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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Today on the show, the funny, but serious writer A.J. Jacobs whose latest book is The Year of Living Constitutionally. With inspiration from certain members of the Supreme Court, who we don't have to name, A.J. spent one full year living his personal life strictly according to the language in the United States Constitution. We'll hear how that went and what he learned. He will take your living as a constitutional originalist lifestyle questions.

Also, we'll have our lead Eric Adams reporter Liz Kim as usual on Wednesdays after the mayor's Tuesday news conference. With a twist today, as there's breaking news, we now know two Democrats who have started the formal process of getting ready to primary Mayor Adams next year. This week is Teacher Appreciation Week. Did you know that? At the end of the show, we'll invite you to call in to thank a teacher from your past for something specific, start jogging your memories, folks, or just as important, maybe more important, for current parents to shout out a teacher now in your own kid's life. That's all coming up, but we start here.

Andrea Bernstein, who's covering the Trump criminal trial in Manhattan federal court for NPR, is with us on this day off from the proceedings. Remember, people usually call this the hush money case, but the felony charges are actually for falsifying business records to cover up a hush money payment to help him get elected president. They take Wednesdays off in this case for some reason, but we're glad they do so Andrea can give us her impressions of some of these dramatic developments like Stormy Daniels herself testifying yesterday, and maybe more consequential for democracy and for justice, Judge Juan Merchan threatening to put Trump in jail if Trump continues to violate the gag order against publicly commenting on the jurors, among others.

Andrew Bernstein, as some of you know, was co-host of WNYC's Trump, Inc. podcast about the intersection of Trump's business interests and the public interest, also, the podcast Will be Wild about the time leading up to January 6th, and as author of the book American Oligarchs: The Kushners, The Trumps and the Marriage of Money and Power. Hi, Andrea. Always good to have you on the show. Welcome back.

Andrea Bernstein: Hey, Brian. Great to talk to you.

Brian Lehrer: I actually don't want to start with Stormy Daniels describing sex with Donald Trump under oath. We'll get to that.

Andrea Bernstein: You don't.

Brian Lehrer: I want to start with the gag order. Can you remind us what that is exactly in this case and why it was front and center in court on Monday?

Andrea Bernstein: Yes. As these various cases against Trump have gone on, Trump has been aggressively posting on social media about some of the parties. For example, you might remember when he was indicted, he posted a picture of himself swinging a bat next to a picture of Alvin Bragg, Manhattan DA. He's actually allowed to criticize the Manhattan DA. What the judge in this case and other cases don't want is Trump posting something that can be construed as intimidating witnesses or family members of the judge or of the parties in the case or jurors, and Trump has had a hard time keeping to that.

Right away, just as the case was getting underway, including some times in press avails that he had before court on the street or at least one occasion in the hallway outside the courtroom, Trump continued to make comments which caught the DA's attention. Early on in the case, they moved for the judge to find Trump in contempt of court. Now, let me just say that this is a criminal contempt, which means that even though it's not akin to a criminal finding by a jury, it does mean that the judge has to find that this happened beyond a reasonable doubt. The DA put a number of cases before the judge, and the judge found that Trump had violated nine times and fined him $1,000.

Brian Lehrer: Per violation, so $9,000, right?

Andrea Bernstein: Per violation. Correct. $9,000, which is what the statute allows. Early on in the case during jury selection, after that he had already complained about these other violations, but before the judge had ruled on them, Trump made a comment about the jurors in which he said something to the effect of, "It was overwhelmingly Democratic jury, and how could it be fair." The DA brought this and a few other instances before the judge.

On Monday, right at the beginning of the week, the judge turned to Trump and spoke to him directly and said, "I'm about to find you in violation for the 10th time contempt of court. My $1,000 fines don't seem to be having a deterrent effect." I'm paraphrasing here, but what he said basically was, "I want you to know that I've thought about the implications for what this will mean for the case, for the Secret Service, which would have to go with Trump to jail for the court officers, but I will do it if you continue to violate this gag order."

