If you’ve been following the news at all, you’re aware that former president Donald Trump is on trial in a New York criminal court and is facing 34 felony counts of falsifying business records. And there’s a lot to unpack. Our guest this week has been in the courthouse for this criminal trial and has been closely following the ins and outs of the case. Lisa Rubin is the MSNBC legal correspondent and a former litigator. She joins WITHpod to discuss the backstory of the trial, flaws in the legal system, how she says Trump has abused it, key figures and more.
Note: This is a rough transcript — please excuse any typos.
Lisa Rubin: One of the big takeaways from this is, is our system flawed, not in the sense that more people can’t access that process, but in just giving that much process in the sense that someone like Donald Trump can abuse it. Most criminal defendants never get the chance to exercise all of their due process rights. Donald Trump is stretching due process beyond its point of elasticity.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes. Well I’m guessing that you are aware that Donald Trump is on trial in a New York criminal court in Manhattan for a scheme to influence improperly and unlawfully influence the 2016 election through the falsification of business records. That’s the official indictment. It’s 34 counts of those falsification of business records. It’s 34 felony counts.
And it’s a felony because that falsification of business records, which would otherwise be a misdemeanor, were done in pursuit of another crime, which is the unlawful influence of the 2016 election and the violation of both state and federal criminal law as regards campaign finance regulation. That case is ongoing and we’re covering it a lot on the TV show, but I thought it would be a good opportunity to take some time to sort of dive deeper on the case here in the WITHpod format.
I get to talk to today’s guest all the time on air, but it is in the cable news snippets of maybe five minutes, maybe eight minutes or running long. And so I wanted to sort of sit down and go through the case, go through the first week of the trial so far, talk a little more broadly about the implications sort of legally and even philosophically about watching this trial unfold and what it means about the American system of justice.
And so I’m going to get right into it with today’s guest, who’s Lisa Rubin. She’s the MSNBC Legal Correspondent. If you watch MSNBC on air, you see her all the time. She’s an incredibly important, I would say central member of our team on air and has been in the courthouse day in, day out. She was in the courthouse during the two different civil trials for defamation brought by E. Jean Carroll. She was in the court for the civil trial for fraud that was brought by the attorney general. And she’s been in the courthouse for this criminal trial.
She knows the ins and outs of the law and this case. And so for a deep dive on this historic trial, it’s my great pleasure to welcome my friend, my colleague, the person I’m relying on probably more than anyone to follow the trial, Lisa Rubin, MSNBC Legal Correspondent. Lisa, welcome to the podcast.
Lisa Rubin: Thanks, Chris, for having me.
Chris Hayes: Let’s start with the history, actually. I thought it might be good to start with the history and prehistory of this trial and the charges, because there was a long prologue to the charges being brought, which was there was a previous Manhattan district attorney named Cy Vance. There was investigation in his office. A baton was passed between that office and the new district attorney, Alvin Bragg, was elected to replace Cy Vance, who retired. And then there was some controversy about whether charges were to be brought or not. And then the charges were brought. So I wonder if you could just kind of take us through a little bit of that prehistory to put all this in context.
Lisa Rubin: I’m going to try my very best. In the summer of 2018, I think, we learned for the first time that the Manhattan D.A.’s office had started an investigation into Donald Trump. And that was an investigation that initially was into his businesses and started with some tax or financial fraud allegations. At that point in time, the Southern District of New York was also working on its own investigation and sort of said to the Manhattan D.A.’s office, please cease and desist. We got this.
It was a jurisdictional fight. And so even before Cy Vance really started his investigation in earnest, there was a fight between the feds and the state over who got to investigate some of what became the campaign finance investigation into Donald Trump and Michael Cohen.
Chris Hayes: And this is not uncommon. This happens in all kinds of places. You’ve seen movies or cop shows where, you know, the local cop shows up at the police tape and the body and the FBI come in and kind of push them aside. These sort of turf battles, particularly in New York.
Lisa Rubin: Yes.
Chris Hayes: Both these offices are very formidable, very legendary offices. They both really are pretty turf interested. Like, it’s not crazy that this kind of thing was happening or even out of the ordinary.
Lisa Rubin: No.
Chris Hayes: Right.
Lisa Rubin: No, it wasn’t out of the ordinary that it happened. I mean, I think oftentimes the Southern District of New York, which gets nicknamed the Sovereign District, wins out. What made it unusual was that, as you well know, after prosecuting Michael Cohen and getting a non-prosecution agreement from the folks at American Media, that’s the company that owns the “National Enquirer,” there was that famous letter where they let the world know that they were not investigating Individua-1, who at that point was known to us as Donald Trump.
And that’s when Cy Vance’s office sort of got the green light to resume the investigation that has morphed into the case we have now. When Cy Vance was leaving office at the end of 2020, his investigation was at a point where they hadn’t quite settled on a theory of law. And Mark Pomerantz has famously written about this in “The People vs. Donald Trump.”
At that point in time, he had sort of come out from a semi-retirement to assist the D.A.’s office pro bono. And the case that they really thought they were going to bring was one primarily having to deal with insurance fraud and financial fraud. But he thought that there were all sorts of problems with bringing a case about the hush money allegations and how they were going to formulate that legalistically.
In particular, the theory that Alvin Bragg’s team is now litigating is one that Mark Pomerantz thought was legally fraught with peril. When Alvin Bragg took over, by that point, Mark Pomerantz and a colleague of his, Carey Dunne, also a private practitioner who came to assist Cy Vance, they were sort of raring to go.
And the change of administration did not help them much because they wanted Alvin Bragg, who was new in the office, who had never been a D.A. before, although he had substantial prosecutorial experience, to trust them. And they essentially said to him, this case is ready to go. Cy endorsed bringing it to the grand jury. Let’s go.
