we are standing by for that hugely consequential moment in the donald trump hush money trial, one that could not only affect the verdict but also donald trump's chances of appeal if convicted. thanks for staying with us. i'm chris jansing alongside my colleagues andrea mitchell and katy tur. >> in just about 15 minutes the judge and the lawyers from both sides will meet to debate the jury instructions, which is when we could learn answers to very big questions. first, what will prosecutors

cite as the other crime trump allegedly intended to commit or conceal? >> and second and perhaps most important, will the jury be allowed to consider misdemeanors as well? i want to bring in nbc's vaughn hillyard live outside the courthouse. chuck rosenberg and catherine christian are both with us here in the studio. so chuck, explain how this decision may go and how the judge may frame the instructions, which could be really determinative as to whether a jury that might be confused or conflicted might be looking for an exit strategy other than a guilty verdict. >> so some context might be helpful. the jury has heard all the facts. the judge will now instruct the jury on the law. it'll be their map to apply the facts that they heard to the law as they are instructed. the way the two sides, the prosecutors and the defense sort

of fight it out, andrea, to get their preferred jury instructions read to the jury. this all takes place at the thing that's about to start, a charging conference. a lot of the instructions are kind of perfunctory. there's no contest, there's no debate. they're standard normal instructions in a criminal case. but to your point there are some very consequential decisions that the judge will have to be made -- will have to make, excuse me, including whether or not he permits the jury to resolve the case by finding that mr. trump only committed misdemeanors or whether he permits them to consider felony charges, and if he permits them to consider felony charges what is the legal road map for them to get there? and some of this gets complicated and frankly kind of boring. i've sat through many as a prosecutor after we have finished the evidence, we do the

charging conference. but it matters because this is the road -- the legal road map for the jurors to follow. >> and when you talk about how complicated it is, just is the level of intent, of how much -- how much proof do you have to have of intent and to how many of the charges, does that all play a factor here? >> trying to keep it simple but avoiding the simplistic, how you define certain terms, what options you give to the jury. and both sides will have a different view of what the evidence compels the judge to instruct the jurors about. and so in an easy case this is easy. but this is not an easy case for a couple of reasons, including the fact that you have misdemeanor charges that could become felonies if the government has succeeded in proving certain additional factors or elements. and i think both sides are going

to want to be heard on this. >> how contentious will it be, could it be? >> i think it will be very contentious, particularly over the intent to commit or conceal the other crime, and what's the unlawful means. that's going to be the battle between both sides. as chuck said, the other things, the definition of reasonable doubt, are things everyone's going to agree on. it's going to be that charge. >> can i ask just -- i know i'm not the only one. i'm confused that we are still asking the question what is this case about this late in the game. why do they not have to say at the very beginning we've charged you with x and we are going to prosecute you on x? we charged you with violating a state elections law. that's a felony. and we're prosecuting you on that. why do they get to decide now which law they suddenly want to use? >> well, typically -- and i'm not being critical. in your opening statement the prosecutor would have said, you know, we are arguing here that

donald trump intended to commit or conceal the crime of new york election fraud and he conspired to promote election by unlawful means and the judge will instruct you on that later and that unlawful means is x. that did not happen in this opening statement. i don't know why. some people said because they hadn't figured it out yet. that doesn't sound -- that's nonsensical. they would have known that. so i don't know why the prosecution chose not to do that during opening. but they have to do that during summation because that's the case. and i think they will. i don't know who's going to give the opening -- who's going to give the closing statement. but that's -- the battle is going to be on -- i can see the defense saying unlawful means, what does that mean? and then the judge is going to have to define it for the jury. and danny i think said it earlier. the jury instructions assuming there's a conviction, that will be appellate issue number one probably. >> so maybe it does simplify it but this is what fascinates me about this whole process we're

about to see, which is take it from one side and the other side. let me start with team trump. okay? on one hand, if it's possible that there's a misdemeanor, it's a hedge, right? if you're worried or the possibility exists, a good possibility, that your client, donald trump, could be found guilty on felony charges, that's maybe an out for some of the jurors who have whatever concerns they might have. on the other hand, maybe you're a gambler. maybe you feel like you're going to go for broke and they have not made that leap. is that a fair assessment of what -- >> defense attorneys do that all the time. they'll say to their client, look, you could get a misdemeanor. big whoo. it's a crime but it's not a felony. let's try for that. others take the gamble. i don't think there's enough evidence here even for the misdemeanor, let's just roll the dice and make the jury decide. i think -- i'll be shocked if donald trump agrees that they should be charged with the misdemeanors. but it could happen. the judge, by the way, i don't

