?
[00:09:02]  I don't know what legal experts you're talking to, but this judge has already threatened to put him in jail for saying the unbelievable statement that this jury is 95% Democrat and it's a Democrat coming to get me.
[00:09:18]  That is what he has been found in contempt of.
[00:09:21]  So when you're threatening jail over that, you get convicted of 34 felonies.
[00:09:27]  He's going to go to jail.
[00:09:29]  Oh, my God.
[00:09:30]  Usually that's absolutely true.
[00:09:32]  By the way, he's also been cited for contempt for calling the judge corrupt, the clerk corrupt, insulting their families.
[00:09:38]  I mean, he's made outrageously disgusting remarks.
[00:09:40]  And any other defendant would have already been sitting in jail for contempt.
[00:09:45]  So, you know, look at how unusual we call it in the law, sui generis this is.
[00:09:50]  It's Trump and therefore none of the rules apply.
[00:09:53]  So, I mean, the fact that he isn't sitting in jail right now is amazing.
[00:09:58]  So I don't predict that he's going to get remanded.
[00:10:00]  I don't, it's possible he won't get jail time.
[00:10:04]  Although, given all of his behavior and everything that they've seen, if the jury does convict, and I think it probably will, it would be really ridiculous not to give him some jail time.
[00:10:16]  We have to think about what kind of precedent you're setting because this is, you know, people have talked a lot about the nature of these charges and how unusual they are and how they're trumped up misdemeanors into a felony, et cetera.
[00:10:27]  But it really was an effort to affect the election.
[00:10:31]  There's no question that that was the motive.
[00:10:33]  He didn't care otherwise.
[00:10:34]  And I do think the evidence has shown that.
[00:10:36]  So whether you think he deserves jail time or not, it is a felony.
[00:10:40]  And you have to think about what other defendant would get away with, no jail time, given all that he's done and given what he's convicted of.
[00:10:47]  It's remarkable.
[00:10:48]  But I don't think he will.
[00:10:49]  I mean, honestly, if I had to put my money on either side, I would guess he will not get jail time.
[00:10:55]  See, that's my legal expert right there, Mark.
[00:10:57]  She doesn't believe it.
[00:10:59]  I haven't seen, I mean, with Charlie McCarthy, I haven't seen anybody predicting that this is likely to result in a jail time sentence given his complete absence of any criminal history.
[00:11:09]  And I mean, you're saying this based on the fact that this is a Trump biased judge, which I agree with, which is why I don't think Trump's comments have been disgusting.
[00:11:18]  I know why you're saying that, Marsha, but I don't, I think he's running for president and he's got two wars to fight.
[00:11:23]  You know, he's got a legal war and he's got a PR war.
[00:11:26]  And all those comments are very important for the PR war, which is working for him.
[00:11:30]  And I understand now he's the judge has got to run his courtroom and he's been chastising Trump at every turn.
[00:11:36]  But Mark, on the subject of jail time, is that just based on the fact that you think this is a Trump hating judge?
[00:11:43]  No, I think that if this, I think most judges, when they, I'm just telling you based on 40 years of doing this, almost 99% of the time in a case like this, even though it's a documents case, you get convicted of a number of felony counts.
[00:12:00]  You're going to get remanded.
[00:12:02]  Period.
[00:12:03]  End of story.
[00:12:04]  And by the way, I might bet, Marsha, on this.
[00:12:07]  I still think we'll sentence him to jail.
[00:12:10]  He may not remand him now because clearly, under any interpretation, that would interfere with the presidential election.
[00:12:20]  But I can see him sentencing him to jail, staying the jail time, citing the fact he does not want to interfere with the election.
[00:12:29]  But I don't think that this judge is going to say, I'm going to give you straight probation.
[00:12:34]  I don't think there's any chance of that, frankly.
[00:12:39]  I'm taking that bet.
[00:12:41]  I don't think it's going to be a long sentence.
[00:12:43]  I mean, I don't think even if he does get jailed, it'll be something.
[00:12:48]  Yeah, I think it'll be something minimal, if not all, but I would take the bet that he does not get jail time.
[00:12:53]  That's I'm in.
[00:12:56]  He gets convicted.
[00:12:56]  So you're saying no jail time and not remanded, and Mark saying jail time and remanded.
[00:13:02]  I'm saying that I don't think he will remand.
[00:13:05]  Most judges do, but he, if convicted, this judge is going to sentence him to jail and then stay the jail sentence so that he doesn't get accused.
[00:13:13]  Pending what?
[00:13:14]  What?
[00:13:14]  Pending what?
[00:13:15]  Pending appeal.
[00:13:18]  Okay, so Trump, the filing or the resolution.
[00:13:22]  Yeah, no, what he will do is set a bail pending appeal, and that will to stay the immediate imposition of jail time.
[00:13:32]  But I will tell you right now, this case, in my humble opinion, is so susceptible to being reversed on appeal.
[00:13:40]  I can't even tell you.
[00:13:41]  I mean, there's never any, most appeals are affirmed for the prosecution or the conviction is affirmed.
[00:13:48]  But this case, frankly, is the most attenuated legal theory that I can even imagine.
[00:13:54]  Okay.
[00:13:55]  That is the jeopardy right there.
[00:13:57]  That's it right there.
[00:13:59]  Do you think we talked about maybe Trump is agreeing to this immediately because he sees the debate as a disincentive to the judge to remand him or do anything too aggressive?
[00:14:09]  Because now it's like we're, we could be days away from a couple weeks away from him.
[00:14:17]  Unless they're going to allow him to debate for Rikers by video.
[00:14:22]  Oh my God.
[00:14:24]  I think, frankly, it's like I say, it's three-dimensional chess.
[00:14:29]  He knows agree immediately.
[00:14:33]  This case is going to go to the jury in no time.
[00:14:37]  There's no way that this state judge is going to remand him now pending a debate.
[00:14:44]  You know, there could have been a world where he would have remanded him for a small period of time, but I just can't imagine it now with a debate that's in the same month when he gets convicted.
[00:14:56]  Okay, so how about Biden's calculation then?
[00:14:58]  I mean, is Biden's calculation probably no more than he's going to be fresh off of his first conviction?
[00:15:04]  And I can't wait to discuss it in front of the American people.
[00:15:09]  I mean, that has to play into it, don't you think?
[00:15:11]  This is, there's no more, but it's, it's a good vulnerable point at which to confront Trump.
[00:15:17]  Well, look, I'm talking to a convicted felon now.
[00:15:20]  You know, I mean, this is who I'm debating.
[00:15:22]  He can, he can call him a six-year-old and everything else, but when you can call him an actual convicted felon, that's a pretty nice position to be in.
[00:15:31]  So I would guess that has a great deal to do with it.
[00:15:35]  Yes, because Mark, it came out of the blue.
[00:15:37]  I mean, I think most people did not expect Biden to agree to these debates.
[00:15:41]  For the record, he's rejecting the Commission on Presidential Debates and their proposal, which we see in every election, to hold three presidential debates beginning in September.
[00:15:52]  They happen in September, October.
[00:15:54]  And he said, Biden said, no, I'm not doing that.
[00:15:57]  I don't want your traditional structures and I reject you.
[00:16:00]  I'll do it with two news organizations, one in June, one in September.
[00:16:04]  And as I said, he said, pick the moderator from your existing roster.
[00:16:08]  And Trump, too, said, I don't want the Commission on Presidential Debates either.
[00:16:12]  So they're both going outside the traditional colored lines.
[00:16:16]  It's kind of interesting.
[00:16:17]  Trump wants an audience.
[00:16:18]  He had his typical rhetoric, like it's going to be extremely exciting.
[00:16:22]  And I can see Biden doesn't want crowds, although he must be used to not having them.
[00:16:28]  And Biden said, right, I don't want any crowds.
[00:16:31]  I just want like in a news studio quiet.
[00:16:34]  And I want the opponent's mic turned off as soon as he's done answering.
[00:16:39]  I don't know whether any of those terms have been agreed to, but we have two dates.
[00:16:43]  This could wind up being like the Ben Shapiro-Candace Owens debate, which never happened, even though both parties said, yeah, bring it.
[00:16:50]  No, it didn't happen.
[00:16:51]  This could wind up, but I think it's going to happen now that you've got the Nets involved.
[00:16:55]  But I do wonder whether this could backfire on Joe Biden, Mark, because as we've seen all along, all the big lawfare efforts against Trump, whether it was the indictments, the mugshot, the trial, have wound up in the polls either not hurting or helping him.
[00:17:14]  Well, look, could it backfire?
[00:17:17]  I'm sure the calculus is.
[00:17:19]  I don't have any inside information, but living in my kind of left-wing Democratic bubble that I exist in, everybody seems to think in my world that if Trump is convicted, that the so-called swing voters are going to swing against Trump.
[00:17:42]  I think that's wrong, frankly.
[00:17:44]  I don't think that's the case.
[00:17:46]  I think that so far, to echo your analysis here, every single one of these cases has imploded spectacularly.
[00:17:56]  And every prediction by conventional kind of lawyers or wisdom has been dead wrong.
[00:18:03]  I remember, Megan, you probably do as well.
[00:18:05]  Everybody was saying the Fonnie Willis recusal motion had no legs.
[00:18:09]  Everybody was saying that the judge and what's her name in the J. News was going to drive this thing to trial.
[00:18:23]  We were getting a trial.
[00:18:24]  There's no way the Supreme Court would entertain presidential immunity.
[00:18:28]  Every single thing by the chattering class has been wrong when it comes to these cases.
[00:18:34]  And, you know, news flash, it's because most of these people do not practice in trial courts or in appellate courts and don't have any understanding of what the legal issues are.
[00:18:44]  And it's, it's too bad because I think it misleads people who are watching or listening to these things as to what the odds are in these cases.
[00:18:53]  All right.
[00:18:53]  I have kind of a very interesting update on the Judge Chutkin January 6th trial, which I'm going to get to in one second.
[00:18:59]  But I just want to stay on New York for one minute.
[00:19:01]  Here's a bit of Joe Biden in his analysis.
[00:19:04]  We found out he was willing to debate by a video statement he released on X and then a follow-up with a written statement.
[00:19:10]  And then Trump immediately said yes.
[00:19:12]  But here's what Biden said in accepting the debate.
[00:19:15]  Donald Trump lost two debates to me in 2020.
[00:19:18]  The son said he hadn't shown up for debate.
[00:19:20]  Now he's acting like he wants to debate me again.
[00:19:22]  Well, make my day, pal.