Chris Hayes: Let’s do it.
Lisa Rubin: Yeah, let’s do it. And Alvin Bragg’s response was sort of like, hey, wait a second. I don’t think we’re ready yet. And that wasn’t what Mark Pomerantz and Carey Dunne wanted to hear. And they resigned quite publicly. And in Pomerantz’s case, wrote a very long resignation letter.
Chris Hayes: And then a book.
Lisa Rubin: And then a book. That’s when Alvin Bragg deputized a woman named Susan Hoffinger, who is the head of investigations in his office, to take over the investigation. At the time, folks across this network thought that that meant the investigation was dead. The D.A. spokesperson told “The Washington Post” the investigation continues and everyone laughed.
And yet they assembled a team of about 25 lawyers and paralegals to really constitute what ended up being the indictment that they brought last April. So they were investigating between, let’s say, January, February of 2021 and late, late March, April 2023, after they had brought the case to the grand jury and ultimately indicted Donald Trump on the case that now brings us to this trial.
Chris Hayes: So two things just to hang a lantern on here. One is many of the facts at issue in this case were things that Michael Cohen pled guilty to in federal court in a plea worked out with the Justice Department under Donald Trump —
Lisa Rubin: Right.
Chris Hayes: — in which he said he did the things that were felonious in the eyes of the law and to which he set an open court on behalf of Individual-1, who we all knew was the President of the United States. And then they stopped there. And there’s speculation reporting about that.
One thing we know is that there’s a longstanding Justice Department policy memorialized in a memo from the Office of Legal Counsel that you cannot indict a sitting president. At least federal prosecutors can’t do that. We can debate whether that’s good or bad. That’s a sort of interesting side note, but it wasn’t going anywhere.
So then Cy Vance is like, okay, well, they pick it up. But just so that I want to be clear here, the case that Pomerantz and Carey Dunne were working on was different than the case that Alvin Bragg brought, correct?
Lisa Rubin: Yes, it was different than the case Alvin Bragg brought, because while Alvin Bragg brought a case that is fundamentally about something really mundane, it’s about a falsification of business records. And in particular, he charges that by paying Michael Cohen off through a series of checks, invoices and general ledger entries that reflected Michael Cohen was being paid for legal services that in actuality was —
Chris Hayes: We’re not. Right.
Lisa Rubin: — never rendered, right, that they falsified business records in violation of a New York statute.
What makes the case somewhat of an oddity, and this is where Mark Pomerantz really had his difficulty, is how you convert that falsification of business records from a misdemeanor into a felony. And the New York statute essentially says that falsification of business records can be a felony where it is done with the intent to commit or conceal another crime. One of the things that’s particularly odd about sort of the felony step up in the falsification of business records statute is you don’t have to prove the underlying crime.
Chris Hayes: Right.
Lisa Rubin: You just have to prove that there was an intent to commit or conceal it. And you might not even have to specify exactly which crime it is, but can give the jury almost like a grab bag of options that they can convince themselves, well, you know, it’s feasible here that juror number two could walk away with the impression that Donald Trump intended to commit tax fraud. And another person walks away with the impression that Donald Trump intended to conceal Michael Cohen’s own violation of campaign finance law, right?
Chris Hayes: Right.
Lisa Rubin: So there are a bunch of things about this that were sticky for Mark Pomerantz. But in particular, he wasn’t sure if you could use a violation of federal law as the basis or the underlying crime with respect to the —
Chris Hayes: State charges.
Lisa Rubin: — state falsification of business records statute. And now the D.A. sort of found a way around that.
Chris Hayes: Because there are state election laws.
Lisa Rubin: There is a state election law that punishes a conspiracy among, you know, two or more participants to promote or prevent the election of a particular person through unlawful means that are acted upon. And so, again, it may be circular because that unlawful means could be —
Chris Hayes: The fraud.
Lisa Rubin: — a campaign contribution that violates federal election.
Chris Hayes: I see. Yes.
Lisa Rubin: Okay.
Chris Hayes: Right.
Lisa Rubin: But in the first instance, the intention to commit a crime could be the intent to engage in this conspiracy to throw the election under New York state election law 17-152.
Chris Hayes: So this is a key part of the case to just stay with for a second. So in the absence of the other crime that this was being done in pursuit of or for the furtherance of, this business record fraud, which is the statute being charged here, would be a misdemeanor.
Lisa Rubin: It would be a misdemeanor and maybe not even that, because you have to find that there is an intent to defraud someone. The Trump corporation or the various entities that comprise The Trump Organization are closely held businesses. That means there are no owners —
Chris Hayes: No shareholders, right.
Lisa Rubin: — but the Trump family, right. So one of the questions that people have floated is who’s being defrauded here? Who is the victim of any intent to falsify a business record if the end users of those business records are only The Trump Organization?
Chris Hayes: Right. If you’re keeping your own books and you like write down that, you know, the money you spend on a Vegas weekend was for your kids tuition just to make yourself feel better, that’s not that’s not a crime. You’re just sort of self-diluting. But the theory here actually does connect to something public, right. Because as I understand the case, right, so you’ve got these misdemeanors. These are these business records.
And it seems to me, again, I’m just saying from my perspective as a journalist observer, like it seems pretty clear that they did falsify the business records insofar as it seems pretty clear Michael Cohen was not being paid for legal services, that he was being reimbursed for a hush money payment, that they entered it into the ledger or something else so as to conceal it, that that concealment was willful and with a purpose.
All of that seems pretty plain to me. The question is, well, again, who’s being defrauded? And the theory that Alvin Bragg’s office has is that the public was because this was all done for a candidate and that the regulatory regime that was being violated that guides that candidate exists for the reason that people know what the candidate is up to.
