When thinking about how to win 2024, don’t sleep on the swing voter. That’s the takeaway Senator Claire McCaskill and former White House Communications Director Jennifer Palmieri hope to get across. But it’s a “Yes, and…” scenario. Biden needs to keep touting his wins on the economy and jobs, while highlighting where Republicans are blocking progress: on reforms to immigration and policing. Then, former U.S. Attorney and law professor Barbara McQuade stops in to recap the highs and lows from Donald Trump’s criminal trial as the jury preps for deliberations next week. And beyond the legal impact, Claire and Jen take a beat to analyze the political impact the jury’s decision will have this fall.
Note: This is a rough transcript. Please excuse any typos.
Jennifer Palmieri: Hello, welcome to “How to Win 2024.” We are recording this episode on Wednesday, May 22nd. I’m Jennifer Palmieri and I’m here with my co-host Claire McCaskill. Hi Claire.
Claire McCaskill: Hey Jen. So, it’s almost summer and —
Jennifer Palmieri: My God.
Claire McCaskill: — the first debate is in a month.
Jennifer Palmieri: I know it’s wild.
Claire McCaskill: Crazy. But this is commencement season. This is that time of year, which I always looked forward to. Lots of invitations to do college and high school commencements. And at Biden’s commencement speech at Morehouse College on Sunday —
Jennifer Palmieri: Yeah.
Claire McCaskill: — he not only spoke to the continuing struggles of young black men in America. He also made an effort to reach out to students protesting the war in Gaza and that it should be taken seriously.
Jennifer Palmieri: Yeah.
Claire McCaskill: There is another group that he also needs to be talking to, swing voters.
Jennifer Palmieri: Hmm.
Claire McCaskill: So he is got two challenges. One is the enthusiasm of the base, particularly —
Jennifer Palmieri: Right.
Claire McCaskill: — people of color and in particularly young people of color, but he also has got to worry about swing voters at the same time, which is hard. So Jen and I wanna strategize on the issues that these groups care about, like immigration, crime, of course, the conflict in Gaza and the economy.
Jennifer Palmieri: Yeah. There’s a lot to cover there. We’re going to get to all of that. And now that the defense wrapped up and the jury will be ready to deliberate after closing arguments next week, we thought it would be a good time to catch people up on some takeaways from the first ever criminal trial of a former president. Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan joins Claire for that in just a bit.
Claire McCaskill: But first let’s get to this week’s strategy session. If we were in the room, what would we be saying to the Biden campaign on immigration?
Jennifer Palmieri: Yeah.
Claire McCaskill: Chuck Schumer is going to force a vote on Thursday on the bipartisan border security package the GOP blocked this year, trying to underscore that the Democrats are willing to try and solve this problem rather than just talk about it. And I just think it’s really important that people realize how conservative this immigration bill is.
Jennifer Palmieri: Hmm.
Claire McCaskill: This bill goes much further at changing the request for asylum process. It goes much further in trying to stop the flow of immigrants at the border. You know, this isn’t going to get a different outcome in terms of enforcing a vote, but I don’t know about you, Jen. I think it’s really smart that they’re ginning this up against, pardon the expression, to do another vote to try to break through that the Republicans are the ones that are hesitating to fix the problem that presents itself.
Jennifer Palmieri: And I think that they’re probably wanna get that vote done now. The president take a executive action on the border after he’s proven that Congress won’t pass something and do all of that before the debate, right?
Claire McCaskill: Right.
Jennifer Palmieri: So then Biden can stand on stage at the debate and he can say to Trump directly, we had a bipartisan solution. He can say all the things we know to be true. I’ve put more agents on the border than anyone. I’ve spent more money on border enforcement than anyone. We had a bipartisan package and it would not pass because you told them to vote against it.
I think for Democrats who are nervous and I can feel it, friends, I can feel you getting nervous, be looking to the debate. And when you’re seeing things that are happening, that the campaign is doing and think, well, that seems smart, but it’s kind of a one off, how’s it getting traction? A lot of this stuff is laying down markers so that they can take him on in the debate.
Claire McCaskill: Yeah. And the Democrats need to continue to be on offense, not defense —
Jennifer Palmieri: Mm-hmm.
Claire McCaskill: — about the subjects that Fox News is blowing into the land of disinformation. I mean, if you watch Fox News, you would think that there’s a hundred thousand people coming across the border today and they’re all going into the cities and raping and murdering people, which is of course, so far from the truth, it’s laughable. But I think it is important to remember that we’ve got to focus on safe, legal ways for people to immigrate to the U.S. and making it harder to come here illegally.
