Trump's Tumultuous Testimony 33:42

Hi, and welcome back to another episode of Prosecuting Donald Trump. It is Tuesday morning. Normally, we record on Monday mornings, but we decided to put it off by a day because of a small event that happened yesterday just down the road here, where the former president of the United States,

It's still so surreal to me. Former President of the United States was on the stand in connection with a fraud case, a civil fraud case, one of the many legal travails he is confronting. And so we're going to talk about that. Also, Mary, I'm looking forward to actually seeing you in person later this week.

Yeah, I'm looking forward to it, too. I'll be teaching a class with Andrew and another professor, Brian Goodman, at NYU and do it most semesters. It's really one of the highlights of the semester for me. So I'll be up in New York soon. No, no, no. It's a highlight. It's a highlight for the students and for us. That's very gracious. It's totally the other way.

That's nice of you. But on this podcast, we will be talking today a lot about Trump's testimony yesterday, as well as his two sons' testimony last week. Did they help themselves? Did they hurt themselves? Of course, we'll talk about Trump clashing with Judge Angoron. I think that probably was pretty unexpected. And of course, we can also look a little bit forward to tomorrow's expected testimony from Ivanka. So we'll spend quite a bit of time on that today. But that is not all.

I know. So there's sort of a million and one motions that are pending in the DC federal criminal trial that very much relate to both substance, but also when the trial could happen. So we're going to get into that. And it does also relate a bit to the Florida case and when that could happen.

And Mary, you're going to have to restrain me because I'm going to give you sort of where I am on that Florida case. And we may disagree because you may be basically dial it down, Weissman. Because anyway, I'm going to try and I'm going to keep my cool until we get to that point. Pretend like you're walking into court. You put all your feelings away and you just, you know. Put it in a little box and put it aside. Okay. Okay.

So let's talk about the former president's testimony. He testified for basically the full length of the day yesterday. He was basically just on technically direct examination, but because he's a defendant, he could be treated as what's called a hostile witness because he's aligned with a party, meaning he is a party. So they could ask sort of leading questions, yes and no questions. And I think there's sort of

A couple things to talk about. One is obviously his behavior. But before we get into that, and it's a little hard to separate, I thought we might want to talk about how did he substantively help himself or hurt himself? And for that, Mary, let me just quickly remind people sort of what's at stake right now. Right.

There's seven causes of action in this civil case. The first cause of action, the judge already granted summary judgment, in other words, ruled in favor of the state on liability and said, I'm going to have to decide sort of what the remedies are, what the monetary damages are, what other damages there could be, what kind of disgorgement, if any, there should be.

But he also has to decide whether there's liability on the remaining six causes of action. That's right. The big difference between the first and the second through seventh is that the second through seventh causes of action, the judge said, require the government to, or as we say in New York, the state, to... By the way, that's like a little note to self, which is in the federal system, it's the government. In the state system, it's the people. Yep.

So little nomenclature issue. So it requires the people to prove

both his mental state and the materiality, which is almost like reliance. It's not quite of the statements. The materiality of, like, the statements, right? False statements. Like, did it matter? Yeah. Yeah. Yeah, exactly. Is it so minor that it's like, what did you have for breakfast? Or what is your favorite color? The things that a bank would never care about or an insurance company wouldn't care about. So that's something he has to decide whether the state has proved

those particular elements. Anyway, with all that, so the state decides to call Donald Trump because it's a civil case. They can do that, unlike in a criminal case where the government couldn't just call the defendant to the stand. And Donald Trump has a decision if he decides to take the fifth, which, by the way, initially in this case, he had been in a deposition and took the fifth and then reversed himself and decided to testify. In a civil case, if you take the fifth,

there can be an adverse inference, meaning the judge can decide you're not speaking because something you would say would hurt you and the judge can draw that sort of inference. Here, Donald Trump has decided not to do that. Yeah, which is completely contrary to a criminal case. In a criminal case, you can draw no inference from somebody's constitutional right to assert their Fifth Amendment right not to incriminate themselves. Yeah. So Donald Trump, in this case, decides to testify. And...

Substantively, I had a couple thoughts, and then I'll turn it over to you, Mary, for what you thought. But I thought...

