“We have our jury,” announced Judge Juan Merchan late Thursday as the historic trial against the former president continues. Senator Claire McCaskill and former White House Communications Director Jennifer Palmieri explore the heart of the case and underscore the finer points of jury selection (voir dire) with former US attorney and law professor Joyce Vance. Plus, a look at Biden’s three-day stop in Pennsylvania and Speaker Johnson’s big bet on bringing foreign aid votes to the floor this weekend.
Note: This is a rough transcript — please excuse any typos.
Jennifer Palmieri: Hello, welcome to “How to Win 2024.” It’s Thursday, April 18. I’m Jennifer Palmieri and I’m here with my co-host, Claire McCaskill. Hello, Claire.
Claire McCaskill: Hey, it is good to be with you again. And by the way, even though Caitlin Clarke’s only going to make $76,000 as a player in the NBA, she’ll make a gajillion on her endorsements. And that was exciting.
Jennifer Palmieri: It was great. Loved watching the whole thing, the whole draft’s great.
Claire McCaskill: And then it’s great for women in terms of basketball, but women in Arizona have a whole another level of problem.
Jennifer Palmieri: Oh, my God. My God. So, like, let’s just recap what’s happened here. So, two weeks ago, the Arizona Supreme Court said that the 1864 abortion ban from before women had the right to vote, from before Arizona was even a state, that that still applies. And the state legislature brought up an effort to repeal that, and the Republicans blocked it again.
Claire McCaskill: Yeah, it’s bizarre.
Jennifer Palmieri: I mean, if they were interested in their own political standing, they would vote to repeal it. It’s a very unpopular position. But, you know, this is what happens when Republicans get into power. Trump owns all of this. The Biden team did a good job.
I thought they put a statement out after this happened last night saying, ask the women of Arizona if they are, quote, “happy” or they think it’s, quote, “incredible that Trump overturned Roe and took their rights back to 1864,” quoting Trump back to them.
But, you know, same thing in the United States Senate. Don’t act like they’re moderate because they had an opportunity to protect IVF. And Cindy Hyde-Smith, Republican senator, stood up and blocked it.
Claire McCaskill: It’s really something. We saw Biden in Pennsylvania this week, right?
Jennifer Palmieri: Yeah, right. Spent most of the week in the Pentagon State of Pennsylvania. That was about economic policies and goals, contrasting them with Trump. We’re going to drill down on the effectiveness of that three day, one state strategy and the impact of Biden’s kitchen table economics pitch.
Claire McCaskill: We’re going to talk a little bit about Mike Johnson’s big gamble. I mean, he’s rolling a big set of dice this weekend. He’s finally saying the right things about supporting Ukraine and he’s going to say to Marjorie Taylor Greene, bring it. You want to bring it, bring it. But I’m going forward and we’re going to vote on this aid to our allies that are in the midst of serious war and people are losing their lives every day because of Mike Johnson’s stall on this.
So, I’m glad to see that he’s finally bucking up and going to do the right thing.
Jennifer Palmieri: Yeah, acting like he actually is the Speaker of the United States House of Representatives. And I’m trying to think if there’s another big story happening this week. Yes, yes, that’s right. The first ever criminal trial of a former president. Claire and I are going to catch up with veteran prosecutor and law professor Joyce Vance to get a roadmap of what to keep an eye on now that the trial is underway.
But let’s get to the strategy session if I were in the room. So, like, how do you feel about the three days of campaigning in Pennsylvania? On the one hand, you think, wow, why don’t you diversify this? But I think it’s smart. It’s hard for him to break through. And when he spends three whole days in a battleground state, it breaks through more in the local press. And then also, I think just on the national level, it has more penetration.
And of course, it is. I mean, there’s no question it’s a good contrast with Trump who’s spending three days in a courtroom instead. But what do you think?
Claire McCaskill: I think it’s a smart way to break through. I hope he uses it in every single state that is going to be the ones that really, really matter. And, you know, Pennsylvania is personal to him.
Jennifer Palmieri: Yeah.
Claire McCaskill: He feels very strongly about that. And it was also a way when you do Scranton.
Jennifer Palmieri: Yeah.
Claire McCaskill: It is a natural contrast with Trump.
Jennifer Palmieri: Right.
