witness store. right now in new york, it's the prosecution's turn as we speak josh steinglass is delivering his closing argument, and donald trump's hush money

trial/election interference, and directly addressing the holes the defense tried to poke in michael cohen's testimony. >> and steinglass says the case against mr. trump boils down to three key points, that there were, in fact, false business records, the false records were designed to cover up an election conspiracy, and that donald trump himself was involved. >> is it enough to counter the defense laid out by attorney todd blanche, donald trump's attorney in the closing argument this morning, or has the defense done enough to sway at least one person in that jury box, and how soon could the jury start deliberating. judge merchan says jurors are willing to stay late today, so we're also going to talk about what that means for tomorrow's schedule, including jury instructions. >> there's so much to go over, back with us, nbc news national correspondent yasmin vossoughian, danny cevallos, and katherine christian, we're going right back into the document. the reason we call this a hush

money/election interference trial, the prosecution is arguing donald trump paid this hush money payment to stormy daniels because he wanted to interfere with the 2016 election, didn't want this story to get out and steinglass says this, this is key, once ami purchased stories on a candidate's behalf and in coordination with the campaign, those purchases become unlawful campaign contributions. steinglass adds i suggest to you that the value of this corrupt bargain at the trump tower meeting cannot be overstated. it turned out to be one of the most valuable contributions ever made. this scheme cooked up by these men could very well be what got president trump elected. yasmin, powerful stuff from steinglass. >> really powerful stuff, katy, you started off by saying steinglass was cleaning up the holes, and i looked back at what

todd blanche actually said about this august 2015 trump tower meeting, i just want to remind folks what it is that he said during his closing arguments, just a couple of hours ago with regards to that he said this is the same thing ami has been doing for decades, they have been doing it for president trump since the '90s, there is zero criminal intent in the 2015 meeting. indeed, mr. pecker told you it was good business to work with president trump. let's remind folks of this meeting. it was august in 2015. it was david pecker as they've testified. it was michael cohen, it was donald trump. it was hope hicks. and she testified to this, just a couple of weeks ago, going in and out of this meeting, she was not there for this conversation. what this was about, essentially having eyes and ears, as you talked about with regards to the testimony, having eyes and ears on some of the people he was up against in the 2016 election, and placing damning stories for instance in the "national enquirer," in order to help donald trump win the 2016

election. this is an effort on behalf of joshua steinglass, and kind of cleaning up those holes poked by todd blanche when it came to that 2015 meeting. one other thing that stood out, and i haven't been listening to the entire last hour so you may have already talked about this, i was inside the courtroom for a little bit. we talked about that october 24th phone call, and steinglass mentioned this in his opening, trying to clean that up as well, and you remember todd blanche who had this real moment during cross-examination with michael cohen, a gotcha moment, you're lying about this october 24th phone call at 8:00 p.m., harassing text messages and we don't know if that's what it was about. the phone call only lasted 90 seconds, then in redirect, susan -- came back and said here's the photo of keith schiller standing alongside donald trump at the event, that's how they came back on

that. here, i thought it was really fascinating, the way in which they cleaned that moment up because todd blanche referred to it once again, even in the courtroom when i was in there for it, he raised his voice, michael cohen was lying about that october 24th phone call. well, here, steinglass said, okay, this phone call was 90 seconds long. let me play for you how many things i can talk about, for instance, in just 46 seconds. we knew there was a phone call between michael cohen and donald trump, and we have the transcript of it, that took 46 seconds and they talked about six different topics. so steinglass kind of talked through being able to cover all of these various topics in just 90 seconds time, that was one explanation for what may have happened on october 24th. the other is, michael cohen may have made a mistake. he has testified to having had 20 conversations or so throughout the month of october of 2016. i thought it was -- and i'll be interested to hear what other

folks said as well, a really effective clean-up to a moment that seemed pretty damning to the prosecution, but this is exactly what steinglass is trying to do in this 4 1/2 hours as you've told us earlier closing argument, trying to clean up the holes poked by todd blanche, katy. >> i think it goes even beyond that, and i think one of the things that we talked about, probably goes back three weeks, maybe four now, is could there be -- is one of the dangers for the prosecution with all of this evidence, the paper, but the confusion about what brings this misdemeanor to a felony, that there's a shrug, why is this such a big deal? like, why is this even a criminal case here? and steinglass said something before, he talked about this scheme, could very well be what got president trump elected. he said this, katherine. you may say a lot of people say this, you may say, who cares,

trump slept with a porn star ten years before the election. plenty of people feel that way. but it's harder to say, the american people don't get the right to decide for themselves. there's an emotional, a democratic argument in that, but is there a legal? >> he's appealing to, you know, just follow the laws as what you all swore you would do, conspiracy to promote an election by unlawful means, because they're going to be instructed on that. that was the crime that donald trump intended to commit, or conceal. and, yes, what's the big deal? you know, he paid off a porn star. but why did they agree to do that? to keep -- to promote his election? to make sure that the public did not know after what he said on the "access hollywood" tape, now we have a porn star, i'm not voting for him. you can argue the people who voted for him would have voted for him anyway. we'll never know that. >> andrea, you'll remember this from the campaign, part of what

