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New, Jury Submits Additional Note in Trump Hush Money Trial; Jurors Request Review of Testimony from Pecker and Cohen; Now, Judge Re-Reading Part of His Instructions to Jury. Aired 10-10:30a ET

Aired May 30, 2024 - 10:00   ET

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

[10:00:00]

KAITLAN COLLINS, CNN ANCHOR: What did Pecker say to Trump? What did, what did Pecker, when they met with Cohen and Trump and Hope Hicks coming in and out of that meeting? What happened there? We know what their focus is, and they want to be apprised as to specifically what the law is, but they may have additional questions as they go back. We know, obviously, what their thought process is as of now.

KATE BOLDUAN, CNN ANCHOR: All right. Joey, Jeremy, Jim, thank you all so very much. There's a lot going on here and a lot we're reading, as you can read on your screen with us. It continues as we speak.

This is CNN News Central, CNN's coverage of jury deliberations and what is happening in this courtroom right now continues.

JAKE TAPPER, CNN ANCHOR: Good morning and welcome to CNN's special coverage of the Trump hush money trial. I'm Jake Tapper in Washington alongside Kaitlan Collins in New York.

This morning, the jury in Donald Trump's criminal hush money trial is back to work. The seven men and five women will ultimately decide whether a former president is convicted of felony crimes for the first time in the history of the United States of America. And Mr. Trump is in court awaiting their decision.

We just learned that the jury has submitted yet another note. This is the third, one about yesterday's request for the judge's instruction to be re-read and another requesting for headphones to use with the evidence laptop.

KAITLAN COLLINS, CNN ANCHOR: Yes, clearly a tech savvy jury because they asked specifically for a certain kind of headphones here. But, Jake, of course, before those jurors left yesterday to go home, they asked to rehear four key pieces of testimony throughout this trial, including from Michael Cohen and the former National Enquirer tabloid king, David Pecker, and his account of the 2015 Trump Tower meeting, also Pecker's 2016 phone call with Donald Trump about the former Playboy playmate, Kara McDougal, and David Pecker's testimony about not finalizing a deal, a payment from Trump to reimburse AMI for McDougal's rights to her story about her alleged affair with Donald Trump.

Just moments ago, Trump repeated some all too familiar false claims about a rigged trial as he walked into the court as we are waiting for the verdict here, but still getting into the notes as of this moment.

Paula Reid and Kristen Holmes are here with me. And right now, what the judge is doing is he's re-reading the parts of the instructions that the jury was curious about. And there's one interesting part, which was about David Pecker's non-prosecution agreement, basically, that he could not be prosecuted. He was boyish (ph), basically, on the, on the stand. And what he's reading is, you'll recall the testimony you heard when David Pecker was an executive at AMI, that they went into a non prosecution agreement with federal prosecutors. And basically, he was saying, this is to help you as a jury assess his credibility. You're not supposed to deduce whether or not anyone else, the defendant here committed a crime based on the fact that David Pecker entered into that non prosecution agreement via AMI, but it's just to help you assess what he's saying to you on the witness stand. But it's notable that the jury wanted to hear that again.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Yes. And to the jury's credit, I think we were all a little surprised that they wanted to rehear instructions they had just heard a few hours prior. But in seeing these sort of read back, we have the text, I get why they probably wanted to rehear this. Some of this stuff is really complicated. They wanted to hear things about the hearsay exception, and here they're getting into the burden of proof. And, of course, if the government has proven this case beyond a reasonable doubt, you have to find the defendant guilty.

But things like this, again, how you use David Pecker's, you know, previous arrangements, previous agreements with the government, that is significant, especially when they're clearly looking and evaluating at some of the things that David Pecker said. So, this makes sense, and, look, I definitely give them the benefit of the doubt about why they needed to rehear this and reiterate it is crazy that they don't just give the jury a copy of instructions.