One, it was a bit of a splat. He threw a lot of things against the wall. I mean, there were a lot of almost really inconsistent arguments. It was basically like, I didn't kill the person, but if I did kill them, it was in self-defense. It was just a lot of... Which you can do, by the way. You can make alternative arguments. Yeah, I mean, you can make alternative arguments, but I have to say alternative factual arguments don't usually do too well because, you know... That's right, because it harms your credibility. Yeah, exactly, because one of them ain't true.

as opposed to alternative legal arguments. So it was very hard to sort of keep track of all of the different things. Second, he had trouble when he wanted to sort of go down the road of what Donald Jr. and Eric had done. It was a little harder for him because I think for his brand, it wasn't great when he wanted to say,

hey, I didn't really stay involved and I let other people do this because, of course, he wants to be, I take charge and I was involved and it's my company and it's my brand and I'm a success. So the Don Jr. Eric talk of, I don't know anything about these financial statements, or as Eric said, I don't even know if there are financial statements, which he then recanted and said, well, of course, they're financial statements, which he recanted when he was shown emails where they said, Eric, we need to

Yeah, right. Because it was like, Eric, do you have data for our financial statements? So he's like, well, of course. So anyway, Donald had to sort of take different tacks than his sons. But I thought he, in the afternoon in particular, really hurt himself.

when he said something which is kind of a truism, but he could have tried to deny it, which is he said, I was aware that the financial statements for my company and my personal guarantee were given to Deutsche Bank to induce them. That was the keyword, to induce them to give a loan. And that makes it very hard

for him to claim lack of reliance, lack of materiality on his part. And so I thought that was a big give as opposed to he could have said,

you know what, I see that they wanted them, but everyone knows they don't rely on them. They don't need them. It's a paper thing. But he didn't go down that road, at least in the afternoon. He did in the morning try and say no one cares about them. But by the afternoon, he sort of gave up the ghost. And so I think he gave the judge who's deciding this a really good piece of evidence to use with respect to the second through seventh counts. And then I think the final point I just want to make is

which is one that a friend of mine told me, which I thought was so right and I wanted to pass it on, which was, this is almost like a sentencing phase in this civil case. And the judge has to decide what the remedy is going to be on the first cause of action or on the second through seventh if he finds liability. And you've got Donald Trump on the stand being so angry

unremorseful and so bold and not in any way backing off of all of the things he did. And so the judge has got to be thinking, is this guy a recidivist? It reminds me so much of Donald Trump with respect to the January 6th insurrection, where he's like, yeah, that was a great thing. So if you're trying to decide, do I want him and his companies in New York? It was almost a poster child for or an exhibit for, of course, I don't because he's going to do the same thing.

Over again. He's proud of it. Yeah. Yeah. Yeah. No, I think you raised so many significant points there. I mean, that testimony about inducement is very critical because he did at other points definitely say, look, no bank would rely on these statements of financial conditions. There's a worthless clause in them. Right. He's big on this worthless clause, which basically says, bank, don't rely on what we say. Do your own homework. Do your own due diligence.

So he was trying to suggest, yeah, I was certainly involved. He never said he wasn't involved. He talked about, I thought this valuation was too low. I thought this valuation was too high, et cetera. But he tried to suggest this was all on the banks and also that, and this goes to the materiality point, that they never lost money. I don't know how many times he said they never lost any money. No bank ever lost any money. But when he then essentially admits my brand was important, it was so important that it was used to induce

the bank to, you know, provide a loan, it sort of, as you said, kind of gives away and undermines everything else that he tried to claim. And he's the kind of witness, right, who's just such a loose cannon. He just goes on and on and on. And generally speaking, and I've seen this in, you know, criminal cases many times, and that's why it's so hazardous to put a defendant on the stand if you're defense counsel in a criminal case.

Because if they can't control themselves and they go on and on, at some point, they're going to dig themselves into a hole. They're going to say something inconsistent with what they've already said and, you know, make trouble for themselves. They've got to be disciplined. They've got to answer just the question and not necessarily offer more unless they've practiced it and they know that it's helpful to them. And so I think here, as you said, by all of the time going on and on and by the fact that he cannot

Yes.