donald trump got elected on is this idea i'm not going to allow a shady back room deal dictate how you get to live your life. the government is full of shady back room dealers, the deep state and they're the ones plotting behind your back how you can behave and how this country works, and they're doing you a disservice, i'm going to tell you the truth. and here's the prosecution saying, no, we -- they were doing a shady back room deal that was concealing information from the public in order, in order to get him elected, doing exactly the thing that he told the american public that he would not do, that he was trying to be the antidote for. >> and they portrayed him as a businessman, not a cheating politician. >> he's a cheating businessman. >> it worked, anybody on the campaign trail as we all were and talked to people, they would even say, yeah, whatever, i know, maybe he shouldn't say some of the things he says sometimes, there were other

accusations, but ultimately the idea, they felt he could make them richer, that he could clean up washington, he was an outsider. he would run the government the way he ran a business, it would be more successful, there wouldn't be all these back room deals. >> and he owes nothing to anybody else. >> that's precisely what it was. hillary clinton was a politician, a back room dealer, she didn't have your interests at heart, she had her own interests at heart, tried to claim she was getting herself rich off being in government, her and bill clinton, and this is the prosecution saying that, no, no, that's exactly what donald trump's team was doing. lisa rubin makes this point, steinglass is talking about the doorman payment, the corresponding story, she says that everyone believed her, he says that everyone believed the story was false. so, purchasing that story was not something pecker did because he had a fiduciary obligation to

his shareholders. it wasn't good business to buy this story that everyone already believed it was false. the only explanation, steinglass argues, is that it was bought so it didn't get out in order to benefit the campaign. >> yes and no. i think that's a very good point for the prosecution to make. but on the other hand there was some testimony by pecker that no matter what, just generally helping trump was good for ami. whether that help constituted promoting an election unlawfully, that remains to be seen. but, pecker at some point testified whether on cross or direct, just in general, having trump as an ally was good for his business. so, but that is a fair point to be made. why buy a story if it's of no benefit to ami if you never intend to publish it unless you're just helping trump. >> can we talk about how journalism works with campaigns? in case people are confused. >> not like this. >> you don't work with a candidate to say here's what stories i will cover and here's

what stories i won't cover, and here's what i will try to suppress for you and here's what i will try to promote for you and oh, yeah, i'm also going to go after your rivals. we have all sorts of conversations with candidates, with their aides, about what's going on in the campaign. everybody talks to everybody, in order to get information about that campaign, but no one makes an agreement about what you're willing to cover and what you are not going to cover, no one is doing anything, no journalist with the real title of journalist is coordinating with a candidate or a campaign in order to further promote that campaign. >> no, i should say that there are some news -- so-called news outlets who do that and participate in campaign events inappropriately, according to -- >> so-called news organizations, absolutely. >> and journalism does not allow you to promote a candidate regardless, i mean not a democrat, not a republican, not an independent. not a purple-headed monster. you're not promoting anybody, not the job of the journalist. >> you're not making agreements how you're going to present a

story, you present a story based on the facts and based on your own questioning and investigation. >> yeah. >> that is not what happened here, the question then becomes, what is the jury going to -- how is the jury going to put this together? danny, you raised a question about what may be the motivation would be. if you paid for it, and you're not making anything financially, if you're ami off of it, you know that the story, frankly, isn't true, and i think at one point donald trump said he would take a paternity test and he said that never happened, it was a lie, determined to be a lie, and then what's missing in drawing this to the legal proof in that scenario, clearly, stories were caught and killed. >> right, and the defense made a point of focusing on the words catch and kill. i thought that was a bit of a stumble at the time because i was certain the prosecution would, and they did, stand up and say, just because they didn't use the words doesn't

mean that that's not what was going on. and, i think it's fair game to explore what was the motive behind not only david pecker purchasing, because remember, if they're arguing that everybody was working together, as sort of coconspirators, then if david pecker had some different intent i think that's relevant too. the bottom line is, it's not entirely clear what everyone's specific intent was because, guess what, this happens all the time in criminal cases. in other criminal conspiracy cases, rarelish does a co-defendant write out i agree that we are in a conspiracy and r our overt acts are as follows. that's not the way conspiracies work, so they have to be proven by circumstantial evidence. and here, the prosecution and the defense are both grappling with david pecker's testimony which on the whole was very good for the prosecution. in fact, i stand by my position at the very outset of the trial that david pecker may still be the best witness for the prosecution because he blended

credibility with a lot of facts, a lot of knowledge about what happened. >> he likes donald trump. >> exactly right. he had some credibility issues, but certainly not to the extent of a michael cohen. so, david pecker, there's no surprise, now, why they opened with david pecker as their first witness. they started with a bang, and the effects of that bang are still being felt now in closing arguments. but, i really believe, we're getting to the area that the prosecution really needs to shore up. i believe they have proven beyond a reasonable doubt that cohen paid stormy daniels. i don't think anyone disagrees with that. i think they've proven beyond a reasonable doubt that cohen was reimbursed. there's no dispute there. i think where you get into the difficulty are concepts like the intent to defraud, and whether that intent to defraud included whatever included means, and an intent to promote or to conceal some other crime. i think now we're getting into the areas that the prosecution knows, they need to shore up, if, for no other reason then this is a novel application of the law.