Jennifer Palmieri: But let’s talk about like, you brought up swing voters. We have seen a lot of action taken by the Biden team that seem to be geared toward base voters, voters that voted for Biden in ‘20, that he needs to get back. And you think they’re not reaching out enough to swing voters. I feel like that doesn’t need to be at odd. I feel like you can do both these days because of how fractured the media ecosystem is.
Claire McCaskill: I think you can, and I think you can do it a lot with targeting.
Jennifer Palmieri: Yeah.
Claire McCaskill: And we’ve talked before about the ability to information online particularly, but the two biggest vulnerabilities that Biden has writ-large with those voters in Pennsylvania, Wisconsin, Michigan, Nevada, Arizona are immigration and crime.
Jennifer Palmieri: Yes.
Claire McCaskill: And he’s got to lean into crime because frankly, especially on crime, what these voters are hearing is just not true.
Jennifer Palmieri: Yeah.
Claire McCaskill: And a growing number of Americans are saying, reducing crime should be a top priority for the president. Well, we have reduced crime.
Jennifer Palmieri: Yeah.
Claire McCaskill: Crime is down in America. You would never know that if you watched conservative media, you would think that you couldn’t walk a downtown block in America without being the victim of violent crime. It’s really, really disturbing to me that they’re getting away with making people believe they should be frightened on the streets of urban America.
Jennifer Palmieri: And as we talk about this and these things that aren’t, won’t break through, you know, including people still thinking that the economy’s not doing well, I don’t know that you can convince, you know, that’s a thing people got to hear a lot of good news. They got to see prices going down. It’s great. The McDonald’s, Wendy’s and Target are all lowering their prices and see it in their own life and then understand what Biden’s done to make that happen.
But I think Biden’s problem is his views and the state of the world are not breaking through. You can see why they wanna do this debate. And I talked to the campaign yesterday about just kind of where we are because I was like, you can feel people, even though we try to discount “New York Times-Sienna” polls, people feeling nervous and polls may not change really until September.
We’ve talked about that before, but there’s a good reason why not only do people not really pay attention, particularly voters that aren’t paying attention to the news day to day, that they don’t pay attention until after Labor Day. Voters who consume news Biden is winning those people and winning them by a lot, right?
Claire McCaskill: Yeah. And so let’s talk about his commencement address at Morehouse College. Let’s listen to some audio of president Biden at that speech talking about the protests around the way Israel is conducting the war against Hamas.
(BEGIN AUDIO CLIP)
President Joe Biden: I support peaceful nonviolent protest. Your voices should be heard. I promise you, I hear them. What’s happening in Gaza and Israel is heartbreaking. Hamas’ vicious attack on Israel killing innocent lives. Innocent Palestinians caught in the middle of all this, man, women and children killed or displaced and despite in desperate need of water, food and medicine. It’s a humanitarian crisis in Gaza. That’s why I’ve called for an immediate ceasefire.
An immediate ceasefire to stop the fighting, bring the hostages home. I know it angered and frustrates many of you including my family. But most of all, I know it breaks your heart. Breaks mine as well.
(END AUDIO CLIP)
Claire McCaskill: What do you think smart way for him to handle this, Jen?
Jennifer Palmieri: A very straightforward way I thought, right? I know that people are protesting right here. I know you have concerns. I hear the concerns. We’re doing what we can. I do feel like I believe he’s listening to these concerns. I think he’s taken them into account. I think when you hear him say this and you hear him say it a lot, it is meaningful. Now, then of course, two days later, he’s got to come out and say that Hamas is a war criminal and Israel’s not.
You know, there’s things not, if you’re on the side of these student protestors, you might feel like, are you hearing me? But I do think that that’s the composite picture you want to emerge of him. The question with all the stuff is how does it break through, right?
Claire McCaskill: He also hit another topic in Morehouse that I think is really important. And that is policing reforms.
Jennifer Palmieri: Yeah.
Claire McCaskill: It is four years since in (inaudible), right at four years after George Floyd was murdered by police officers. And once again, he, I think did a good job speaking to the audience at this graduation. Let’s listen to what he had to say speaking directly to black men about their experience in America.