Claire McCaskill: There were no gilded gold toilets in Scranton. There was nothing in Scranton that allowed Joe Biden to live like some kind of king. He is from a very modest, middle-class background. And I think that really made sense. And I’m good that he did it. And frankly, the fact that he’s really emphasizing labor unions.
Jennifer Palmieri: Yeah, I know. I know. So let’s just do a little review of what they did. They started in Tuesday in Scranton at his actual boyhood home. I know the White House has been telling me for months they’re going to contrast Scranton values with Mar-a-Lago values. That was before they knew about the great setup that Trump was going to give them when he had the fundraiser for Mar-a-Lago and told all the rich people there that he’s going to continue to cut their taxes like he did before.
Wednesday, as you noted, he did headquarters United Steelworkers Union in Pittsburgh. That’s about highlighting U.S. steel by an American, taking on the tariffs on China, which you know, is something that Trump talks a lot about and Biden wanted to take some of that back. And then today, wrapping up in Philly, really critical city for Biden.
And they’re doing the Kennedy family there, not just the Kennedy family endorsing him, but Bobby’s siblings. Kerry Kennedy was on “Morning Joe” this morning and interviewed her saying, you know, I love my brother. I also like my brother. But saying he was doing the wrong thing and whether you’re a Democrat, Republican or an independent, which is important to say because RFK is running as an independent, you want to stop Trump, there’s only one to do it in that way to stop Trump. It’s to vote for Joe Biden.
Claire McCaskill: I think it was also really good this week. I’m glad if I were in the room, I would have probably told them to play it up even more, the Biden’s tax return.
Jennifer Palmieri: Yeah. Yeah. This is kind of a blip.
Claire McCaskill: At its essence, it is a contrast. You know, Trump is the first president in history that never ever issued his tax return and allowed the public to see it. The fact that the Biden’s made $619,000 last year and paid $146,000 plus change in federal income tax. That’s relatable to most Americans. Frankly, I think most Americans would be surprised he didn’t make more money, right, in the job he’s doing. And I think they would be surprised he paid that much in taxes.
So the only criticism I have about the Biden shop this week is I would have I would have pushed the tax return story more. I would have made it a bigger deal than they did.
Jennifer Palmieri: You could do that on Monday and then that would be the setup for the speech of Scranton Joe on Tuesday.
Claire McCaskill: Yeah.
Jennifer Palmieri: It’s a good idea. Okay, so talk about Mike Johnson and, you know, what you think the campaign should do on what they’re doing now to try to get the foreign aid for Ukraine, Israel, Taiwan.
Claire McCaskill: As a political scientist, this is going to be an interesting exercise this weekend. It’ll be interesting to watch how this comes down. It’ll be interesting to see the vote totals. How many Republicans will they get for Ukraine aid? Will the Republican Party completely go MAGA and forget about our obligation to freedom, our obligation to democracy?
So that’s going to be very interesting. And frankly, I don’t get the whole idea that Marjorie Taylor Greene thinks it could ever be a good idea to throw him out right now.
Jennifer Palmieri: Yeah.
Claire McCaskill: But it looks like to me that they’re going to. Now, I would probably not have said that we were for the bill if we really want the bills to pass. I would have if I were in the room say, you know what, just let the House do this.
Jennifer Palmieri: Yeah.
Claire McCaskill: But they weighed in yesterday and said they supported the speaker. Well, that doesn’t help the speaker get this across the finish line.
Jennifer Palmieri: I mean, I wondered about that.
Claire McCaskill: He’s looking for Republican votes.
Jennifer Palmieri: Yeah.
Claire McCaskill: I don’t know why they did that.
Jennifer Palmieri: Or they weighed in on that. Also, the president had a op-ed in “The Wall Street Journal,” interesting choice in terms of an outlet to talk again about Ukraine and United States responsibility here, noting that the success of the Israelis had in beating back the Iranian attack. Also, the success that the Ukrainians have had is due in large degree to U.S. leadership and the U.S. involvement in both of those efforts.
And yeah, when it comes out of Biden’s mouth, it usually hurts them. I guess they think they’re on a roll with some Republicans getting traction, sort of the normies, as Sarah Longwell calls them, like Mike Turner, that are holding the traditional Republican view of pushing back on Russia as an adversary. And they want to give as much ammunition as possible.