anyone who says they have experience with this particular application of the law is making it up. >> it was never prosecuted before, this is the -- they call it a case of first impressions. >> just remind everybody. >> this has never been prosecuted before. falsified business records, prosecuted all the time. saw it all the time. investigated all the time, but it's usually grand larceny, insurance fraud, tax fraud, it's never been done this way and not the only charge on the indictment. it's usually the lower-level, the lowest level felony in new york, you have the grand larceny and the higher charges and, oh, by the way, he also fallfied business records. >> does that make it very difficult for the jury? >> it makes it -- >> or say a conviction. >> yeah, i mean, they're not supposed to know that but it is difficult because it's a very nuanced argument. it's also, thank goodness you have -- it's his jury instructions, i'm sure he spent a lot of time putting this together because this case, if there's a conviction, will be appealed just on the fact that it's never been prosecuted

before. >> so if you're looking at it from the prosecution's point of view, no, you're not able to say by doing this, donald trump got an island in the caribbean, a yacht, and a million dollars. what they're saying is he got to be the most powerful person on the planet. >> he got the white house. >> he got the white house. >> and that's that additional -- it's a new york election law crime that apparently has never been prosecuted that you conspired to emote an election by unlawful means, that's what the crime is, and i think just from going through josh is going through that, and i agree with danny, david pecker does not have the baggage that michael cohen has. he was proud of, quite frankly, his sleaziness, being the "national enquirer" head, and was very charming, and was very credible. and he did this catch and kill, you know, squashing these negative stories, pumping up

positive stories, going after ted cruz, and ben carson, to help donald trump's campaign. >> let me go back into the document for a minute. now they're talking about karen mcdougal, who is not at issue here, the payment to karen mcdougal is not at issue here but it shows in some ways a pattern. pecker said trump said karen was a nice girl, which suggested to pecker that trump knew her, and pecker believed the story to be true, and pecker told interest trump he should buy the story. but the defendant was reluctant because he felt the story always gets out. pecker advised trump to buy the story anyways because it was too risky, so close to the election, they should take the story off the market. they're not talking about jump starting karen mcdougal's career, they're trying to protect the campaign. and with all the documents in this case it's easy to lose sight of this call. they're talking about a flurry of calls, including a 25-minute

call, then a 1-minute call from pecker to howard, howard to cohen, that they had. he said trump was overtly discussing purchasing her story to keep it from being published. trump deputizing cohen right in front of pecker so that pecker knows a go ahead from cohen is a go ahead from trump. this goes against any claim that cohen was acting on his own. this call makes it impossible for the defense to claim that cohen was acting on his own here. and, i mean, that is their whole point, right, the defense, that cohen acted alone in paying for this, that he was never even reimbursed, that, in fact, the money was for a legitimate legal services that michael cohen gave to the president. >> we always knew this was going to be the defense's argument. other people's handwriting is literally all over the exhibits in this case, the crucial exhibits. you're allen weisselberg, your michael cohen. the theme always had to be that

michael cohen was operating rogue. and if donald trump had some knowledge on some level, it's not enough to hold him criminally responsible. that's a major theme of the defense's, and i think arguably i think anyone would admit in an area -- in a prosecution case that has a lot of good things going for it, this is the area that they really need to shore up. and part of that is attributable to donald trump's business policy of not creating a paper trail anywhere he goes. of not sending emails, which by the way he's right, a lot of people get convicted by saying dumb things on emails, text messages, social media is a huge one. donald trump realized that decades before other people did, and now because of that it's created some insulation for him, and something the prosecution in this case has to overcome. >> i wanted to ask a question a moment ago, and we have a little bit of color from inside the overflow room that gets the answer which is, it sounds like,

or it reads, this argument from josh steinglass reads much more understandable. it's more of a narrative. it seems like it's easier to grasp than what todd blanche did this morning and i wonder if it's because i'm just reading it. i wonder if you guys were able to easily follow todd blanche this morning, although gary grumbach, one of our reporters in the overflow this afternoon says that right about now, when he's going to the karen mcdougal stuff, which is right around the time when i started to glaze over or started to get cross-eyed this morning in the defense argument, the defense summation, he's saying this is getting a little tedious for midafternoon. steinglass has two hours to go of his estimation earlier today is still accurate. the michael cohen, the pecker stuff, the karen mcdougal stuff feels one step removed, more into the weeds. >> and i think josh steinglass

can probably sense that, it's important to talk about because it all is that pattern of ami, david pecker, doing this for the campaign. you know, catching and killing her story, catching dino the doorman's story, so it's important, he shouldn't belabor it, but it's very -- you don't want to sit down as a prosecutor and think you did not cross every "t," and dot every i. you want to make sure you hit every single piece of evidence, that's important. >> by the way, that's why it's so easy for us, someone like me sitting here in the studio to say, these guys ought to tighten it up, edit their cross-examination. but when you're on trial, that fear of leaving something out that catherine just talked about, it keeps you awake at night. it makes you panicked. you're going to crow bar into the record every fact you can, you're going to err on the side of length. >> really? >> yes, absolutely. >> it takes a lot of confidence to be short and to the point.