(BEGIN AUDIO CLIP)
President Joe Biden: You start a college just as George Floyd was murdered and there was a reckoning on race. It’s natural to wonder democracy you hear about actually works for you. What is democracy? If black men are being killed in the street, what is democracy? Betrayal of broken promises still leave black communities behind. What is democracy? You have to be 10 times better than anyone else to get a fair shot. Most of all, what does it mean?
As we’ve heard before, to be a black man who loves his country, even if it doesn’t love him back in equal measure.
(END AUDIO CLIP)
Claire McCaskill: So, we’ve seen a lot of —
Jennifer Palmieri: Yeah.
Claire McCaskill: — policing reforms since the murder, mostly by democratic state legislatures around the country that have done more on accountability and addressing the use of force and making sure that there’s a mechanism to root out bad police officers. On the other hand, it has been the Democrats that have funded the police by and large in this country over an increased funding for police. Another thing that we can do both things at once.
We can reform police, but we can also adequately fund them. And I think Biden really needs to lean in to the fact that Republicans have voted against his budget proposals that increased funding to police.
Jennifer Palmieri: Right.
Claire McCaskill: There is a federal bill that has been pushed by the Democrats to prohibit racial profiling and creating a national misconduct registry. But it’s stalled in the Senate twice, mostly with opposition from Republicans. And then there have been lots of reforms in the states. Over 30 states have put forward important policing reform laws, addressing use of force and intervening and reporting misconduct. We have made some progress. I think it’s important that we should celebrate that progress. At the same time we should recognize that funding the police is also very important for everyone in every community to feel safe.
Jennifer Palmieri: Yeah. Both on border enforcement and the police. Did you wanna talk about Portland?
Claire McCaskill: You know, I think what happened on Tuesday, Oregon —
Jennifer Palmieri: Yeah.
Claire McCaskill: — had their primary elections and the progressive candidates in open primaries for the Congress were defeated by more moderate opponents. And it appears, although it hasn’t been called yet, but it appears that the sitting prosecutor who was very much part of the progressive prosecutor movement was defeated by a more moderate candidate —
Jennifer Palmieri: Mm-hmm.
Claire McCaskill: — who talked more about street safety and making people feel comfortable and safe in all areas of Portland, Oregon.
Jennifer Palmieri: And the same thing happened in San Francisco two years ago, right? A very progressive D.A. was ousted and, you know, very liberal San Francisco for again, someone with more moderate views. So, you know, it is a complicated situation, but the Democrats and Biden have advanced reforms that holds police accountable while also supporting police in a way that the Republicans have not. And like everything else, it just need to break through more.
And you know, one more thing about the Morehouse commencement, it’s hard to talk to students, you know? Sure, Biden’s speech was before a group of students, but they weren’t the only audience. You know, he’s got to do a commencement and it says a lot to a lot of black voters that he chose to go to Morehouse. It’s a very storied institution and that alone says something, the speech is important, but don’t think that that’s like Biden’s way of communicating with college students, okay. That was a speech to a broader community than just the students in the audience that complained that it was too political.
Claire McCaskill: Yeah. And by the way, there were more adults and parents and grandparents of students there than there were students, and he was speaking to all of them.
Jennifer Palmieri: Yeah. Let’s take a quick break. When we’re back, Barbara McQuade, former U.S. attorney for the Eastern District of Michigan stops in to give some context to the latest from the New York trial as summations start next Tuesday. Claire will be back with Barbara in a moment.
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Claire McCaskill: Welcome back. The historic criminal trial of Donald Trump is winding down and we will have summations, closing arguments on Tuesday. We thought it would be a great time to consider how the whole trial went and what to expect when the jury meets to decide the case. next week. Barbara McQuade was the U.S. attorney for the Eastern District of Michigan from 2010 to 2017. And the author of the book “Attack From Within: How Disinformation is Sabotaging America.”
If we have time, we should talk about that too, because that is a big damn deal. She’s also a law professor at the University of Michigan Law School and she joins me now to dig into where the trial stands after weeks of testimony. Barb, thanks so much for spending some time with me this morning.
Barbara McQuade: Oh, Claire. Thanks so much for having me. Glad to be with you.
Claire McCaskill: Okay. So I thought it might be good to start out with your opinion of the worst moment for the defense and the worst moment for the prosecution in this trial. What’s your sense of where both of them flailed slightly and probably had a little bit of trouble in the eyes of the jury?
Barbara McQuade: Yeah, I suppose worst moment can depend on, you know, most embarrassing for Donald Trump, but in terms of, you know, what’s the most harmful for the case. Frankly, I think it’s that audio recording where Michael Cohen is talking to Donald Trump because that’s really the only place where we hear really direct evidence of Donald Trump being involved in this scheme. So I thought that was pretty powerful evidence against Donald Trump.