think he could do it on his own can say i find as a reasonable view of the evidence that the jury could find that he was guilty of 34 counts of misdemeanor falsifying and therefore i'm going to also charge him with that. >> this is a jury saying i think you falsified the records -- >> and it's not a violation of federal election law or state election law because what you did was you were trying to -- maybe the jury finds this. protect your own personal image. you didn't want to embarrass yourself and you didn't want to embarrass your wife. you wanted to protect your private life. >> well, they have to find intent to defraud. and they can say he tried to defraud, we're not so sure he went that extra step but he intended to defraud. so that's a misdemeanor. boom. he's convicted of that. that's assuming that they are charged with that. >> donald trump is coming in right now. he's with his lawyers, todd blanche and emil bove along with his receipt neu of secret service members and sebastian gorka and all his -- all his

fans that have joined him inside the courtroom. he's going to address the cameras. you can see don jr. over his left shoulder there right behind him. it's the first time that don jr. has appeared in court with him. his other son eric trump has been there every day. you also have boris epshteyn, one of donald trump's legal advisers who's gotten in his own trouble recently, just the past few days, in the arizona arraignments for the fake electors scheme. it's been an interesting group of people that have been joining him. and we've asked the question, does the jury see them and do they make a mark on the jury in any way? do they look at the people joining the president and have a negative inference or maybe a positive inference? does it matter to them? >> just from being in the courtroom today, i don't think they recognize them. these are not hugely recognizable -- >> there was matt gaetz. there was lauren boebert the other day. there have been some recognizable faces. there were people that were running for president against

donald trump. >> but not today is what i'm saying. today was really a bunch of back benchers. and some of them were recognizable -- >> alan dershowitz is there. >> you know, alan dershowitz is not that well known to these jurors, i don't think. and sebastian gorka. i mean, really. >> this reminds us, though, there's a political aspect to this trial. a huge one. i think a lot of people have made the argument that whatever happens donald trump will spin it to his advantage. whether it would be a felony, whether it would be a misdemeanor. certainly if it's an acquittal. i also wonder about the politics of this, chuck, for alvin bragg because if you're deciding between whether or not to go for a felony or a misdemeanor, if donald trump were to be convicted on misdemeanors or certainly if he were to be acquitted, the criticism for alvin bragg, because there have

already been questions about should this case have been brought in the first place, would be potentially enormous. >> sure. but there's only so much you can control. for instance, chris, i think the government's case went in well. i think it went in well enough to support and sustain a conviction. now, a jury, however, can just see it differently. that's happened to me as a prosecutor. the fact that a jury seems something differently is fine. i mean, that's our system. it's okay. now, that doesn't mean perhaps that mr. bragg wouldn't be published by the voters in manhattan if they only obtain misdemeanor convictions or if mr. trump is acquitted. but if you want to -- if you appreciate the justice system, the jury system in this country, you understand that justice is almost quite literally a self-defining concept once the jury returns a verdict. that's justice. >> let me cut in, donald trump keeps showing -- chris hayes

pointed this out the other day. he keeps showing up with stacks of papers, articles that have been compiled and he shows them to the press. there is literally a woman sitting a couple rows behind donald trump compiling all these articles into a pdf file, maybe it's a word document, as the trial is going on. presumably to be printed out and for donald trump to show to the press a little bit later. the question, we talk about politics, there's a political question for achlin bragg. there's also as we've been talking about a political question for donald trump. i think it's so interesting what some of our guests have said about whether this weighs on the voters or not. donald trump is so baked in to most americans' minds. what they think about him. the fact that he is on trial feels like a foregone conclusion for so many. and for his voters, in particular his supporters, that he is a bad guy who did bad things, they understand that and that is not affecting whether

they're going to support him or not. as tim alberta wrote in his really great book about evangelicals, he described it in the evangelical mind as the barbarian at the gates. when the barbarians are at the gates you need a barbarian to protect you and that's who donald trump is. i think that's a really good metaphor for who donald trump is to a lot of trump voters. they see him as protecting them. >> exactly. and if you go out on the trail and talk to them, and you've been there, chris has been there, they are the true believers. that's not where this election is being fought. this election is being fought among those who are undecided -- >> i just wonder, do you think -- and this is still an open question in my mind. do you think that this case is going to matter to enough voters to sway their opinion or is it going to be -- >> it's such a -- >> i think it depends on the verdict. >> and i think it's going to be spun either way. but i just think that we don't know from the polling but we do know when this case was first