>> it -- >> and a good editor. >> it takes a good editor, yeah. >> yes, it does. and what happens is, as attorneys when you're on trial, you're in it, and i hate to say it, we all lose some perspective when you have that strong a command of the facts. you lose objectivity. you forget the fact that a jury is an audience, and they get bored like any other audience. and it's because of that fear, you don't want to be the cautionary tale. you don't want to be the one they talked about, he didn't even go into this issue and that might have made the difference because there is one immutable fact, and it's that juries end up focusing on things that you never, ever imagined that would be important to them. something that was not as important to you as an attorney, they think may be the most important issue. so the incentive becomes put everything you possibly can into the record, even at the risk of boring the jury. so, yes, katy, you couldn't be more right, it takes a lot of confidence to say, you know what, i've done this, i know

what i'm doing, i know what the jury wants to hear. >> it works. we know this, sometimes the less you write, the better. the shorter you are -- >> it's also harder. >> we have white collar crime group daniel horowitz. i'm going to take my own advice. i'm going to ask you a short question. what do you think so far? >> i think todd blanche was all over the map and i think that josh is really doing a tour deforce. i think he's bringing it together, as you guys were just talking about in a necessarily detailed way, but in a narrative one that at 3:30 in the afternoon, after jurors have been sitting all day and have been talked to and talked to and talked to and yelled at, they are engaged. they are paying attention, and that is the most important thing

i think for josh right now. he's got them. he's going through the details. but in a clear, crisp way, he's defaming the ten arguments that blanche ended with, the top ten reasons that donald trump should be acquitted. which is an effective tool, frankly it's one that i used in a summation once when i was a prosecutor. and did get a conviction. but here, i think he's methodically going through everything to show ultimately why not just that the defendant is proved guilty beyond a reasonable doubt, but to show that michael cohen has been credible, that just now as we were -- you guys were talking about, the discussion about david pecker, that's so critical, and it's absolutely right. they began the case with him, he's a credible witness, he likes donald trump, he tells a story that weaves in both trump and michael cohen, and that links to the stormy daniels

story. and i think we haven't gotten there in josh's summation but i think when he gets to the keith schiller conversation and i know he's been through it once already he's going to say, we've already heard this, right, we've heard donald trump talking about karen mcdougal with david pecker asking him how our girl is doing. he's talking about having conversations that got taped by michael cohen and he's going to bring all that evidence back again to show why michael cohen was not lying when he said he had a phone call with donald trump on keith schiller's telephone about stormy daniels. >> daniel, i know we are talking about whether the jury is engaged. i have some information on that, laura jarrett, about six minutes ago, seven minutes ago said that the level of engagement is about the same as it's been all day but she does note some sleepy heads, this particular line of argument, the karen mcdougal stuff is not striking as

particularly compelling in the room. how does josh steinglass address that, adjust? >> well, i think honestly we're coming up to the afternoon break time, and the fact that you've got jurors who are a little bit less engaged, perhaps, than they were earlier on this afternoon, that doesn't surprise me at all. but i think that josh is a supremely good trial lawyer and that means he's watching that jury, he's looking at them, he's registering what laura just saw, and he's going to adjust. he's either going to move to a different point, he's going to bring the point home, or, if it's necessary, he's going to say to the judge, judge, this might be a good time for the afternoon break. to give the jurors a break. >> what he's already said, though, is that that call about karen mcdougal is, quote, powerful evidence, makes it impossible for the defense to claim that cohen was acting on his own. he says that that call, you know, shows that the defendant was involved, this transaction was an unlawful corporate

contribution to the trump campaign, not only did the defendant know better, but he participated, it's powerful evidence of the defendant's participation. so he's trying to weave a narration that doesn't just involve michael cohen, but that involves donald trump. he says this call makes it impossible for the defense to claim that cohen was acting on his own here. pecker testified cohen said he'd get back to him with the defendant's answer, and said don't worry the boss will take care of it. meaning trump. we haven't focused that much on karen mcdougal, she didn't testify, was clearly not involved. this is why they felt they had to bring her into the case because of this meeting, and this call. >> that's right. that's exactly right. and i think, you know, josh is going to have to pivot pretty soon to get to what i think in some ways i agree that pecker was a very, very compelling witness. but, to me, i think he hasn't