As for the defense, I suppose it was the cross examination of Michael Cohen. Certainly, there were things there that he got beat up a little bit. He was sometimes a little bit contentious and cantankerous, you know, when he was confronted with prior and consistent statements. Instead of saying, yes, it was a lie, you know, lean into it, admit it, man. He would say, yeah, I wasn’t entirely accurate. You know, I’m not sure I would agree with that. So I thought that the defense scored some points there, but you know, I think in the end the prosecution knew that was coming and I thought Michael Cohen held up about as well as might have been expected.
Claire McCaskill: What did you think of Costello on the stand? And, you know, what was really interesting to me about Costello is that he’s a lawyer. Now, I got to tell you, I can’t imagine he’s been a courtroom lawyer because if you’ve tried a case to a jury, you are keenly aware of how a witness is going to be perceived by the jury. It is all about them weighing the credibility of the witness and their demeanor on the stand and how they handle themselves.
I was shocked at how he behaved during direct, when the prosecution was objecting and I’ve very rarely seen a judge clear the courtroom to admonish a witness. What was your take on that? I was confused why he would be so out of control.
Barbara McQuade: Boy, same, Claire. And you know, this is a witness called by the defense. You would expect him to come in there to be smooth, to be polished. This is an experienced attorney, but I agree with your observation that this was a very poor way to conduct oneself in court. And I think if anything, it really helped the prosecution because it fed into this narrative of kind of, you know, mob boss, arrogant, untouchable, nobody’s the boss of me.
And so I think it fed this narrative of this is the guy who’s saying things like you have friends in high places, you should sleep well tonight, a back channel to Rudy Giuliani and Donald Trump. I mean, my gosh, this really sounds like mob stuff. And so, I thought it really kind of crystallized the narrative that the prosecution is trying to show here. So, huge backfire, I think for the defense. And I really think that this is a real interesting window into the mind of Donald Trump and his team.
This is how they see the world, that the world succeeds on the basis of bullying and power and arrogance and just show up and say, things are true. And, I think a jury is going to really recoil at that idea. And so I think it did not help the defense and I think it very much helped the prosecution.
Claire McCaskill: You know, when you’re preparing for a cross examination, the best gift you can be given is an opportunity to tie a witness to actual documents and words they have used. And I have sat at the table and listened to a witness on direct as a prosecutor and felt like I’ve drawn an inside straight. And the prosecutor had to feel that way during that direct because talk about an opening
Barbara McQuade: MM-hmm.
Claire McCaskill: — for her to come back on the cross with those e-mails —
Barbara McQuade: Yeah.
Claire McCaskill: — that had that language that you talked about. I mean, her heart had to start beating faster as that witness began being that kind of, you know, jerk, bully on the stand, knowing that she had those e-mails to cross him with. I was just astounded that the defense wasn’t more prepared for that coming. And that’s the last taste in the mouth of the jury, right?
Barbara McQuade: Oh, I know. Right. I mean, I really actually questioned both the defense and the prosecution for the way they ended their cases. Me always, as a prosecutor, did not want to end with a cooperator. I would bury the cooperators somewhere in the middle, right, because of those concepts of primacy and recency, they’re going to remember the first witness. David Pecker, a very strong witness for the prosecution.
Claire McCaskill: Right.
Barbara McQuade: Someone who’s aligned with Donald Trump and yet gave all of this really damaging testimony, great first witness. And then they end on Michael Cohen who’s got some baggage. I thought that was a really risky way to end the case for the prosecution. I would’ve put up somebody, you know, some insider paralegal for the law firm, you know, or for the prosecution or, you know, an investigator or something like that.
And then same on the defense. Again, they really misfired here. I really think they thought, oh, you know, Bob Costello is going to come in and tell them what’s what, and boy did he tank? And I agree that it is left in the minds of the jurors who now have several days off to sort of let this all simmer and percolate. And I think that between the testimony of Costello and Michael Cohen, who, you know, of course is Trump’s guy, every piece of damaging impression that you get about Michael Cohen also reflects on Donald Trump because he was his personal lawyer for what was it, 10 years.