=== Post-Election Legal Strategy (15:23) ===

[00:19:24]  I'll even do it twice.
[00:19:26]  So let's pick the dates, Donald.
[00:19:27]  I hear you're free on Wednesdays.
[00:19:30]  Okay, an attempt at humor there because Trump's on criminal trial and he's off on Wednesdays, which is annoying, I have to say, because Trump's not allowed to talk about, you know, there's so much that Trump is gagged in responding to.
[00:19:44]  And it's just annoying that the sitting president would be bringing it up when he knows Trump has to fight with one hand tied behind his back.
[00:19:51]  Okay, but whatever.
[00:19:52]  Like he can't get out there and say, yeah, I'm on criminal trial because I'm sitting in front of a jury that's 95% Democratic.
[00:19:59]  You know, if you go by the stats, no, he'll get jailed if he says that.
[00:20:02]  Okay, whatever.
[00:20:04]  He puts out the thing.
[00:20:04]  He's looking for a laugh and entered the crew at Morning Joe to provide it.
[00:20:08]  Watch.
[00:20:10]  Well, make my day, pal.
[00:20:11]  I'll even do it twice.
[00:20:13]  So let's pick the dates, Donald.
[00:20:15]  I hear you're free on Wednesdays.
[00:20:17]  Oh, wow.
[00:20:19]  Wow, that's been subtle in the battle round.
[00:20:22]  Yeah.
[00:20:24]  That was straight down the middle.
[00:20:26]  Oh, boy.
[00:20:27]  Okay.
[00:20:28]  So just a little preview of how it's going to go when CNN hosts the debate and probably when ABC hosts the debate.
[00:20:34]  Who are they going to get?
[00:20:34]  George Stephanopoulos?
[00:20:35]  Good luck.
[00:20:36]  Let's see how that works.
[00:20:37]  And by the way, it's probably going to be George Stephanopoulos, a Clinton operative.
[00:20:41]  That's who they're going to pick mark.
[00:20:42]  We would think as ratings challenged as CNN is as they swirl the drain that they would want to recruit you to do it because you can imagine the ratings blockbuster that would be if you did a return to Trump debate.
[00:20:57]  Literally, everyone would watch that.
[00:21:00]  Trump wouldn't be happy.
[00:21:02]  Biden wouldn't be happy, but the American populace would be happy.
[00:21:06]  I don't disagree.
[00:21:08]  I agree.
[00:21:09]  Okay.
[00:21:10]  I think that it would be a really smart move by them.
[00:21:13]  So it would be a good idea.
[00:21:14]  So prepare for it not to happen.
[00:21:15]  Yeah.
[00:21:16]  Yeah, right, exactly.
[00:21:17]  If asked, I will serve.
[00:21:20]  Okay, so I want to tell you about what we're hearing about the J6 trial.
[00:21:24]  Now, in the J6 federal trial brought by Jack Smith, that's the case in which Judge Chuckin clearly doesn't like Trump.
[00:21:31]  The prosecutors, Jack Smith, he clearly doesn't like Trump.
[00:21:33]  The jury pool's going to hate Trump.
[00:21:36]  But they've managed to stay the case because Trump is arguing that he has immunity for those acts, which are under scrutiny in that case because he was president at the time of most of them.
[00:21:47]  That case went up to the Supreme Court.
[00:21:48]  It's been argued and we are awaiting a decision.
[00:21:51]  Could come any day.
[00:21:52]  Now we're on May 15th.
[00:21:53]  It's going to come in the next two weeks, you know, three at the most.
[00:21:59]  There's also another case before the Supreme Court, which could gut the January 6th federal trial against Trump.
[00:22:05]  It doesn't involve Trump.
[00:22:05]  It involves J6 defendants arguing that this claim that's been brought against them, obstruction of a federal proceeding, is bullshit and is not really on the books and is not a real claim.
[00:22:16]  And if they win, that also helps Trump because that's the main claim against Trump.
[00:22:21]  If they win that one, half the case is gone.
[00:22:24]  Yeah.
[00:22:25]  So that, so Trump's got a couple of nice lanes open to him to either kill or at a minimum continue postponing the J6 trial.
[00:22:33]  What most legal watchers think will happen, even if the Supreme Court kills that one main claim, obstruction claim, there's still two claims against him that could live.
[00:22:43]  And then we have the question of immunity.
[00:22:45]  And most people think probably what the court's going to do on immunity is say that we ought to kick this back down to Judge Chutkin to have her figure out what actions are at issue and whether Trump was actually in his presidential role when he took them or in his role as candidate for reelection, where he would not clearly have immunity.
[00:23:05]  And that's just more delay.
[00:23:06]  But here's what we're hearing: that, okay, maybe he gets delay.
[00:23:11]  Almost nobody thinks the whole thing gets thrown out based on immunity or the J6 obstruction thing getting killed.
[00:23:19]  So he goes back to Chutkin.
[00:23:21]  She proceeds with the trial.
[00:23:24]  She holds the hearing.
[00:23:25]  She figures out what acts are in, what acts are out.
[00:23:28]  And then she proceeds on what we know is in.
[00:23:31]  Even Trump's lawyer admitted that act wouldn't be as president.
[00:23:35]  that act would be more in his capacity as private citizen or campaign contender.
[00:23:41]  So let's say Jack Smith minimizes just down to the ones that are indisputed so that they can't take another appeal back up.
[00:23:47]  Let's go forward on those, that they will try him.
[00:23:51]  Okay, so this could be July, that they will resume this trial against him, J6 in DC, and that even though it likely won't be resolved before November, It will probably be resolved between that date in July and January 6th, which may be a familiar date, right?
[00:24:12]  It's when the election gets certified and Congress convenes to count with the vice president to count the Electoral College votes and the votes from the states.
[00:24:22]  And at that point, the expectation is that the Democrats will move to urge Congress, as they haven't passed elections, as people like Ted Cruz and Josh Hawley did in the 20 election, to urge Congress not to certify the vote because it's irregular.
[00:24:39]  There's something wrong with it.
[00:24:40]  And the urging will be he's a convicted felon and we can't certify this vote given what's happened between the November vote and today.
[00:24:50]  Now, if any of that happens, this is going to be the most exciting, absurd, catastrophic, cataclysmic presidential news cycle in our lifetimes.
[00:25:03]  So it probably will happen.
[00:25:05]  If the Trump years and the drama, right, or any indication, that's probably, that sounds pretty good.
[00:25:12]  Your thoughts on whether this judge, Marsha, could do any of that if this case goes back to her.
[00:25:20]  Well, she probably has to.
[00:25:22]  If they kick the case back to her, then she has to make the findings that are required to determine whether you have valid charges.
[00:25:28]  And that means, was he in a president acting in his presidential capacity when he did the alleged acts?
[00:25:35]  And that, I don't see how she gets out of doing that.
[00:25:39]  If she finds that he was acting in his presidential capacity, you have one lane to go.
[00:25:45]  I think that for sure, as you've said, there is at least one case, one instance in which that he was clearly not.
[00:25:54]  That's indisputable.
[00:25:55]  So, you know, you wind up with a trial, I think no matter which way you look at it, you wind up because either you're trying the one instance where he was clearly a private citizen, or you're trying many more because you say it's exterior to his function as a president.
[00:26:10]  In either case, you wind up in trial.
[00:26:12]  It doesn't matter which way you get to it.
[00:26:15]  The number of charges will be different.
[00:26:17]  So I don't know that there's any other option unless the Supreme Court does something crazy, like saying, holding, for example, that presidential immunity shields him for time immemorial.
[00:26:29]  No matter when he does what he does, even as a private citizen, once he has been a sitting president, he cannot be prosecuted for anything.
[00:26:37]  I really don't see the Supreme Court doing something that insane.
[00:26:40]  Me neither.
[00:26:41]  So I think it really does wind up going back to trial.
[00:26:45]  No matter.
[00:26:46]  And then she has to make the rulings that she does.
[00:26:49]  There's one kind of wrinkle here that I don't know.
[00:26:53]  I haven't heard people talk about.
[00:26:54]  Maybe it's in the briefing, but I didn't hear it in the oral arguments is this Supreme Court, which has six so-called conservative justices, all Hugh 2, and they are the ones who, there's a U.S. Supreme Court case called a Prendi.