He was basically saying to Trump, "I will send you to jail," and making the unimaginable, which is, "You said you really can't imagine somebody who is a candidate for president, who was the president." Judge Merchan said this, "I know you were the former president, I know you could be the next president, but I will do this." He's making the unimaginable imaginable, and saying, "You will go to jail if you continue to do this because if you intimidate a juror or you intimidate a witness, you corrupt the process. You can't have a fair trial." Judge Merchan said that was his duty, to ensure there would be a fair trial.

Brian Lehrer: What is the actual threat that the judge is obviously seeing from the particular thing that caused him to say that on Monday? If it was Trump continuing to violate the gag order by saying, "Oh, these jurors. They're all Democrats," something to that effect, why is that serious?

Andrea Bernstein: It's serious because the judge said it could be intimidating them into a certain decision. When Trump says something-- he, in fact, acknowledged this in the early weeks of the trial. He said, "I have a platform. When I say something, people hear it," and they do. We know that when Trump says things, people take certain actions. The judge just doesn't want the jury to be tainted in any way by things that Trump says during the trial, which they could hear about, which could have an after-effect. It's all hypothetical, but the idea is that you want to have witnesses tell the truth, you want the jury to make a decision, and you don't want anybody to feel intimidated by the defendant.

Brian Lehrer: Yes. We have this extraordinary paradoxical confluence of the interest of justice being the opposite of Trump's presumed interest in getting elected president again, in that he sees these violations of the gag order and the resulting reprimands and fines, I'm not sure about actually being put in jail, maybe even that, as in his political interest. He's got motivation to, in effect, put jurors and witnesses and judicial staff and relatives, who he has called out too, at risk. It's an unprecedentedly paradoxical situation, right?

Andrea Bernstein: Well, but he's allowed to criticize the judge. He is allowed to criticize the district attorney. He is allowed to say the case is unfair. He's allowed to say all sorts of things, which I should just add having covered many, many, many cases, I've never seen a defendant criticize the judge because, of course, they're too afraid that it will somehow come back to bite them, but Trump does it every day, several times a day. He's allowed to say all that. The judge also made it clear to Trump that if he decides to testify in his own defense, he can say whatever he wants on the witness stand.

Brian Lehrer: About anybody.

Andrea Bernstein: No gag order.

Brian Lehrer: Oh.

Andrea Bernstein: It's not like he is confined from saying this. It's just that these extra-judicial comments can taint the process.

Brian Lehrer: To the cameras and microphones as he does most days after the proceedings because he's been there most days.

Andrea Bernstein: Exactly. Every day.

Brian Lehrer: Every day. I'll ask you in a minute if you think he's actually going to testify, but why is the line there? Just explain the law or the policy in this respect for people who may not understand it. I realize you're not a lawyer, but you've also been covering this closely. Why can he criticize the DA, and he can criticize the judge, but not witnesses, not jurors, not staff of the judge, as I understand it. Trump keeps saying, "Hey, they can criticize me." The jurors certainly aren't saying anything publicly, but witnesses, as a matter of procedure in court under oath, may be criticizing him or saying things that are damaging to him. Why can't he say anything about them?

Andrea Bernstein: To the question of why can't he say things about the judge and the DA, the judge, Judge Juan Merchan has said-- he's cognizant that Trump is running for President and he doesn't want to limit political speech against in him in that way. When it comes to witnesses, to have people not tell the truth or be afraid to tell the truth means that this whole truth-telling process, truth-testing process, which is what the criminal justice system is about, cannot occur in an uncorrupted fashion. That's why it can't intimidate witnesses. Interestingly, the judge didn't explain this in his decision, but in this last round of contempt requests that the DA made, they included some comments that Trump had made about Michael Cohen.

Trump's defense attorney said Michael Cohen attacked him and he was responding, and the judge did not find Trump in contempt on these issues. While it doesn't give Trump free license to attack Michael Cohen or Stormy Daniels, both of whom have been pretty vocal critics, it does say if there's a specific way that Trump was attacked, and he says he's responding to that specific thing, the judge will give him some leeway.

Brian Lehrer: Do you have a sense of--

Andrea Bernstein: Can I just also say again?

Brian Lehrer: Please.