brought, when he was indicted, he just got more and more popular in the polls with every one of these indictments, playing the victim. and that's the true believers. but now people are beginning to focus, the white house believes at least now it's becoming a binary choice. you see the president going out, being much more specific, going after him, taunting him. and this high-risk, high-reward debate gambit. but i think it depends on the verdict -- >> i also wonder -- >> i was also thinking -- i mean, i think if it's an acquittal it's a win in so many ways. if it's a mixed verdict or a misdemeanor he can spin it. but i think if it's a felony in the conviction the true believers will still feel he's victimized but some people, according to some polling, some people will begin to take another look at it and might have a problem with someone who's been convicted of a felony being elected president. >> i know the d.a. is saying this is not a hush money trial, it's not about whether or not he slept with a porn star and covered it up, this is an election interference case. he did this to win in 2016, to

fool the voters about who he really was. it's important and it's serious. that's how the d.a. is pitching this. i wonder if that is the message that's getting to voters or if this was the election interference case that jack smith has brought or if this was the classified documents case whether that would have a more significant bearing on whether a voter thinks this man should be back in the white house. >> absolutely. >> here's something we all know and we've all experienced. we have what, five, six months till the election. other things can happen between now and then that can have an enornls impact on the election, including the economy and inflation. >> and two wars. >> and two wars. still to come, it is the beginning of the end for donald trump's hush money trial. we've got our special live coverage right after this short break. we're just a minute away from that conference getting under way with judge merchan. usic] recipes.

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right before he walked into court for a meeting on jury instructions and you saw that live, donald trump was thrown a question about why he didn't testify before the defense rested in its hush money trial. he gave no response. joining us now, former trump organization attorney william brennan, who previously represented the trump payroll corporation in a tax fraud trial in front of judge juan merchan. it's good to have you here again, bill. and i'm curious what you think about donald trump not having anything to say about this. he has been very vocal over many weeks talking about the fact that he was going to testify. whatever the reason, assuming as a lot of people here have suggested, his lawyers would probably say to him don't do it, he's never been a quiet man. why not answer the question, do you think? >> well, thanks for having me back. it's not uncommon for a defendant to want to testify, especially a defendant with a high public profile.

but it's really the very last decision that is ever made in a criminal case. you make this decision, it's a battlefield decision, bottom of the ninth kind of stuff. and the way the case went in there was really no reason for him to testify. and judge merchan will instruct this jury that any citizen in this country that's charged with a crime has no obligation to testify and they are not to hold the lack of testifying against him. juries usually listen to that -- >> so why not just say that or say something? >> when, today? >> yeah. when people have a natural question, which is you've said over and over and over you were going to testify. you've made a decision, which is your right, not to testify. why? why not answer that? >> i mean, number one, he doesn't have to. that's what the constitutional protections are all about. and you know, what's he going to say? i said i was going to and now i'm not. i mean, it's easy to come up

with bombast before the trial. but when you're in the midst of -- this was a fairly long trial for misdemeanors and possibly a felony. he's probably tired at this point and he just doesn't have to is the short answer. >> mr. brennan, you represented the fox organization. he was the fox organization -- >> the trump payroll company. >> what do you imagine his relationship is with his attorneys in terms of listening to their advice? clearly in this case as you pointed out he had bombast. he said he was going to testify. and that's understandable. but here it seems as though he's probably listened to his lawyers, don't you think? >> i think he is, andrea. if you notice, there was the issue of the contempt allegations at the beginning of the trial. you know, he stopped that. i worked very closely with sue necheles. she's a tremendous lawyer. mr. blanche by reputation and what i've seen in this case, tremendous lawyer.

i've represented him in his second impeachment along with other lawyers. and i represented the payroll corporation for about eight weeks in that courtroom with those prosecutors. he wasn't there. he wasn't a named defendant. but i found him fairly easy to get along with in all candor. i think in the final analysis he does listen to lawyers. but you've got to push. you can't be a shrinking violet when you're dealing with him. >> bill, it's really good to have you. let me ask you about how the defense rested on robert costello. do you think that was a good idea? >> no, i really don't. and i just thought that what was elicited over those two days of cross from mr. cohen was just nuggets of gold. i mean, it was just, you know -- lanny davis wrote a book and said, you know, if you have a problem tell it early, tell it all and tell it yourself. and i guess the prosecution didn't read that because that whole bit that they kind of glazed over with the $60,000

