SCOTT DETROW, HOST:
After six weeks, 22 witnesses and 15 days of testimony, the prosecution and defense have rested their cases in former President Donald Trump’s criminal trial – centered around hush money payments and the financial documents that allegedly covered them up. Closing arguments come Tuesday, and a verdict could come as soon as next week. So at this moment, we want to take a minute to remind you who the main characters are, what the main plot points are and how they may all come up in closing arguments.
For the prosecution, it could be National Enquirer publisher David Pecker, who testified about the catch-and-kill scheme that he allegedly carried out with Trump and Trump’s lawyer and fixer, Michael Cohen. The prosecution will also likely remind the jury of Stormy Daniels’ detailed description of the alleged sexual encounter she had with Trump in 2006. And finally, they’ll likely emphasize to the jury the heart of Cohen’s testimony – that Trump knowingly committed fraud to conceal Daniels’ claims of an affair, details that he feared could tank his 2016 presidential campaign in the final weeks before Election Day.
The defense, well, they’ll have one major goal in their closing argument – to discredit Cohen enough so that at least one juror doubts Trump’s guilt. After that, 12 New Yorkers will decide whether or not Trump is guilty, and they’ll do so in the context of a presidential election where Trump and President Joe Biden are neck-and-neck in the polls.
So what does it all mean? How do we look at this trial as a whole now that it’s almost over? We called up a regular guest to sort through this, former prosecutor Harry Litman, who attended multiple days of the trial. I started by asking Harry how he would describe the trial in three words.
HARRY LITMAN: A strong prosecution narrative. And if I had to do another three, it would be – I want a – I just want a fourth word.
DETROW: We’ll give you a fourth word.
LITMAN: Prosecution narrative defense no. I think what really is the most salient of what’s going on, going – coming into closing is that they’ve told – successfully told a tight story that reinforces itself across all kinds of witnesses. And the defense haven’t done a counter narrative. They’re not required under the law. But in my experience, it’s so much better to have a story, a theory, like, you know. And that’s what an alibi is, say…
DETROW: Yeah.
LITMAN: …Or someone out there – if you had to, in a phrase, capture what the defense closing is going to be or what their pitch to the jury is, I think you’d be very hard pressed. It would be something like Michael Cohen’s a liar. But that’s just not enough to carry the day, I think, when there’s such a strong story on the other side.
DETROW: I want to come back to your point that you think the prosecution made a really strong case and told a really strong story in a moment. But we’ve really focused on the prosecution a lot in this podcast because, you know, it had several – four-plus weeks of witnesses. The defense came and went with its side before we could even tape our usual Saturday podcast.
When you think about the holes in the defense’s arguments from your point of view, are you thinking about the fact that they only called two witnesses, and one of those witnesses was pretty problematic on the stand, or are you thinking more about how they cross-examined all of the witnesses throughout the trial?
LITMAN: Well, here’s the main theme to me. In a normal case like this, even with a very prominent client, a prominent defense lawyer would say, sit down and shut up and let me handle this. We’re in a different venue than you’re familiar with. But by all accounts, Trump insisted on making key decisions, and they all seem really flawed to me. And so, for example, Stormy Daniels, their position’s going to be that they didn’t have sex at all – totally unnecessary for the defense and such a heavy load to carry. Bob Costello, who they called. Why the hell would you call Bob Costello?
DETROW: Can you contextualize for listeners who weren’t paying as close attention who Robert Costello was, what the point seemed to be of bringing him to the stand and just why it was such a debacle in your word?
LITMAN: Sure. So he was a guy who, for a time, was flirting with representing Michael Cohen. But what the evidence showed he was is a complete kind of ally of Rudy Giuliani, who at that point had taken over the Trump defense. And Cohen got the sense, and the email traffic that we showed in court totally substantiated, that Costello was playing a double game where he was trying to prevent Cohen from cooperating with authorities, which is straightforward obstruction.