This is the guy he wanted to fix his problems and intimidate people into paying pennies on the dollar for every debt that he owed. And so I think that it was not a good way for the defense to end their case. I know at one point they were trying to get in an expert who would testify about, you know, FEC matters, but it seemed like the battle there was all about whether he was going to actually try to misstate the law on behalf of the defense. And so they were not successful there.
Claire McCaskill: So let’s talk a little bit about charging documents. The charging documents are where the lawyers argue, what the judge should instruct the jury on, and keep in mind what the jury’s going to be told is you now have the facts, the evidence that has been presented to you through documents and witness testimony. Now you have to take those facts and apply it to the law and here is the law.
And we don’t know what the final instructions are going to be because I don’t think the judge has published them and said he won’t publish them to the attorneys until Thursday. Was there anything about the arguments around the jury instructions that surprised you and is there anything you think it’s important for people to keep in mind about those jury instructions based on what the judge said from the bench yesterday?
Barbara McQuade: So this is a really important part of the case, Claire, as you well know. Jury instructions is probably the issue that is most frequently appealed. You know, when there’s a reversal on appeal, it’s because of some error in jury instructions and it can really make a difference in the outcome of the case because it is where the judge says here’s what the prosecution has to prove to find guilt beyond a reasonable doubt. And to me, the really tricky thing is always intent.
You know, proving intent can be very difficult for a prosecutor because you can’t read another person’s mind and so you have to be able to prove intent through inferences and circumstantial evidence and what they said, what they did, totality of the circumstances, et cetera. And so it can be really tricky. And as you know, there’s a wide range of intents that can be required under the law from simple negligence. What you should have known all the way up to willfulness that you knew what you were doing and you knew it was illegal.
And so yesterday we saw a lot of tug over this and at one point the defense was trying to insert the word willful into the jury instructions. And the reason they wanted to do that is the stakes are so high in this case. And the prosecution came back with what I thought was the perfect response was just because the stakes are high doesn’t mean we should be rewriting the law. The law says what it says. It says intent to defraud by violating some other law. And that’s what the instructions should say.
So we don’t know what those final instructions would look like, but overall, I think the law is actually fairly favorable to the prosecution. And so I don’t think we’ll be seeing those words, willful and other things added as additional obstacles for the prosecution to overcome.
Claire McCaskill: Are you worried about the law itself? Is it too broad? I mean, I’m thinking back to the McDonald trial in Virginia and how the courts have reinterpreted the bribery statutes to make it much harder for the government to bring bribery and corruption cases against elected officials. Is this statute so broad and are the instructions going to be so broad, the jury’s not going to have to find unanimously what law he was violating in terms of enhancing this from a misdemeanor to a felony?
One juror can decide that he was trying to impact the election illegally. Another juror can decide he was trying to avoid taxes illegally. I mean, they don’t have to all agree. They just have to agree that there was some unlawful intent in terms of filing false business records. Does that vagueness worry you at all on appeal as somebody who is not just a practiced trial lawyer, but also somebody who is an academic, are you worried about the vagueness of the statute?
Barbara McQuade: A little bit. You know, the vagueness doctrine says that people are entitled to fair notice of what the law prohibits so that we have the ability to conform our behavior with the requirements of the law. And so if a law is vague and unclear about what it requires, then that can be problematic. And so here, as you say, the intent to defraud here is for committing a crime that makes it illegal to promote or prevent the election of a candidate by unlawful means, which then requires a look at another statute.
But I think that the way that this statute has been interpreted under New York law is that this is considered what’s called manner and means, and not an element of the offense. The example they frequently use in this case is burglary. And there is New York court of Appeals, the highest court in New York case law in a case called Mackey that says burglary is breaking and entering with intent to commit a felony inside the building. But you don’t have to agree on what felony that is.
So, I think that, you know, ultimately what you want to make sure is that the person is not doing something innocent without realizing it. I think when you’re falsifying business documents and you’re doing it because you know that you are covering up something you would otherwise be required to report on campaign finance forms, that is probably adequate notice. So I’d be willing to defend this case in a court of appeals.
But as you say, the current makeup of the Supreme court has been kind of gutting some of these public corruption statutes in the McDonald case, in the Bridgegate case, in some other cases. And now perhaps this obstruction of an official proceeding case Fisher that’s before the court now. So, it is not without peril, I think, but I think it is sound under New York law and I’d be willing to defend it in the Supreme Court if it came to that.
Claire McCaskill: So people need to remember that you have to have a unanimous jury for two things. You have to have a unanimous jury for a conviction and you have to have a unanimous verdict for an acquittal, but there’s a wide space between those two. Hold out jurors are the bane of prosecutors. Let’s assume for a moment that this case is hung. Let’s assume that there are one or two or three jurors that just refuse to go along.