[00:27:10]  And a Prendi basically says that it's up to the jury to make findings of fact.
[00:27:16]  I don't know how this Supreme Court is going to navigate, because they've got a majority, six, how they're going to navigate sending it back to the judge.
[00:27:25]  Because I'm telling you, I don't understand how the defense would say, oh, we're going to let this judge make factual determinations as to what goes to the jury.
[00:27:37]  I would take the position, if I'm on the defense, that no, the jury has to make determined, the factual determinations.
[00:27:46]  You can't have a judge be the gatekeeper on facts as to whether or not it was within the scope of the presidential actions.
[00:27:55]  That to me seems to be a complete violation of the doctrine of apprendee and the cases that came after.
[00:28:01]  But Mark, isn't it better for the defense if they do allow the judge to do it and don't say it's a jury matter?
[00:28:06]  Because they just want delay.
[00:28:08]  They just want delay, delay, delay.
[00:28:10]  And so if the judge rules this, one through five are in as presidential conduct.
[00:28:15]  Six through 10 are out as candidate Trump conduct.
[00:28:19]  So the out stuff is allowed to be raised as the basis for criminal liability.
[00:28:24]  Go have a trial on six through 10.
[00:28:25]  Then they can appeal her.
[00:28:27]  This again speaks to presidential immunity and they can appeal her up again.
[00:28:31]  That's exactly what's going to happen because they're going to make the argument that she can't do it and that what she has done is violated, is apprendi violative.
[00:28:41]  And they're going to take that back up.
[00:28:43]  It's really a kind of a brilliant kind of three-step process that's going to happen.
[00:28:48]  And if you think the U.S. Supreme Court justices haven't thought this through, in fact, my guess is that the dissent in this case will point out the fact that that's exactly what's going to end up happening.
[00:29:00]  Okay, but here's what could happen, Marsha.
[00:29:04]  Yeah, no, I think Mark is wrong about the law here.
[00:29:07]  I think the trial court sits as a finder of fact for various preliminary rulings for various preliminary issues.
[00:29:14]  And that happens all the time.
[00:29:16]  Apprendi applies to sentencing.
[00:29:18]  And so when you're talking about choosing the high term versus the middle term, low term, then you do need a finder of fact because that exposes a defendant to a loss of liberty.
[00:29:27]  But when you're talking, you know, to greater or lesser loss of liberty, but when you're talking about preliminary findings that shield the jury from making decisions about charges that shouldn't exist, judges make those kinds of rulings all the time and they should.
[00:29:42]  Okay, so let me interrupt you.
[00:29:44]  I get it.
[00:29:44]  You think that this judge would be able to say, this is presidential, this is candidate Trump and make that determination.
[00:29:49]  Mark says, even if she does make that, it'll probably be challenges improper and they'll take an appeal.
[00:29:54]  She's going to get challenged no matter what.
[00:29:56]  Okay, but we're forgetting that this, the initial ruling where she said Trump's not immune on any of it, go forward.
[00:30:04]  That was appealed too.
[00:30:05]  That's how it got to SCOTUS.
[00:30:06]  It went up to the D.C. Circuit Court of Appeals, which agreed with Judge Chutkin.
[00:30:10]  And then to the surprise of many, the Supreme Court said, well, we're going to take it.
[00:30:14]  And so we expect some sort of a reversal.
[00:30:16]  We just don't know how big the reversal will be, how beneficial to Trump.
[00:30:19]  How, I mean, I haven't read many who think it'll be complete sweeping immunity for a president who's in office, no matter whether he's acting as a candidate or not.
[00:30:27]  But anyway.
[00:30:28]  So let's say they kill Judge Chutkin, Marsha.
[00:30:31]  They appeal her to the DC Circuit.
[00:30:32]  And let's say the D.C. Circuit once again agrees with Judge Chutkin.
[00:30:36]  SCOTUS isn't going to take it again.
[00:30:38]  Do you think they're going to take it again?
[00:30:39]  I think they barely wanted away in this time.
[00:30:42]  Yeah, I think that once they rule on this level right now, they're taking this for a broad purpose.
[00:30:47]  And I think it is to say immune doesn't mean forever and always.
[00:30:51]  And I think it's a really simple, if that's going to be the way they view it.
[00:30:55]  And I think it kind of has to be.
[00:30:57]  They can't get down in the weeds about this.
[00:30:59]  And once they make that ruling, then it really is up to the lower courts to decide whether they do it by judge or jury, whether he was acting in a presidential capacity or as a private citizen.
[00:31:09]  And that will detect.
[00:31:10]  And then the ruling by SCOTUS as to whether or not immunity is sweeping as the president's asserting, the form of resident's asserting, that will be the ruling.
[00:31:19]  The ruling that the court's going to make right now will serve.
[00:31:22]  I don't think it comes back to the U.S. Supreme Court.
[00:31:25]  I don't either.
[00:31:27]  I don't think they're taking it.
[00:31:28]  And Mark, if they don't take it again, we're back to my wacky plan that is expected by a source close to the case that Team Trump will not be able to run out the clock post Jay 6th,
[00:31:43]  that they could run it out post the November election, that they could keep this case going post the vote, but that he'll be a convicted felon in the federal case, which is what they want, because if he wins, if he wins, he can pull the DOJ off of this case and end it if he hasn't yet had a verdict against him.
[00:32:06]  But they're saying they'll keep the pedal to the metal.
[00:32:09]  Again, this is a speculation about what the government is likely to do, that they'll keep the pedal to the metal post the November vote and get a presumed guilty verdict against him between November and January.
[00:32:24]  And then all bets are off because now we've got a verdict against him and they'll likely be guilty prior to him being, the vote being certified, never mind him being sworn in.
[00:32:36]  And that just feels like the most rogue, excessive behavior by a federal judge I've ever heard of.
[00:32:44]  Even this judge, do you think she would engage in that?
[00:32:48]  I really don't.
[00:32:49]  And, you know, I wonder if Jack Smith at that point, you remember, you have to do the calculation.
[00:32:55]  We have to fast forward.
[00:32:56]  If he's already been convicted in state court in New York, that's a different calculation than if it's a hung jury, for instance, which I think is his best hope, his being Trump.
[00:33:11]  But, you know, you also run headlong into the DOJ policy, which is ironically was violated back in 2010.
[00:33:18]  They've already said they don't care about that, Mark.
[00:33:20]  The DOJ, right?
[00:33:21]  They say they don't interfere in a case 60 days before the election.
[00:33:24]  They've already said this, this, the Trump cases don't count because they started them more than 60 days before the election.
[00:33:30]  So the DOJ, not surprisingly, has no qualms about going after Trump, you know, balls to the wall.
[00:33:36]  So I don't, this is wacky.
[00:33:38]  And I know Judge Shutkin has said, I'll cancel all my European vacations.
[00:33:41]  I will do what it takes.
[00:33:42]  I will be in the judge's chair to try this case when it's ready for me after SCOTUS.
[00:33:47]  And I believe she means it.
[00:33:50]  So I think Washington, the District of Columbia is probably the only place in America that is a worse venue than Manhattan State Court for the X. Maybe Berkeley.
[00:34:07]  I know.
[00:34:08]  You guys are both Californians.
[00:34:09]  I don't know.
[00:34:09]  I could think of you tell me.
[00:34:12]  I'm not so sure about Berkeley being worse than D.C.
[00:34:15]  I think DC, if I had to move for change of venue, I think I would want Berkeley over DC.
[00:34:23]  At least in Berkeley, you might find some like libertarians who are like, government, keep your hands off me.
[00:34:28]  In D.C., it's just all hard partisan Dems.
[00:34:32]  Yeah.
[00:34:33]  Well, remember, we've had several Republican governors in California over the years.
[00:34:38]  So we're not exactly, I know we're super, but we do have Trump will go to San Diego like that.

