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CNN Live Event/Special

Now, Defense Cross-Examining Digital Evidence Analyst; Now, Prosecution Questioning Digital Evidence Analyst. Aired 10-10:30a ET

Aired May 03, 2024 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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[10:00:00]

JIM ACOSTA, CNN ANCHOR: Welcome back to CNN special live coverage. I'm Jim Acosta in Washington.

A building block witness digital forensic expert, Douglas Daus, is on the stand right now currently being cross-examined by the former president's lawyers, Trump's lawyers just eliciting an important fact from the witness. He says that Michael Cohen had signal, that is the encrypted messaging app on his phone, saying that the jury needs to know that it is difficult to recover messages sent using signal.

The defense trying to make an implication here that there may be missing pieces of the story that are potentially helpful for the former president of the United States.

And, Elie, what do you make of this strategy and how critical is that piece of audio that we heard yesterday, Michael Cohen talking to Trump about the payment. Trump saying, oh, can we pay with cash, and Cohen saying, no, no, no, no, no? I mean, I remember when that came out. It was in 2018. It was just a bombshell piece of audio.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: We at CNN, not me, but we broke it.

ACOSTA: I have to think and I have to think maybe some of the jurors had heard this audio before, but its impact, do you think, in this?

HONIG: I'm going to make a dramatic statement. I think it's the single most important piece of evidence in the case, because it is the one time that we know of and will probably be the only time they hear Michael Cohen and Donald Trump talking to one another at the time this was all happening.

There's no substitute for tapes. Tapes, no pun intended, trump all. I mean, it matters what a witness says in the box, but, boy, tapes are always going to reign supreme.

And that recording really kind of cuts both ways, as I said before. On the one hand -- and, by the way, they're talking about the McDougal payments, not the Stormy Daniels payments, but it's right around that time. On the one hand, prosecutors will like this tape because it absolutely shows Donald Trump knew that they were paying off Karen McDougal and was fine with it, wanted it to happen, 150, ends up, AMI pays her off, but Trump and Cohen make the later payment to Stormy Daniels.

But the defense is going to argue, first of all, why the heck is Michael Cohen a lawyer secretly recording his own client? Ask any defense lawyer -- I guess we don't really have a -- but ask any defense lawyer, have you ever secretly recorded your client? They will look at you like you're crazy. And I think the defense is going to argue, this shows that Donald Trump was not apprised of the details. Michael Cohen was handling the details.

ACOSTA: And Bove is asking about Michael Cohen's phone being wiped. That's one of the tidbits coming out of the courtroom right now, asking if the wipe raises questions about the audio file. You have to look at where that file came from. Let's listen to a little bit of that audio, talk about it on the other side.

(BEGIN VIDEO CLIP)

MICHAEL COHEN, FORMER TRUMP LAWYER: I need to open up a company for the transfer of all of that info regarding our friend, David, so that I'm going to do that right away. And I spoke to Allen about it when it comes time for the financing, which will be --

DONALD TRUMP (R), FORMER U.S. PRESIDENT, 2024 PRESIDENTIAL CANDIDATE: Listen, what financing?

COHEN: We'll have to pay --

TRUMP: Pay for cash --

COHEN: No, no, no, no, no. I got it. No, no, no.

(END VIDEO CLIP)

ACOSTA: Yes. Elliot, I mean, Bove, he's really going in on Michael Cohen's phone being wiped and so on, and raising questions about, you know, what's being extracted from the phone and so on. But as Elie was saying a few moments ago, that audio, I mean, you hear Trump talking about cash, why else would he be talking about cash?

[10:05:01]

I mean --

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Well, again --

ACOSTA: It wasn't telling me run down a copy of the New York Post at the newsstand downstairs.

WILLIAMS: There's a big distinction between something being explosive and powerful and newsworthy and important and interesting and good evidence, right? And there's a distinction here. It's not -- I would even go further than Elie. I don't think it's great evidence for the prosecutors for the number of reasons Elie laid out, where defense can say that Donald Trump was sort of detached and almost pushing it off on Michael Cohen, who a savvy defense attorney could say was this rogue actor, not really, you know, working independently of the former president.

ACOSTA: Bove is asking if he knew what was transferred back to the phone that file, certainly, he responds.