And the Democrats are saying they’re going to vote. You know, like last time we were sort of in this situation where a speakership was on the line, Kevin McCarthy said, I do not want Democratic votes. I do not want Democrats to support me. And Mike Johnson’s not doing that, you know.
Claire McCaskill: Well, he can’t do it without the Democrats.
Jennifer Palmieri: Yeah.
Claire McCaskill: He knows he can’t do it without them.
Jennifer Palmieri: I don’t know. It might happen this time. They’re going to need Democratic votes to pass this. But there’s a reporting in “Punchbowl” that they may try to put a rule fix in one of these bills, the House leadership, Republican leadership, to get rid of the one vote clause that allows one person to bring his speakership into question.
Claire McCaskill: Yeah.
Jennifer Palmieri: That’s like a big gamble. That seems real hard to pass.
Claire McCaskill: I don’t know. It’ll depend on which one they put it in.
Jennifer Palmieri: Yeah, it’s true.
Claire McCaskill: Because I think you’re going to have different vote totals on these. I think you’re going to have lose a lot more Democratic votes on the Israeli aid. And then you’re going to get, I think, a bigger portion of the Republican votes on that than you will on the Ukraine. So it’s going to be really interesting to watch.
By the way, I think the strategy that Johnson did by going down to Mar-a-Lago and hanging out with the fat guy with the orange face, it was fascinating to me that what they decided to do there was have a press conference saying we want to make what’s illegal illegal.
Jennifer Palmieri: I know.
Claire McCaskill: I mean, it’s their press conference.
Jennifer Palmieri: I know.
Claire McCaskill: It is illegal to vote if you’re not a citizen of this country. Already anywhere in America, it’s illegal. And so they have a press conference. Well, you know what we’re going to do? We’re going to just say again that it should be illegal and wouldn’t even acknowledge that what they’re advocating for is already the fricking law.
Jennifer Palmieri: Yeah. Just so that they can like continue to say that, well, they didn’t pass that bill. Therefore, there’ll be illegal activity when it’s already exactly what is in the law. And Trump does not have this guy’s back, by the way. You know?
Claire McCaskill: No.
Jennifer Palmieri: Yeah. I mean, Trump got asked about Mike Johnson yesterday and are you going to continue to support him because he’s bringing up this Ukraine aid? And Trump just said after, you know, Mike Johnson’s like, oh, I went down to Mar-a-Lago, thinking Trump’s got my back and Trump said, well, we’ll see what happens.
Claire McCaskill: Yeah.
Jennifer Palmieri: We’ll see what happens with that.
Claire McCaskill: Mike thinks hanging at Mar-a-Lago is Superman’s cape. I got news for him. That cape won’t let you fly once you get back to Washington. So, ask Kevin McCarthy how that worked out for him.
Jennifer Palmieri: Totally. Yeah.
Claire McCaskill: All right. So let’s talk a little bit about Iran and Israel. If we were in the room, what would you be telling the campaign as it relates to Iran’s attack on Israel and what they should be doing in light of those ever escalating tensions there?
Jennifer Palmieri: I mean, if I was the political strategist, I would say the president should be the president. He should be doing what he’s doing, which was there’s like such an important U.S. leadership moment when the U.S. helped the Israelis beat 99.9 percent of that attack back, but keep it off the trail.
And they tried to protect Pennsylvania and those three days there from being sort of a foreign policy free zone. Eventually, this is going to have to become a campaign issue. But as long as you can keep it at a distance from the trail, I think that’s the right thing to do. I don’t know. Maybe that’s not realistic. What do you think?
Claire McCaskill: Horrible thing for Israel that this happened. The good news is that the defense forces of Israel and the United States and other countries basically negated any huge negative impact from this attack. And in a weird way, although I would never say it’s a good idea for Iran to attack any other country.
In a weird way, it helps Biden reset the table that Israel does face real danger from Iran and it kind of removes a little bit of we should be ignoring Israel because of the way they are really carelessly prosecuting the war against Gaza and killing thousands and thousands of civilians in the process.
So, probably not overall, it gives him a chance to be part of the de-escalation talks, which I think he’s doing. And overall, I think this is a win for him in terms of the category you always talk about, being president.
Jennifer Palmieri: Yeah, right, right. It’s a big part of the job, big part of the job of running for re-election, being a good one while you have the job. We’re going to take a quick break. But when we return, former U.S. attorney and law professor Joyce Vance stops in to give some context for the first ever criminal trial of a former president. Back with that in a moment.