gotten to the most powerful evidence that corroborates michael cohen. that's the testimony you heard from trump insider, from mcconaughey, from hope hicks, from the secretaries who all talked about how trump approached running trump world, and how engaged he was, and that's in some ways why the karen mcdougal story links to that because it shows how engaged he was. so, i think that josh will move off of this, and get to that. my guess would be relatively quickly. >> one of the things he says was that cohen was not authorized to buy lunch without trump's approval. >> yeah, i think the other interesting thing to me is that he keeps interjecting this theme about what was the whole purpose of this? they're talking about some text messages between keith davidson, the former attorney for stormy daniels and dylan howard who's with the "national enquirer," and among the things they wrote

to each other, as thrown in an ambassadorship for me, and i'm going to make australia great again and steinglass says the joke is funny because it's a palpable recognition of what they're doing. they're helping trump get elected by squashing this story. trump is looming behind everything they're doing. >> hammering it home. >> is that reading too much into that comment, giving it more weight that the whole case is that this is the campaign, you also need to combat he was rogue, michael cohen, even hope hicks who was their witness said that he could go rogue. they need to combat that he was rogue, that he didn't do anything unless donald trump knew it and the campaign, the campaign, the campaign. he's going to keep hitting that. >> guys, this is -- i mean, it's clearly getting into the weeds in this late afternoon hour. how long do we think steinglass is going to two?

i know, daniel, you said judge merchan may take a break. it's 3:30. they've been in the courtroom now for an hour and a half. how long will he go? is he going to go 4 1/2 hours? >> first of all, that would bring him way past 5:00. and wouldn't want to have a break today, and go again tomorrow. tomorrow morning the judge wants to read the instructions for an hour. >> he asked the jury and the jury said they would stay late. what is late? >> late would be, if it's 4 1/2 hours, we're talking about 6:30, and i would hope his colleagues would say to him, do you notice they're asleep? we could all be wrong. you know, we're -- the people in the overflow room might be glazing over, but maybe the jury is really into it. >> that's not what laura jarrett said. >> after lunch, you're tired. you don't want to sit there for 4 1/2 hours. so josh, and, you know, i know him. he's not a wind bag. he's smart enough to pivot and say, you know what, i'm going to cut out those paragraphs. >> what do you do when anybody who's given a speech knows this

moment, and so if you're doing a closing, you look at the jury and you realize, i've lost them. maybe i lost them because they had pasta for lunch, i don't know why you've lost them. >> they had a turkey sandwich. >> first of all, pasta and turkey are huge factors in lunch and the attention span of jurors. >> when you talk about turkey, you're right about that. >> it's chemical. >> it's very true. it's something that attorneys think about because the biology of it all is that you are a little more, i don't know, zoned out after lunch. this is absolutely something that the prosecution has to keep in mind. something you mentioned when you talked about giving a speech. in a way, a closing argument is a bit speech, but also a bit improv. yes, you have to script it out but i guarantee neither the prosecution nor the defense have a hard script they're going to stick to. they need to be able to improv out and they need to be able to cut out large swaths of that speech, so to speak, of that closing argument as they see that. >> you already figured that out, if i'm losing them here and i'm

2 1/2 hours in at this point i know i can lose this section? >> you can literally see attorneys at the podium, at the lectern scribbling out things, flipping through, i do it myself if they're using an ipad, you swipe through to the next three pages, you bail on things as you realize that you're just taking too much time with them. >> so he knows there are certain points that he's going to have to make but the other stuff is, if it feels right, i'm going to get these extras in. >> that's why you script this, not as a hard speech, but as something that you can move in and out of. it gets more complicated. not only did youry it last night or over the weekend but you also have to respond to what you heard from the defense. which is why the good old-fashioned analog yellow note pad is often still the favored tool of attorneys giving closing arguments. >> do you practice your summation, are you giving it to your colleagues? >> me personally, well most defense attorneys don't have any colleagues, they're there alone bull by their lonesome.

you talk to the mirror. >> your wife, your partner. >> the mirror. >> you come up with whatever you can come up with, but yes, there's no question that in a case of this import, this has been shopped around, it's been tested, it's been given to different members of friends in the office, colleagues, these are closing arguments that have been tested. >> i don't know, is that smart? sometimes there can be too much input. >> i never practiced in front of anyone. that was my way but for points i would make, what do you think about this point? should i move it to the beginning or to to the end. you do that, and i'm sure when the break happens, josh will sit down, and they'll say, they look like they're asleep, and then do exactly as danny said, i don't need to talk about all of this. hit your points but you don't have to hit it for three pages. >> oh, my god, laura jarrett says one juror has her head stretched all the way back staring at the ceiling. that's sending a message. >> i want a break, judge, and the judge should be looking at that and josh should say this would be a good time for a break and they go to the bathroom, get their snacks, which the judge