Andrea Bernstein: This never happens. Defendants do not attack witnesses publicly, they do not attack jurors publicly while a criminal case is going on. This Trump case is the only case in which I've ever seen anything close to this.

Brian Lehrer: Because of that paradox, he doesn't care so much about the fallout in court. He cares much more about getting elected. He sees all this back and forth as being in his electoral interest.

Andrea Bernstein: I think clearly, he wants to win the election. Clearly, he sees a way of making his grievance and his perceived victimhood at the hands of the criminal justice system a straight of political talking point. I don't know that he wants to actually lose the case, and I certainly don't believe he wants to go to jail. This is a man who, when he is campaigning, almost always flies home so he can sleep in his own bed. He likes being comfortable. He complained about how cold it was in the courtroom, which was a true thing that he said it was cold in the courtroom. Physical discomfort is obviously something that is not appealing to Donald Trump.

Brian Lehrer: Why do they keep it cold in the courtroom? I've heard this multiple times over the last few --

Andrea Bernstein: It's not cold anymore. The first week it was just cold and, I don't know, they couldn't heat it up. It's an old building, it's gross. I could go on at length about how disgusting it is, but that is the building where criminal trials are tried in New York.

Brian Lehrer: Listeners, we welcome your questions for Andrea Bernstein, who's been in the courtroom for the Trump trial on falsifying business records to cover up his hush money payments to Stormy Daniels in order to protect his 2016 presidential campaign allegedly. 212-433-WNYC, 212-433-9692. You be the prosecutor or defense attorney, or for that matter, the judge. Where would the line for you be in actually putting Trump in jail for continuing to violate the gag order, knowing the political fallout from that and everything else, or you be the political analyst and tell everyone how you see this in that context? 212-433-WNYC, 212-433-9692, call or text.

We're going to stay on the gag order and implications for another couple of minutes, then we'll get into some of the recent testimony, including yes by Stormy Daniels testifying about sex with Donald Trump under oath in court yesterday. 212-433-9692. Do you have a sense, for yourself, Andrea, having been watching this, of what would actually trigger the judge to decide, "Hey, look, I know this is going to start a political firestorm like we've never seen, but I have to keep consistent to the law and how I would apply it to anyone else. Mr. Trump, you are going to jail for continuing to violate the gag order"? Can you tell where that line is going to be? Is it going to be as for as maybe lower bar as if he keeps saying, "Oh, all these jurors are Democrats?" Or does it have to be something more specific or more intimidating?

Andrea Bernstein: The judge was very upset about that comment because --

Brian Lehrer: I shouldn't minimize it?

Andrea Bernstein: No. The judge saw it as directly attacking the fairness of this jury that if the jurors heard that felt Trump was against them, it could, A, make them afraid to decide in one way, or B, make them somehow taint the process.

Brian Lehrer: Bend over backwards to show that they're not just acting like political figures?

Andrea Bernstein: Who knows? I think I've been talking about this case a lot. I'm just trying to get my voice here. It did upset him, the juror comment, and that is what precipitated it. I just think that he just doesn't want this to go on. He made that clear. I think he is hoping that he can keep Trump from doing this. As a matter of fact, yesterday there was an interesting incident. When we're in the courtroom, we cannot hear what is being said at the sidebar when the judge calls all the attorneys up to have a conversation that he doesn't want the jury to hear.

Yesterday, we found out after court, because you can see the records later, that the judge had admonished Trump for saying things in response to Stormy Daniel's testimony that the jurors could hear. He said that verges on the contemptuous. That was a warning. He wasn't going to do it in front of the jury. He wasn't going to make a big display of it, but he was saying, "Keep quiet, don't talk out loud." This is something that Trump has a lot of trouble doing.

He did it in the E. Jean Carroll case prompting the judge to threaten to expel him from the courtroom if he continued to talk. I could hear Trump in that courtroom say, in response to E. Jean Carroll's testimony, that is not true in front of the jury, and the judge was sort of saying, "Do not do that." I think we will see. When Trump got that $83 million fine for E. Jean Carroll, he did stop defaming her for a while, so we'll see. We'll see if he can contain himself through the rest of this proceeding.