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Jennifer Palmieri: Welcome back. You know, it has been wall-to-wall coverage of the trial of the people of the state of New York versus Donald J. Trump in Manhattan this week. But, you know, I know and I’ve already had people say to me, we’re already sick of hearing about it. But I don’t think we should gloss over the fact that this really is history.
This is something that will be in history books, it will be written about for decades and decades and decades to come. So it deserves the kind of coverage it’s getting.
So we wanted to get a sense of what is important to watch for as the jury selection continues and testimony soon begins. So to help us with that, Joyce Vance joins us now. She’s a former U.S. attorney for the Northern District of Alabama and a law professor at the University of Alabama. Joyce, thanks so much for joining us.
Joyce Vance: I’m so excited to be with y’all.
Jennifer Palmieri: Joyce, I was in Northern Alabama this weekend.
Joyce Vance: Where were you?
Jennifer Palmieri: Muscle Shoals.
Joyce Vance: Ah, were you there for music?
Jennifer Palmieri: I was there to see — you — you probably know your fellow Alabamian, Jason Isbell, the musician.
Joyce Vance: Yes.
Jennifer Palmieri: Yes. So his manager, Tracy Thomas, is a good friend of mine. You know, I love music so much and it was just the coolest. So fantastic.
Joyce Vance: Well, I hope you had a good time, Jen. Next time you’re in Alabama, I expect you to come down to Birmingham.
Jennifer Palmieri: Oh, I know. It’s the coolest too.
Claire McCaskill: Okay. So, I will apologize right now. I’ve already warned Jen that she needs to interrupt me and use sharp elbows because —
Jennifer Palmieri: This is true.
Claire McCaskill: — this is where I nerd out. This is where I want to hang out. I’ve picked a lot of juries in my life. I’m sure you have too, Joyce. But I did a huge number of criminal trials back in the days before prosecutors even had second chairs. And this was obviously back when looking into jurors’ backgrounds was much more challenging than it is today.
Joyce Vance: Yes, I remember those times before the internet when we struck juries based on a feeling and a hope and a prayer.
Claire McCaskill: Exactly. I mean, people don’t realize the wealth of information that is available to the lawyers now on both sides in terms of picking a jury. But why don’t you briefly summarize what you think this trial is about and what you think the narrative that the prosecutor needs to establish both in voir dire, which is the technical word for picking a jury, and in the opening statements?
Joyce Vance: So, you know, there is so much there and I’m so glad you want to be nerdy about jury selection because it’s one of my favorite places to be nerdy. I think we’re a dying breed, prosecutors who have struck a lot of juries both on their own. And then later, as you get more experienced, you sometimes get a second chair. But I think jury selection is much more art than it is science.
And that’s an important thing to remember here. These prosecutors are using their cumulative years of judgment both to create a narrative during voir dire and to get a jury that they think will be willing to listen to them. You know, the difference between the prosecution and the defense is the defense just needs a holdout juror. They need someone who will prevent a conviction.
The prosecutor needs to have every juror on their side in order to get a conviction. And that’s why, as prosecutors, we often begin to tell the jury the story of our case while we’re still selecting them. And here the narrative is, this is not just a case about a porn star and hush money. This is a case about election interference on the eve of this election.
The “Access Hollywood” tape was out there. You know, people don’t remember that moment with clarity, but there were Republicans, conservative Republicans, who were backing away from Trump, people in the faith community, members of Congress. Martha Roby, who was the Republican congressman from Montgomery, Alabama, had publicly repudiated Trump following the release of the “Access Hollywood” tape.
The campaign knew that the Stormy Daniels story would be a death knell, and so they went to extremes to keep her from releasing it. That’s why they had to have the cover up. And it wasn’t just the false business records, the prosecutors will tell this jury, it was the fact that they were used to conceal campaign finance violations, tax violations. That’s what makes this a felony case.
It’s a serious case of election interference, not the hush money narrative or the misdemeanor business records narrative that Trump has tried to push.
Jennifer Palmieri: And part of this, Joyce, I certainly remember it well because it was October of 2016 and I was working for Hillary Clinton at the time. It’s hard to reconcile what I know now with what I knew then, but I think we heard rumblings that the “National Enquirer” was working on something about, you know, that’s going to be very bad for Trump, but nothing ever materialized.