has promised them, and then josh can sit down and decide. >> there's no way the judge is going to say not yet. if he's in the middle of closing. >> he's more concerned about the jury than at a lawyers, he's looking at the jury and determining whether or not they need a break. >> timing is up to the attorney. if the attorney doesn't want this to go to the next day. if he wants to wrap up today, that's on him to start cutting and cutting from whatever he has left. and really often it can be major parts that you get rid of because like catherine, i don't test it out as a speech to colleagues, it's going to change while the other side is giving their closing. and while the defense went first here in federal court, for example, you go in the middle when you're the defense. you do get a chance to hear what the prosecution says and a lot of what you say is going to be reactive. so, it does give you that flexibility to opt out of things that you no longer think you need to hammer home, especially if you're reading the room, and you see some people who are kind of drifting off. that is a major danger so you need to be able to get out, to

cut on the fly. >> say major danger ten times in a row. >> let's bring in former federal judge and president of dickinson college, john jones, good to see you. as a judge you're sitting there and you realize the lawyer is maybe losing his audience, the jury, it's been a long day. it's going to be an even longer day by our calculations, still several hours to go here. they've had lunch. i might note that, you know, some of the places where they could get food from in that immediate area is little italy. there's plenty of pasta and bread to go around. what do you do as a judge? >> the first thing i'm tempted to say is you make sure there's a pot of coffee in the jury room. so that they can ingest some caffeine during the break. and that goes for the judge as well. that's a tough spot after lunch. but, when you're the presiding judge, and you see that you're starting to have some drift of the jury, what you have to do is

really say to the lawyer, look, let me know when it's a good time to break, and you kind of wedge that in. and give the lawyer the opportunity to wrap up whatever his or her sort of stream of thought is at that particular time. that has to be getting close given what you're reporting about the conduct of some of the jurors. >> it's also, by the way, quite warm in there. and that doesn't help. yasmin vossoughian was reminding me. but even this morning it was quite warm in there. how do you feel about how judge merchan has done today? what about what todd blanche did earlier when he was finishing his summation saying you can't send a man to prison based on the testimony of michael cohen. the judge does was not happy about that. he told todd blanche he was not happy about that and he gave a corrective instruction to the jury regarding that -- regarding

those words from todd blanche. >> i think he handled it well, and i agree with your expert panelists it was not a mistake by todd blanche. it was very intentional. i think the curative instruction given by the judge was exactly right. the other thing that strikes me in the presentation by the defense, you know, i kind of would characterize it as the sort of this is an important man defense. as if to say that the proof has to be higher than beyond a reasonable doubt because you're dealing with a former president and maybe future president of the united states. one of the things you may hear judge merchan say tomorrow is that all persons stand equally before the law. you know, whether prince or pauper, rich or poor, the president or not, as the case may be. you have to judge everyone the same way, when they come before you. he'll instruct the jury something like that, and that's important as well. so, the charge is going to be

super important in this case. >> has he opened himself up to any possible appeals from the defense team, anything that maybe he stepped out of place on? >> no, i'm not seeing anything that he stepped out of place. i think he's been imminently fair to both sides under the circumstances. tempers flare sometimes as i've frequently said, judges are all too human but i think he's handled the case generally with distinction. i think the most probable path for an appeal as some of your panelists have discussed is the fact that this is a novel prosecution that hasn't been tried before, that would be central to the appeal in the event that the former president is convicted. but i'll tell you, i think from what i see, the defense is in what i would call sort of a doomsday defense mode, i think they're playing for a hung jury at this point, i just can't see, given all the evidence that's been presented in this case, 12

jurors agreeing on an acquittal. >> is it a hung jury, going to be spun as victory by the candidate, the republican candidate for president? >> well, i think obviously because it probably won't convene another trial if ever until after the election he'll make much of that, you know, i'm a former judge and not a political analyst, but, you know, i think that there's grounds to convict as well in this case, and it's up to the prosecution, as your folks have said, that they have to put together this kind of mosaic in a way that fits. >> well, let me ask you about that, this is a case of first impression, it's a novel case. what is your overall take on the way this is constructed as an indictment? >> well, i think the indictment

itself is -- you know, i'm looking at it from the perspective of the judge and the charge in this case, i think the challenge for judge merchan is to craft the charge that is consistent with what the law is. for example, accessories, conspiracies, and so forth, i think that that can be done in this case, but he has to be very careful that he weaves that charge together the right way when he presents it to the jury tomorrow. closings are really important, of course, but the charge is extra important as well in this case, just because of the way the prosecution has been framed. >> we haven't gotten the instructions themselves, we have no confirmation on what they will be, the lawyers have gotten them, though, and donald trump posted something on social media yesterday that suggests he knows what they are, and he said that it's -- and i'm paraphrasing it's unfair for the judge to give the jury three different

options for the underlying felony and that they don't have to be unanimous on all of them. i imagine that he potentially got information that the jury will be able to decide the underlying felony is either the federal election violation, the state election violation, or the tax violation. and they don't have to be in agreement with all of those. >> i think that's consistent with the law in this case. he may consider the law to be unfair, but that's that. and speaking, you know, of social media, the other thing that i'm going to be interested to see, because i think this is a tough day for everybody listening to the closings, including the former president, you know, he sort of acted out, if he didn't violate the gag order over the weekend, he came close, i think, to doing it, there's going to be the opportunity for him to act out again tonight before this case goes to the jury, probably tomorrow, that will bear some scrutiny, i think, because he's got to be very stressed out listening to these closings, and