Perhaps the jury compromises and finds him guilty of the misdemeanor without the enhancement. Perhaps they just say, we can’t reach a verdict and they come back to the court and say, we cannot reach a verdict and the judge accepts that. Why don’t you explain to everyone what happens then if it’s a hung jury?
Barbara McQuade: Yeah. So if it’s a hung jury, well first, the judge will send them back and say, try harder, right? But if it’s some point, they really do say, you know what? We are hopelessly deadlocked and we’re just not going to get a verdict. The judge will declare a mistrial. And that means that the defendant is neither convicted nor acquitted, and the case may be brought again. And so it gets set for retrial within the speedy trial clock. And the case may go again.
But you know, prosecutors have to take a long look at a case when there is a mistrial and ask themselves whether it is likely that they will obtain a conviction with a different jury. Is this case just, you know, too divisive? Is the evidence just not strong enough to convince any 12 random people beyond a reasonable doubt of guilt? In which case sometimes prosecutors dismiss a case after a hung verdict.
So, it is certainly perceived, I think by most defendants as a victory because they at least live to fight another day. And if there is a retrial of a case, Claire, I don’t know if you’ve ever had this experience. You probably have in your career as a prosecutor, retrying a case is always in the favor of the defendant because there are no surprises strategically. And they have the transcripts of the witness testimony —
Claire McCaskill: Right.
Barbara McQuade: — from the prior trial. And they’re able to impeach them on the most minor of inconsistencies and make them look like they’re fabricating evidence at trial. When in fact they’re just, you know, telling the story slightly differently. So we’ll see where things land if that is the case.
Claire McCaskill: Yeah, retrials are tough because you already have index of everything, every witness has said in writing, under oath and it makes impeachment so much easier in terms of the witnesses. On the other hand, in this case, it’s not like any of these guys hadn’t made statements before the trial. Right?
Barbara McQuade: Right.
Claire McCaskill: I mean, we had lots of words that came out of Michael Cohen’s mouth on his podcast and in Congress and so forth, there was a rich resource of impeachable items, especially with some of the witnesses who had been more public. What do you think about them delaying the close like this? To me, of course, I’m a state prosecutor and we just go, go, go, right. We don’t wait to indict. I think you would agree typically much more quickly getting to court. And I would be surprised if state court in my state would’ve said, okay, come back next week.
In my experience, the judge would’ve instructed the jury yesterday, sent him out to deliberate and had them deliberate until they get a verdict regardless of Memorial Day weekend. And that has a way when there’s a time clock like that is a way of putting pressure on the jury to get to a result. Were you surprised that he waited until next week? And do you think that gives an advantage to the defense?
Barbara McQuade: I was surprised just because there’s such a long period of delay, you know, if it had been a day or half a day, maybe that would’ve made some sense because I think what I heard him say is he didn’t want to break up the closing, you know, where the prosecution goes before the weekend and the defense goes after the weekend. He wanted them to be in close proximity and in close proximity to the instructions that he gave them so that they can consider those things altogether.
But I agree with you. You know, I guess they’re off and off on Wednesdays. There’s Thursday, and I think they were going to be off anyway on Friday, but I was surprised. However, I do think that it was done thoughtfully because I think what Judge Merchan is trying to avoid is this scenario where the jury gets the case, you know, just before a holiday weekend. And then as you say, it’s remarkable how often when that happens, they do get a verdict before the weekend. So, you know, Friday verdict is, very common. So, I don’t think it’s an advantage for either party. I think it kind of puts them on fair, equal ground and maybe that’s why he did it.
Claire McCaskill: Do you think any of these other trials, the federal cases have a chance of seeing a courtroom before November?
Barbara McQuade: I don’t think so. I think there’s, you know, a slight chance of the federal election interference case, just because, you know, it would require a perfect alignment of the stars now, I think, which is a pretty quick decision from the Supreme Court. We’re already in mid-May now. It’s been almost a month since they heard oral argument. That doesn’t seem to be coming anytime soon, but if that were to come and then Judge Chutkan had promised three more months to get ready. So, that puts us in June, July, August, and the trial could start then, but you know, the likelihood of there being no additional delay seems pretty slim to me. And so I don’t think so.