COLLINS: Yes, they have to ask the judge to re-read it. And right now he's reading the part about reasonable doubt. And this is a really -- I mean, this is a critical piece of this question. Because, obviously, and as the instructions laid it out, it would say that it's not beyond all possible doubt. But it's not -- he's probably guilty, it has to be beyond a reasonable doubt. And he also is reiterating an important part that I know the defense obviously cares about, which is that the burden of proof here is not on Trump's legal team. It's on the prosecution for making their case here.

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Well, exactly. And the defense really cares about that, particularly because they want to be pointing to the fact that there were witnesses who allegedly could have cooperated Michael Cohen story that the prosecution didn't bring, like Keith Schiller, like Allen Weisselberg, who's currently in Rikers. We believe that they weren't brought up likely because the prosecution didn't think that they would be friendly witnesses. These are people who are still Trump loyalists.

Now, the judge is saying whatever your verdict may be, it must not rest upon baseless speculation. Now, this is really interesting because we're talking about two different things here. And this is what the jury wanted to hear about, one, baseless speculation, say it cannot rest on this, but they also wanted to hear about that rain analogy, talking about inference and what you can infer and using facts for inference.

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So, they're clearly kind of getting the difference here and re- listening to the difference between speculation and inference as he's going back through these.

COLLINS: And the judge says, nor may it be influenced in any way by bias. He's talking about the decision they come to Trump is leaning back in his chair with his eyes closed. He has already heard these instructions as well. Obviously, he's not the one deliberating here. A reminder, though, Trump does have to be in the courthouse anytime that the jury is here, whether it's rehearing instructions or deliberating. The judge says there's no particular formula for evaluating the truthfulness and accuracy of another person's statements or testimony.

This is where he was saying, you know, this isn't a science. You are human beings and you're being asked to make the decision here as this fair jury. Yesterday, he said you're the judges here of the facts in this case. I'm the judge reading you the instructions, but really it's up to you to make this decision. And he says you bring to this process all of your varied experiences. That's how they're making the decisions here, by being people.

REID: Absolutely. And if you look at this jury, they're absolutely in microcosm of Manhattan. As I've said many times, you just took the first 12 people who hopped off the subway car, any stop in the entire borough. This is what you would get. This is a diverse group of people, 12 people who need to reach consensus on 34 different counts, dealing with this historic case. And the defendant is someone who brings out a lot of feels. Everybody knows him.

So, this is an extraordinary task that they have here. And I wouldn't be surprised if they have to have some of these instructions read to them again further down the line.

COLLINS: And is he reading the full instructions here or is it just pieces of this that they want read back to them?

REID: It appears, based on what we're getting is he's reading a portion. It's almost half of it. But by the time he's done, it looks like he will have read, I believe it's pages 6 through 35, 55 pages of instructions. Again, that's over half of what they heard yesterday. But these are the rules of the road for them. This is what's going to guide their discussion over the next few days.

COLLINS: And at the end was where he really got it. And the end of the instructions was where he went through every single count and what the law is on the falsification of business records. It's interesting that he, he's focusing on, and what they're asking about are other pieces of this that they're not asking about certain specific checks or the law of falsifying business records. They seem to be what they're asking about right now is the bigger picture of this. And right now, they're moving on to his instructions on the credibility of the witnesses, which, of course, is what a lot of this case focuses on it is.

HOLMES: And that's part of the issue that the prosecution has had this entire time was the credibility of the witnesses, particularly their main witness, Michael Cohen, something the defense, part of the reason they use that as their main witness as well, because he does have credibility issues. He has been charged with lying in the past.

So, going through this again, I'll tell you, I talked to a number of legal experts, particularly federal judges who have had juries in their courtroom before, polled juries afterwards, and they say that this is a common issue when a case really lands on one person's shoulders, particularly if that person does not have a good record.