Lisa Rubin: That’s absolutely right. I mean, look, Todd Blanche was right, and Todd Blanche, being one of President Trump’s lawyers, was right when in his opening statement he said there’s nothing illegal about nondisclosure agreements. And that’s true.
Chris Hayes: Absolutely.
Lisa Rubin: In the abstract, they’re not. But then he said it’s also not illegal to influence an election. And that’s also true. That’s called democracy, as he infamously said. The problem is where you’ve got the Venn diagram of the two, right.
Chris Hayes: Right.
Lisa Rubin: Where you have a nondisclosure agreement that involves a payoff to a particular party with the goal of influencing an election, which is an unreported campaign contribution —
Chris Hayes: Yes.
Lisa Rubin: — either individually or made by a corporation in the case of AMI. That is where you get into the violation of either federal or state election law. And that, in turn, is what converts this falsification of business records, right, because they didn’t want the FEC to find out about it. They didn’t want the public to find out about it. That is what, in the district attorney’s eyes, converts this into a 34 felony count criminal case.
Chris Hayes: Converting it into a 34 count felony case is something that happens legally, right? So it goes from misdemeanor to a felony. But I also think, again, from a kind of like general public interest sense, aligns with some broader intuition about why it matters. I mean, you know —
Lisa Rubin: Yes.
Chris Hayes: The idea was like, again, there was a reason they were concealing all this. And the reason they were concealing all this because he was a candidate for office and the other ways they could have done it would have led to disclosure because the laws regulating campaigns are designed to produce a level of transparency that they wanted to avoid.
Lisa Rubin: That’s correct. I mean, our entire regulatory apparatus around campaign contributions put aside Citizens United, which allows people to make unlimited contributions on their own behalf and raise the limits and other cases, you know, you can find fault with that. But putting that aside, we have a pretty detailed regulatory apparatus that decides not only how much people could contribute, but how much transparency is there. It’s what allows me to see, for example, that Save America, which is Trump’s leadership PAC, is the one paying all of the constellation of lawyers —
Chris Hayes: Correct.
Lisa Rubin: — around him in these various cases, right. It serves a public purpose for the public to understand who is being paid by whom —
Chris Hayes: Correct.
Lisa Rubin: — or what surrounding the conduct and administration of elections.
Chris Hayes: So I want to stay with this point because I brought it up on air the other night and I’m not quite sure it’s resolved in my mind. And I think it actually goes to, again, I think on the merits, as I understand them, it’s a strong case. I think that the details of the misdemeanor seem just inarguable to me. And the general facts of like, did they do this to stop her from coming forward seems pretty clear they did.
Whether that meets the requisite threshold in front of a jury, given the legal theory at issue, I’m more agnostic on. I mean, we haven’t seen the case tried yet. But one question I keep coming back to is, was there a way to properly lawyer this?
Lisa Rubin: I actually think there was. You asked that question the other night on Monday night. And I do think that there might have been a way to properly lawyer this. I’m not telling you that it would have necessarily passed muster by an FEC that wasn’t deadlocked between Republicans and Democrats.
Chris Hayes: Right. That doesn’t enforce anything, by the way.
Lisa Rubin: Okay. But with the caveat that I am no longer a practicing lawyer and I am not offering a legal opinion to anybody listening to this —
Chris Hayes: Who’s in the market for this? Yeah.
Lisa Rubin: Correct. Somebody in the market —
Chris Hayes: We do an advice podcast here on WITHpod where if you’ve got some hush money you have to pay while you’re a candidate, you could tune in and get free legal advice.
Lisa Rubin: Yeah. It’s being converted from “Why Is This Happening?” to how do I make it happen? No. I think one of the ways to do it was, first of all, there were pass through entities at both ends of these payments. So first of all, Michael Cohen, if we’re talking about the Stormy Daniels payment, for example.
Chris Hayes: Yep.
Lisa Rubin: Michael Cohen opens an LLC called Essential Consultants. He then pays Keith Davidson, right? And then Keith Davidson passes that money along to Stormy Daniels. One way to have made this more transparent, more lawful would have been for Donald Trump to have directly paid Stormy Daniels, or at least to have put that money in Keith Davidson’s escrow account onto Stormy Daniels, not to have the fiction —
Chris Hayes: Right.
Lisa Rubin: — of some business entity involved.
Chris Hayes: That doesn’t exist, right.
Lisa Rubin: The second part would be to paper it in a way where the parties didn’t have pseudonyms. Remember that the settlement agreement was between a David Dennison and a Peggy —
Chris Hayes: Right.
Lisa Rubin: — something with a P last name to disguise the fact that the agreement was about Trump and Stephanie Clifford or Stormy Daniels, as opposed to these abstract —
Chris Hayes: Right.
Lisa Rubin: — David Dennison and Peggy, whatever her name is, right. Cohen and Davidson still signed them. And all of the notice provisions say, you know, notice has to be given to Cohen, notice has to be given to Davidson. But the execution of the agreement was by lawyers. The signatures on it are by lawyers and the parties are disguised. So I think one way to have done this in a way that it didn’t look like an attempt to skirt campaign finance law was to be as true to what actually was happening here, both in the source and method of transferring the funding and also with respect to who was involved here as possible.
That’s not to say that at a later point in time, somebody couldn’t have said this was an unlawful campaign contribution. But remember, if Trump had paid directly, Trump is empowered to spend as much money as he wants on his own campaign under federal campaign finance law and Supreme Court precedent. So to your question, I think that’s the answer.