the way that this is coming together. judge merchan may have his hands full as proceedings start tomorrow, depending on what the former president posts tonight. >> yeah, i wonder, i mean, can he -- that's such a good question, can he potentially -- he's already threatened to put donald trump in jail. he's not going to put donald trump in jail while the jury has the case. i mean that -- that would be a giant risk, right? >> i don't think he'll put him in jail. and i think the former president is probably smart enough not to cross that line. but, you know, given this sort of spasm of social media posts that he did over the weekend, and just the force of those posts, you have to believe that there's a potential for that to happen again tonight. you know, talking about the jury instructions themselves, you know, could become problematic at some point. he's really getting into the merits of the case.

that may warrant some type of an instruction, although the jurors are supposed to stay off of social media. it's going to be interesting to see whether the pressure on the former president causes them to act out. >> or if he starts going after the jury or witnesses and breaking all of the gag order rules in the moments -- >> it could happen. >> yeah, it certainly could happen and judge juan merchan is going to have a lot to deal with then, and a big decision to make. >> he's had a lot to deal with from day one. we want to go back into the courtroom because there is a recording that joshua steinglass is calling nothing short of jaw dropping, it was just played inside the courtroom. it is from september 6th, 2016, it's a conversation between michael cohen and donald trump. we have that to play. >> 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. i've spoken to allen weisselberg about how to set the whole thing up with -- >> so what -- >> funding, yes, and it's all the stuff. >> thinking about that. >> you never know where that company. >> maybe he gets hit by a truck. >> correct. financing. >> listen, what finance sng. >> we'll have to pay -- >> pay with cash. >> no, no, no. >> after that was played joshua steinglass shows the defendant's cavalier willingness to hide this, you can play this as many times as loudly as you want to hear mr. trump say 150 on this tape. it's your decision what the tape says, by the way. this shows the defendant suggesting paying in cash, or whether it means no financing, lump sum. it doesn't matter.

he is trying to do it in a way that will not get noticed. cohen says he spoke to allen weisselberg, trump's loyal cfo, and then steinglass says this tape unequivocally shows a presidential candidate actively engaging in a scheme to influence the election. is that what it shows, danny? >> yes, and no. and look, reasonable minds can and maybe will disagree. there's a strong argument to be made that this is compelling evidence that donald trump is consciously acting to influence his campaign, and the election. but just taking a step back, i go back many months to what mark pomeranz wrote in his book, a former attorney on this prosecution team, and he spoke of this case often s.a.t. zombie case, the manhattan da's office, full of smart people, mission commissioned an outside law firm, to tell them whether or not this was even a viable

theory of a crime. the only reason i bring that up is we have to recognize there is a possibility that jurors will struggle with this theory of liability because it's not easy. earlier catherine was talking about all the falsification of business records cases that the government -- or i should say the da's office brings, they bring a lot. those are under easier theories to understand. if i commit money laundering i'm probably also going to commit false entries in business records to cover that money laundering. this is a novel application of the law, and whenever anything's novel it may be difficult for the jury to understand. it may be that every member of the jury is completely on board with the idea that this tape, unequivocally shows, as the prosecution is saying, a presidential candidate engaging in a scheme to influence the election, some may go in there and say, or, it's a guy trying to cover up an embarrassing incident, or something he doesn't want to come to light.

>> danny, they've just taken the afternoon break. >> to our many conversations about a sleepy jury. >> the judge has asked steinglass how much longer, and steinglass says we're about a third of the way through. he started at 2:07, i think. if they're a third of the way through, we're not going to finish tonight. >> so i'm -- i've been before some judges in totally different jurisdictions but they will hold court until 11:00 at night. this does not appear to be one of those jurisdictions. steinglass must realize this is a closing argument that in all probability is going to go to the next day unless he decides to start doing some editing. it sounds like he's not going to. >> the judge said they could stay late. 6:30, is 7:00 reasonable? i imagine that they want to get this done in one day. >> the judge wants tomorrow just to be instructions and deliberation day. >> with fresh eyes. >> period. >> 7:00 is really too late. hopefully josh will say, that's ridiculous. that's a long -- >> he just said that's a third

of the way through. >> the jury has been there since about 9:15 this morning. that's a lot to ask the jury. >> wouldn't the jury rather get it all done today? >> that's what they say. >> might not be able. maybe people have something to do, some appointments. >> they indicated earlier before lunch they wanted to stay and get it done. >> and they were planning on having court tomorrow anyway, so this is all -- it's all part of the schedule. >> i understand. but i just don't see this, if he's a third of the way through, where does that put us, i'm not good with math, that puts us pretty late tonight. >> daniel wants to get in on this. to be fair, they have had a week off from this trial. they had a long weekend break hopefully from their own regular jobs as well, a week off from the trial also. >> yeah, look, i mean i think everybody's made some pretty good points but, look, josh steinglass is going to give the summation that he and alvin bragg and susan and everybody else on the trial team believes they need to bring, and i agree