theft from a client, that should have been brought out. that was a bomb yesterday. and that's all the public -- and the press should be talking about today. but unfortunately after that huge gain -- it's like yardage in a football game. after that huge gain they put this witness on who makes it about himself and picks a fight with the judge. so instead of talking about $60 thousand dollar fest from donald trump he's picking a fight with the judge. by the way a fight he cannot win. juries like judges and they really like merchan. >> it's hard to quit while you're ahead sounds like what you're saying. william brennan. >> thanks for having me. >> well, judge merchan is back on the bench and they are getting into some of the meat of this. we said it would be -- i said it would be interesting. some people say it's pretty boring. they're just talking about e-mails that went back and forth between the prosecution and

defense. they got to make proposals. right, catherine? they got to say here's how we think you should tell the jury to consider this case. >> both sides presented to the judge. >> and they go back and forth -- >> and the judge can ignore it or take a little bit from each side or take just from one side. >> will he decide from the bench like today i'll take this and that -- >> he doesn't have to because the jury's not coming back till next week. and he's working tomorrow and he's working thursday and he's working friday. so he doesn't have to -- and he probably won't because he's going to at least pretend that he's being thoughtful. but he is a very thoughtful judge. and he's going to take everything they say into consideration. >> let me read a little bit from this. they're talking about fica. what's fica? >> i think they mean feca, the federal election campaign -- >> okay. hopefully. they say their position on fica is it's no longer predicated on

a business records count. it has to be a conspiracy violation, conspiracy to violate new york election law is only a crime, requires an intent to commit or conceal another crime. it's not enough for the government to establish a civil violation on fica. bove adds if i could just cite some cases, people vs. weissan from 1986. he also says the u.s. supreme court has held that to be a criminal conspiracy there must be a criminal object. bove says starting with the fica charge we ask the judge to instruct the jury that it's critically important the jury knows and is required to find the predicate of the 175 charge is a criminal offense. catherine, translate that for me. >> the 175 charge, that's falsifying business records in the second degree. and it is. it has to be a crime. they don't have -- the prosecution doesn't have to prove beyond reasonable doubt that donald trump committed the crime. just that he intended to commit or conceal. now -- >> so what's bove arguing here? >> i don't even know if this is

accurate. he's saying that what the prosecutors are saying the violation of the federal election law is civil and not criminal. and he's arguing that it has to be a criminal violation, not a civil, for unlawful means -- >> and that makes sense to me. >> that does. but i'm not sure whether or not that's accurate. here's the prosecutor. >> here's what colangelo's saying, and we let it populate a little so we could -- >> this is matthew colangelo from the prosecution team. >> so he says the violation of the criminal offense must be willful but the willfulness standard is not required for other violations, so we oppose what bove's proposing. colangelo says it occurs when two or more people conspire and those are the terms of the election law and the term unlawful means criminal, it means a violation of the law. colangelo cites precedent. and he says the court of appeals has long held and the legislature intends to refer to a crime it knows how to do so.

he mentions that mr. bove cited people vs. wisan. w-i-s-a-n. i might be pronouncing that wrong. and bove mentions the government cites a criminal case about executive law and that case does not apply here where a criminal charge is provided by a civil object. we're talking about a new york election law and that is extremely problematic. the defense must contend the conduct constituted a crime. this is highly detailed, speaking in legalese. it's not easy for laymen to follow. but this is them really hashing it out, chuck. on what the jury's going to hear. and it's so important because when the jury hears these instructions it could determine whether they do find donald trump guilty or not guilty. they might be feeling a certain way now, but they could swerve, as andrea mentioned earlier and they're instructed to consider

something specific. >> so swerve is a great word, katy, because this is literally the legal road map that the jury's going to use once instructed by the judge. so both sides are trying to get their preferred definitions and their preferred constructions into this charging packet. without getting too far into the details, because the details are hard here, it is an attempt by both sides -- and i don't mean this in an improper way. to shape those instructions. and you have to get it right because one of the primary ways that a conviction can get overturned on appeal is if the judge gives a faulty instruction. that is almost always -- that is often if not almost always grounds for appeal on a conviction. >> and this judge seems to be taking every step to avoid reversal on appeal. not that all judges don't. but he knows the significance of this. because this could affect the election.