Chris Hayes: So, here’s what I’ve come up with as a non-lawyer, the way to make it work. I think someone working at the super PAC. Now, the coordination questions here is a little dicey and he didn’t have a super PAC at the time, but let’s say right now is Save America. I think the super PAC could have just bought their life rights and said, we’re buying the life rights of these people.
Now, what would have happened is because, again, this isn’t an ancillary point because we keep bumping up against these transparency requirements, which are there for a reason and whose evasion is the motive for the crime, right. So, the fact that we keep getting to that point is actually what’s at issue here. They’re trying to conceal something. The lag in FEC reporting would mean that it was all happening late enough in October.
I continue to think and I got to check with like an actual election lawyer, but I think your super PAC could have been like, we want to buy your life rights for $150,000 or whatever. And then, yes, there would have been some payment disclosed after the election saying and some smart journalists would have been like, Stephanie Clifford’s life rights were bought by the super PAC. What’s going on here?
But at that point, as we saw and again, as was brought up by Rachel and the coverage and has been brought up by the D.A.’s office, they released him from the NDAs after the election because they didn’t care anymore.
Lisa Rubin: Well, my recollection is that they released Karen McDougal —
Chris Hayes: Yeah.
Lisa Rubin: — and Dino the doorman —
Chris Hayes: Dino the doorman.
Lisa Rubin: — immediately because American Media was the counterparty in those agreements, right.
Chris Hayes: Right.
Lisa Rubin: And the agreement to which Trump was the counterparty, my recollection is that Stephanie Clifford —
Chris Hayes: Is not released.
Lisa Rubin: — was not released, right. And there has been subsequent litigation between them. I want to go back to something that you said, though, to push back on it a little bit, because I agree with you that insofar as business records were falsified, I think there is evidence of that. But the question is not, did they in the abstract or they meaning the royal they, falsify business records, but did Trump —
Chris Hayes: Yes, correct.
Lisa Rubin: — falsify business records or cause others to do so? And that is a burden that the D.A. has in this case. And that falls fairly heavily upon them. One of the things that Todd Blanche said that I thought was effective on Monday was that Deborah Tarasoff, who’s the accounts payable supervisor referenced in the charging documents, is not going to come to the court and say Donald Trump told me to do this nor is Jeff McConney, who will be on his third trial testimony on behalf of Donald Trump.
Jeff McConney is the former Trump Organization controller. He is now what I would generously call forcibly retired and under a severance agreement with The Trump Organization. But he is still not going to come to court, according to Todd Blanche, and say Donald Trump asked me to do this. And all likelihood, what really happened is that Allen Weisselberg probably forwarded some documents to them and said, these are payments for Cohen and no one was the wiser, right?
My guess is that both McConney and Tarasoff did not have any knowledge that something untoward was going on. They might have scratched their head about the payment to Cohen insofar as he was a Trump Organization employee. And so why then would you be separately compensating him —
Chris Hayes: Right.
Lisa Rubin: — for legal services unless there was that break. And my recollection was at some point there was a break where he ceased being a Trump Organization employee and started functioning solely as an outside lawyer. But I don’t think that the D.A.’s office and I could be wrong about this, but they certainly didn’t preview in their opening statement that they will be able to show that any of the people involved in papering the deal were directed by Trump himself or even sort of through layers of bureaucracy, that they had an understanding of what it is that they were doing.
Chris Hayes: Right. Although the way the two pieces of evidence they appear to have is or they flagged is that the CFO, Allen Weisselberg, made notes that they have in which he’s breaking down this repayment scheme.
Lisa Rubin: Yeah.
Chris Hayes: And then, of course, there’s Michael Cohen, who was the one who got the payments.
Lisa Rubin: Well, let’s take for granted, right, that Michael Cohen could tell this whole story for the most part from start to finish. When I say they’re having trouble with the evidence, I mean, in addition to Michael Cohen.
Chris Hayes: To Michael Cohen, right.
Lisa Rubin: Let’s take as a given that Michael Cohen is and I said this to someone else, so I apologize if you’ve heard it. Michael Cohen, in this case, is sort of like an earthquake damaged building and they have to build scaffolding around him to make him habitable again. It’s not that he is like broken or that you can’t enter. It’s like a beautiful building that they have to reconstruct, right?
Chris Hayes: Right.
Lisa Rubin: And so from that perspective, what I’m thinking about is other than Michael Cohen and other than that single page of Essential Consultants’ bank statements on which Allen Weisselberg literally hand wrote how the repayment scheme was going to work, essential consultants being Michael Cohen’s LLC. I think it’s funny that Weisselberg didn’t write it on a blank piece of paper, but wrote it on a bank statement for the entity that was going to be that had made the payments and presumably was be repaid.
But aside from that, who can they use or what are they going to use to tie it directly to Trump? And whether we’re talking about it as a misdemeanor or as a felony, that is part of what I find, if not problematic, at least not yet revealed to me in terms —
Chris Hayes: The challenge.
Lisa Rubin: Yes.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: So let’s go back here and talk about some of the early testimony so far, and people will listen to this after it’s already happened. But the first big witness has been David Pecker. He’s taken up the first week. And let’s just talk about a little bit who David Pecker is. I don’t think we have to say alleged scheme, because I think there was a scheme. Whether it was criminal or not that is to be determined and whether Trump is criminally guilty of the charges to be determined, but there was a scheme. Who is David Pecker and what role did he play in that scheme?
Lisa Rubin: Well, let’s start with who David Pecker was at the time, and then I’ll go back a little bit in time because I think the context is important. David Pecker was the chairman and CEO of American Media. They are a company that owns multiple supermarket tabloids, including the “National Enquirer.” And during the time that David Pecker owned the company, also bought sort of more upmarket magazines like Us Weekly.