WILLIAMS: We're seeing a couple things here. I think, one, you got to get out there this idea of what signal and WhatsApp and these encrypted apps mean, but also for our people who use them trying to cover their tracks.

And you can plant in a jury's head, and I think the defense will pounce on this, that everybody uses signal. However, if you're a criminal, or at least engaging in a criminal act, you might be using it to cover your tracks. And I think the price of --

ACOSTA: We use it a lot during the early days of the Trump administration, because, I mean, sources asked us inside the Trump administration, please use signal because that's how worried they were about what Trump was capable of.

Carolyn Koch, I did want to ask you what, to Elie's point, about how this might be the most explosive piece of evidence. How do jurors respond to audio when they hear the defendant in the case on tape, on audio?

CAROLYN KOCH, TRIAL AND JURY CONSULTANT: Well, audio is good, and audio is like a document, but jurors are going to respond to the case like a mosaic. So, there're pieces of the puzzle, and I use the analogy like a Jenga tower. So, the audio is an unfinished conversation, and there is a big difference between contemplation and consummation.

And so like I always think about, like it's silly, like you learned in law school, it's the unjust enrichment. And you talk about, hey, would you paint my house? I'm thinking about painting my house, and the guy paints your house, but I didn't give you the green light yet.

So, if there's missing information on Cohen's cell phone, and he's not the most credible person -- well, he's not credible, he has credibility problems, that's a problem, what's missing. And you can't have too many --

ACOSTA: Do jurors seize on that or do they say, okay, this is an unseemly world that we're delving into anyway? So, yes, there might be some unsavory characters, or do they say, oh no, that person is not credible.

KOCH: It depends on the case. Most jurors will hold the government to its burden to prove a case beyond a reasonable doubt. And witnesses have to have some quality and some credibility. I think they're going to be a little stunned that that's a little bit lacking here.

I have seen jurors connect the dots, but they're in cases where it's like a serial killer and he's abducting Girl Scouts, and they know he did it, and they're willing to lighten up that burden of proof because they can't sleep at night having a guy --

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: As a layman that is not a lawyer and not an expert in juries, I see what you're saying about people being completely astonished that a lawyer would tape his client. But if you take out that part of it, to me, just watching it, listening to it, that's the first time that you've actually heard a conversation between Trump and Michael Cohen.

Up until now, they have painted, even when the prosecution has painted Michael Cohen as seemingly working alone in this and just saying that he's talking to Trump. Now you actually have made the connection that he does talk to Trump in some way.

ACOSTA: Bove is apparently bringing up 46 seconds of audio file that was cut off. Daus agrees he doesn't know how much longer the conversation between Trump and Cohen continued. That suggests that there might be some of the audio here that we don't know about or haven't heard before.

Jamie Gangel, I mean, here's another update, Bove asking Daus whether the reason Cohen had so many contacts on his cell phone was because he synced the phone to his laptop, which was connected to his iCloud account. I know I was on Michael Cohen's cell phone contact.

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: We all were.

ACOSTA: But, Jamie, I mean, getting to this, I do want to make this point and how you address it. The fact that Michael Cohen was recording Donald Trump surreptitiously back in those days, we're talking about, what, in 2015, 2016, those days, suggests even back then his own people his own attorneys knew, well, I might want a recording of what Trump is saying.

GANGEL: Absolutely. There are two ways to look at it. It's sneaky and you don't like it. But he wanted proof that he was following orders. He didn't have confidence that his client wasn't going --

ACOSTA: He didn't want to be the fall guy back then.

GANGEL: The other thing about that tape, and I think it's important to keep saying that's about Karen McDougal. It is not Stormy Daniels.

[10:10:00]

But it does do two things for the jury. It gives them context that this was a practice. This is something, and Trump doesn't seem surprised it's going on.

WILLIAMS: So, the thing that I'd say in response is that the challenge with the reasonable doubt standard is that when evidence can go both ways, invariably, juries ought to resolve that in favor of the defendant.

Now, but I agree with you.

GANGEL: But we don't know what we don't know. WILLIAMS: What I would say is when there's enough of it, though, eventually you start reaching a point of a conviction, that's the power of Carolyn's serial killer example, where there might be small instances related to each of the cases. But because they happened in a series, and there's a number of them, a jury can probably feel more latitude to convict.