Yes, exactly. He did say that. So I thought the two things you mentioned, Mary, are worth commenting on a little bit more. What is this idea that like, where's the victim?

because the banks ultimately were repaid. So first of all, that is a question of like, well, I borrowed money, but ultimately I did pay it back. And it's not required when you're charged with fraud in causes of action two through seven, where it's like you made misrepresentations to get a loan. The fact that you got a loan through fraud, but ultimately you made the payments

It's irrelevant. It doesn't undo the fraud, right? Right. It also, as the state has pointed out, the bank is the one that's entitled to truthful information to decide whether they want to take the risk to give you a loan at all. And obviously, if you're a pauper but lie about your assets or you're

in fact, a multi-billionaire, you could have a very different decision from the bank about whether to give a loan and also, most importantly, the terms of the loan. The riskier you are, the more you would say either I'm not going to give it or I'm going to want a higher rate. So there was an expert on this, Dan, to talk about how

banks would have charged more if they had known the true valuation. And one way I was thinking about that, I was thinking about it from a Donald Trump perspective who's in real estate. In New York, you run around deciding you want to rent an apartment or you want to buy an apartment. And in general, it tends to be a bit of a rat race. There are lots of people who line up saying, I want to rent this place or I want to buy this place. And this seller gets to choose among those. Well, you know,

The person who gets to win out shouldn't be the person who lies about their assets and says, oh, don't worry, I'm actually worth a lot. It's more secure to pick me. I'll pay the rent. And by the way, it's not like Donald Trump doesn't have a history of declaring bankruptcy. It was like, what, six times? Multiple times. And the other thing, the other thing really important is that goes to disgorgement, right? Because it's not.

Classic damages of he didn't pay it back, therefore he still owes the bank $100,000. This is about would there have been different terms? Did he get more favorable terms to the tune of what dollar amount do we put on that? And that would be the disgorgement that we're talking about here. You know, he said things like, I can just look at a building and know it's valuable.

It's value. So I can declassify in my head, Mary. That's right. It's pretty it's pretty similar, isn't it? Yeah. So the other is that worthless clause. So I looked at the clause, the actual language. And to me, Donald Trump's argument there is basically we committed fraud. And I put that language in there so that we could say anything and I could lie to them and they weren't entitled to rely on it.

The idea that he's saying that, well, this is what the language says. The language doesn't say, oh, by the way, these representations don't mean anything. Do your own work. Because also, if that's the case, why even submit financial statements? I mean, there's no point to doing it. And it certainly doesn't say, by the way, these may be intentionally false and you can't do anything about it. What it does say is this. Appraisals

can be subjective. They are estimates. We are giving you, essentially, I'm paraphrasing, we're giving you our best estimate based on good faith appraisals. I don't know if it's a good faith appraisal to say, I looked at the building and I thought that building was worth X. That's not how most appraisers do it, but. Right. Or I think Saudi Arabia might pay half a billion dollars for Mar-a-Lago, so that's its worth.

Yeah. And, you know, the next was because it's a Trump property, it's going to just be worth more money. Yeah. So he is off the stand. As you said, Ivanka will testify on Wednesday. The state has said that they're going to end their case at that point. There'll be some legal arguments and then the defense gets to put on a case, which I think is going to start at the beginning of next week. So there's more to come on that.

And ultimately, again, the judge will make a decision in this civil case. But I do think that the audience that Donald Trump was speaking to yesterday was not this judge. I mean, he attacked the judge in horrible terms. He misbehaved terribly in court. He attacked the state prosecutor asking questions. It was so coarse and vulgar, to be frank. And by

And obviously, if the judge is making the decision in the case, you're obviously not playing to that audience if you say the judge is a fraud. And so he was clearly just playing to his base. And so that audience he may have done very well with. But in terms of the audience in the courtroom, in terms of facts and law, it sounds like you and I are on the same page that he did not help himself.