=== Flawed Witness Testimony (07:30) ===

[00:34:47]  He'd go to Orange County like that, just like he'd go out to Long Island or Staten Island to have this case in New York, but that was rejected.
[00:34:54]  All right.
[00:34:54]  I'm going to take a quick break and then I'm going to get into what happened with Michael Cohen yesterday.
[00:34:58]  I'd love to get your guys take on how he did now that we're moving on soon from him.
[00:35:03]  More with Marcia and Mark right after this.
[00:35:09]  There's so much drama.
[00:35:10]  I can barely, I can barely get my arms around it.
[00:35:11]  All right.
[00:35:12]  So Michael Cohen, he's not on the stand today because they're off on Wednesdays, but he's going to be back on the stand tomorrow, Thursday, and cross-examination will resume.
[00:35:20]  It began yesterday with a bang.
[00:35:24]  The defense attorney got up there.
[00:35:28]  Hold on a second.
[00:35:28]  Where is it?
[00:35:29]  Do I have it around here?
[00:35:30]  Okay, he started Todd Blanche by saying, hi, I'm Todd Blanche.
[00:35:37]  Mr. Cohen, my name is Todd Blanche, and you and I have never met.
[00:35:41]  You went on TikTok and called me a crying little shit.
[00:35:45]  Cohen, sounds like something I would say.
[00:35:48]  The prosecutors objected, and the judge sustained it.
[00:35:53]  I don't know why that was sustained.
[00:35:55]  Then even his co-counsel, Susan Necklace, couldn't help but smile, according to the Times.
[00:35:59]  By the way, the New York Times writes this up, that the ever-fragile New York Times didn't want to write crying little shit.
[00:36:07]  So they said he suggested Michael Cohen had called him a small and weeping piece of feces.
[00:36:13]  Okay.
[00:36:14]  Then he goes on to say, you referred to Donald Trump as a dictator douchebag.
[00:36:20]  Cohen, sounds like something I said.
[00:36:22]  Blanche, you said he should go back to, quote, or go back where he belongs in a fucking cage, like a fucking animal.
[00:36:30]  You recall saying that?
[00:36:31]  I recall saying that.
[00:36:34]  He asks them, is this trial personally important to you, Mr. Cohen?
[00:36:38]  And Cohen says, personally, yes, it is.
[00:36:41]  Let's see.
[00:36:42]  He gets into the obsession with Trump.
[00:36:46]  You do four podcasts a week, and he's mentioned in every one, isn't he?
[00:36:50]  Yes, I would say he, Trump, is mentioned in every single one.
[00:36:55]  By the way, the New York Times points out at least one juror said on voider that they listen to at least one of Cohen's four different podcasts as well.
[00:37:05]  Cohen admits he's made roughly 3.4 million in sales of his two books over the past four years, both of which were about Trump.
[00:37:14]  And then, of course, do you want President Trump to get convicted in this case?
[00:37:17]  Sure.
[00:37:19]  Blanche shows him an enlarged photo of a coffee mug that's sold on his site, Cohen's, which reads, send him to the big house, not the White House, shows a shirt he sells that says convict 45, shows a shirt he sells of Trump behind bars and wearing an orange jumpsuit.
[00:37:35]  So what do you make of those highlights, Marcia, as a prosecutor yourself, if you were sitting there watching that cross of your witness, how would it make you feel?
[00:37:46]  I would hope that I would be completely unfazed because could you not see this coming a mile away or even like 50,000 miles away?
[00:37:54]  Obviously, this is a very flawed witness.
[00:37:56]  And when you put somebody like this on the stand, and I would hope that she did, prepare the jury.
[00:38:03]  I would do it in an opening statement even and say, look, this guy is a tough one.
[00:38:07]  You know, he's tough to believe.
[00:38:08]  Were you lying then?
[00:38:09]  Were you lying now?
[00:38:10]  He's got all kinds of bias.
[00:38:12]  Nevertheless, we believe he's telling the truth because.
[00:38:15]  And then you talk about all the reasons you, all the ways you corroborated his testimony.
[00:38:20]  But you should be completely unsurprised by all of this exchange, as crazy as it is, and as wildly adhominum as these attacks are.
[00:38:28]  I mean, that is the whole tenor of this thing, especially with Cohen on the stand.
[00:38:33]  So I would think that she would have a very, she should be looking very calm and very relaxed.
[00:38:40]  Like, I saw this coming and I knew this was going to happen.
[00:38:42]  And this is what I told the jury.
[00:38:44]  It's what they were going to do.
[00:38:46]  Mark, your thoughts?
[00:38:48]  You know, I've often wondered why anybody thinks that Michael Cohen was going to make any difference in this case.
[00:38:57]  I know that the prosecution has to put him on or arguably has to put him on, but I would venture to say that there's not a single juror who's going to come out of these deliberations and say to anybody, if they're being honest, you know what?
[00:39:12]  I was going to acquit Donald Trump, but then I heard Michael Cohen and he changed my mind, or I was going to convict Donald Trump, but then I heard Michael Cohen and now I'm going to acquit.
[00:39:24]  To my mind, he's already baked into this.
[00:39:27]  And frankly, I don't want to, I know I've been very cynical during this program, but this case was over in jury selection.
[00:39:36]  I tried these cases.
[00:39:38]  I mean, my career was made on trying Susan McDougall down in Little Rock on contempt and obstruction of justice, which was a politicized case back before we'd even, you know, back, it's almost quaint by comparison.
[00:39:53]  But the idea that somehow you're going to turn these jurors around, either by Michael Cohen or in your closing arguments, I hate to be the cynic here, but it's not going to happen.
[00:40:06]  I mean, these jurors' minds were made up when they were selected.
[00:40:10]  I think that's probably true.
[00:40:12]  But yeah, go ahead, Marsha.
[00:40:14]  Yeah, I mean, you know, a thing or two about the jury pool and the ultimate jury being selected, having their minds made up.
[00:40:22]  Yeah, it's true.
[00:40:23]  And by the way, it's kind of an axiom of trial law that your cases won or lost in jury selection.
[00:40:28]  And I think that I could say an awful lot about the ways in which we things went very wrong in the rules that were imposed during the Simpson voider.
[00:40:41]  That said, Mark is right.
[00:40:44]  It probably was decided when they selected the jury.
[00:40:47]  That said, even if it wasn't, I also agree with Mark that Michael Cohen is not going to be the deciding factor either way.
[00:40:54]  And I think that there were court watchers even saying that during his testimony, the jurors were looking very unimpressed, yawning, looking around, etc.
[00:41:03]  By way of contrast, when Stormy Daniels was testifying, they were riveted.
[00:41:08]  There was an air of tension.
[00:41:09]  Yeah, it was a completely opposite.
[00:41:11]  I wouldn't have thought that, but that's what they're describing.
[00:41:15]  You know, there's interesting, I don't, you know, not having been in the courtroom, I wish this was televised, but I will tell you, at least from the reporting and reading some of the excerpts of the transcripts, Stormy seemed to bring some game or bring her A game.
[00:41:30]  I mean, she seemed to, you know, I love Susan Nicholas.
[00:41:33]  I think she's one of the best criminal defense lawyers in Manhattan.
[00:41:38]  But she, Stormy gave as good as she got.
[00:41:42]  And I think that that's jurors like pop and they like that back and forth, whether they say it or not or admit it or not.
[00:41:49]  They're interested in that.
[00:41:51]  I mean, they're sitting there.
[00:41:52]  They're kind of a captive audience.
[00:41:54]  They don't want to be bored to death.
[00:41:56]  And somebody like Stormy is colorful and it's quite a show to.
[00:42:01]  Mark.
[00:42:02]  Okay.
[00:42:03]  She brought her A game in terms of entertaining.
[00:42:05]  That's literally her job.
[00:42:08]  And, but all that BS about newly me too remembrances after all the previous statements.
[00:42:16]  I never felt threatened, never felt threatened.