GANGEL: Could I add one human point? Michael Cohen's going to take the stand. And all of these questions about his credibility are going to -- the jury is going to see, they're going to see him say he's ashamed, he apologized, he's going to admit he lied, he was wrong.

There's something on this tape that even subconsciously I wonder if they connect. And that's his tone of voice. Well, even when Trump says cash, and you hear Michael Cohen go, no, no, no, no, no, no. There are human moments like that that you just don't -- I mean, you're the expert. You don't know how people are going to react to it. But that voice, when Michael Cohen says that, that's Michael Cohen.

ACOSTA: Yes. It almost sounds like Michael Cohen not only wanted a recording of all of this, but a paper trail.

HONIG: Yes. Look, the question actually will rise, why were you secretly recording? This whole idea, oh, I was playing vigilante of justice. That's nonsense. He's staying with Trump for two more years. But Trump's --

ACOSTA: Yes, wanted to work in his administration.

HONIG: Yes, Trump's team is going to argue he was trying to set up his own client.

ACOSTA: Yes. Well, we're going to get into that obviously with Michael Cohen takes the stand.

Might be some other headline witnesses taking this in today, possibly Hope Hicks, possibly Stormy Daniels. I got to stay tuned for all that big question today, will we see either of them on the stand? CNN reporters are inside the courthouse, as we speak, to bring you the play by play. That's why you're seeing the tidbits on the left side of your screen. All that coverage is going to continue when we come back. We'll be right back.

You're watching CNN special live coverage.

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KAITLAN COLLINS, CNN ANCHOR: A notable admission right now inside that courtroom that you are looking at here on the right side of your screen, the digital forensics expert brought initially by the prosecution, who is now under cross-examination, said, regarding that secretly taped conversation between Donald Trump and Michael Cohen that the jury heard yesterday, this expert said he's unsure how long that conversation actually lasted. This is CNN's special live coverage of former President Trump's hush money trial. We are digging into all of these minute-by-minute updates with Laura Coates and Paula Reed.

And, Paula, what seems to be happening, what Trump's attorney seems to be getting at is kind of raising some doubts about this audio and not necessarily the authenticity of it, but whether or not the jury heard everything.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Exactly. They're raising the possibility that something may not be quite right with this audio clip. So, for example, they pointed out that there was a gap between the time that Michael Cohen signed over his cell phone to investigators and the time that they actually got the data off of it.

Then they're also noting that after this reporting would have been made, there was a factory wipe of the phone. So, then they're asking about, as an expert, well isn't it odd that that file was still on there and that there was a piece of it missing?

Now, doubts at one point just a moment ago, he said that if there would have been metadata that would have shown if this recording had been edited or modified.

Now, defense attorneys did not like that, but there's an update. I am told the defense attorneys asking Daus about another sync of the phone in October 2020. We don't know what it was from, the defense attorney asks, I do not, Daus. So, it's not clear that they've actually established anything inauthentic or wrong with this audio clip, but they're just raising questions about the missing piece is the jury.

COLLINS: Is the jury following any of this? I mean, you obviously remember that, like if you were the defense attorney here you're obviously trying to maybe stretch out time or just recent doubts about this guy just trying to say, yes, this is a real recording, it's authentic, I'm the person who extracted it from the phone, I mean, what is the intent, do you think, of the defense?

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: I mean, it's in the weeds enough for the jury to be wondering why are we spending so much time on this. But, again, we've also had witnesses who've had other perhaps mundane details trying to get evidence in.

But from the perspective of the prosecution, you want to use it in your summation later on. You want to suggest the answer to a question. Because the fact that Michael Cohen, an attorney, has recorded the conversation, raises questions immediately, why did you feel that you had to? What happened before and what happened after it made you believe that there was some reason you needed to have documentation? You've been the fixer for a long time. What was it about this scenario?

And compare that to what happened when David Pecker was in the stand. What was it about this scenario compared to, say, Karen McDougal, that made this be the divergent path that was taken? And so the questions that are being raised by the jury are probably going to be, well, why is it that we don't have everything? And then you're looking to Michael Cohen to fill in the gaps.