Brian Lehrer: Susan in Nanuet, you're on WNYC with Andrea Bernstein. Hi, Susan.

Susan: Hi. I just was wondering, as a step in between, do judges ever put people on house rest? Yes, it would make him comfortable and that wouldn't make me happy, but I really feel like maybe that gives the judge a way in if he does have to jail him.

Brian Lehrer: To enforce it.

Andrea Bernstein: Does that ever happen?

Brian Lehrer: To enforce it with a kind of jailhouse arrest, but without the spectacle of Trump going to Rikers or something? Interesting question, Andrea.

Andrea Bernstein: I honestly don't know. What I know is what the judge said, which is if you keep it up, I will send you to jail.

Brian Lehrer: Mar-a-Lago as jail. Can you imagine? Ben in Freeport, you're on WNYC. Hi, Ben.

Ben: Yes, good morning, Brian. One quick comment. As far as the protection of the 1st Amendment, because bragging the judge or public officials, I think there's a little more leeway there in what Trump could possibly say. I think that Trump really wants to go to jail. I think that the reason for that is that if he were sentenced to any kind of jail time, the trial would have to stop because of all the appeals that were going to be filed. Andrea, the question that I'm wondering about is, could the judge wait until after the trial, after the verdict, either guilty or not guilty, or even a mistrial, and then carry out the sentences for these contempt citations?

Andrea Bernstein: What the judge said, again, is, "I will do it," during this process. He didn't hold that out as a possibility. He really does not want to send Trump to jail. I would argue Trump does not want to go to jail. Clearly, in all of these proceedings, when he went down to Fulton County and distributed his mugshot, and when he used to go to these civil trial proceedings, even though he didn't have to, and stand behind these barriers and making it conjuring up bars and saying, "Look, they're keeping me here," that is an image that redons to his political advantage. It's different from actually being behind bars, which is I think something that almost everybody if not everybody would not want to do.

Brian Lehrer: Some texts that are coming in, maybe like Susan in Nanuet who's looking for a midway sentence like house arrest, listener writes, Jonathan Alter in the New York Times, wrote, "Assign Trump to pick up trash on Wednesdays." Someone else writes, "Anyone else would be in prison already. This is getting ridiculous already." Someone else writes, "In Ms. Bernstein's opinion, is Trump trying to cause a mistrial by trying to make the whole thing a circus?" How would you answer that listener? You don't get a mistrial.

Andrea Bernstein: I think it's hard to say the kind of motive.

Brian Lehrer: I think the simple answer is you don't get a mistrial because of your own antics as the defendant, right?

Andrea Bernstein: Yes, his lawyers did call for a mistrial yesterday based on Stormy Daniel's testimony, so certainly based on other than what they do. I think that they are prepared to do that, they just did it, it was denied. I think that one of the things that's very different in covering this case than in covering the other cases is Trump does have to be there. He has to be there every day.

He wanted to go to the Supreme Court to see the arguments in his immunity case, and the judge said to him, "I can see why the Supreme Court is very important, but you are a defendant in my courtroom, so you'll be here." That is clearly making Trump unhappy, the fact that he has to be in the courtroom. I mean, while I certainly saw what he did in the previous trials when he didn't have to show up, but did show up as a way to accrue political points, in this case, I think there is something qualitatively different because his liberty has already been curtailed.

Brian Lehrer: One more question on this and then we'll get to the evidence, Stormy Daniels's testimony yesterday, et cetera. Listener wants to know if the jury is sequestered, which we know the jury is not, but I think that listener wants perhaps the jury for its own protection and in the interest of justice to be sequestered. The listener asks, "What is to stop a Trump supporter if Trump can't do it himself because of the gag order?" The question is, what is to stop a Trump supporter from threatening or otherwise influencing a member of the jury?

Andrea Bernstein: That would be unlawful and contain a serious consequence. The jury is anonymous and they're not sequestered. I mean the judge didn't explain his reasoning, but other lawyers have said that it's a very, very disruptive, especially for a long trial to be sequestered. That itself can distort the process in a way that you don't want to.