But David Pecker was also somebody who had been friends with Donald Trump since 1988 or 1989, when he was running a French publishing company called “Hachette.” And he said that they were introduced through Ron Perlman, the former owner of Revlon and himself sort of an infamous New York billionaire at Mar-a-Lago. And they realized pretty quickly that in addition to enjoying one another’s company, each was good business for the other. Although Pecker would characterize it as a good friendship, this was a highly transactional relationship where both players made a lot of money through their association with the other.
Pecker used Trump to sell magazines, no doubt, particularly once “The Apprentice” and then “The Celebrity Apprentice” got off the ground and Trump was, according to him, a top seller of their magazines. If Trump was on the cover, it would sell through the roof. Conversely, Trump used Pecker to get the publicity that he needed to prove his marketability, to make his name, including in licensing and branding deals, hotter.
At the time of “The Apprentice,” when their relationship was sort of at its most mutually beneficial, Trump was seen by millions of Americans as like sort of the ultimate corporate boss. And —
Chris Hayes: Yes.
Lisa Rubin: — Pecker was very —
Chris Hayes: The magic of television, Lisa.
Lisa Rubin: You know, look.
Chris Hayes: People think I’m an authoritative newscaster. You know, I mean, it’s amazing what you could do with some makeup and lights.
Lisa Rubin: Yes. Sometimes people, you know, not self-deprecatingly, sometimes people deprecatingly call me a TV lawyer because they think that all of this is fake news.
Chris Hayes: Right.
Lisa Rubin: But David Pecker liked Donald Trump. He admired Donald Trump. There was a point in time before all of “The Apprentice” stuff that he convinced Trump to launch a magazine called Trump Style because he said to him, you have enough hotel properties that you can basically stick this magazine in your rooms and casinos and lots of people will read it and it will further the glamour of your brand.
And so David Pecker was deeply invested in Donald Trump’s success and his brand, not just for Donald Trump’s sake, but more importantly, for David Pecker’s sake, a point that was like totally underscored. This was like my favorite moment of the day on Tuesday of last week. My favorite moment was when David Pecker said that if Dino Sajudin’s story about Trump having an illegitimate child was one that he thought was true, he absolutely would have published it.
He would have waited until after the election to ensure that it wouldn’t hurt Donald Trump, but then he would run with it. And so David Pecker’s bottom line was always David Pecker. And yet I think it was sort of like a game recognizes game sort of relationship.
Chris Hayes: Totally. Well, that’s really well-articulated. And I think one of the things I found really interesting, and this is completely ancillary to the legal and moral questions that are implicated, but the whole thing was like this weird time capsule to me. I mean, these two sort of media empires, it’s like this a hit network reality show, you know, that’s doing 18 million, a huge viewership and the supermarket tabloid —
Lisa Rubin: Tabloid.
Chris Hayes: — magazine empire, both of which are just like really feel like another era. And they are. Both of these men are creatures of another era. And they’re means of influence.
Lisa Rubin: Yes.
Chris Hayes: At that time, it’s like so time specific, this moment of mutual interest between the two having to do with where the media landscape is at the moment that they’re sort of partnership against.
Lisa Rubin: Yes. Late ‘90s, early aughts being sort of the apex of these two media worlds that now feel anachronistic in a world where our media consumption is so niche and segmented, A.
Chris Hayes: Yes.
Lisa Rubin: And B, the power of the supermarket tabloid has been replaced by sort of the online world of gossip, whether —
Chris Hayes: Right.
Lisa Rubin: — it’s “TMZ” or “The Daily Mail” or “Page Six.” “The National Enquirer” has sort of been pushed aside by its newer upstart competitors that rely much more on actual video evidence of the things that they are telling you are true than, you know, the inquirers like woman abducted by aliens story.
Chris Hayes: Right.
Lisa Rubin: But, you know, one of the things that I think is really interesting, people kept saying this is such a seamy world. It’s not real journalism. And yet we all forget the “National Enquirer” is the journalistic outfit that broke the John Edwards story.
Chris Hayes: “Drudge” was the first to bring it, but they also had like early scoops in Monica Lewinsky.
Lisa Rubin: And so, you know, throughout political recent history of the last, let’s say, 25, 30 years, I mean, I can think about the “Enquirer” and the Gary Rice scandal, too. The “Enquirer” has sort of been at the forefront of political scandal. So when David Pecker says he went to this meeting in August 2015 with Michael Cohen and Donald Trump and they say to him, what can you do for us? When he is offering to catch and kill, he knows of what he speaks. He knows the power of catching and killing because he understands the importance of the “National Enquirer” and essentially ruining political lives.
And he understands that the way that that happens is through women who come forward with allegations against specific candidates. And he said, you know, I offered that because Donald Trump was known as the world’s most eligible bachelor who dated some of the world’s most beautiful women. Put aside the beauty of the women. The phrase that Donald Trump was an eligible bachelor for the majority of the time that David Pecker and Donald Trump were friends.
Chris Hayes: He was definitely married.
Lisa Rubin: Donald Trump was married to one of three different women. So, the idea of Donald Trump and he spoke of it —
Chris Hayes: And (inaudible) that too.
Lisa Rubin: Yeah, in the present tense as a bachelor was like sort of laughable, but also goes to this sort of like weird hero worship that’s still going on in David Pecker’s head that ironically made him all the more credible as a witness. The fact that he is not like Michael Cohen, sort of aggrieved with a vendetta against Trump —
Chris Hayes: Right. He’s not grinding an axe. Yeah.
Lisa Rubin: No. In fact, you know, some journalists noted that he smiled at Trump at one point and Trump was sort of cramming his head at one point, almost like, can we make eye contact? Because no one knows when they last saw one another. AMI entered into a non-prosecution agreement with the Southern District of New York, again, the Manhattan outfit of the DOJ in 2018. I presume there hasn’t been a lot of contact between them since, but you never know. Florida’s a small place and a weird one.