So part of this, there are 34 counts that are relating to various payments and business records. But part of this is also a catch and kill scheme with David Pecker from AMI, which is part of the conglomerate that owns the “National Enquirer,” and how that piece came together, what they need to explain there.
Joyce Vance: Yeah, so I think this will be the centerpiece of their case. A lot of folks have speculated that Michael Cohen is the key witness. I think it might prove to be David Pecker and others who understand the catch and kill scheme. What prosecutors have alleged is that there was an ongoing conspiracy to both promote through the “National Enquirer,” my favorite supermarket tabloid journal.
You know, we all see those headlines when we’re checking out in the supermarket, right? It’s a great place to do what Trump wanted to do, both to push good stories about Donald Trump and bad stories about his opponents. And part of that was the “National Enquirer” systematically acquiring the rights to stories that were bad for Donald Trump, and then keeping them from seeing the light of day.
That’s the origin of the scheme that they used with Stormy Daniels. And when AMI decided not to pay for her catch and kill, that was when Trump and Michael Cohen took over and came up with the scheme that ends up being criminal. You know, paying someone hush money, not a crime. Donald Trump does it all the time. Virtually everyone who’s ever worked for him has a nondisclosure agreement.
That’s not what prosecutors are alleging here. What they’re alleging is that he fraudulently concealed these payments in his business records to avoid revealing what was in essence a contribution to his campaign, the way Michael Cohen donated through and Trump’s tax violations under New York state law.
Claire McCaskill: So let me ask you this question. Explain as simply as you can, because you’re good at this. Explain why the business records part has been somewhat controversial in terms of the charging, the need to have something to elevate parts of the charges to a more serious crime. Walk our listeners through that so they understand why with some people they saw this as a riskier case in terms of the legal framework than some of the other cases that the former president is facing.
Joyce Vance: Yeah, this is such a good question. This New York statute makes it a misdemeanor to make false business records or to cause others to make false business records, which I think is what the evidence will show here. And so I think we should flag, Claire, and maybe we do or maybe we don’t want to talk about lesser included offenses, which usually takes my first year law students a while to get up to.
This is the base offense here, this misdemeanor concealment of business records. Prosecutors, though, have charged all of these counts as felonies. To turn that misdemeanor into a felony, the misdemeanor, the business records crime has to be committed to conceal or aid in the commission of another felony.
I think of it just as a math problem, right? The misdemeanor is A plus B, the other felony you’re trying to conceal, equals a felony charge. And this is a quirk of New York law, by the way, that I really struggled with. Prosecutors weren’t required to reveal in the indictment what that other crime was. But we learned through their pleadings and through what they’ve said publicly that the other crime that the business records violation was committed to aid and or conceal is either New York state tax violations or federal or state campaign finance violations.
And that’s the evidence that they will have to prove to the jury beyond a reasonable doubt. Otherwise, there’s a risk. And Donald Trump’s lawyers will certainly ask the judge to instruct the jury that the government has failed to prove a felony and that if they’re going to convict at all, they should convict on the simple misdemeanor charge.
Claire McCaskill: So they’ll get the lesser included instruction also.
Joyce Vance: I think so. I think, you know, they’re entitled to it. Anytime that you’ve got a lesser offense, that’s a subset of the elements required to prove the higher charge, the felony charge here, the judge is supposed to give that instruction to the jury.
Claire McCaskill: Are they able to plead and argue either or on the elevating felony that pushes up the business records to a felony in terms of conceal or the two elements that you laid out? Does a jury get to pick which one they proved or do they have to choose one lane and stay with it during the trial in New York law?
Joyce Vance: Yeah, we used to say in my office, let me see if I can do this right, that you charge in the indictment in the conjunctive, but you have to prove in the disjunctive, which means that you can charge aided and concealed, but really, you’ve only got to prove one of those to the jury.
Claire McCaskill: Right.
Joyce Vance: And I don’t think you have to pick. But, Claire, I wonder what you think about this. I’ve been struggling with this notion of not specifying that accelerated charge. I think the judge may have to use a special verdict form that asks the jurors which of those charges, the campaign finance or the tax they unanimously agree converts the misdemeanor into a felony if in fact they’re going to convict. And that’s fairly standard.