>> right. >> so the gravitas of this is overwhelming. >> right. it could lead to a conviction where a conviction is not warranted. it could also lead to an acquittal where an acquittal is not warranted. so you want to get this stuff right. >> judge merchan is saying on the heels of that, and he's heard the arguments from both sides, colangelo and bove, he's saying looking at the charge of falsifying business records in the first degree requires an intention to commit another crime. so how do you respond to that? he's asking the prosecutor. colangelo says the other crime here is the election law violation, which becomes a criminal violation when two or more persons conspire to interfere with an election through unlawful means. it's about the formation of a conspiracy and execution. it's not necessary to burden the jury. and bove disagreeing, says the problem with that is the mens rea. >> this is not burglary. and a jury sits back and the

question is did you break into that store and take stuff that wasn't yours, everybody understands that. i want to go to vaughn hillyard. it is, let's just be clear, feca, the federal election campaign act, which is what is at the heart of part of this at least. tell us about it, vaughn. >> right. there was some questions when we're talking about what the underlying act is, what the underlying violation was. it was not clearly stated even during opening statements. but the prosecution laid down clues throughout these last five weeks about what they were going to present here this afternoon and then in closing arguments by repeatedly coming back to the idea that donald trump committed the acts that he did to influence the 2016 election. and that is important because there is actually a sidebar, it was the second day of these proceedings here, there was a sidebar conversation between judge merchan and the prosecution, and it was very explicitly stated by the prosecution, quote, the entire

case is predicated on the idea that there was a conspiracy to influence the election in 2016. why does this matter here? this is where you're getting at the new york state election law, 171752, which hits at, quote, conspiring to promote or prevent the election of any person to a public office by unlawful means. now, what is unlawful means? that is one of the definitions that is going to be presently debated here by the opposing sides because unlawful means gets at the other underlying acts that the prosecution can make the case that donald trump violated. that includes tax -- violation of tax laws by grossing up on how much michael cohen paid. but also then feca, the federal election campaign act, the federal campaign violations. so this is where they are building the underlying case. and then the other definition that we should expect them to really hone in on is on the word cause. when we're talking about the falsification of the business

records here, there is a very specific use of the word cause. i'm going to read it to you. cause is a false entry in the business records of an enterprise. they're going to be -- there's going to be a distinction over what the prosecution want cause to mean. on the one hand they will make the case that cause means somebody like donald trump had an idea with david pecker and michael cohen early on in the idea to initiate an alleged scheme, a catch and kill scheme. right? that was causing what ultimately amounted to falsification of business records years later. on the other hand, you're going to have the defense for donald trump that is going to articulate that cause should mean explicitly directed. right? did donald trump explicitly tell michael cohen to create those false invoices and those false checks for him to sign? so this is where kind of the weeds of these definitions of the underlying laws are kind of open for interpretation. there's case law that chuck and catherine are much more astute

in. but somebody as more of a layman here, these are sort of those definitions that are currently being debated. >> i'm wondering, catherine and chuck in particular here, to all of you, that strikes me that bove is saying that the problem, judge, is the mens rea for the conspiracy charge has to match the highest mens rea. for this to be a criminal korns there has to be a criminal object otherwise you just have a civil conspiracy that can't be used to elevate this from a misdemeanor to a felony i would assume is what he's saying. so he's making an argument at this point that they have not proved that this is anything other than a misdemeanor. going back to a previous conversation about whether that will be one of the fallback positions. the judge says, the last sentence in the first paragraph here, the defense is requesting language that in 2015, 2016 candidate -- the candidate contributed personal funds to his campaign. why do you need that instruction? and bove is saying we want the jury to have a full picture of what constitutes contributions and expenditures and the third-party issue is significant

in this care, the burden of proof and trump's mental state, we want the jury to understand that someone in president trump's situation, he personally could have paid this out of his personal expenses without issue. colangelo saying that is extraneous and totally irrelevant to the facts of this case and would be confusing to the jury and misleading. he says candidates can make unlimited expenditures from personal funds but this is extraneous. merchan says i'm reserving decision on the willfully issue. i don't think it's necessary that it requires that instruction. if your client has wealth he certainly could have paid for himself. so i'm going to strike that. >> here's what lisa rubin says. they're talking about next the disputed area concerning the defense's desire to say there was no limit on an individual's contributions to his own campaign. bove says they want this language to help the jury understand that trump could have paid on his own. merchan says the defense can argue this on summation but he's not giving this instruction. he reserved decision on the first issue. explain. >> what's going on. >> right. >> so as a matter of law judge

merchan doesn't think that that requested instruction is necessary or required -- >> specifically the request to say that donald trump could have paid for this himself. >> and by the way, he didn't -- he didn't use his own money. that was one of the notable things. he said i can pay for this myself and people elected him in part because they liked the fact that a businessman wasn't relying -- and instead he did not use his money. >> the flip side of that is judge merchan is not going to restrict what the defense attorneys can argue in closing. right? one thing is wholly the province of defense attorneys. you want to argue that? have at it. but the law, judge merchan is saying, that's my job and i am not going to give that instruction because i don't think it's an accurate statement of what the law requires. >> and isn't it also stricky because, a, we're talking about something complicated so they would have to figure out a way to argue that in their closing in an understandable way, but also won't the judge say to them a closing argument is not to be

