Trump judge faces a ‘serious problem’ if court returns guilty verdict: John Yoo

Our moment to moment coverage of New York versus Trump continues, and the former president's attorney Todd Blanche is still delivering his side's closing argument. It sounds like though it's coming to a crescendo here, he's once again attacking the credibility of Michael Cohen, central to his closing argument, saying that the government is perfectly happy to have a witness commit perjury on the stand. The defense could wrap up at any moment. And after that, it's the prosecutions turn. Let's bring in John you. You see Berkeley law professor, former deputy assistant attorney general and former law clerk for Justice Tommans. You know, professor, I want to come to you and layout for viewers what's happening right now. Todd Blanche is laying out the 10 reasons there are reasonable doubt. There are myriad reasons, one of which is, you know, this was all laid out in a 1099 and documents there was no intent to conceal. But he says something about Michael Cohen and it's been the thrust of his closing argument. Here's what he said. If there is anything we have learned with this trial, it's that Michael Cohen does not take the oath seriously. He lied to Congress, lied to federal judges. He's a thief. He's literally the NVP of liars. Do you think that's sinking in with the jury? I hope so, because Michael Cohen could be the worst kind of witness any US or state attorney would ever want to build their whole case on. And I don't actually think you'd need a list of 10, although I think Todd Plant should be, you know, praised for getting it down to 10. It's really just one because the jury is there to decide questions of fact. The only real fact that the government has to prove here is what is Donald Trump's mental state did he intended to see? And the only person the prosecution put on to prove that was Michael Cohen. So if Todd Blanche can just focus the attack on Cohen's credibility, that destroys the government's whole case. Professor, you jury instructions can make or break cases. They are, they're critical. We will learn soon what is in those jury instructions. But it's confounding to me, to Lydia, who our producer in the courtroom, to Shannon Bream as I'm reading their notes, that we still don't know that second crime that would elevate this misdemeanor. As Shannon Bream says, I'll quote her. This is one of those points that seems most ripe for appeal. I I presume, like any other defendant, Donald Trump would have a 6th Amendment right to know the charges against him, wouldn't he? That's a good point. There's a serious question about whether the prosecution has actually violated the Constitution in the way they've concealed the second crime. Recall that the first crime is just a misdemeanor. This bookkeeping entry business, it only becomes a felony, which is something worth jail time if it's used to cover up or to enable some greater felony. The prosecution has still to tell us what that second felony is. It's actually hard for the jury to decide whether Donald Trump's guilty or not if they don't actually know what the crime is. Now, a good judge, an impartial judge, would send this case back to the prosecutors and say you can't proceed any further. Instead, Judge Merchant just sort of let it go, see what's going to happen. He'll still have another chance, I think, to decide whether the whole case should be thrown out because of that legal vulnerability on the part of the prosecution. Do you think he'll take that chance? I hate to say it, I don't think so. Every time that Judge Merchant has had a really serious choice in this trial, he has sided with DA Alvin Bragg. Maybe that's the case with other judges in New York City these days. But I think the cautious thing to do, especially when we have crossed the Rubicon, to allow the first prosecution of an American president in the history of the country. You would want everything to be ship shaped and bottom buttoned up. And instead, this has been a kind of and how would you put it, just sort of the the judge merchant becomes a free form trial where he's calling really difficult questions on the fly. And I think he could have serious problem on appeal when a several three or four right reserved appellate judges can take a look at this. Professor Yu, thank you very much. Your expertise is always spot on. Appreciate it, Emily, we talk about appeal, of course, that presumes if there was a, a guilty verdict, that's the only way in which Trump would appeal. But the New York appellate court has ruled against Trump on the gag order. They've ruled against Trump on moving venue. So ultimately you really got to take a long look at that constitutional 6th Amendment question. And that would be a, a federal court claim. And you sort of, I think we've seen demonstrated in the federal courts and certainly the Supreme Court level them cleaning up the mess made by the self aggrandizing and clearly self motivated lower courts. I anticipate that happening here. The judge has one final chance to actually correct essentially all the erroneous behavior that's been done in the reversible era that we've seen through and through, which is those jury instructions to narrowly tailor to craft. My hope is not sound, however, I doubt it's going to happen. Yes, well we will hold our breath and keep you updated.

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