=== Directed Verdict Questions (05:02) ===

[00:42:17]  He was my bitch.
[00:42:19]  And now suddenly it's like, oh, she's, you know, Ashley Judd on the couch with Harvey, please.
[00:42:24]  But I, Megan, I don't disagree with you.
[00:42:27]  As soon as I saw power imbalance, I wanted to gag because if you watch, if you watched her interviews like I did back in 2018, the idea, in fact, Bill Maher, to his credit, replayed one of those interviews recently within the last week.
[00:42:45]  There were many.
[00:42:46]  Yeah, I mean, right.
[00:42:47]  He wasn't the only one.
[00:42:49]  So it was rehearsed.
[00:42:51]  It was contrived, but it was still entertaining.
[00:42:56]  Yes, she had their attention.
[00:42:58]  That's for sure.
[00:42:58]  And you're right, Marsha.
[00:42:59]  I read the same reports that this jury's bored with Michael Cohen, which tells you what.
[00:43:06]  I think that to me, it tells me that they got exactly what they expected from him.
[00:43:10]  And I don't remember what they were saying in opening statements.
[00:43:14]  It may be that they were, that the prosecutors really did pave that road for the jury to say, this guy's going to get caught in a thousand lies.
[00:43:21]  So be prepared.
[00:43:23]  And I hope they did do that because you should.
[00:43:25]  In which case he got up and he did exactly that.
[00:43:28]  This is somebody who's a very, very difficult witness to lean on.
[00:43:33]  I understand why they felt they had to call him.
[00:43:35]  They did.
[00:43:35]  He was in the middle of it all, but he's problematic.
[00:43:38]  And as I understand it, the feds did not want to bring charges because they knew he was going to be a necessary witness and they didn't like what they saw.
[00:43:47]  So he's problematic, no matter how you look at it.
[00:43:50]  Bias all over the place, lied here and lied there.
[00:43:53]  I mean, it's very difficult to walk a straight line with a guy like this unless you have a lot of corroborating evidence, which I'm going to assume giving the prosecution the benefit of the doubt that they do.
[00:44:06]  So, you know, I just think the jury's like, yeah, okay, we knew who you are.
[00:44:10]  And here you are.
[00:44:12]  There's been a lot of cross-examination and testimony about how deeply he feels the need to see Donald Trump go to prison.
[00:44:21]  I mean, I read a couple of, I'll play it.
[00:44:23]  Some of that stuff we have on camera.
[00:44:25]  So there's nothing quite like hearing it in his own words.
[00:44:27]  Take a listen to SAT1.
[00:44:29]  Seriousness of these charges is fueling Trump's relentlessness, scorched earth campaign.
[00:44:35]  For he knows that his loss spells not just the end of his terrible reign of power, but his freedom as well.
[00:44:41]  I truly fucking hope that this man ends up in prison.
[00:44:44]  It won't bring back the year that I lost or the damage done to my family, but revenge is the dish best served cold.
[00:44:52]  And you better believe I want this man to go down and rot inside for what he did to me and my family.
[00:44:58]  So here with the gag water.
[00:44:59]  Yes, the other day, Donald, once again, he comes out, you know, he comes out of the courtroom and goes right into that little cage, which is where he belongs in a fucking cage like an animal.
[00:45:17]  I mean, I would think, like, if you're the defense lawyer, Mark, it's a dream.
[00:45:21]  It's, of course, he's an established liar, even under oath.
[00:45:26]  This is the thing he wants more than anything in life.
[00:45:29]  We played the site yesterday of him at the Trevi Fountain in Rome, wishing for Donald Trump's conviction, not for the well-being of his children, his marriage, his mom, like whatever, right?
[00:45:38]  Donald Trump behind bars.
[00:45:40]  So the jury gets it.
[00:45:41]  Like, I know it's a biased jury, but is there any chance they're going to say, I completely threw away everything he said?
[00:45:48]  Because if they do that, the prosecution has no case.
[00:45:51]  There's no testimony.
[00:45:52]  Like there could be a directed verdict without Michael Cohen's testimony.
[00:45:58]  The odds on you getting a directed verdict in this courtroom on this trial, I can't even imagine.
[00:46:04]  But I will tell you this.
[00:46:06]  One of the interesting things about this trial so far has been the, I think it was the testimony by Keith Davidson, Keith Davidson, who I sat across the table from representing clients who Keith had clients who were making claims against them.
[00:46:23]  He testified that Michael.
[00:46:25]  He was Stormy's lawyer for a time.
[00:46:27]  Correct.
[00:46:27]  And he was the one who said that Michael, when dealing with Michael Cohen, he recounted the fact that Michael Cohen was bitterly disappointed that he was not getting a position in the administration.
[00:46:41]  That to me, you don't even need anything else.
[00:46:44]  When he starts talking about how many things I had done for him and I was trying to basically curry favor to get a position in the administration, that to me, you know, basically there are jury instructions that say if somebody is being dishonest in one part, this material, you can disregard everything.
[00:47:04]  That's the type of that he is.
[00:47:07]  He said that Keith Davidson said he dealt with Michael Cohen regularly on trying to get this payout to Stormy and that Michael Cohen was suicidal when he didn't get a position in the cabinet.