used as evidence? >> 100%. a closing argument is exactly that, chris. it's argument. it's not evidence. the evidence is closed. when the defense rested, the evidence in this case was closed. argument includes inferences from the evidence. but it's not evidence itself. >> they're also arguing about free speech. and the defense wants an instruction that the phrase, quote, for the purpose of influencing an election means spending clearly and unambiguously related to the election. >> he won't allow that. the defense is asking, as they should, for everything. and there's a little note here that says there are papers that we obviously don't have privy to because the judge is reading. so we don't know what they're discussing. and they all know what they're discussing. but us viewers don't. so i also want to make it clear that the new york election law violation is a crime. it's a misdemeanor. but it's a crime.

conspiring to promote an election by unlawful means. so that is the other crime that the prosecution is saying that donald trump intended to commit or conceal. so that is in itself a crime. >> i think i can illustrate this, going back to what vaughn was talking about. take a simpler term. right? and why it matters. cause. what does it mean to cause something? so catherine has a mug of water in front of her. i could cause her to drop it by hitting her hand. i could cause her to drop it perhaps by sneaking up behind her and scaring her. i could cause her to drop it by asking you, katy, to sneak up behind her and scare her. i would say that in all three of those circumstances i have caused something to happen. but what the defense wants is the most narrow reading of cause, i hit her in the hand and that made her drop it. and so you can see why they fight over these terms, because one version of cause gives the defense an advantage. i hit her hand and she dropped the mug.

another version of cause i encouraged you to scare her and she dropped it. gives me a broader theory of liability. >> you're using the rebounding and the cue ball to hit a third ball. >> as a juror i have reasonable doubt you would either hit her hand, come up behind her and scare her or do anything else to cause someone to drop their mug. >> i wouldn't do any of those things, andrea. and i certainly wouldn't do it to catherine. but you can see why the defense would want a narrow theory of liability and the prosecution would want a broad theory of liability. >> very understandable. okay. we are going to take a very quick break. the document is populating. we're going to bring you more of the arguments inside the courtroom with all our legal analysis on top of that in just a moment. don't go anywhere. we'll be right back. don't go an. we'll be right back. and risk-reward analysis, help make trading feel effortless. and its customizable scans with social sentiment help you find and unlock opportunities in the market. e*trade from morgan stanley with powerful, easy-to-use tools,

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and joining us now is daniel horowitz. he's a former assistant district attorney in the manhattan d.a.'s office. and daniel, we've been following these charging proffers to the judge, if you will. judge merchan has just asked in the last few minutes, you're suggesting -- this is to the prosecutor. you're suggesting a contribution includes anything of value including loan or advance, and i agree. and your concern, he says to mr. bove, from the defense will be addressed elsewhere. a candidate does not have to be sole or only motivation for the payment. and colangelo the prosecutor says the preceding sentence in that paragraph, and we don't have those documents in front of

us, they're not public yet, discusses third-party payment. what does it mean for third party? this is from an s.e.c. advisory, securities and exchange commission. there has been factual testimony, amendment, protected activity. you think is necessary for the jury to understand that point so we can make arguments about people's mental state. bove says this is an accurate statement of the law. bove says this is the kind of thing we would have done through mr. smith. lawyers can tell me what mr. smith is. mr. horowitz -- >> it's the f.e.c. bradley smith. >> bradley smith. excuse me. the witness that did not appear because -- as an expert witness he could not address the law and the judge didn't want him to address the law, understandably. bove says this is the kind of context we were seeking to provide to the jury. lisa rubin is giving us the context. the defense wants an instruction that the phrase for the purpose of influencing an election means spending clearly and unambiguously related to the election. so daniel horowitz, why was that

so significant? >> i think this goes right to the heart of the prosecution's theory about what the whole point of falsifying these records were. what they're struggling with in layperson's terms, which is honestly i think at the end of the day these instructions are complicated. it's hard for any layperson let alone a juror to sort of understand. but what they're really trying to struggle with is did this in some way, this conduct, did this in some way help the trump campaign by making this payment and covering it up in the books and records of the trump organization, did this in some way assist the candidate. and what the defense is trying to say, as i understand it, is sort of the literal traditional concept of a campaign contribution. right? you give money to a candidate, you are helping them in their campaign. this is a far more nuanced concept. right? this is assistance in kind in