Brian Lehrer: We'll get to Stormy Daniels, Stormy testimony right after this.

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Brian Lehrer on WNYC with Andrea Bernstein covering the Trump trial in lower Manhattan for NPR. I just have to do one more thing on the limits of Trump's speech before we get to Stormy Daniel's testimony. The listener reacted to what you said early on about it was okay since Trump can criticize the prosecutor and criticize the judge when he posted a photo of himself threatening to bash the head of DA Bragg, or so it appears he was holding a baseball bat, you said, to a photo of DA Bragg, and that was okay. The listener writes, "That was okay. What would happen to an ordinary defendant in a case of falsifying business records if he or she were to post such a photo?"

Andrea Bernstein: Yes, I don't think that I said it was okay, [laughs] I just said it wasn't excluded speech under the gag order.

Brian Lehrer: Under the law, why isn't that intimidating in a way, or it's taken as a threat? I guess there's leeway under the law for that to be seen as metaphorical.

Andrea Bernstein: The thing is that there's no precedent for any of this, there are no priors. It's impossible to compare it to anything else because we've never had a situation where you have a former president on trial, or would-be president on trial, and judges trying to navigate the question of political freedom of speech with protecting the judicial system. Where they have drawn the line is by saying that the public officials involved, the judge, and the district attorney, you can criticize, but you cannot criticize or intimidate witnesses or jurors or the family members of the various parties.

Brian Lehrer: Stormy Daniels, maybe to talk about her testimony. You should remind people why it matters, because as I understand this case, it doesn't matter if her story of any encounters with Donald Trump is true. It only actually matters if he falsified business records to cover up the money that was paid to her to not even allege publicly that they had any encounters. Right?

Andrea Bernstein: Correct. What the DA said was that it goes to her credibility to be able to describe this encounter. I think one of the things that we've learned from this trial testimony is that you see this process just going back to the question of what is the underlying conspiracy because I think it's confusing to people. What Trump is charged with is 34 counts of falsifying business records in the first degree. That's an E felony in New York.

In order for that to be an E felony, the DA has to prove there was an underlying crime. The underlying crime they alleged was a conspiracy to change the outcome of the election by suppressing these negative stories by women. There's been testimony that, for example, by David Pecker, the former National Enquirer publisher, about how they evaluated whether these claims were credible before deciding whether to pay money for them.

Part of the argument goes to that they're not just paying any wild claim, they're paying somebody that they believe might be believed because that's what they think would be harmful. That is what the DA argued they needed to present as part of their case. They said it completes the narrative of the payments that she had this story, they paid to suppress it, or Michael Cohen paid to suppress it, Trump then reimbursed him, and then falsely claimed it was for a legal retainer not a reimbursement for a hush money payment.

Brian Lehrer: That's part of the case, right? I think a lot of people assume, and maybe even some of the things that we've said in the course of this conversation, take it as a given that hush money was paid to Stormy Daniels. Trump denies even that, doesn't he?

Andrea Bernstein: Trump denies there was an affair. He denies that the records were falsified, and one of his defenses is that he didn't get legal services from Michael Cohen.

Brian Lehrer: Michael Cohen did give Stormy Daniels $130,000, no?

Andrea Bernstein: He gave Stormy Daniels $130,000. That is not in dispute. What's in dispute is how it was paid back and the motive for paying it back, which the DA says was to cover up this other crime.

Brian Lehrer: What's the headline from Stormy Daniels testimony yesterday according to you?

Andrea Bernstein: There are many, many, many headlines, but one of the things that I've been thinking about in this that's been very much on my mind as I've been processing yesterday's testimony is that Michael Cohen said way back in 20-- I believe it was 2019, when he testified to the house about all of this. He said that he was worried that this was after the Access Hollywood tape came out. That one word Trump talks about, when you're a star, they let you do it, and grabbing women by the genitals.

Then that's when Stormy Daniels was emerged, and he became panicked that the campaign could not withstand another blow. In fact, there's been a great deal of testimony about the Access Hollywood tape. Trump's former campaign, press Secretary and White House aide, Hope Hicks testified in great deal to this last week about how profound the repercussions were from that. One of the things I've always wondered is, given what was on that tape and what people heard Trump saying, the words that came out of his mouth, would a story about a consensual sexual relationship after that have been so damaging?