I think that's right. And I think what's really important here to remember is this is not a jury trial. The judge will make the decisions about what the facts are. And that means the judge

will assess the credibility of every witness that testifies before him. He can assess that credibility based on the demeanor of the witness on the stand, their forthrightness of their responses, whether they're actually answering the question or deflecting and diverting and going on speeches and tensions like Mr. Trump did. And the judge made that clear. He kept saying to Mr. Kyes,

can you control your client and ask him to answer the question? And Mr. Geis couldn't, and in fact, pushed back pretty hard in ways that I thought were not what you typically see from a lawyer. You typically see more respect for the court from a lawyer. But ultimately, the judge also said, I may just end up drawing adverse inferences because if he doesn't answer the questions, I can draw an adverse inference. And that remains to be seen at the end of the case,

where he will draw inferences, what he will say about Mr. Trump's credibility. We know this judge has already found Mr. Trump incredible back a week or two ago when Mr. Trump had to testify about another attack on the judge's law clerk and Mr. Trump

claimed it was not an attack on the law clerk. It was an attack on Michael Cohen. And the judge just flat out said, I don't believe you. I don't find that credible. I'm sanctioning you $10,000. He's already found him incredible before. And these are the kind of decisions that on appeal are almost completely unreversible. There's so much deference given by the appellate court to those credibility determinations by the fact finder. And here that fact finder is the judge.

And he, again, Mr. Trump's just trying to build with his base that I'm getting a raw deal. This is a politically motivated case. This judge hates me. I can't possibly get a fair trial. All that is just playing to his political base. But what's going to happen in this courtroom will be consistent with the facts and the evidence and the law that applies. I think there's one other thing also worth mentioning is that that summary judgment ruling on count one, the

the one where the judge also ruled that Mr. Trump's business certificates will be withdrawn, that is on appeal. And I believe there are hearings on that coming up, I think, next Monday even, Andrew. So that's a case that's very important to him because that count one is something that even

even without any kind of findings of culpability on counts two through seven, count one kind of will determine whether he can continue to do business in New York. Yeah, nail, coffin. Exactly. More prosecuting Donald Trump. Trump's tumultuous testimony in just a moment.

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Mary, let's turn to D.C., where we're not going to cover all this, but there's a slew of motions that are pending, claiming First Amendment, due process, double jeopardy, as we spent a lot of time with Trevor Morrison talking about presidential immunity, a whole variety. But the main thing we wanted to talk about today are two motions that could lead to what you've

Mary described for everybody as interlocutory appeals, meaning that you can appeal them now as opposed to waiting till the end of the case. And that's the presidential immunity motion. And in my view, particularly weak double jeopardy motion. And the government has responded to those in particular. And I thought strategically so smart because it basically was flagging for the judge that

why those need to be decided quickly so that she and the government can keep the March 4th date. Do you want to talk about how they presented that to the court? Sure. I think just a little bit also for context here, among all these motions pending is also a motion by Donald Trump to stay the D.C. case until the decision, even Judge Chutkan's decision on the presidential immunity motion. So I think

contextually, and that motion to stay the entire case, in other words, do nothing, Judge Shutkin, until you decide presidential immunity, is coming at the same time that Donald Trump in Florida is saying, stay everything here because we have this March 4th trial date up in D.C. and we can't possibly be dealing with that and also preparing for trial in Florida in the Mar-a-Lago case. So we've got this deliberate strategy. Mary, you're triggering me. Yeah.

Yeah. Sorry. You're triggering me. That's right. You're deliberately getting me to get up. Riled up. Riled up.

Yeah, exactly. It's like siblings where it's like you know exactly what buttons to push, but I'm like sitting there trying to stay calm. Well, I think that's just so important because that's the backdrop to this. So we've got these two cases and he's doing everything he can in both to slow it down, stop it, stop it, stop it, because we know he does not want to go to trial before the election, period, full stop.

So he's also got all these motions to dismiss. And we already talked about the presidential immunity motion. He's got all the other motions, other constitutional issues, First Amendment issues, double jeopardy, all kinds of statutory issues, vindictive prosecution, all those things you mentioned.