some ways, the whole david pecker covering up with karen mcdougaldougal. but i think at the end of the day they're trying to figure out can you sort of look at this conversely, like by hiding this did this assist the trump campaign? >> and they are saying that it has to be money, cash contributed to make it a campaign contribution. and they're also arguing and probably will in their summation that it had nothing to do with the campaign, that in part it was to protect his family from further embarrassment, as he had after the "access hollywood." >> there's something in the document now that i think speaks to what andrea just said, which is the final line of this portion. merchan says that combines the two parties' thoughts well and the quotes are around this. if the payment would have been made even in the absence of a candidacy, the payment should not be treated as a contribution. does that make sense to you, daniel? >> i suppose it does because

again, it sort of fits with each of theirs, as you just said, it sort of fits with each of the parties' positions. right? the prosecution is essentially arguing look, this money was -- this payment was made as a way of helping donald trump get elected. and what they're saying is, well, you have to look at this literally. like was there actually campaign contribution? and did this payment get made for reasons that have nothing to do with the election? now, what's interesting also is that merchan with this instruction as you just sort of read to the audience, he's sort of marrying this concept that the prosecutors have, which is that you can have a mixed motive for doing this. in other words, the reason that these campaign contributions or these entries were made falsely in the books and records, it can be for more than one purpose. for example, it could have been made so that the public didn't become aware that there was this relationship with stormy daniels, and that helped the

president's -- the presidential candidate's campaign. on the other hand, it could also be that there was a mixed motive for doing this, right? that he didn't want melania and the trump family to know about it. or there were business reasons for it. and this instruction seems to marry those concepts. >> how do you feel about the case presented by the d.a.'s office against donald trump? and how do you feel about how the defense did? >> let me start with the last question first because i have no idea what the defense was thinking by calling bob costello. it was an absolute disaster for them. it could not have gone worse. i mean, to the extent that the jury, you know, feels that blanche sort of hit home with his cross of cohen i think that you leave this trial with such a bad taste in your mouth about trump and the people around trump that it could only serve to bolster, you know, cohen's

testimony. so i think -- again, i truly don't understand why they did this because it was just a spectacularly bad witness for the defense. and it's the last word. right? it's the last word that the jury gets to hear is susan hoffinger eviscerating this guy in cross-examination. with that said, i think the case went in about as well as it could for the prosecution. i mean, there's no question that michael cohen was going to get dinged and dinged pretty hard. i think that they obviously scored some points with the cross-examination about the call to schiller. but i also think that susan hoffinger and the prosecution team did a spectacularly good job of a picture's worth a thousand words and there's keith schiller with donald trump at exactly the time that cohen is having this conversation. so i think that they fixed that in a very, very effective way. >> how do you expect the -- >> i'm sorry. >> how do you expect the summation's going to go for the

d.a.? what do you think they're going to argue? what are they going to use? >> i think, you know, one of the things that gets lost, you know, as we sit for a week and watch michael cohen and watch him get beat up for two or three days by todd blanche is you have to remember that for the better part of two or three weeks this jury has heard repeatedly from trump insiders, people inside trump world who work for the trump organization, the accountant, the secretaries. you heard from hope hicks. and what did they tell the jury? it is a small family-run business where donald trump has a heavy thumb on everything that gets done, especially when it relates to money. and if there's no better corroboration for what cohen is talking about than that. and i think that that is a point, along with the other mountains of evidence they have to corroborate, a lot of what michael cohen testified to. i mean, you've got the tape

where trump is talking to cohen about karen mcdougal. you've got david pecker with the catch and kill. and you've got david pecker talking about the trump tower meeting, the one that jim comey was there for, where he specifically asks, trump specifically asks pecker, how's our girl doing? that's exactly what cohen is saying trump did with him. wants to know what's happening with stormy daniels. just as he asked david pecker what's happening with karen mcdougal? so i think you're going to see basically sort of a rise of evidence that they're going to present about all of the many reasons why you may hate michael cohen, you may think he's a despicable person, you may think he's a liar and a cheater, but here's why you can believe him here. here is the evidence that backs him up. that's what they're going to say. and of course, the defense is going to say that cohen made the whole thing up, and that he forgot to tell the prosecutors

about the money that he stole. and most importantly, here he is, worried about some 14-year-old harassing him, which he clearly never told the d.a.'s office about, because otherwise they would have covered it in their direct examination, and he's a liar and made the whole thing up. >> can i just say, daniel, the way you've described it is so -- it's surreal for me, because it really throws me back to the moments in 2016, and it reminds me, and i know donald trump seems like he has this big apparatus around him now, he's co-opted the rnc, the republican party is donald trump now, they've built it all around him, in his image. without him -- >> it's his family operation. the scaffolding of the whole party would fall the donald trump wasn't there any longer. in 2016 and 2015, when he announced, he was nothing. he had a rag tag group of people around him. they were trying to figure out how to get good stories in the press. they weren't going on campaigning on policy and saying, this is what my serious presidential candidacy is going