But moreover, that’s a kind of crappy lawyer, especially once Cohen is served a search warrant and the – and law enforcement is looking at him. That’s who he was for the prosecution, someone who shows that Trump is trying to keep Cohen from cooperating. For the defense, I think he’s just a guy who Trump in Trump’s Manichean world, there are loyalists and non-loyalists, he’s still a loyal guy, and I think he wanted to use Costello to say, hey, Michael Cohen’s a liar.
DETROW: So we’ve got closing arguments on Tuesday, and then there’s jury instructions. And you and many others have said that jury instructions are particularly important in this case. Can you explain why that is?
LITMAN: Sure – and particularly tricky. So the falsifying business records, which most people understand is what it’s about, that’s a misdemeanor under New York law. However, it becomes a felony and it’s charged as a felony when you do it with the intent to further another crime. And where it gets really tricky here is that the DA has not specified what the other crime is, but rather given a menu of three possibilities. But each of the possibilities is imperfect, and it’s just kind of a funky situation to tell the jury. But he will tell them this – you don’t have to agree. You know, you four can think it’s felony A, you four B and you four C. And also, there’s a very slippery intent standard where you don’t have to complete the crime. It’s not even beyond a reasonable doubt. It’s just your intent in doing the underlying thing – which you show beyond a reasonable doubt – was to further this other crime.
So it’s something that either a jury could kind of get lost in and have trouble kind of holding on to, or more worrisome, I think, is there are a couple lawyers on the jury and they could really take it super seriously and kind of, you know, walk it through to an endpoint and find in very legalistic reasons that they haven’t quite made that case for the felony. It’s a tricky issue to get the misdemeanor up to a felony.
DETROW: Just kind of thinking ahead a little bit. Can we do a little bit of a decision tree? And can you tell us what happens next under each outcome? If he’s found guilty, what happens next? When do we know what the sentence will be? What could the sentence be?
LITMAN: It’ll take a few months. There’ll be a pre-sentence report. A lot of defendants don’t get time for this kind of crime. But I think the – given the aggravating factors and what Merchan will see is dishonesty, I expect it’ll be a few months. That’s all it would be. At that point, he would move Trump for bail pending appeal. Let me stay out while I take this up on appeal, which would take a couple years or 18 months, and Merchan will grant it. So no chance, as I see it, he’s actually incarcerated before November.
DETROW: What about a hung jury? Is there a chance we could do this entire trial over again?
LITMAN: You know, there is, in that I think the prosecution will want to do it. But the real question is, will they do it immediately before November? I don’t think they will, mainly because even if you could do it logistically, I think for both Bragg and Merchan to bite off another sort of three months in the middle of elections and conventions and home stretch and be subject to that charge of really interfering with the election, the way Trump puts it, I think they will not want to own. So I think they will retry it, but not until after the election. And, of course, once the election happens, all bets are off.
DETROW: And then a not-guilty verdict. Obviously, that would have enormous political implications that we would talk about. But legally, does anything happen next or is that it? Trump walks out of the courtroom and that’s it.
LITMAN: Yeah. Legally, it’s the double jeopardy clause for, you know, you are a free person. My concern or my observation is he might take a hung jury and essentially play it as a victory, and then it’ll be a war of words in the media. It shouldn’t play that way but it easily could. But an acquittal, the chances of which I put at zero, would, in fact, be the absolute end of the line. And that’s the guarantee of the Constitution.
DETROW: Thinking of other high-profile trials of my lifetime – and I can’t forget the fact that O.J. Simpson’s jury took about four hours to reach a verdict. Do you have a sense of how long deliberations could take for a case like this?
LITMAN: So, to me, you wouldn’t expect anything until the end of day Thursday, say, and that would be quick. Friday afternoon, to me, is the sort of pivot point where one would expect, you know, that would be the sort of over under for me of when you’d get a verdict. And even if it went into the next week, I don’t think you’d be biting your nails and saying this is a hung jury until, say, Monday or Tuesday. But if I’m betting just one time, you – it would be Friday afternoon.
DETROW: Harry Litman, first-person observer to former President Trump’s trial over the past six weeks and a legal expert. Thanks so much for joining us again.
LITMAN: A pleasure to be there and a pleasure to be here.
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