You’ll often see these verdict forms that include special interrogatories where they ask the jury, you know, which of these crimes, other crimes do you believe the defendant committed?
Claire McCaskill: Yeah, so they could actually argue both campaign finance and tax. They can present evidence of both campaign finance or tax. And then the judge will have to sort out how he instructs the jury in terms of them explaining on which of those or both they had a unanimous verdict on. I get that. And you did explain it very simply. And for the vast majority of people out there, they now know and understand this much better than they have for the last several months.
Okay, so I know we’ve got to take a break here in a minute. But, Jen, what I’d love to tackle when we come back is I’d love to talk a little bit about why this took so long.
Jennifer Palmieri: A lot of people got questions about that.
Claire McCaskill: Joyce has heard me rail and with some discomfort, I think, my friends that appear on television with me that spend a lot of time in the federal system, they are much more comfortable with delay than somebody who had to respond to 911 calls and had to make a decision on charging a murderer within 48 hours or they had to be let go.
And so this is a state case. It’s not a federal case, but I’d love for us to talk about because that’s the defense he’s basically using is really bolstered by the idea that it took so long because he’s saying this is just to stop me from getting elected.
Jennifer Palmieri: We’ll take a quick pause here, but stick around for more on what to expect in Trump’s criminal case in the weeks ahead with former U.S. attorney Joyce Vance. We’ll be right back.
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Jennifer Palmieri: Welcome back. We’ve been speaking with Joyce Vance. She’s a former U.S. attorney for the Northern District of Alabama and a law professor at the University of Alabama. Roll Tide.
Joyce Vance: Roll Tide, baby.
Jennifer Palmieri: Roll Tide. I just like say it to piss Claire off. Although like I come from an Ole Miss family, but you know, I can say it still.
Claire McCaskill: So as I mentioned before the break, Joyce, why the hell did it take so long to get this case in front of a jury?
Joyce Vance: You know, it’s such a good question. You were saying before the break that you have less of a tolerance for delay than federal prosecutors do. And I think that’s fair. I don’t view the time federal cases take necessarily as delay. I just view them as the practicality. You know, you don’t see on the surface it takes time to issue a grand jury subpoena.
You have to wait for the grand jury to be in session. Banks who you need records from get a period of time to return those records to you. Forensic accounting, which we use exhaustively in federal white collar cases, takes time. So there is some delay built into the process, but it’s not the bad kind of delay.
And I think the question that you’re asking is, was there bad delay here? And look, I think we all know that this started as a federal case involving Michael Cohen and that Trump was named as an unindicted co-conspirator in the Michael Cohen indictment that Michael Cohen served prison time on. So, what the hell happened is a legitimate question.
It seems relatively clear from what we’ve learned after the fact that Bill Barr, when he was the attorney general, did a lot to squelch the case. But at the same time, it was reconsidered after there was a change in management in the White House.
And the SDNY still decided not to go forward, possibly because SDNY, unlike many other federal prosecutor’s offices, has this weird standard for cooperating witnesses where they have to disclose every ounce of criminal activity that they’re aware of, be willing to plead and testify against others. Jennifer Palmieri: And it may be that under that standard, SDNY decided that they were not willing to use Michael Cohen as a witness.
Jennifer Palmieri: And I would just say SDNY is the Southern District of New York, for people who don’t know. And is that because of a history of trying mafia cases or is that, you know, is there something unique to New York that puts them in that situation?
Joyce Vance: You know, it’s just an office culture thing. My office in North Alabama, where we lovingly refer to the SDNY as the sovereign district of New York because they’re a little bit cowboy-ish. Preet Bharara, my Obama-era colleague and dear friend, certainly deserves that moniker. But we actually did something similar. We would on occasion make exception.
But, you know, my standard patois sitting down with a cooperating witness was, you need to tell me everything that you’ve ever done. Let’s start at the beginning. And sometimes that meant that you would spend more time with that cooperating witness before you put them on the stand than you did with your family for a couple of weeks. But we viewed it as imperative to know everything that they had done to make sure that we were not letting other criminal conduct slide.
SDNY really does that just as a cultural norm, perhaps because of the mafia cases, Jen. I’m not sure what the origin is, but I suspect that that led to the decision in this case. So, the Manhattan D.A.’s office has to pick it up and there’s a change of management in the Manhattan D.A.’s office. There was a little bit of a flurry of excitement there when a couple of prosecutors left after they believed their investigation was being shut down.