Chris Hayes: So Pecker has a pre-existing relationship with Trump, a mutually beneficial one. And there’s a meeting in August of 2015, two months after the campaign is launched, in which Michael Cohen, Donald Trump and Pecker are in the meeting. Pecker says that it was a what can you do for us? He says, here’s what I can do. And I should just also give this context because I’ve seen a little confusion about this. The notion of catch and kill, particularly gossip outlets doing catch and kill, is like as old as the gossip press, going back to like the Hollywood press.
Like this idea that one of the ways that you curry favor in gossip is to actually suppress some stories for people so that they owe you. And then you have kind of leverage over them. So you have a story sitting in your vault and you know that this powerful Hollywood actor or producer, they know you have that. And so when you go to them and say, I need this scoop, they give it to you. Like this is part of the stock and trade in this world of gossip media basically for decades.
Lisa Rubin: Yes. But what’s different here, I think, is both the degree and kind. So Pecker was really clear that at the “Enquirer,” reporters were instructed that they could pay up to $10,000 for source agreements. But to the extent that they wanted to pay more, it required approval from higher ups in the “Enquirer” up to and including him.
And so the amounts that were being paid here were so disproportionate to the maximum that reporters were allowed for source agreements to begin with. And then the second thing that he mentioned that I thought was interesting is that usually a source agreement works like this. I enter into an exclusivity arrangement with you for a limited period of time. If and when I choose to publish that story, I pay you that $10,000. If I decide never to run with it at the expiration of that exclusivity period, you’re free to shop it wherever else.
Originally, the agreement that they entered into with the Trump Tower doorman who claimed that Trump had had an illegitimate child with a maid at Trump Tower, originally, it worked like that. But several days later, they amended it so that he got his payment no matter what within five days of signing the agreement. That itself was also an oddity to the usual arrangements of catch and kill that Pecker was describing.
Chris Hayes: Well, and this gets to another aspect of the testimony, which is Pecker’s trying to get Donald Trump elected president, I mean, both at a transactional and personal level. Like that was one of the things that came through was they want to protect the campaign and Pecker wants him to win. I mean, Pecker, for a bunch of reasons. I mean, first of all, having Donald Trump in the White House would probably be very good for AMI and for Pecker and “National Enquirer.”
Also their friends and however, David Pecker divines that term, which I think is probably different than how I do. But I mean, again, according to Pecker’s testimony, this is about the campaign.
Lisa Rubin: Yes, but it’s not you know, I want to just make it clear, Pecker didn’t describe himself as having any ideological commitment to Trump. And really, at the time that Trump announced his candidacy, ideologically, it wasn’t even clear who Donald Trump was.
Chris Hayes: Right.
Lisa Rubin: And yet David Pecker was very clear when Trump made that announcement, when he went down the escalator and that story he likes to tell all the time, David Pecker was sitting in the atrium right next to Michael Cohen, who invited him through an e-mail that said, no one deserves to be there more than you. Recognizing, I mean, flattering, you know, David Pecker on one hand, but on the other hand, recognizing the role that the “Enquirer” had played over the years in both building up Donald Trump and preventing him from being torn down.
So my sense is that, yes, David Pecker wanted Donald Trump to be president. But how much he wanted Donald Trump to be president for anything other than his own selfish, my friend’s in the White House purposes and I’m going to make a lot of money is not at all clear to me.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: One of the other big themes of the first week of the trial, and I’m trying to kind of time proof this as much as possible so acknowledging that when people are listening to this, developments will have happened, but is just how the judge, Juan Merchan, is overseeing the courtroom and there’s been three different trials.
Well, four, I guess, because there was two vis-a-vis E. Jean Carroll, three judges. There’s federal Judge Kaplan, who oversaw both E. Jean Carroll trials. There’s New York Judge Engoron, who oversaw the civil fraud lawsuit brought by the attorney general of New York, Tish James. And now there’s Judge Juan Merchan, who is seeing the New York criminal charges.
I wondered if you could give us a comparison of these three judges and how they have dealt with a problem that has cropped up in all of the trials, which is that Donald Trump won’t shut up and he won’t stop doing things that basically no other litigant or defendant really ever does. As far as I can tell from my interviews with many judges and many practitioners in many courts, the constant insults, one might even say harassment and bullying that he does, particularly on social media, but to the press about the case, about people involved in the case, about staff or family members of people working on the case and how to deal with that problem.
Lisa Rubin: I think they’ve all taken slightly different tacks. But on one level, I think you can sort of group Judge Merchan and Lou Kaplan of the Southern District in one lump together because they are both firmly in control of their courtrooms. Merchan will hear argument, but there is a point in time after which he has heard what he needs to hear and he makes it clear that the argument is over. He’s also good about not losing his temper.
Kaplan is a lawyer’s lawyer. He is like a legal scholar in judicial robes. He is a person that coats Jonathan Swift, as he did at one of the E. Jean Carroll trials. He’s very much a cerebral lawyer and intellect. Juan Merchan, I think, is more pragmatic. He is a person who spent a lot of time as a prosecutor, but also very deeply committed to management of his courtroom in the interest of justice.
And similarly, no nonsense to Judge Kaplan in that way. His opinions are plainer speaking. They’re shorter. But the practice of law in state court is also a little bit looser than it is in federal court. I think one of the things that those two people share in common is they both recognize that Donald Trump thinks he would be politically benefited from serving time for any criminal contempt or violation of a gag order.