Now, that's a problem if you're the prosecution relying exclusively on him based on his issues. And, of course, you also have both saying that we have to take Michael Cohen's word for what happened to this phone in 2020.

[10:20:05]

But it's more than that. Yes, I think it's more for what happened before and after if everything is also not there. That's why you have other witnesses to try to buttress credibility in advance.

COLLINS: Yes. But Donald Trump and Michael Cohen have not denied that those are their voices on this audio. So, I mean, it just seems like this is a tactic by the defense to try to sow doubt about this, saying you have to take Michael Cohen's word for it. Well, I mean, it's a data forensics expert who is on the stand. It's not necessarily the case.

REID: Yes. And one of the reasons he's on the stand is because the Trump team refuses to stipulate to a lot of this. And the defense attorney asking, they present questions about the reliability of the evidence. So there, boom, there it is. That's exactly what they've been trying to do.

And it's interesting, because yesterday we saw the D.A., Alvin Bragg, who's got a really low profile throughout this entire case. He made an appearance right before this witness started. And I'm told by a source that he wanted to show up and support one of his employees who's not used to being at the center of a case like this. And we know there's also going to be another summary witness on right after Mr. Daus. So --

COLLINS: And by summary witness, you mean someone else who's kind of there to back up evidence and data and kind of just lay it out, not someone who says, I was part of these conversations with Michael Cohen and David Pecker?

REID: That's exactly right. And the reason a lot of these folks, like the C-SPAN archivists and these folks in the Manhattan District Attorney's Office, have to take the stand is because the Trump team will not stipulate to this.

COATES: You know what's interesting too? Think about what we're talking about. If someone tells you, don't picture a pink elephant, that's all you can possibly see. If I'm telling you all of a sudden don't pay attention to anything on this audio recording and I'm the defense team, you're wondering, well, why don't you want me to pay attention to this? This is the one part of evidence so far you've heard Trump's voice. They know what Trump sounds like. He was the president of the United States or in the same room with them. And also the content --

COLLINS: It's working against them.

COATES: And the content of it is that, you know, we've heard this tape before this trial started. We've heard about this. The idea of, you know, no, no, no, no, no, no, no, no, that whole infamous phrase of it, and what he was doing and the intimation of why he wanted it. And so they've heard this.

But what's more important is that they don't want you to focus on the one thing that might connect the knowledge of Trump about not only the actual details, but that he was aware this was happening. And then they left it off in some sort of ellipse in the middle of the conversation, which suggests to the average person perhaps that we're not going to talk about the things that we don't want to be out in the public. That's why it's working against them.

COLLINS: The Alvin Bragg thing is also interesting that you mentioned, Paula, because the district attorney has not been in there every single day. I think he was there maybe the first day, and then so he's only been in there maybe two days where he's actually -- of course, it's the whole team of prosecutors in there, but he himself is not always present.

REID: Yes. It's such a contrast to what we saw with Attorney General Letitia James and her prosecution of the former president or her civil case against him because she spoke before the mics on her way in, she spoke before the mics on her way out. She would respond to him often on social media.

And I was told by sources that Bragg is going to take a very different more traditional approach that most prosecutors would take, especially at a high profile case. You are not the star of the show. You certainly don't have to respond to anything the defendant says, and you should not comment on the case.

And that's what we've seen from him over the past few months. Again, it's been quite a contrast to some of the other prosecutors.

COLLINS: That's a really good point in the difference here. Trump has attacked both of them, of course, regardless of how they have handled this.

And Bill Brennan is back with us. And, Bill, I want to ask you about Trump's demeanor in the court. You represented him in his impeachment trial, of course, so you'll be a familiar name to our viewers. But Trump has kind of had this moment where he denied that he was sleeping in court. He said that he's only been closing his eyes for a sustained period of time, I believe, he said his big, beautiful blue eyes, as he's listening to these witnesses get on the stand and testify.

Now, when I was in court on Tuesday, that was accurate. Trump was clearly not sleeping, but he would have his eyes closed for like a minute. I would count. And there have been times where he has been sleeping, and Maggie Haberman said -- her sources have even confirmed that, yes, he was indeed sleeping. But what do you make of his demeanor of how he is acting as these witnesses are on the stand?