But then as prosecutors looked at the evidence and evaluated what was there, this case developed. I don’t see anything wrong with that. It was brought within the statute of limitations. Would it have been better if it happened more quickly? Sure, it would have. And same holds true for that mysterious first year that DOJ appeared did not be pushing the case that was ultimately indicted in the District of Columbia.
But here we are and there’s nothing improper about it, although Trump will argue it as a defense to guilt in the court of public opinion, at least.
Jennifer Palmieri: What about his demeanor in court? What do you think? Is it going to have an impact on the jury? I’ve certainly seen defendants whose demeanor was interesting when I talked to the jury afterwards, they spent more time talking about what the defendant was doing in the courtroom than they did the evidence I’d put on, which was always a blow to my ego. But how do you think the way he is handling himself in court is going to play out in this?
Joyce Vance: You know, jurors are human beings and they react to people, right? I mean, we all react to people, what they wear, how they act. A defendant who makes a jury feel threatened is a defendant that they will carefully evaluate the evidence against. But I have this fundamental belief in the jury system.
I think that when 12 everyday Americans take an oath to serve and hear the judge tell them that they have to decide the case based on the evidence that they hear in the courtroom and set aside prejudice and bias, I believe that they will do that in virtually every case. And I think this jury will watch Donald Trump’s shenanigans and then they will decide this case based on the evidence.
Jennifer Palmieri: But what do you feel? I mean, Claire thinks there’s going to be a hung jury and partly because there’s a what do we call the juror that is —
Joyce Vance: The stealth.
Jennifer Palmieri: — a stealth juror.
Joyce Vance: A stealth juror.
Jennifer Palmieri: You know, the jury selections moved relatively quickly this week. How do you feel like that’s going? What do you feel about the possibility of a stealth juror who acts as if they’re objective but really is there to be a hung jury and be on the side of Trump?
Joyce Vance: Yeah, I mean, a stealth juror is a risk. I think that we have to be, you know, candid about that. Maybe there will be one or more jurors who will simply refuse to vote to convict. But by and large, when you get jurors in the room and sometimes you see this happen. In the federal system, we call it an Allen charge.
When you have a jury that’s hung, often the judge will bring them back into the courtroom. They have this similar jury instruction that judges in New York read. I looked it up earlier this week and quoted from it extensively in my newsletter because it goes on and on and on. And the judge says, we have no reason to believe, you know, that any other 12 people would do a better job of evaluating the evidence than you would and you have an obligation to deliberate in good faith.
And I think that’s something we haven’t talked about enough is the pressure that can be brought to bear on a stealth juror. If there are 11 other jurors in that jury room who want to convict, maybe that one juror does hang up and maybe there is a mistrial and the case has to be tried again. But those 11 jurors are going to go out and tell the story that this was a Donald Trump stealth juror. And that will become part of the public narrative of Donald Trump’s guilt, even if he’s acquitted, you know, he won’t be acquitted. It will be a hung jury.
My expectation, by the way, is that if that does happen, that team at the Manhattan D.A.’s office will tell the judge that they are ready to go immediately. Right. Judge, give us a couple of days. We’re ready to strike a new jury. So it won’t be much of a reprieve for Donald Trump.
Claire McCaskill: So how many times do you think that the Manhattan D.A.’s office is willing to try this? We should explain that when there’s a hung jury, that doesn’t mean that Donald Trump walks away. That means the prosecutor now has a decision to make whether they try it again. And when Joyce references that they would say, let’s go, they would basically be saying, let’s get more jurors up here and let’s pick a new jury and we’re going to do it all again right now or just as soon as you’re willing to do it.
And then the issue is, if it hangs again, how many times would they be willing to keep trying it? What do you think, Joyce?
Joyce Vance: It’s a hard call. I was going to say I had a civil rights case when I was a U.S. attorney. It was a horrible case in Huntsville, Alabama, where we were trying a white police officer on a civil rights violation. And we knew it was a risk. We had a juror, the first go round, who simply refused to deliberate. And the other jurors felt that his stance was he was never going to convict a white cop.
And we tried the case a second time and had that same result. And the judge shut it down. At that point in time my team wanted to go again. They were angry that the judge essentially said that the case couldn’t be tried a third time, which federal judges can do. You know, I just think it’s tough to predict.