And so both of them are trying to calibrate their response in a way that not only is sort of gradual and progressive, but leaves defendant Trump in enough fear that incarceration or being kicked out of the courtroom is a sufficient possibility to keep him more in line than he would otherwise be. That’s not to say he’ll stay perfectly in line or that he has. But I think Kaplan throughout two trials, you know, the first one, Donald Trump did not attend in person.
But the second one, Kaplan was masterful at understanding when he himself was an object of Trump’s manipulative attempts and not wanting to play that game. And there was even an exchange between the two of them at the second Carroll trial where Kaplan said something to him, and I wish I had the transcript in front of me like, I know that’s what you want.
In other words, I’m not letting myself be baited by you. I’m going to step off the bench right now because I know exactly what you want me to do. And I’m not going to give you the satisfaction of throwing you out of my courtroom or putting you in jail. And so the trick for Merchan is to seem sufficiently credible about that possibility while not imposing it. And that is the line that Engoron never achieved because Engoron was incredibly lenient with Trump and the Trump lawyers until he wasn’t. He had two modes, right?
Chris Hayes: Right.
Lisa Rubin: His modes were like lenient and ballistic.
Chris Hayes: Right.
Lisa Rubin: And I think both Merchan and Kaplan tried to play it not down the middle, closer to the calmly angry, ready to enforce at any point in time.
Chris Hayes: You know, at a kind of narrative or conceptual level, what I found interesting about this and this is true, I think, about all the trials is that they’re kind of their little scale models of the issue and problem of Trump that are right there in front of us. So, like, this is the problem that everyone has encountered, the media, the Republican Party, the Democratic Party, the lawyers of the Justice Department, all different institutions of American life of like someone that just won’t abide the lines, sort of takes glee in transgressing, enjoys testing boundaries, will do so as much as he can get away with.
And here you just in these judicial interactions, it’s just it’s the whole problem in miniature right there in front of you being played out. And it’s also why I think and I said this on air the other night, you know, one of the things that really struck me is really interesting about I guess it was the first actual day of trial was Judge Juan Merchan giving the jury their instructions. And these were the boilerplate instructions, not the tailored —
Lisa Rubin: Detailed.
Chris Hayes: — detailed, bespoke instructions they’ll get before deliberations about the trial itself, but rather broadly, here’s what you’re doing and here’s how to come to your conclusions, how to use reasons, evidence, what counts as a reason and what doesn’t, what you should be paying attention to and what you shouldn’t be, how to think about the evidence you’re seeing. And what I found fascinating and bracing about it is, again, the kind of problem in miniature, right?
Like in the world of the court of public opinion or in the fractious democratic polity that is America, there’s no consensus or agreement about basically any facts, whether the vaccines work, whether Donald Trump won the 2020 election. And here you have the issue of getting 12 strangers in a room to come to consensus on a set of both facts and also legal conclusions about whether certain crimes have been committed.
And there’s something fascinating about watching whether that jury experiment, which is encoded into common law and in the U.S. Constitution, will function differently than things have outside the courtroom.
Lisa Rubin: I have reason to believe that they will. I mean, I think, you know, that I am more optimistic about the way that the law works than many people are because by discipline, having committed my life to the study and the practice of law, I believe in law, right?
Chris Hayes: Yeah, it’s the same way. Yeah.
Lisa Rubin: But that having been said, you know, the E. Jean Carroll trials certainly could have tested that. And both of them reaffirmed my belief that what happens in a courtroom is more sacred and sacrosanct than Trump would like it to be, right? Verdicts are sort of the antithesis of what he stands for, which is that all facts are mutable.
Chris Hayes: Exactly. Yes.
Lisa Rubin: And he continues to contest them as if they haven’t happened, as if they don’t have finality to them or a conclusive impact. That said, both of those juries had compositions that not unlike this jury, there were people on each of those juries who could have been favorable to Trump and weren’t. You and I have discussed, and I raise this all the time, that there was a juror in the first E. Jean Carroll trial who said he listened to a lot of the far right podcaster Tim Pool. That was not transcribed correctly. It was not heard by E. Jean Carroll’s lawyers at the time when another journalist discovered it and wrote about it.
There was behind the scenes sealed efforts to get that juror removed because they hadn’t appreciated what he was essentially confessing to in terms of his media diet. And yet that juror was part of the nine person jury that not only unanimously found that Donald Trump defamed E. Jean Carroll, that first jury found that he had sexually assaulted her in a way that colloquially meets our definition as a society of what is rape, even though legally it is not rape under New York law —
Chris Hayes: Right.
Lisa Rubin: — it is what many people would describe as a rape. So, the Tim Poole juror is part of the jury that found Donald Trump sexually abused E. Jean Carroll. I could not have seen that coming. And yet it reaffirms that if you trap people in a jury box and you make them listen to evidence and you give it to them in bite sized, digestible bits that are intelligible and compelling, they will often get to the result that you find to be a fair and just one.
Chris Hayes: And this brings us to the sort of last point that I wanted to discuss with you, which is I go around and around circles chasing my tail on how to think about this in the broader context of American law and particularly American criminal justice. And the point that I make a lot on the program is in the same way that “Perry Mason” or “Law & Order” a little less so, are not particularly representative of what happens day to day in the criminal justice system.
When you get a trial of the century, an O.J. Simpson trial, a Donald Trump trial, John Gotti, which was the tabloid one of my youth when Donald Trump and John Gotti were alternating on the, you know, cover of the New York tabloids. By definition, you’re not seeing what’s normally happens. And what normally happens in the criminal justice system is people get arrested, they get arraigned, they don’t have much money, and in the end they plea.
Lisa Rubin: And in between they get detained, right?