Mar-a-Lago, I mean, the judge there, Judge Cannon, has suspended the trial date of May 20th without date, which is bizarre to me. So often when a judge adjourns a trial date, they at least set a new date so that you’ve got something to shoot for. That suggests to me that she is not only not in a hurry, but working pretty hard to avoid a trial before the election. And then with the case in Georgia, I don’t think that’s going to go. You know, I think that Fani Willis, when she went with the big indictment with 19 defendants, never expected that that case would come to trial quickly. So I guess our best hope is the federal election interference case.
Claire McCaskill: So, I think it’s important to point out that if Donald Trump is convicted next week, he will not go to jail. He will be out pending appeal. So he is going to be free no matter what, from now until the first Tuesday in November. And so that means the disinformation can continue. I want to put another plug in for your book because it’s something that I think all of us need to be more worried about and that is we can’t ever agree on how our government should enact policy if we don’t agree on the facts. And disinformation has become the norm now.
Your book “Attack from Within: How Disinformation is Sabotaging America,” not only do you talk about the polarization and how disinformation is seeping in everywhere, but you also give people some tools to fight disinformation. What is the most important piece of advice you have for our listeners about how they determine when they’re getting bullshit instead of the facts?
Barbara McQuade: Yeah. I think, you know, one of the goals is to simply exhaust us and get us to tune out or to say things designed to evoke an emotional response. And so I say, when you see those things, take a deep breath and look for a second source to see if anyone else is reporting this as true because the whole goal is to either exhaust us or enrage us and pit us against each other. And so I think we need to look for common ground and unity. And so I think we can check ourselves by making sure that we’re choosing truth over our political tribe.
Claire McCaskill: So thank you. This has been great. It’s always fun for me to talk to somebody who has hung out in a courtroom. I’ll be honest with you, I don’t know if you miss it. I kind of miss it.
Barbara McQuade: Oh, absolutely.
Claire McCaskill: A really, really important part of my career and one that I have never taken for granted. I feel like I was really fortunate to get the opportunity to be in a courtroom and look juries in the eye. And I know you feel the same way and I think we shed some light on some of the confusing aspects of this trial this morning. And I really appreciate you being with us.
Barbara McQuade: Thanks very much, Claire.
Claire McCaskill: Barbara McQuade, University of Michigan law professor, former U.S. attorney for the Eastern District of Michigan and the author of the book “Attack from Within: How Disinformation is Sabotaging America.” It was great having you with us.
We’ll take a quick pause here, but when we’re back, we want to take a moment to look at the political reality of this trial, it’s outcome and the mark it will leave on our country. Back with that in a moment.
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Jennifer Palmieri: Welcome back. Before we wrap up this episode, Claire and I want to take a beat to sort through the politics of this trial’s result and how it will affect the vote this fall.
Claire McCaskill: Yeah, of course, you know, there’s legal fallout, which I had the pleasure of talking to Barb McQuade about, but what about the political fallout for Trump and for Biden? Is there anything about this trial that’s really going to move voters? What do you think?
Jennifer Palmieri: I think that when things are so close, it’s wrong to say nothing matters. And even though, you know, I know that the Biden campaign is desperate for this trial to end because it’s eating up so much coverage and they think that it’s hurting them. Not because it’s good for Trump, but just because it means he’s not getting any daylight. So, I think it feeds into his victimization story line. But if he is actually convicted of something, there’s polling that definitely shows that that matters to people.
I was so relieved to see something can still break through, that’s a high enough percentage to people who feel that a conviction means he should not be elected president, that it meant even people who would otherwise support Trump would be swayed by this outcome. So, I think it would actually hurt him a little bit.
And you know how it is, Claire, when you’re preparing for a loss, like in a Democratic primary or something like in the presidential campaign, you’re like, we’re going to lose this one state, we’re going to lose this one state. It’ll be okay, we’ll go on. And then when it actually happens, it feels way worse in the moment, even if you’ve been anticipating it. So, I think if he actually does get convicted, it will feel really bad. I think it’ll feel really bad.
Claire McCaskill: I worry the most about the hung jury —
Jennifer Palmieri: Yeah.
Claire McCaskill: — which is, I don’t think he’ll ever be acquitted because I don’t think 12 people after listening to that evidence could all be unanimous in deciding that he did nothing wrong. Especially with the mob-like note it ended on with Costello and all of that. On the other hand, if it’s hung, if there’s one or two or three holdouts, Trump is going to treat that like he was found not guilty.
Jennifer Palmieri: Yeah.