=== Corroborating Evidence Patterns (15:32) ===

[00:47:20]  And he suggested AG is what Michael Cohen wanted.
[00:47:24]  Michael Cohen denied that on the stand, but did admit he wanted his name at least considered and put out into the press for chief of staff.
[00:47:34]  He said, for me, it was an ego thing.
[00:47:36]  I thought I had deserved it.
[00:47:38]  Now, I do want to talk about what they did get from Michael Cohen and the corroborating evidence they say the prosecution says it established that would help bolster his credibility from other witnesses, because I think we now have a clear picture of what they got and whether it's enough.
[00:47:58]  I'll pick that up.
[00:47:58]  I'll take a quick break and we'll pick that up when we come right back.
[00:48:01]  Don't go away.
[00:48:02]  Marsha and Mark, stay with me.
[00:48:04]  Isn't this a great legal panel?
[00:48:05]  You can see why we love them.
[00:48:06]  I'm Megan Kelly, host of the Megan Kelly Show on SiriusXM.
[00:48:10]  It's your home for open, honest, and provocative conversations with the most interesting and important political, legal, and cultural figures today.
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[00:49:09]  These are my notes outlining what they've gotten, the prosecution, and what they haven't gotten so far.
[00:49:19]  This was a tweet by the New York Times' Benjamin protests, and I think it's good.
[00:49:24]  I think he said Cohen's testimony was hardly a smoking gun.
[00:49:27]  And I think he's right.
[00:49:28]  This sums it up, but then I'll get to the specifics.
[00:49:30]  He wrote, Cohen did not say that Trump personally falsified the records or even that he explicitly instructed someone else to do so.
[00:49:43]  He did, however, testify that Trump knew the records would disguise the reimbursement to Cohen for his payment to Stormy as ordinary legal expenses.
[00:49:57]  I agree with that.
[00:49:59]  That's what they established, if you believe Michael Cohen and some corroborating evidence, that Trump knew that the records would disguise the reimbursement as ordinary legal expenses.
[00:50:11]  And I don't, I mean, I would classify that even more narrowly.
[00:50:14]  He knew that Michael Cohen would submit bills that disguised the reimbursement as ordinary legal expenses.
[00:50:22]  Trump's going to deny that, but I'm just saying they've got witness testimony to back that up, at least, through Cohen.
[00:50:27]  And I'll give you the specifics.
[00:50:29]  Michael Cohen said Donald Trump was a micromanager, and there's been other testimony to support that.
[00:50:34]  Michael Cohen testified that he did all of this at the direction of and with the consent of Donald Trump, that he didn't make a single move when it comes to paying these women or working with AMI, the National Inquirer, that wasn't blessed and known about by Donald Trump.
[00:50:50]  Keith Davidson, the lawyer we just discussed who represented Stormy, said the same, that he believed firmly that Michael Cohen lacked the authority to do anything without Donald Trump's okay.
[00:51:02]  This is some of the corroborating evidence the prosecution is going to point to.
[00:51:05]  Hope Hicks took the stand.
[00:51:06]  And when asked if she thought Michael Cohen would just pay the $130 to Stormy without, you know, going to Donald Trump and telling him about it and getting his approval, she said, I don't, I don't know him to be a man like that.
[00:51:19]  He would have always wanted credit for everything he did.
[00:51:21]  He was not an altruistic kind of guy.
[00:51:26]  We know from at least one of the tapes played that Trump did know about the payment to another woman, Karen McDougall, that AMI orchestrated with Michael Cohen.
[00:51:36]  For sure, we know Trump knew about that one.
[00:51:39]  That wasn't Stormy.
[00:51:40]  It's not really the one at issue, but it certainly shows a pattern of him being involved in the payments to women to keep them quiet.
[00:51:46]  And there's testimony by Michael Cohen that Trump also knew AMI paid the doorman $30,000 to stay quiet about what we know is his false claim that Trump fathered a child at Trump Tower out of wedlock.
[00:51:57]  Cohen testified that he told Trump about that and that the guy had been paid off.
[00:52:00]  And Trump said, good, good.
[00:52:02]  So that's what we've heard so far.
[00:52:06]  The biggest statements, the biggest pieces of testimony have been, and they came yesterday and late the day before, that Michael Cohen said, Donald Trump heard us discuss the scheme.
[00:52:22]  He heard me and Alan Weiselberg, his CFO, in his office discussing how I would get reimbursed for my money to Stormy Daniels.
[00:52:32]  Now we're getting closer to who wrote down the allegedly false business records and who knew about it.
[00:52:40]  Each month, this is per an Anna McCarthy article, each month in 2017, beginning in February, when the arrangement was finalized, Cohen was to provide an invoice.
[00:52:50]  That invoice would be paid by check and an entry would be made in the Trump organization's books.
[00:52:56]  The DA's theory is that these records are false because the payments to Cohen really constituted repayment of a debt.
[00:53:03]  They were not for legal expenses.
[00:53:05]  It was repayment of a debt.
[00:53:07]  It's so ridiculous.
[00:53:08]  This is this whole thing comes down to, you should have said repayment of a debt.
[00:53:12]  You shouldn't have said legal expenses.
[00:53:14]  And now we're in a felony territory.
[00:53:16]  They were made to appear in the records as if Cohen was being paid for ongoing legal services in 2017 when Trump was president.
[00:53:28]  And Cohen was saying, okay, there was no legal retainer.
[00:53:33]  I wasn't providing legal services for him in 2017.
[00:53:37]  This was all, all the money I got, 35 grand a month for 11 months, was all repayment for Stormy and a couple of related expenses, but they were not for legal services.
[00:53:47]  And Trump is going to dispute that.
[00:53:49]  Trump's going to say, you did do some work for me during that time.
[00:53:52]  And I was paying to have you on retainer.
[00:53:54]  What if I needed you?
[00:53:55]  What if I needed you to go threaten somebody or sue somebody?
[00:53:58]  I have a lawyer on retainer.
[00:53:59]  You're friends with him, Mark.
[00:54:01]  A lot of us do that, you know, just to scare people and just so we have somebody who we trust who we can go to at any time with confidential concerns.
[00:54:10]  That's what Trump's going to say.
[00:54:12]  That's why you got that 130 plus.
[00:54:14]  It wasn't repayment for the Stormy debt.
[00:54:16]  The checks, they've got Trump signing the checks.
[00:54:20]  They don't say anything about why Cohen was being paid.
[00:54:25]  So there's no evidence in the check other than money was paid to Cohen and Trump signed the checks.
[00:54:29]  It doesn't help either side's argument.
[00:54:33]  The entries in the Trump organization's records, testimony at trial this week showed, it was in the bookkeeping department and they logged the payments to Cohen as legal expenses.
[00:54:45]  Why did they do that?
[00:54:46]  Because they used a dropdown menu on a computer program designed in the early 90s and it's routinely used to pay lawyers and related expenses and you just put them into this general category.
[00:54:57]  There's no category for reimbursement of a debt for hush money.
[00:55:01]  It's you're paying a lawyer.
[00:55:03]  They chose legal expenses.
[00:55:04]  that's how it was documented in books that were never submitted anywhere.
[00:55:08]  Like the book was defrauded.
[00:55:10]  The book sat on the shelf at Trump Tower.
[00:55:14]  Okay.
[00:55:16]  Then they also claimed that they lied because Michael Cohen's bill said pursuant to a retainer agreement.
[00:55:22]  Well, there was no written retainer agreement.
[00:55:23]  But that's the case for a lot of lawyers.
[00:55:25]  They don't actually put the retainer agreement in writing.
[00:55:28]  So I guess they're going to argue about that.
[00:55:32]  Now, here's the crux of it.
[00:55:33]  So Cohen says Trump heard all that.
[00:55:35]  He knew I would be submitting these false invoices for legal expenses, and he knew it was actually repayment of a debt.
[00:55:41]  And his CFO, who's now in jail, Alan Weiselberg, was in on the whole thing.
[00:55:45]  And we discussed it in front of him with Trump's blessing.
[00:55:48]  Then late yesterday, he drops this alleged bombshell that, and by the way, Keith Davidson, that same lawyer, no, sorry, David Pecker from AMI had testified to this earlier.
[00:56:00]  Now Michael Cohen corroborated it.
[00:56:02]  Keith Davidson said, Cohen told me that, or sorry, I keep screening it up.
[00:56:07]  David Pecker said, Cohen told me that we at AMI did not have to worry about violating campaign finance laws because Trump had assured Cohen that Jeff Sessions, Trump's AG, would not come after AMI or any of them.
[00:56:25]  That's an important piece of testimony.
[00:56:28]  That came from David Pecker, who is friendly to Trump, but so far I could only say that's what Michael Cohen told me.
[00:56:35]  And now we had Michael Cohen take the stand and say the same thing and say, Trump told me that.
[00:56:42]  That wasn't Michael Cohen's speculation.
[00:56:44]  That was Donald Trump saying Sessions is in my back pocket.
[00:56:50]  Here it is.
[00:56:51]  Cohen confirms that he told, that Trump told him Sessions would take care of it.
[00:56:57]  Had you been prior to saying that to David Pecker, Mr. Cohen, that Sessions was in Trump's pocket, had you been told that by President Trump?
[00:57:05]  Answer, yes, ma'am.
[00:57:08]  Cohen goes on to say, I told Pecker that the matter was going to be taken care of.
[00:57:13]  And the person, of course, who was going to be able to do it was Jeff Sessions.
[00:57:19]  That's the case so far, guys.
[00:57:21]  That, I think, last piece tries to get to the malicious intent, the willfulness that they need to prove to violate the law fraudulently.
[00:57:28]  They're going to say Trump knew it was going to be submitted by bullshit lawyer bills.
[00:57:33]  And he knew that it was a potential campaign finance violation because why else would he be saying, don't worry about that, everyone.
[00:57:40]  Jeff Sessions is not going to prosecute anyone.
[00:57:42]  How do you like the case so far, Marcia?
[00:57:45]  So I think that there's more than enough there for jury to draw the inferences they need to.
[00:57:49]  And they're allowed to, by the way, even though you go, the testimony may step right up to the line and not fill in the last blank.
[00:57:56]  A jury is allowed to make inferences that the last step was taken.
[00:58:01]  And what you have is an awful lot of testimony there that shows guilty knowledge and awareness of the illegality of what he did.
[00:58:08]  And the fact that he's saying he's got Jeff Sessions in his pocket is a sign that he's aware of the illegality and he knows that he can get away with it because he has the AG in his pocket.
[00:58:20]  So I think it's, I think they have more than enough to convict.
[00:58:23]  I think the question really that's going to get posed here is on appeal, is whether a court of appeal looks at it and says, you know what, this is just a, this is at most a misdemeanor.
[00:58:33]  And you jammed it into this felony by means that are very circuitous and we don't like it, basically.
[00:58:39]  I think that's where the rubber beats the road.
[00:58:41]  But is there enough here for the jury to convict?
[00:58:43]  Yes, there is.
[00:58:45]  Mark, is there awareness of the illegality based on, this is all you have to believe Michael Cohen, who's the only one who really ties it to Trump?
[00:58:54]  Is there awareness of the illegality?
[00:58:56]  Because I think you could argue this by saying If Trump made the assurance, and first they're going to say Michael Cohen lied, Trump did not talk about Jeff Sessions.
[00:59:06]  But they'll say, even if you believe that, that could be Trump saying there's no FEC violation.
[00:59:13]  Jeff Sessions is a reasonable man.
[00:59:15]  He's not going to be messing with us just for the sake of messing with us.
[00:59:19]  Why would he come after us?
[00:59:21]  This is a bullshit.
[00:59:22]  We didn't do anything wrong, right?
[00:59:24]  It could be a completely innocent explanation for that.
[00:59:27]  And also, Trump hearing about Michael Cohen and the way he was going, allegedly, to submit his bill doesn't show that Trump knew anything about how the Trump organization was going to document the payments.
[00:59:44]  Say if I accept everything that you say they've proved, there's two problems with all of this and two problems with the case.
[00:59:53]  And there's a reason they did not call Karen McDougall because, and there's another reason why saying Jeff Sessions would take care of this both completely undercut this case.
[01:00:07]  Jeff Sessions was the AG after the election.
[01:00:12]  Karen McDougal was paid off well prior to the election.
[01:00:17]  The only way this is a case is if there are false entries in the books that are then used or were done to disguise, as you said, an FEC violation, which means the election.
[01:00:35]  If these, if Karen McDougal was not done for the election, and if Jeff Sessions was after the election, all of this is nonsense and irrelevant to the core of why this is a felony case, which was to influence the 2016 election.
[01:00:55]  So frankly, I don't think they've proved their case, but as I've said 20 times already, they've got a jury who's going to tilt towards conviction.
[01:01:08]  But actually, the Karen McDougal information does matter because it shows a pattern of conduct.
[01:01:14]  You know, it shows a way of doing business.
[01:01:16]  And so it is relevant to show that he's done it before and he's doing the same thing again.
[01:01:21]  He has this, this does show.
[01:01:23]  Well, but that's fine.
[01:01:24]  But let me just interrupt you on that, Marcia, because it's fine.
[01:01:26]  You know, as you know, if hush money payments are not illegal, it's fine to pay off Karen.
[01:01:30]  It's fine to pay off Stormy.
[01:01:32]  What the prosecutor is alleging is not fine is to document it as something other than exactly what it is: reimbursement for hush money as opposed to legal expenses.
[01:01:44]  That's the insanity of this case, Marjorie.
[01:01:46]  I mean, that's, it's so nuts that we've gotten to a criminal trial.
[01:01:51]  That's why I embrace what Marcia says.
[01:01:53]  It does show a pattern.
[01:01:55]  It shows a pattern that it had nothing to do or very little to do with the election and everything to do with reputation management.
[01:02:03]  He's been doing this for years.
[01:02:05]  He's had David Pecker in his pocket for years.
[01:02:09]  The 2016 election, yes, it was embarrassing because it would be amplified, but there was evidence and there were statements that he did it because of Melania, that he did it because of reputation management.
[01:02:22]  And by the way, AMI did this for others as well.
[01:02:27]  Noteworthy Arnold Schwarzenegger.
[01:02:30]  So there is this idea in Hollywood that you can use your publicist to trade stories with the tabloids.
[01:02:40]  That goes on every single day and it has for decades.
[01:02:44]  So this case to me couldn't be, can I say this on your show?
[01:02:50]  Couldn't be more bullshit if it tried.