And, clearly, the jury wants to go through some of what Michael Cohen said, and even just have, asking for both Pecker's recollection and Michael Cohen's testimony about that Trump Tower meeting. That goes to show you, too, some kind of trying to get cooperation for what Michael Cohen is saying.

REID: And when it comes to Michael Cohen, yesterday when we heard these instructions, I remember when he read out the part that if you believe someone lied on the stand, which defense attorneys have argued that Cohen lied on the stand, you can get rid of part or all of their testimony. And I remember that was an aha or holy crap moment for me, because I thought, wow, how are you going to get 12 people to agree on whether Michael Cohen lied or not, and then do you get rid of a portion of his testimony or all of his testimony?

I think that this is an instruction, he's repeating it now, that bears a lot of attention, because this is something that could really drive the outcome of this case.

COLLINS: Yes. It's basically choose your own adventure, Jake, on whether or not you want to discard part of the witness testimony if you thought they were lying, or all of it.

TAPPER: Alright, Kaitlin, thank you so much. As the jury continues to deliberate, they have requested transcripts from four key moments in this historic trial and my panel is here to walk through the most important aspects of that testimony and what it could mean for how the jury is weighing the case.

Joining us now, CNN Special Correspondent Jamie Gangel, CNN Anchor and Chief National Affairs Analyst Kasie Hunt, CNN Legal Analyst Elliot Williams, CNN Legal Analyst Ellie Honig, CNN Legal Analyst Karen Friedman Agnifilo.

So, Elie, before we get into what the testimony that the jury requested, also their second note of yesterday, and I think part of their note today, had to do with the instructions that the judge gave them. The judge is right now re-reading his instructions, that's going to take some time. Tell us what exactly they requested, and if you could explain what they were confused about. ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, the jury specified at the end of their note today that they want to hear the instruction on count one of the indictment. Just a reminder, there's 34 counts relating to falsification of business records, one count for each check, each invoice, each ledger entry. It's essentially the same legal elements as to all 34 counts. So, it's an unusually complicated process.

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One count for each check, each invoice, each ledger entry, it's essentially the same legal elements as to all 34 accounts.

So, it's an unusually complicated charge. There's basically three steps, and I think we have a visual that will help us along here. Step one is falsification of business records under New York law. That is essentially what it sounds like, falsifying business records. That's just a misdemeanor under New York law.

TAPPER: And the judge is saying right now, sorry to interrupt, you may consider whether a witness' testimony is consistent with the testimony of other witnesses or with other evidence in the case. This has to do with the judge yesterday, I believe this has to do with yesterday, the judge saying, basically, you can't, entirely trust everything that Michael Cohen says. You should be looking for corroborative evidence since Michael Cohen is considered, I think, accomplice was the word that he used. So you should be looking for things that verify what Michael Cohen said, whether that is physical evidence or other testimony. And that is what he's getting into.

I'm sorry, yes, if there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts. I'm sorry.

HONIG: It goes to the key issue of witness credibility. So, step one, falsification of business records. In order to bump it up to a felony Class E felony, which is the lowest of five classes of felony under New York law, prosecutors have to prove that the records were falsified in furtherance of another crime.

Now the another crime here is New York State election law, which says you cannot try to influence an election by, quote, unlawful means.

TAPPER: Yes. Trump inside the courtroom. Sorry, Elie. But while you're explaining that, the other stuff is going on inside the courtroom. The judge is saying the people have the burden of proving beyond a reasonable doubt. Not only that a charged crime was committed, and he's continuing there, but that the defendant is the person who committed the crime. In other words, the falsification of the business records, even if you determine that that happened, you have to determine that Donald Trump was the one behind it, not just that it happened, that he had something to do with it.

The judge is saying even if you are convinced beyond a reasonable doubt that a crime was committed by someone, you cannot convict a defendant of that crime unless you are also convinced beyond a reasonable doubt he committed the crime. Sorry.