with danny, people on the fly will cut things. they have a complicated story to tell. and i think judge merchan is a super savvy guy. he's been overly attentive, properly, to this jury. there's no way that we're going much past 5:00 or 5:30 tonight. >> really? >> he's not going to keep them -- >> 5:00 or 5:30? >> too long. >> if josh can't finish, if he goes for another hour and a half and he's still got another two hours, they're not staying until 6:00, they're not going to stay he will have them come tomorrow morning at 9:30 and finish that summation in the morning and done by 10:00 or 10:30 and give them the jury charge right afterwards and they'll get the case an hour, 45 minutes before the lunch break. and then they will have the case tomorrow. they're not that far behind the schedule and i think he's going to be very sensitive to the fact that the prosecution should be

entitled to give the summation that they want to give to a jury that is engaged. donald trump complains, as we talked about on the show earlier, complains of the prosecution gets to go first, i don't get the last word. it is a rigged game. well, you know, todd blanche is no dummy either. there is no question he stressed that summation out to this afternoon hoping that this discussion that we're having right now would be in front of the judge and the prosecutors. what do we do? do we cut it too short or give the full summation that we need to give to get a conviction in this case. and to make sure, as a number of people have talked about today, that we make sure that every juror is buttoned up and that we are not in a hung jury situation. so i do think maybe it will go later than five but i don't see him staying late tonight. >> on the note of todd blanche

and maybe stretching his summation out, todd blanche said i'm going two and a two and a half hours and steinglass said i'm going four, 4 1/2 hours. todd blanche had a pretty big reaction. he dropped his jaw and went -- he opened his eyes and went -- and he made a movement with his head. so i wonder if that was, as you heard, his version of stretching it out or to put steinglass into this position. daniel, i know this is a purely speculative question, but in your experience, what would you guess if you were forced to, how would you -- how long will the jury have this case? how long will they be deliberating? what is your expectation? >> i think if they get the case tomorrow, whether they finish tonight or tomorrow morning with the summation, they will get the case on wednesday. i think this jury is going to be extremely careful and

deliberate. i could see it goes into early next week. >> you're killing us. >> on the other hand, if they get this case tomorrow, before the lunch break, i think that we will have a verdict before tri. i think they will want to be done with this case. they do not want to have it going into another week. they will want to be done by the weekend. for whatever reason -- >> if they're adding things, how long might the jury instruction go. >> an hour. >> the judge already said an hour. >> and i wonder if it takes them a long time to deliberate, does that indicate that it is a hung jury or leaning toward a hung jury. >> i don't think so in this case. i think we all recognize and the jurors recognize for many reasons this is an unusual case. they take their job seriously as every jury does. but i think in this particular case they're going to be especially deliberate. and i think if they take two

days or three days to get a verdict, i think in a case like this, i don't think that is going to be -- >> daniel, do they go through every exhibit? do they feel a compunction gib the stake here, which could be an election, it could be the presidency. will they go through everything? >> they could. i think if both the lawyers, one of the things you try to do in a summation, you give the jury a road map to follow in the jury room. this is what we should look at and this is the order that we should look at it. now do i think they're going through every single piece of evidence? no, i don't think they'll do that. i think i'll focus a lot on michael cohen and focus on the things that josh is telling them about why michael cohen is believable. will they listen to the tapes? yes. will they take out the notes that allen weisselberg wrote on

the checks? absolutely. will they want to listen to the tape? perhaps. i think they would want that. >> if you're talking about it and we're almost out of time, potentially going into next week, which got a reaction from us all, you don't believe in the friday effect which i think everybody around courts has seen. people just want to go home for the weekend. they've been at this for six weeks, they'll have to wrap it up. >> i do. and i think a little bit more, if they get the case when i think they'll get it, which is before lunch tomorrow, i think you'll have a verdict before friday for that reason. they'll want to be done. it is the friday effect, we're done with this case and we don't want to come next week. we've sat for a long time and it is friday and let's be done with it. >> thank you very much and thank you to everyone who joined us today. it was an amazingly interesting day. remember this is not about a hush money payment that the d.a.

said, it is about an election interference case. this is not about michael cohen, it is about donald trump and his attempt to illegally influence the 2016 election. my thanks to chris jansing and andrea mitchell. don't go anywhere. special coverage of this all of this continues with "deadline: white house" after a very quick break. [ growl ] ready for the road trip. everyone comfortable. yep, there's plenty of space. i've even got an extra seat. wait! no, no, no, no, no. [ gasps ] [ indistinct chatter ] [ sigh ] let's just wait them out. the volkswagen atlas with three rows of seating for seven.

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hi there, everyone. it is 4:00 in new york on a huge, huge day of news. quote, conspiracy and a cover-up. prosecutors today reminding the jury of the basic facts of this historic first ever criminal trial of an american ex-president. and we come on the air, closing arguments are under way in the people of state of new york