to be about. they got the guy from the "national enquirer" to post fake stories about his opponents and to squash bad stories about him. he had michael cohen as one of his, you know, big allies and somebody working to gather the black vote. >> he came out of that tabloid world. >> he came out of the tabloid world, and it was just, it was thrown together. and these are the consequences of all that they threw together in 2015 and 2016. it wasn't like there was an elections lawyer on the team, saying, here's what you can do and here's what you cannot do. >> there weren't even people who were -- >> they weren't professionals. they had paul manafort, who had run stuff, he had run the conventions. they had kellyanne conway, who was schooled in politics. >> she was the only one who was a professional. paul manafort by that time -- >> steve bannon wasn't a professional. he was a rabble-rouser.

>> kellyanne was the only professional. >> exactly. there weren't people around him saying, this is -- this is going to get you in trouble later. it was means to an end, whatever we need to do to get there is fine. and now, they are faced with a criminal prosecution and they're arguing jury instructions over whether donald trump would pay off stormy daniels without the election hanging over his head. i think that's an open question. i think it's -- it was argued in court that this was not about melania. this was not about his family and his personal embarrassment. they were arguing that this was more about the election and at the time, bring us back to it, they were worried about suburban women. they were worried about donald trump losing the election. there was all of this stuff about alicia machado, donald trump, there were allegations that he abused women, that he denied all of this stuff. and there was the "access hollywood" tape, which we've talked about so much. and then there was stormy daniels and karen mcdougal.

the jury is going to decide what the motivation was. >> they're talking about it right now. and lisa rubin gives us a little context to some of the back and forth, exactly what you're talking about as part of this instruction, they're trying to figure out which could be so critical to actually weaving all of that together. they're disagreeing about what a legitimate press function is, which appears to relate to the "national enquirer," ami's payment to karen mcdougal, which we know was complicated, because she also did some magazine cover, had some articles ghost written with her name on it, but that brings me back, katherine, to what's going on inside this room right now, with all of that going on, it is critically important, we all know this, we know what was going on in the campaign in 2016. we know the incredible amount of pressure that was on the campaign, even a sense of desperation, getting very close to the election with the

now-infamous tape that came out on the bus, with billy bush. all of that said, what they're deciding right now, these words that they're using, these phrases that they're using, like legitimate press function, to what extent in your experience will the jury go back to them, when they're looking at all of this evidence, and say, oh, that's how we make a decision here. that's going to clear this up, because this is going to be complicated. >> the prosecution had better hope that at the end, they have to keep it simple, stupid. you don't want -- >> simple stupid. >> keep it simple, stupid. we're like, what does that all mean. you want the jurors to go, okay, i understand. because if they don't understand that jury instruction, it's going to be -- we can't vote guilty, because they have to make it very clear in the back and forth, and as lisa ruben

said, we don't have the documents. it better be something so simple that when a layperson reads it, they understand it, and they take the facts and apply it to the law. >> and is that up to the judge? >> at the end, the judge will have to go and sit back in his chambers with his court clerk and then say, okay, this is what we have. >> that brings me back to what katie was talking about. it was certainly testified to, about what was going on in the campaign, at that time. and when you start arguing about something like legitimate press function, if i'm a juror, i'm thinking -- >> yeah, they're going to get -- the defense a going to argue their summation, the prosecution will argue their summation. they'll try to make this as clear as possible for the jury. and i think this is why it was so important for the defense to go after michael cohen in the way they did, to try to take him down, to try to poke holes in him, to make him as in-credible as he possibly could be, lacking credibility. when the jury gets this case, i think they're hoping that

everything is so complicated, they've got to say to themselves, do you trust michael cohen? >> well, complication generally helps, i think, the defense. but both sides will have four or five days to weave these instructions into their closing arguments. that's the opportunity to take the complex and make it -- >> so they're going to have that today, when you say four or fve days. >> that may not be done -- >> but one of the things he says here, after all of this argument about ami, judge merchan says, i think we're better off stayingway away from any facts that too closely parallel the facts of this case. >> all right. >> he doesn't want to argue the facts in his summation, or rather, in his charge to the jury. he wants to talk about the law. >> as he should. >> let's take a very short break. we are nearing the 3:00 p.m. hour. everybody, stick by. they're still arguing inside that courtroom. we will help you understand it on the other side. don't go anywhere. erndstand it on the other side. don't go anywhere. (ella) fashion moves fast. setting trends is our business.

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