The government has now filed their oppositions to all of these motions, including the motion to stay. And to get back to your actual question to me, what is smart about this? One of the things they've said, both in their opposition to his motion to stay and in their substantive opposition to his double jeopardy motion is, look, Your Honor, there are two issues here that could go up on interlocutory appeal. One is if this court denies his motion to dismiss on presidential immunity grounds. The other is if

the court denies his motion to dismiss on double jeopardy grounds. We think it's important that the court decide those motions as early as possible because he may be able to appeal them. And we know that ultimately those issues are one that if there's validity to those issues,

we would not be able to start the trial on March 4th because double jeopardy is you don't twice have to stand trial for the same thing. And they're counting in his impeachment trial as the first trial. And this would be the second presidential immunity, as we talked about, is you're immune from having to sit for trial at all. So both of these issues are ones that the government admits were non-frivolous, particularly the double jeopardy mission was non-frivolous, could result if

if they're not resolved in time in the delay of that trial. So the government's coming in saying, resolve these first. We understand that these both could be interlocutorily appealable. The one thing they do say about double jeopardy, though, that's a little different from presidential immunity is that there's case law, including the D.C. Circuit, that says essentially if your double jeopardy claim is so frivolous that it can be basically summarily dispensed with, then you might not have to stay everything for it. Right.

And they have a footnote saying, please find that it is frivolous, because the idea is that if you go on appeal on a non-frivolous motion, then you basically, under D.C. law, you are entitled to the stay, except, as you point out, Mary, if it's a frivolous motion. Personally, I think the double jeopardy claim is frivolous. And the reason is, just to quickly go through this, the defense's argument is that because I was trying

tried and acquitted in an impeachment proceeding for insurrection, I cannot be tried in a criminal case for these charges. And the government has two points. The Senate impeachment proceeding is not a criminal case, so double jeopardy doesn't apply at all. But even if it did, even if that was a criminal case, there's no double jeopardy because under the rules of double jeopardy, not being tried

twice for the same offense. That's right. The court has said it's got to be the same offense. Well, he's not charged with insurrection at all so that what he was tried for in the Senate is not what he is being accused of before Judge Chutkan. So it is a complete loser to me. So that, I think, is a very weak ground for Donald Trump to prevail on.

on the merits, but even to prevail on the very low standard of a non-frivolous motion. So I don't think he'll get a stay for that. But I do think the presidential immunity one is that the Supreme Court, as we've talked about, has not decided. So I think basically that needs to get decided really quickly. So that was super smart. But can I get triggered for a moment? Yes. So Donald Trump goes to Florida and says, put this trial off because I don't think the Florida case will be able to start

because it's going to conflict with the March trial, which is going to take a while, blah, blah, blah, blah, blah. And the judge says, okay, you know, I'm going to decide that, but I see your point. Basically says things that are sort of favorable. Obviously, she didn't rule. The very next morning, he files in D.C., as you said, saying, put this trial off, the D.C. trial. But he didn't tell the judge the...

Day earlier, which by the way, Mary, you and I, when we were practicing, whether I've been a defense lawyer and a prosecutor, a judge would have your head, if not some other part of your anatomy. It's just not possible. You can't play the judges off each other, right? You've got to be candid. You've got to tell them. So correctly, Jack Smith makes a filing that says, by the way, we are alerting you, Judge Cannon, to what just happened before Judge Chuck in D.C.,

We did that over and over again in the Manafort case, just to take one example, where we had two judges, one in Virginia, one in D.C. And we constantly were informing them both as an obligation and as a courtesy. Now, we thought they might have been following stuff anyway in the news. And they can also call each other, you know, they can, the judges. But we felt like we had an obligation to them. So we would do that. Do you know how many times we were chastised for that? Zero. Zero.

Because we were doing our obligation to the court. So this is what happens. Instead of the judge being upset at Donald Trump's attorneys for the gamesmanship, she issues this little order that just says, I'm just paraphrasing, you, Jack Smith, made the filing improperly because you're trying to treat this like a surreply. And in the future, they're going to be bounced. Like,

Like chastising them, when by the way, there is nothing in the rules about, it's not really a surreply. This is, you're trying to bring to the attention of the court a filing in another case. We used to do this also by letter with an attachment. Yeah, she referred specifically to a rule that is a rule about when you want to file a notice of supplemental authorities. And I've used this rule many, many times, almost always in the appellate court, only occasionally in the district court. It's where you finish filing all your briefs

And a new case gets decided somewhere, maybe in your jurisdiction or in the Supreme Court, that is really relevant to the issue in your case. And you're like,

Here's my notice of a new authority. The Supreme Court just held X, Y, Z, and that applies here. And the rule specifically limits you so that when you're filing that, you can't file 10 pages making argument. It limits you to a few hundred words so that you don't use that as sort of the way to make a whole nother bargain.

big new argument. Instead, what you're supposed to do is tell the court, here's the authority and here's the pages of my brief that it relates to so that the court can see why it's relevant.