Claire McCaskill: And it is going to really feed the narrative that this is a partisan witch hunt that is purposeful in its effort to derail his ability to enter the Oval Office again. So, I worry because it won’t be that he was acquitted. I think the majority of the jurors will probably vote to convict him and there might be one or two that just hold out, but that’s not going to be the way he’ll treat it. That’s not going to be the way the conservative media outlets will treat it. It will certainly not be the way that his supporters will see it.
So, I do worry about that and whether or not we have given him something else to use in this narrative that the Democrats will go to any links to stop me from entering the Oval Office as your redeemer —
Jennifer Palmieri: Right.
Claire McCaskill: — and revenge person-in-chief.
Jennifer Palmieri: Right. If he needs more in that arsenal, that will help him. And I don’t know, I talk to you a lot. So I guess maybe that’s one reason why I so expecting a hung jury, but I’ll be surprised if he actually gets convicted, it always seems. But it’ll be a big deal and just to, you know, I mentioned the polls earlier, just some details on that. There’s an early may ABC News/Ipsos poll that found that one fifth of Trump’s supporters said they would either reconsider their support, 16 percent said that or withdraw it, 4 percent said that. So about 20 percent said that they would like reconsider supporting him if he was a convicted felon.
Of course, they may just hear that question and say, nope, doesn’t matter. Even if he’s a convicted felon, I’m still going to vote for him. And a Reuters/Ipsos poll taken pretrial on April found that one-quarter potential Trump voters said they would not vote for him if he was serving time in prison, slightly different formulation, higher results.
Claire McCaskill: Yeah. Well he’s not going to be in prison no matter what.
Jennifer Palmieri: Yeah.
Claire McCaskill: Because if he’s convicted, he will be out on bond pending appeal and the appeal won’t be finished by November. So, he’s not going to be in prison and I’m not going to be shocked if he’s convicted.
Jennifer Palmieri: Yeah.
Claire McCaskill: I might be slightly surprised if he’s convicted.
Jennifer Palmieri: Yeah.
Claire McCaskill: I mean, they presented a strong case. Their case was stronger than I anticipated that it would be.
Jennifer Palmieri: Yeah.
Claire McCaskill: So I think it’s maybe more likely than not it’ll be hung, but that doesn’t mean that a conviction is not possible here. And keep in mind, even if he’s convicted though, he’s going to be out on bond and he’s going to be campaigning this whole time. And this conviction, if it happens is in May.
Jennifer Palmieri: Yeah.
Claire McCaskill: And the election is November and nobody’s going to see him in cuffs. Nobody’s going to see him doing anything that is anything other than Donald Trump campaigning for president. So I worry that a conviction won’t have the impact that it should have on the voting electorate.
Jennifer Palmieri: Right.
Claire McCaskill: It should be a disqualifier.
Jennifer Palmieri: Of course. Of course, it should be. Yeah. It has a lot of credibility with me when you say you felt like the prosecution delivered a strong case because I know you had like questions going into that, but it does feel like, you know, it’s a tough time and I can feel it. I was in D.C. yesterday and like I can feel Democrats getting nervous and it’s like, I know I’ve been through it a lot of times to sort of like midsummer, beginning of summer doldrums.
And it’s particularly hard for this president to break through. And I’m just feeling like, you know, when I look at their strategy, it’s like, everything’s driving to that moment where they can get Trump on a debate stage and really frame the choice and get that to stick and do that seven weeks before people start to vote in early September. You know, that’s the plan people.
Claire McCaskill: I get it’s a plan. I will just say, I’m not going to lie and say I’m not worried about a plan —
Jennifer Palmieri: Yeah.
Claire McCaskill: — that depends so heavily on the performance of a candidate on one or two nights.
Jennifer Palmieri: Mm-hmm.
Claire McCaskill: That is an extreme amount of pressure to put on the candidate. If the entire campaign is resting on his debate to performance, whew, that’s a load to carry. That’s all I’m saying. That’s a load to carry.
Jennifer Palmieri: Yeah. Yeah. That and a whole bunch of money. They got to do ads.
Claire McCaskill: And do ground game.
Jennifer Palmieri: And ground game. I do believe in that, man. I believe in the ground game. Democrats know how to do that.
All right. Thanks so much for listening. If you have a question for us, you can send it to howtowinquestions@nbcuni.com or you can leave us a voicemail at 646-974-4194 and we might answer it on the pod. 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 is our audio engineer. 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 get your podcast and follow the series.