HONIG: So, the crime step one, falsification of business records, step two, violating New York State law, meaning influencing election by unlawful means. That gets us to the third part, which are what are the unlawful means. Prosecutors here have offered up a menu of three unlawful means. One of them is a federal campaign violation law.

TAPPER: Yes. And Judge Merchan is right now reading the accomplice as a matter of law instruction.

HONIG: Right, and that's important, especially because it relates to Michael Cohen.

TAPPER: Yes, he's an accomplice, the judge has said, Michael Cohen is an accomplice, and you have to consider him as an accomplice, which means anything he testified about, correct me if I'm wrong, you have to have verification from another source. You can't just take his word for it since he's an accomplice.

HONIG: Exactly. And relevant to the charge itself, Michael Cohen pled guilty to federal campaign finance crimes, which are sort of incorporated into the third step of the charge here. Again, there's three menu items federal campaign finance violations, tax violations and then falsification of other business records.

And what's become a little bit controversial is the judge said, you can choose any of those three options. You don't have to be unanimous as to which one. That's caused some controversy. It's probably allowable under New York law because all they have to show is an intent to commit some other crime, but there are fair questions about whether that's a fair way to charge --

TAPPER: Yes. A lot of President Trump's defenders on took to social media yesterday, saying the judge has said they don't even have to be unanimous when it comes to the crime, and that is kind of true, kind of not true.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Kind of grossly misleading. They have to be unanimous as to the crime that Donald Trump is charged for, which charged with --

TAPPER: His falsification of business records, yes.

WILLIAMS: In the first degree.

Now, this question of how you treat that other crime, and I assure you, there was a hot debate among the three of us and another attorney in the green room before that. I know it's spicy. Look it up.

TAPPER: Lawyer on lawyer violence.

WILLIAMS: Lawyer on lawyer action, right? But, no. But, seriously, the question of what has to be alleged and proven, I think, is an open question but an interesting one legally and how prosecutors deal with it. I know, Karen, you've thought about this quite a bit, even in cases you've argued. TAPPER: Are you the one, Karen, that had the burglary metaphor? It might have been Tim. But the idea is like if somebody is arrested for trespassing and the jury is convinced that he was trespassing and it was intent to of in the service of another crime, he was going to trespass to break into the house. They don't have to agree on whether he was going to vandalize the house, burglarize the house, or, you know, whatever, kidnap somebody, they just have to agree that that was trespassing in service of a crime?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: Yes. And so I think that's a great way of putting it because a trespass is a misdemeanor unless you have this general intent to commit a crime therein.

And so a good way to talk about it and the way we were discussing it in the green room was, let's say you've got a burglar who's walking -- or a person who's walking down the hallway of an apartment building and he's jiggling the door knobs to see which one is open, which one can I go in. And once he goes in, if he has a sleeping bag and a toothbrush, he says, oh, I was just looking for a place to sleep, prosecutors would have to charge him with a misdemeanor because you have no proof that he had the intention of committing a crime therein.

However, if, as he's jiggling those doorknobs and he steps in and there's a police officer who arrests him right then and there before he can do anything and before he can formulate which crime he's going to commit because he doesn't know which apartment he's going to get into, but you find on his person zip ties, safe crackers, you know, other mask, you know, ski mask, whatever, a prosecutor --

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: A bag to maybe carry --

AGNIFILO: Yes, exactly. A prosecutor is going to charge him with burglary and say he had a general intent. Even he hadn't and I think that's the hadn't formulated this specific intent yet of which crime he was going to commit because he didn't know which apartment was going to be open and what would be there. But he was somebody that I would charge as a prosecutor with burglary because he had the general intent to commit a crime therein. That to me is the closest analogy to what's happening here.