Chris Hayes: And in between they get detained. And sometimes they don’t bail reform. You know, there’s been changes to that partly because of efforts by reformers. There’s real contentious questions about what the results of that has been. I tend to think it’s been more positive than negative, but that is definitely a contested. But you’re in Rikers or if you’re not in Rikers, you’re going back to your neighborhood that you live in where you’re kind of struggling to get by in a lot of cases and maybe you’ve got a few open warrants and if you get picked up on something else, then you do go to Rikers.
It’s just the sort of grinding bureaucratic assembly line nature of what’s mostly happening in the system is just so different than the intensely-lawyered version of the system that we see here with like a lot of motions in limine and appeals up to the Supreme Court in the case of the Jan. 6 federal trial that are just totally like it’s a public defender who’s got a huge portfolio of cases and is doing their best to like do what they can, but it’s coming. You’d be like, buddy, you got to plead or you’re going to give you 10 years. We can get it down to three.
It’s just so radically different. And I can’t get away from I don’t know what to do with it, but it just haunts all of my thinking about the coverage of the trial because this is the big version of American justice that most people are seeing. And it’s just like utterly divorced from the reality of what’s happening in most of the rest of the system.
Lisa Rubin: Let me be even more hyperbolic about it —
Chris Hayes: Yeah.
Lisa Rubin: — because it’s even more divorced from that because not only of the impact of money that allows people, for example, to not be detained, to file all this motion practice, to go up to the Supreme Court and back, but also because the amount of security involved and precautions that are taken for the safety of the witnesses and the jurors and the personnel involved here —
Chris Hayes: Great point.
Lisa Rubin: — make this completely an anomaly, right.
So, the fact that for 45 minutes the other day, I and half of, you know, the National Press Corps that covers Donald Trump, I’m being hyperbolic now, was trapped in a room by edict of the Secret Service because we were on lockdown since he was leaving the courthouse and yet had not left in his motorcade, that adds an additional aura of the surreal to these proceedings that while maybe not presented to our viewers at home, stays with those of us who are reporting on this trial as just another bizarro angle to what is not at all standard.
And, you know, one of my kids asked the other day we were driving. My husband is also a lawyer, although not a litigator. She asked, I don’t understand. If Trump has all these cases against him and they’re criminal cases, why isn’t he in jail? And my husband answered by saying, because the system affords criminal defendants a ton of process that most people never exercise their rights to, right? And so one of the big takeaways from this is, is our system flawed, not in the sense that more people can’t access that process, but in just giving that much process in the sense that someone like Donald Trump can abuse it.
Chris Hayes: Yeah.
Lisa Rubin: Most criminal defendants never get the chance to exercise all of their due process rights. Donald Trump is stretching due process beyond its point of elasticity.
Chris Hayes: Yeah. And I think that’s exactly it, because that sort of paradox or tension is what keeps coming back, because at one level, it’s like it’s a classic reactionary thing, right, when people talk about the death penalty. They get all these appeals and there’s too much process. And, you know, the sort of classic reactionary talking point is like he was let go on a technicality. So all that sort of stuff, right.
It’s like that’s law and that’s process and process is sort of an amazing thing. But then watching process be so weaponized, particularly with the time aspect of it has been pretty tough to watch. And so it’s just a very strange, odd and anomalous version of American justice. And yet also kind of like the exception that proves the rule or something. It’s because it’s the extreme, it’s the test of all these different systems and how well they function. And that’s part of what makes it so dramatic and fascinating, you know, from a news perspective.
Lisa Rubin: And by the way, the process is being tested at both ends, because as Trump weaponizes the process that is due to a litigant, we are also living in an era where, thanks to really intrepid reporting, we understand that the Supreme Court is manipulating and disguising its own processes and maybe even weaponizing it, right. If they couldn’t be clean with us and honest with us about, for example —
Chris Hayes: Dobbs.
Lisa Rubin: — agreeing to take the Dobbs case —
Chris Hayes: Yup.
Lisa Rubin: — what really went on behind the scenes with respect to the scheduling of what will be and by the time this airs, what will have been the argument on presidential immunity, which was scheduled for two plus months after the initial cert petition was filed. Now, after all that rushing by a district court and a court of appeals to have the Supreme Court just elongate, you’re like, you know, take your time, please. You know how it thrills me, in Devil Wears Prada lingo. That is what they have done. And I wonder to what extent that in and of itself is a form of weaponization of process.
Chris Hayes: And, you know, the endings to all these stories are unwritten. So we will obviously continue to follow them throughout the months ahead and throughout the rest of the campaign and maybe into 2025, which is a thing that I don’t even think about because I’m so focused on the campaign. But then I’m like, oh, right. Like, you know, the thing we talk about is if he wins, it will change the texture of all the cases against in the federal cases, particularly because he’ll be running the Justice Department.
And there’s a complex question there. Sometimes I think that’s a little more yada, yada, yada than then will actually happen. But the state cases would be paused almost certainly. Any pending penalty would be told as well. But if he doesn’t win, it doesn’t go anywhere. Like all this stuff is there. So that’s the other thing I keep reminding myself is, you know, the election is a certain deadline, but it’s not the only one. So we’re going to be on this for a while. Lisa Rubin, MSNBC Legal Correspondent, the pillar of our coverage, an invaluable member of our team. Thank you so much for joining us.
Lisa Rubin: Thank you for having me.
Chris Hayes: Great thanks to Lisa Rubin. We may have her back again. I mean, I found that useful and helpful. Maybe we’ll do another episode around the verdict time if that ever happens. You can e-mail us withpod@gmail.com. Get in touch with us using the hashtag #WITHpod on different social media networks.
You can follow us on TikTok by searching for #WITHpod. You can follow me on Threads @chrislhayes and on Bluesky. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to nbcnews.com/whyisthishappening.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to NBCNews.com/whyisthishappening?