=== Illegal Hush Money Charges (02:00) ===

[01:02:52]  Yeah, you're honest.
[01:02:56]  That's true.
[01:02:57]  I mean, This is the other side of the coin.
[01:03:00]  And the problem with this particular charge in and of itself is that you have conduct that is by itself not illegal.
[01:03:09]  Hush money is allowed to be paid.
[01:03:11]  It's sleazy, of course, and having the David Pecker on your team to kill the stories that are bad for you.
[01:03:20]  You know, I get it.
[01:03:21]  And it surely is a way of doing business in Hollywood for sure.
[01:03:25]  I mean, we've known about this forever.
[01:03:27]  And the only question is whether truly this was meant to affect the campaign.
[01:03:31]  It was an electioneering activity.
[01:03:34]  I disagree.
[01:03:35]  Whitewash.
[01:03:36]  This is not.
[01:03:36]  This is what's driving me crazy.
[01:03:37]  My audience is here.
[01:03:38]  I'm a broken record on this now too, Marsha.
[01:03:40]  But the legal standard is not whether what was in his head was to help his campaign.
[01:03:45]  The legal standard is what's the nature of the payment and could it only ever be used to advance a campaign?
[01:03:49]  That's what the FEC officials have told us over and over, that it doesn't matter what was in Trump's head, even if his whole goal was, I want to affect the election with this payment, shut her up.
[01:04:00]  It's still not illegal.
[01:04:01]  A hush money payment, by its very nature, can be used in any number of circumstances outside of a campaign, which therefore makes it not a federal election expense.
[01:04:09]  If Trump had tried to use his campaign coffers to pay off that money, the FEC would have come after him saying that was an improper use of election funds.
[01:04:17]  This is not an expense that you can classify as an as an FEC type expense.
[01:04:22]  So it's not, you don't, you look at the nature of the payment.
[01:04:25]  You don't look at the subjective intent of the payor.
[01:04:28]  And everybody on television is getting that wrong.
[01:04:30]  Everybody.
[01:04:31]  But you're going to, what you're going to have to contend with is what the jury instruction says.
[01:04:36]  I know.
[01:04:36]  It's driving me nuts.
[01:04:37]  It's driving, you know, this judge wouldn't even take expert testimony from Brad Smith, the former head of the FEC.
[01:04:42]  But wait until you get the jury instruction.
[01:04:45]  And by the way, hat tip, if it was you and hat tip, if it was one of your producers, that this all started with a bang.

=== Election Fund Violations (05:47) ===

[01:04:52]  I don't want to let that pass.
[01:04:54]  That was me.
[01:04:55]  I'm going to take the credit.
[01:04:56]  Yeah, thank you.
[01:04:57]  Thank you.
[01:04:57]  I have the sense of humor of a 12-year-old boy.
[01:04:59]  I've said it for a long time.
[01:05:01]  Okay.
[01:05:01]  I thought it was good.
[01:05:02]  Okay.
[01:05:03]  How do you think you two got booked?
[01:05:08]  Okay.
[01:05:09]  We got to move on because there's no way I can let you go without talking about baby reindeer.
[01:05:13]  Did you guys watch it on Netflix?
[01:05:16]  I've not watched it yet.
[01:05:17]  I've read a lot about it, heard a lot about it.
[01:05:20]  It's crazy.
[01:05:21]  It's so crazy.
[01:05:23]  It's crazy.
[01:05:23]  It's so dark.
[01:05:24]  And for the listening audience, it's this one man's recitation, his story embellished, not 100% truthful, he admits, but the emotion of it is correct, he says.
[01:05:35]  But that's disclosed up front about this terrible stalking experience he had and abusive relationship, for lack of a better term, he had over in Scotland with a groomer, a man who he thought could help him with his career and actually wound up really abusing him.
[01:05:51]  All I can tell you is fast forward through episode four, very dark, very dark.
[01:05:56]  But the rest of it is riveting.
[01:05:58]  And most of it is about this stalker, this woman.
[01:06:02]  He was a bartender and aspiring comedian.
[01:06:05]  And this woman, he says, came into his bar one day.
[01:06:08]  He offered her a free cup of tea or something like that.
[01:06:11]  And that the switch flipped and she developed an obsession with him, which is how it happens.
[01:06:19]  I mean, it's very, very scary when you develop a stalker and like a legit stalker.
[01:06:27]  So the series is riveting as it details what she did to him, the amount of attention, bizarre attention, obsessive she gave to him.
[01:06:37]  She was ruining his life, approaching his parents, his place of business, his relationship that he developed with another person, a fist fight that he alleged took place.
[01:06:48]  Again, we don't know how much is real and how much is embellished, but he admits some was embellished.
[01:06:52]  Ultimately, she, he claims, went to prison for this for the better part of a year.
[01:06:58]  She used to sit outside at a bus stop in front of his house, just sitting there all day, every day, waiting to catch a glimpse of him.
[01:07:04]  And there were many others around him who had to deal with this lunatic, Martha.
[01:07:09]  And he admits to like a codependency that developed with this woman.
[01:07:13]  Like he kind of needed her in a way.
[01:07:15]  He had been abused by this guy.
[01:07:18]  He was down on himself.
[01:07:19]  He was having self-loathing.
[01:07:21]  And he just kind of like needed the weird attentions of this bizarre woman who called him baby reindeer.
[01:07:28]  Well, it's, I do think the series is worth your time.
[01:07:31]  You fast forward through episode four.
[01:07:33]  So this set the internet sleuths a buzz.
[01:07:38]  And I admit I was eating it up.
[01:07:41]  Of course, they found the real Martha.
[01:07:44]  And the protagonist of the story says, I did everything possible to change identifying information so she could never be discovered.
[01:07:52]  Well, it wasn't good enough because the internet sleuths are good.
[01:07:56]  And they found her.
[01:07:58]  Her name is Fiona Harvey.
[01:08:00]  I think, apparently, they found her because one of the things she did was show up at some of his comedy gigs and openly heckle him.
[01:08:06]  And that was some of that was on tape.
[01:08:08]  So it was kind of knowable.
[01:08:10]  And God bless Piers Morgan.
[01:08:11]  He booked her.
[01:08:13]  I love Pierce.
[01:08:15]  He booked her.
[01:08:17]  And she, the reason I'm bringing it to you, is threatening now to sue.
[01:08:24]  She said she's going to sue Netflix.
[01:08:27]  She's going to sue this guy.
[01:08:29]  I'm just going to give you some of the tape because it's very good tape.
[01:08:33]  Here's a soundbite from the trailer for Baby Reindeer, SOP5.
[01:08:38]  You say this woman's stalking you for like six months, maybe.
[01:08:41]  Why did it take you so long to report it?
[01:08:42]  I think she needs help.
[01:08:43]  She comes to my work, my house.
[01:08:45]  She sends me emails like all the time.
[01:08:47]  Or any threatening towards her.
[01:09:02]  Look, Martha, just go back home.
[01:09:04]  I have a sneaky feeling you might be the death of me.
[01:09:13]  Oh, oh.
[01:09:15]  Here's just a little more.
[01:09:17]  This is a scene from Netflix's baby reindeer showing her outside of his house, which he alleged happened often.
[01:09:26]  Every day now, Martha would be outside, this ticking time bomb on my life.
[01:09:31]  I would leave first thing in the morning and she would be there.
[01:09:34]  I love you, Nepal.
[01:09:35]  Think of me at work today.
[01:09:39]  Then I would come back, sometimes as late as 11 or 12 at night, and she would still be there.
[01:09:45]  I was your shift, reindeer.
[01:09:47]  Did you think of me?
[01:09:48]  I never understood what she got from it.
[01:09:50]  She never approached me.
[01:09:51]  She never came to the house again.
[01:09:53]  She avoided Liz whenever she passed.
[01:09:55]  It was all cat calls and snatched glimpses as she devoted 15, 16 hour days to a fleeting encounter.
[01:10:03]  Okay, one other point.
[01:10:05]  Having been the target of a legit stalker who was locked up for 10 years after what he did to me, I can tell you the number one rule in dealing with a stalker is don't talk to your stalker.
[01:10:17]  Don't have any contact with your stalker.
[01:10:20]  A stalker hears no as yes.
[01:10:23]  Here's stop bothering me as I love you.
[01:10:26]  There's just no reasoning with a stalker.
[01:10:29]  There's some debate in the stalker advising field about whether there should be an initial no, but the people I've dealt with who are the experts in it say it's just no, just no contact.