I think that this team in the D.A.’s office, and I know one of the folks on this team well, we’ve worked together in the past, I think that they believe in their case and that they will want to try it to a verdict. And so part of the answer to your question will depend on the judge’s tolerance.
Jennifer Palmieri: So a lot of people think that, you know, it’s like, oh, this trial doesn’t matter. It’s the wrong trial because it’s not the serious trial. It’s not the one about January 6th or it’s not the one about classified documents. And I just don’t think that’s true. You know, when elections are this close, people say nothing matters. It’s like everything matters. Elections are this close, I think everything matters.
And, you know, I want you to try to play out for us how the case is likely to move from here in terms of witnesses we’re going to hear to give us a sense of what the public is going to be absorbing for the next few weeks as trial continues.
Joyce Vance: Yeah. You know, I think the D.A.’s office will tell the jury, here’s Michael Cohen. He’s a big witness in this case. We didn’t pick Michael Cohen. Donald Trump did. I don’t think this is a case where they will, you know, sometimes you have a witness who flips, who sort of becomes friend of the prosecution. This is not that case.
And so I think a lot of the case will involve carefully corroborating with other witness testimony and documents everything that comes out of Michael Cohen’s mouth. You know, this is one of those great cases because it is in large part a paper case. You get to tell the jury the story twice. You get to show them the paper and talk or probably you start with the narrative from the witness and talk about what the witness saw and observed.
And then you go through the paper, getting your evidence admitted in front of the jury, and you get to tell the story a second time. And I think to what we discussed earlier, the catch and kill scheme, that’s the context for what happened here. You know, lawyers talk about you get to admit and the judge has said this.
Anything that’s essential to telling the story of the crime, in essence, part of the whole ball of wax of the crime. And so the catch and kill story will set the stage here. This jury will hear that Donald Trump was willing to cheat to win an election. And that’s the overarching theme.
Claire McCaskill: So last thing before we let you go. And by the way, this has been terrific. We’re so grateful that you took the time to do this. Do you think any of these other cases have a prayer of seeing a jury selection process before the first Tuesday in November?
Joyce Vance: I think we’ll know a lot more about that after April 25th, when the Supreme Court hears the immunity appeal. It seems to me that that’s the most likely case to go, but that would depend on the Supreme Court moving quickly and in the government’s favor. But here’s my wild card pick, Claire. You know, I am no fan of Judge Aileen Cannon in the Southern District of Florida. I think I’ve made that pretty clear in my writing.
I think that there is some chance that she will cue this case up for trial so that she can kill it after the jury is in the box. And that would let Donald Trump claim a victory. I mean, you know how this works. Once the jury is sworn in, double jeopardy attaches. And if the judge dismisses the case, the government is out of business. And I am increasingly worried about the movement down there. She’s been slow. The case isn’t ready. There’s a lot of classified information issues to be resolved. But I’m watching that one carefully.
Claire McCaskill: That is really scary.
Joyce Vance: Yeah.
Claire McCaskill: Don’t say that out loud anymore. Don’t speak that into existence, Joyce.
Joyce Vance: Right? I mean —
Claire McCaskill: Really, seriously. I mean, because I don’t think she’s the brightest light in the marquee anyway. So I think there is a chance that she may not have figured that part out, you know, and that would really piss me off if she did that.
Joy Vance: Here’s why I’m worried. She came out of the appellate division in the U.S. Attorney’s Office in Miami. That is one of the most highly regarded appellate divisions in the country. You know, she knows her stuff.
Claire McCaskill: Oh, my Lord. We’re grateful to have you here. Thank you so much. Now I have another thing to toss and turn about. Ay yay yay.
Joyce Vance: Thanks for having me. You guys are better than an hour of therapy.
Jennifer Palmieri: Yay. We’re here for you.
Claire McCaskill: And we’re free. In fact, we’re cheap. You don’t even get paid anything. God love you.
Jennifer Palmieri: Thanks so much for listening. And remember to subscribe to MSNBC’s “How to Win” newsletter to get weekly insights on this year’s key races sent straight to your inbox. Visit the link in our show notes to sign up.
Claire McCaskill: This show is produced by Vicki Vergolina. Janmaris Perez is our associate producer. Katherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Jennifer Palmieri: Search for “How to Win 2024” wherever you your podcasts and follow the series.