WILLIAMS: And a rational prosecutor would charge that and a rational defense attorney would say, wait a second, this is a legal ambiguity. You're not even articulating what you're charging our client with. And I think that's what's sort of happening here. And that's some of the chatter that was seen online about this. One, because people just did not understand, and I saw all those tweets, too, grossly misrepresented what the judge had said. Even --

TAPPER: But you would acknowledge, though, that there is a criticism to make of this idea, because, you know, Donald Trump was not trespassing. This is a whole different situation, and the metaphor works to help explain this to our people, our viewers. But you would agree that there is a valid criticism of this.

WILLIAMS: Without questioning. Moreover, when, if in fact, the former president is convicted and appeals, he will certainly raise this point and it's not going to be tossed out of court as frivolous or ridiculous argument. No. I mean, it's fair for a defendant to raise these questions about was I put on notice of the thing that I was actually charged and ultimately convicted.

TAPPER: And the judge is right now reading the requirement to find the defendant guilty of falsifying business records in the first degree and what exactly that means. And just to just to push this metaphor beyond its use is that that in this metaphor, Donald Trump actually did get into the apartment. I mean, he did, right? I mean, he succeeded in -- if you believe the prosecutor's theory of the case, which I'm not saying I do, but he succeeded in getting in there and time passed. And --

AGNIFILO: Yes.

TAPPER: And the idea that like he did have the time to --

AGNIFILO: Formulate the intent. And the prosecution actually has a theory about which crimes. And so that's the difference here.

TAPPER: They actually think he's all three, right? They actually think he did all three, that they're saying. But it is to a layman, it seems odd that they don't have to be unanimous as to which of the three other crimes that he supposedly did were committed.

HONIG: If I can just circle (ph), would the judge ordinarily instruct the jury on what the another crime is in your scenario?

AGNIFILO: It depends on if the prosecution has specifically picked a theory and is going with that theory and says this is the crime, you know, then it could be, but not really, not in burglary.

HONIG: The judge has done that here, right? The judge has given an instruction.

And I think it's worth noting, federal election campaign law is extraordinarily complicated. People have written theses about it. You know how much instruction the judge gave the jury about federal election campaign law? Nine sentences. And if they think that there's an adequate explanation of federal election campaign law in nine sentences, I think they're going to have a problem,

TAPPER: Well, especially considering the fact that he spoke for more than an hour in his jury instruction and did not allow the defense to present a robust defense when it came to federal election law, including the explanation that the Federal Election Commission did not bring charges against Donald Trump.

HONIG: and the judge limited -- the defense wanted to call a federal election campaign expert. The judge did not prohibit it, but he said your expert can only testify in a very limited way.

TAPPER: So, Judge Merchan is right now re-reading the definitions in the law for enterprise business record and intent. This all has to do with technical aspects of the charge. Quote, as I previously explained, a person acts with intent to defraud when his or her conscious objective or purpose is to do so. In order to prove an intent to defraud, the people need to prove that the defendant acted with the intent to defraud any particular person or entity, a general intent to defraud any person or entity suffices.

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Intent to defraud is also not constricted to an intent to deprive another of property or money and can't extend beyond economic concerns. Man, lawyers do not speak English. That is that is crazy.

KASIE HUNT, CNN ANCHOR AND CHIEF NATIONAL AFFAIRS ANALYST: Well, sorry, guys, you don't all the time.

WILLIAMS: And wait a second, the next sentence is going to be on intent to commit or conceal another time, another crime. Just you wait, Jake Tapper. It's going to get pretty --

TAPPER: We're told by Kara Scannell inside the courtroom that Trump's chin is resting on his chest. Clear how awake he is or how much he's paying attention right now, which, by the way, relatable.

HUNT: Apparently one of our other reporters also says Trump picked his head back up and leaning back is leaning back in his chair.

TAPPER: So, for the crime of falsifying business records in the first degree, Judge Merchan says the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, all of the people must prove an intent to commit another crime or to aid or conceal the commission. They need not prove that the other crime was, in fact, committed, aided or concealed.