BILL J. BRENNAN, FORMER TRUMP PAYROLL CORP. LAWYER: Kaitlan, it's very stressful to go through a lengthy trial, especially as a defendant. I assure you, the former president is not asleep. He's probably closing his eyes to enable him to concentrate better, or maybe it's some type of Zen meditation move so he stays calm.

But to have to listen to your former lawyer, who surreptitiously recorded you, I mean, think about that, that these jury don't leave their common sense at the door of that courthouse. They're going to say -- there's a couple lawyers on the jury. It is abhorrent. It's repulsive that a lawyer would surreptitiously record his client.

And what do we know about this polluted source, this witness, Cohen? He's a convicted liar. He lied to Congress. The other witness, Davidson, said he didn't trust him. I would take a big blow-up headshot of him the size of a door, and I'd put it on an easel in my closing and say, would you buy a used car from this man?

[10:25:02]

I mean, this guy is completely incredible. There's a great charge that judges give in criminal cases. It's more poetic in the Latin, falsus in unum, falsus in omnibus, what it means, false in one, false in all. The jury will be instructed if they find that any witness lied once about anything, they can assume they may be lying about everything. I am convinced that the defendant is not asleep. He's listening intently.

COLLINS: Well, as far as recording, I remember when Donald Trump is president implied that he had tapes of that for FBI director that he fired, James Comey, that was hanging out there for some period of time. So, there's a lot of allegations of recording here.

But I do want to bring it up to date because the cross-examination by Trump's team has just ended, prosecutors got back up to speak to this witness, this witness who was really speaking to the evidence here, how they got that tape, that audiotape from Michael Cohen's phone when he turned it over to the district attorney's office. They're asking about other recordings that Bove asked about that are not relevant to this case. This expert from the D.A.'s a office is confirming that. So, obviously, we expect them to button this up here.

As it is a Friday, Bill, what is something that that you as a prosecutor would want to leave the jury with before they go home for the weekend to kind of marinate on what this week has looked like testimony-wise?

BRENNAN: They could play it two ways. You know, I've tried against these particular prosecutors, and Josh Steinglass is a pro. He's a career prosecutor. He's smart as a whip, and he knows what he's doing, and he's comfortable in that courtroom.

He could try to run out the clock today with more meat and potatoes and innocuous witnesses, or he could put some star witness on and run out the clock so the defense doesn't get to cross today. If he puts Ms. Clifford on, for example, he could leave the jury marinate with her direct testimony over the weekend. It might not be a bad move for him.

COLLINS: And I should note, Trump is writing on a notepad. He's handing it to his attorney, Emil Bove. That is the one who has been doing the cross-examination and also did the cross-examination of Keith Davidson, which the Trump team believed was pretty effective yesterday, as it got incredibly contentious inside that courtroom, where he was asking Keith Davidson, who, just a reminder, was the attorney for Stormy Daniels, who negotiated this agreement with Michael Cohen.

All of these questions about his past work and kind of bordering on this allegation that it was extortion, that he was bordering up on in his actions. Do you believe that was an effective cross-examination by the Trump team yesterday?

BRENNAN: Absolutely. I think Mr. Bove did a phenomenal job with that. And you've got a witness on the stand who's in the hush money business who won't say, yes, it was hush money. It was consideration. And has made a career with Hulk Hogan and Tila Tequila and Charlie Sheen and countless others when -- Lindsay Lohan, when they're having a personal problem in their lives, going to them and saying, hey, it's going to come out unless.

And, again, as I said earlier in this segment, Kaitlan, these jurors don't leave their common sense at the door. They're going to weave their life experiences into the law and the facts, and they're going to make a decision here.

You know, it's similar to that politician that shot that puppy dog and then said, well, it's not illegal in my state. She killed a dog. This guy is a liar. They're going to figure it out.

COLLINS: Yes. Well, as Laura Coates has introduced, my new favorite phrase of the month is, this is no bus full of nuns that is inside that courtroom.

Thank you so much, Bill Brennan. We'll be back with you.

Donald Trump's attorneys have been trying to sow doubt about the evidence and boil this all down to a single question that Bill is just getting at there. Can you trust Michael Cohen's words? We do know we expect him to get on the stand at some point.

Right now, prosecutors back examining a digital forensics expert, but we may soon find out who is next to take the stand.

You are watching CNN's special live coverage.

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