=== Stalker Duty of Care (09:21) ===

[01:10:40]  So to have made this movie was a very risky move for this guy, Richard Gadd, if indeed it happened, as he said.
[01:10:48]  Very risky move.
[01:10:50]  I would not have advised this because she's alive and well and not behind bars.
[01:10:54]  Well, Piers Morgan found her.
[01:10:56]  And Martha's pissed.
[01:10:58]  Her name is Fiona Harvey.
[01:11:01]  And here she is denying some of the claims Richard makes against her in the Netflix show, Sat7.
[01:11:07]  In the course of your relationship with Richard Gadd, you send him 41,000 emails, 350 voice messages, 744 tweets, 48 Facebook messages, and 106 letters.
[01:11:20]  That's simply not true.
[01:11:22]  Absolutely not.
[01:11:23]  What did you send him?
[01:11:24]  None of that's true.
[01:11:25]  I don't think I sent him anything.
[01:11:26]  You never sent him anything?
[01:11:28]  No.
[01:11:28]  I think there may have been a couple of emails exchanging, but that was it.
[01:11:32]  Just jokey bans or emails.
[01:11:34]  So you're denying sending anything to him?
[01:11:37]  There may have been a couple of emails.
[01:11:38]  Text messages?
[01:11:39]  No.
[01:11:40]  Facebook messages?
[01:11:41]  Nope.
[01:11:42]  Did you tweet him?
[01:11:43]  I may have done years and years ago.
[01:11:45]  You actually tweeted him numerous times.
[01:11:47]  Who has sent all this stuff to him?
[01:11:48]  I've no idea.
[01:11:49]  I think he's probably made it up himself.
[01:11:52]  So they are lying.
[01:11:53]  They are lying.
[01:11:54]  Yes.
[01:11:54]  Okay.
[01:11:54]  Yeah.
[01:11:55]  In effect, he is lying and they are lying.
[01:12:00]  She's lying.
[01:12:00]  That's my opinion.
[01:12:01]  I think she's a liar and I believe she stalked him.
[01:12:04]  I don't know to what extent or the numbers, but that didn't seem like a truth teller to me.
[01:12:09]  Here's one more SAT.
[01:12:10]  She is discussing here her decision to take legal action against them.
[01:12:15]  Watch SAT 8.
[01:12:17]  And you will categorically be taking legal action.
[01:12:20]  Absolutely.
[01:12:21]  Against both him and Netflix.
[01:12:22]  Have you instructed lawyers?
[01:12:24]  We've instructed them in parts, but we want to explore all the options out there.
[01:12:28]  There are a number of people to sue.
[01:12:31]  We can't all be in courts all at once.
[01:12:34]  Who else are you planning to sue?
[01:12:36]  The Deli Mayo.
[01:12:38]  Anyone that's saying this is true and harassing me and that kind of thing.
[01:12:45]  Well, you can't sue me because it's my opinion and I'm entitled to it.
[01:12:48]  So does she actually have a claim if he did grossly exaggerate her behavior or tell outright lies, like, for example, about her going to prison that she claims are not true?
[01:13:03]  He didn't name her.
[01:13:04]  He changed the name.
[01:13:05]  He changed a lot of her details.
[01:13:07]  It was the internet sleuths.
[01:13:08]  Mark, I'll start with you on it.
[01:13:10]  You know, I actually did a panel with Pierce after this and watched this.
[01:13:15]  And I said it then and I still believe it.
[01:13:18]  It's hard for me to believe that Netflix characterized this as a true story and that she had done been convicted.
[01:13:27]  In fact, they even showed a recreation of her pleading and was sentenced to jail and that nobody can find any evidence that that is true and that she sent 41,000 emails and she's saying none.
[01:13:43]  If all of that is true, in California, defamation by implication, I could see it surviving a anti-slap and it would be a whale of a case.
[01:13:55]  What gives me pause is that I cannot believe Netflix at every turn because they've got a very robust in-house and outside counsel.
[01:14:05]  I cannot believe they dropped the ball that bad.
[01:14:09]  That is the surprising thing to me.
[01:14:11]  I have to say, they owe a duty of care.
[01:14:13]  They certainly owe it to her to shield her identity better than they did.
[01:14:19]  The fact that internet sleuths could break through and find out who she really was, that's what gives me the biggest pause in this whole thing.
[01:14:27]  And so there really might be a lawsuit against Netflix for duty of care violations.
[01:14:35]  It's surprising to me too, Mark.
[01:14:38]  Okay.
[01:14:39]  Here's one of the many reasons why I think she's a liar.
[01:14:43]  And she may sue because she probably wants ongoing contact with him, but she's going to lose.
[01:14:48]  That's my prediction.
[01:14:49]  Because she seems like a nutcase.
[01:14:52]  Here is the addendum to the story.
[01:14:54]  She is now demanding a payday from Piers Morgan for the interview.
[01:15:03]  Okay, this is, I think this is Daily Mail reporting this.
[01:15:08]  She, okay, quote, I will be seeking TMZ, quote, I will be seeking far more than a piddling 250 pounds.
[01:15:15]  Fiona said she's planning on formally demanding 1 million pounds, which is around $1.25 million from Piers and co.
[01:15:24]  She's upset that he made, I guess, got a lot of clicks.
[01:15:28]  He didn't exactly make money, but he got a lot of clicks.
[01:15:30]  And she wants to partake in it.
[01:15:31]  That's a nutcase.
[01:15:33]  And it gives me even more reason to doubt her claims.
[01:15:37]  Somebody probably explained to her how much Pierce makes by 8.5 million views last time I looked of the interview and YouTube probably wrote him a check and she figured I should have had somebody negotiate this better than I did.
[01:15:51]  It's my guess.
[01:15:52]  I mean, I would guess so.
[01:15:53]  And also, yeah, Megan, even if she is a liar, which, okay, you won't have to push me very hard to agree with that.
[01:16:01]  The problem is that they embellished the story to a point.
[01:16:05]  And then you're going to get down to parsing.
[01:16:07]  So how much worse did Netflix or the producers make this story than was actually true?
[01:16:14]  And can you make any claim for damages based on that?
[01:16:18]  In other words, if she sent 30,000 stalking texts and not 41,000, is that really a claim that can survive a summary judgment in terms of showing that, you know, she was ruined to an extent she would not have been had they not.
[01:16:32]  But Marcia, what about the business of jail?
[01:16:35]  Hold on, we have a sound bite on that.
[01:16:37]  Sat and I. If they basically have a key point in their drama, which they say is a true story, which involves you admitting to intimidating Michigan Gad and getting a nine month prison sentence, and that is completely untrue.
[01:16:52]  That's completely untrue.
[01:16:53]  Very, very defamatory to me.
[01:16:56]  Very career damaging.
[01:16:58]  And I wanted to rebut that completely on this show.
[01:17:00]  I'm not a stalker.
[01:17:01]  I've not been to jail.
[01:17:03]  I've not got injunctions in today's.
[01:17:05]  This is just complete nonsense.
[01:17:08]  Okay, so I can see Marcia how that would be very defamatory.
[01:17:12]  But that would be.
[01:17:14]  What about the fact that they're saying it wasn't totally like it was disclosed that, you know, this is his remembrance.
[01:17:22]  Like Netflix is saying this, their next Netflix policy chief, Benjamin King, told the UK Parliament that Netflix was satisfied with the duty of care standards on the show.
[01:17:31]  Quote, Baby Reindeer is an extraordinary story.
[01:17:34]  It's obviously a true story of the horrific abuse that the writer and protagonist Richard Gadd suffered at the hands of a convicted stalker.
[01:17:40]  He says convicted.
[01:17:41]  King said Netflix and producers took every reasonable precaution in disguising the real-life identities of the people involved in that story.
[01:17:49]  So what obligation do they have if they say, like, we tried to layer it up by 20 so people couldn't find her?
[01:17:56]  It's not our obligation to make sure it is a bulletproof matter.
[01:17:58]  They never find her.
[01:18:00]  And, you know, we're not saying it's true to the letter.
[01:18:03]  We're saying this was his experience of it.
[01:18:06]  You put the side-by-side pictures of the actress and her next to each other up on the screen again.
[01:18:13]  Yeah, put them off of you guys, the split screen for the listening audience to identify.
[01:18:17]  This is how they tried to disguise her.
[01:18:21]  Yeah, it doesn't look like a good job.
[01:18:22]  You know what I mean?
[01:18:24]  Disguising at all?
[01:18:25]  Yeah, that would be exhibit A if I'm representing her.
[01:18:29]  Yeah.
[01:18:30]  So you guys think she may have a legal leg to stand on?
[01:18:34]  I think she survives an excise slap.
[01:18:36]  If, if, and I keep saying this, I just can't believe I'm, I'm adverse to Netflix right now on a case.
[01:18:43]  I cannot believe that they dropped the ball this way.
[01:18:46]  And I just, that's my hesitation.
[01:18:51]  Yeah, I agree.
[01:18:53]  Well, you know, we'll see.
[01:18:54]  It looks like there could be enough to survive for a lawsuit to exist.
[01:18:59]  And I think we need to know more about what exactly Netflix did do and also what their disclaimer was.
[01:19:06]  To what degree did their disclaimer really expose the fact that, hey, we embellished, we changed things.
[01:19:11]  You know, that's important too.
[01:19:13]  I agree with that.
[01:19:14]  I know.
[01:19:14]  We need to go back and actually look at that exactly.
[01:19:16]  What did they say?
[01:19:17]  They marketed it as a true story, which is problematic.
[01:19:22]  That's not good, especially if they said she went to jail and she didn't go to jail.
[01:19:25]  But Netflix, even in its statement defending itself, calls her convicted.
[01:19:29]  So, and listen, to me, I think this woman's an obvious liar.
[01:19:32]  So I put zero stock in what she told Pierce, though it was an interesting interview.
[01:19:36]  I'll tell you something funny before I let you go.
[01:19:38]  My hairstylist, Sarah, who I love, she's the best recommender of television offerings to me and Doug.
[01:19:45]  And she's the one who recommended it.
[01:19:46]  And after Doug and I made the mistake of not fast forwarding through the beginning of episode four, we saw a little too much.
[01:19:52]  He said, we're really going to have to have a chat with Sarah about curation in her recommendations.

=== Netflix Conviction Statement (00:27) ===

[01:20:01]  This is not.
[01:20:02]  You've just gotten people to not fast forward through episode four.
[01:20:07]  Trust me.
[01:20:09]  Don't do it.
[01:20:11]  Trust me.
[01:20:12]  You don't want to see it.
[01:20:13]  You get the gist by a few minutes in.
[01:20:15]  You don't have to watch the whole thing.
[01:20:16]  You guys, that was a great hour and a half.
[01:20:18]  Thank you so much for being here.
[01:20:19]  Thank you.
[01:20:20]  Thanks, Megan.
[01:20:24]  Thanks for listening to The Megan Kelly Show.
[01:20:26]  No BS, no agenda, and no