HUNT: Right, and that's kind of part of another piece of what you all were talking about. Look, I think just pulling back the lens, I mean, the thing that I am most interested in here is that the series of things that the jury seems to have asked for all relate to whether or not Donald Trump was aware of what was going on. And that plays to this I'm not sure if it's intent, right? And was there an intent on the part of the various actors in the rooms?

But, really, this idea of, you know, what was said at that meeting, is it corroborated along those lines, which, you know, I actually am subscribing and I'm a little cautious about what we all have to do here for all these hours while we're covering this, because I do feel like speculation in terms of what the jury is going to do is a little bit dangerous to engage in, quite honestly.

But these do seem to be kind of the facts that they have laid out. We want to know more about these things. The things that they seem to have laid out, what they have in common is what Donald Trump knew.

TAPPER: And what is very significant for our purposes, trying to understand where the jury's heads are at, is that of the four bits of testimony they requested, one of them is from Michael Cohen. Three of them are from David Pecker. David Pecker, the tabloid king, America Media Incorporated, was a very important witness for the prosecution. And you think this might bode well for the prosecution that they're asking for this?

GANGEL: He was a critical witness for the prosecution. And, look, we've had some description. We don't have cameras in the courtroom, but obviously we would also want to protect the jurors. I'm not so curious about how the jurors are reacting to the instructions, but once we see reading back of David Pecker's testimony. If I was in the courtroom, I would be watching to see, do you get any aha moments? I'm sure you, you've seen that.

But let me just give some context to remind people about David Pecker. David Pecker laid out for the jury catch and kill. He said he was the eyes and ears of the Trump campaign. He testified that he wanted to help him win. He said Trump was his mentor. He was not a hostile witness, that he still considers him a friend.

Just two quick things, at one point the prosecution asked him, was your principal purpose in entering into the agreement with Karen McDougal, not Stormy Daniels, to suppress her story so as to prevent it from influencing the election? Steinglass asked David Pecker, Pecker replies, quote, yes, it was.

So, that kind of testimony, I don't know that that's what they're going to read back, but that's the importance of David Pecker in corroborating Michael Cohen.

TAPPER: And we'll talk more about the testimony that the jurors have asked to be read back in a second. Everyone stay with me. We're going to squeeze in a quick break as Judge Merchan continues to re-read parts of his instructions for the jury.

Stay with us. We'll be right back.

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[10:25:00]

TAPPER: And welcome back to our special coverage of Donald Trump's criminal hush money trial. Right now, Judge Juan Merchan is re-reading the jury instructions that he read to them yesterday. He took more than an hour to do it yesterday. This is a request from the jury that didn't fully understand what he had told them. Let's dive into the testimony that the judge also requested to rehear.

My panel is back with me. I do want to note, as we do every time, we have her lovely presence that Karen Friedman Agnifilo is of counsel for a firm that represents Michael Cohen, though she has no contact with Cohen herself. She does not work on that case. There are no restrictions on what she can say about this case. But we are big believers in disclosure and transparency here at CNN.

So, Karen, Cohen testified about what he and Trump discussed with David Pecker at this meeting that the prosecution says happened. And here is part of what the jury requested to know. Hoffinger, this is the prosecution, could you tell the jury please what was discussed and what was agreed to at that meeting? Michael Cohen, what was discussed was the power of the National Enquirer in terms of being located at the cash register of so many supermarkets and bodegas that if we can place positive stories about Mr. Trump, that would be beneficial. That if we could place negative stories about some of the other candidates, that would also be beneficial.

Prosecutor Hoffinger, was there anything else that Mr. Pecker, that's the head of this tabloid enterprise, Mr. Pecker said he could also do for Mr. Trump's candidacy? Michael Cohen, yes. Prosecutor Hoffinger, what in substance did he say? Michael Cohen, what he said was that he could keep an eye out for anything negative about Mr. Trump and that he would be able to help us know in advance what was coming out and try to stop it from coming out.

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