So what Judge Cannon did, I thought was super odd. She's like, this rule limits you to 200 words. But for those of us who practiced for years, like that's ridiculous. This wasn't a notice of supplemental authority. It was a notice that Trump himself had made a filing in another case that is relevant to his pending motion to stay this case. So it really is one of those things that's now you're going to have a stronger reaction. But to me, it shows that

Either she's sort of scheming, conniving, wanting to help him and searching for a way to do it. Yeah. Or she's just doesn't understand what that rule applies to. Like she hasn't been a judge very long. Yeah. Yes. Yes. All of these things. Right. All of the above. But again, for those of us who practice for a long time, it's sort of like.

What are you doing applying that rule? And why would you chastise anyway for something like this? But the other interesting thing is, you know, she was in the U.S. attorney's office for, I think, something like six years. So she should know how these rules work. I really tried after the 11th Circuit reversed her twice in very scathing language to give her the benefit of the doubt when the criminal case was actually brought. I'm done.

I'm done. Yeah. I don't know whether it's bias. I don't know whether it's because she is inexperienced. I don't know if it's both.

I suspect it is both, but I'm done. It is wholly inappropriate to have somebody with that combination handling a case like this and so inappropriate to have that be the response. This was a classic integrity test to see whether she was capable of uttering the words to the defense that what you did was improper and don't let that happen again.

And instead, it was to the government that was notifying her of the shenanigans. I am absolutely done. This is a federal judge. That is not how you behave. And it is impossible for me now to not view it as just part and parcel of her horrendous record pretrial.

before the case was brought. All of that said, though, do you think, Andrew, that Jack Smith or his team will move for recusal? I do not because these are still just judicial. I don't. It's killing me. I wish you didn't ask that. Yeah, I don't think they will. And I wouldn't if I were them either because, you know, she can say these are just determinations that are within my discretion to make. And I just don't really see. She certainly would not recuse. And I don't see an appellate court reversing that. So I don't think they'll waste their time on it. But Mary,

i agree with you but i do think one of the things that we will not really see because it involves classified information is all the sepa litigation that's true and that's the one where i do think if she messes that up the way she has messed these other things up this little vignette

is a perfect reminder because I can't imagine a 11th Circuit judge looking at this would not have, maybe they wouldn't be venting the way I am, but I think whether they think it's an experience, whether they think it's bias or both, it's hard to see that they wouldn't be upset and it helps color a continuation of what's happened. But I agree with you just based on this, I don't think it's enough information

seek recusal. I don't think it would work. This is one you don't want to seek and lose because you may need to do it when something bigger happens. So I agree with you, but it kills me. It kills me that I do. Yeah.

And just as a reminder to everyone, SEPA decisions, Classified Information Procedures Act decisions adverse to the government are appealable as a matter of interlocutory appeal. So we won't see a whole lot of what's going on there because it's classified, but if

If the government feels like it has not gotten a ruling that is supportable by law, that it can take it upon appeal. Yeah. And I think we'll know that there is an appeal by one party or the other, but we won't know a lot of the substance. But at least we'll have a sense that there's a problem. And that's where I actually think Mary, you and I will be able to help people understand it because we

dealt with those issues. That's assuming right before we close that the judge ever lifts her temporary stay on all proceedings while she's deciding whether to delay the trial. Because not only did she say, well, I'm really going to think about delaying the trial. She also said, and let's just put a hold on everything right now while I decide that. Again, you're just triggering me before. Okay. What time is it? It's 1118. I don't think I can have a drink this early. Although it

It's noon somewhere. Wow, I was going to say five o'clock somewhere, but boy, Mary, I knew I liked you. It's noon somewhere. Okay, well, I'll see you later this week when you come up to teach. Look forward to it. If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at nbcuni.com.

Thanks so much for listening. We'll be back next week with much more.

The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. The head of audio production is Bryson Bards. Katherine Anderson is our audio engineer. Jen Maris Perez is the associate producer. Ayesha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.

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