Particularly, when there were all of these women who were coming forward in the wake of the Access Hollywood tape who were making allegations about Trump. Now, clearly, she was a porn star, so that has all kinds of other implications. One of the things that Daniels talked about yesterday was she said she felt a power imbalance. This was their only sexual encounter at the celebrity golf tournament that she felt ashamed afterwards, but that she continued to stay in touch with Trump because he dangled a possible role for her according to her testimony in The Celebrity Apprentice.

There was in fact some other backup for this in that trial. That's the story that she laid out, and that is a little different from a story about a consensual relationship. It's actually one of the reasons why the defense got so upset. They said this is new testimony, and that's why they wanted to call for a mistrial, or why they did call for a mistrial. What was interesting to me is if they understood that at the time, it would explain the level of panic inside the campaign about keeping the story quiet.

Brian Lehrer: There's been coverage of how sexually explicit she was on the stand. The judge even intervened from the coverage I'm seeing to ask in some way if so much detail was necessary. Did the prosecution intend for that to happen for a strategic reason?

Andrea Bernstein: They said they did not. The defense objected several times. The judge sustained it. He struck some of her remarks from the record, her being Stormy Daniels. He at one point jumped in himself and sustained an objection that the defense had not raised. After lunch, he instructed the prosecutors to go back and talk to the witness, to tell her to answer questions more directly, not to provide extra information. Clearly, at the outset of the day, the prosecution said, "No, we just want to say that they had sex and not go into all the details."

Daniels was an unruly witness. She would take a question and she'd talk really, really fast and she would talk about-- the prosecutor said, "Was there one point at which you went to the restroom?" Because her story is she went to the restroom, and when she came out, Trump was lying on the bed in his underwear. She says, "Yes, and when I went to the restroom, I looked in his toiletries kit. I'm not proud of it, and I saw the brand of shampoo he used," and she named that.

She was just saying all these things that the judge really didn't want to come into the case and it doesn't necessarily help the prosecution to get all that detail in, as you say, because they don't need it. They just want to say they had sex. She came forward. She said, "I'm going to tell this story," and the campaign paid her hush money because they were afraid that her story, if public, could influence the outcome of the election.

Brian Lehrer: Was it her being as sexually explicit as she was and talking about things that Donald Trump did and didn't do? I won't even rename them, but was that the basis of Trump's motion for a mistrial yesterday?

Andrea Bernstein: They said that the suggestion that she had made these comments several times during her testimony about, "I met him in a public place, but it was because I felt safe. I didn't want to do something where I felt unsafe." They said by distinguishing that, she was suggesting a level of coercion which could suggest something which is outside of the scope of this trial and which could be prejudicial. The DA responded to that by saying, "Look, her testimony is not inconsistent with things that she said before and also she said quite clearly that she didn't feel coerced."

When she describes a power imbalance, you can see, she's a porn star, he is a huge multinational executive with a television show, and she kept talking about how she wanted to break into legitimate media. There was objectively a power imbalance. Now, whether that led to the sexual activity is going to be-- that is something that is outside the scope of all of this. That is what got them so upset that they suggested that.

Of course, the jury has now heard what Trump said on the text, not his voice, but they've heard the transcript of the words that Trump said on the Access Hollywood tape because it's come up in terms of the effect in this trial. They are arguing that cumulatively, that has the jury thinking about a crime that is not charged here or a potential crime that is not charged here that involves coercion, or at least having the jury think along those lines, which could, they argue, taint their decision.

Brian Lehrer: About whether their sexual encounter was real, a few listeners are writing in things like this: "Please cover the fact there's video deposition of Trump admitting the affair in a proceeding to try to enforce her nondisclosure agreement, which Daniels won releasing her from the NDA." Is that all factually true, to your knowledge?

Andrea Bernstein: I am not aware a video of Trump admitting it. I believe that Trump has steadfastly denied this. However, I will say that one of the things that did come out in the courtroom yesterday is there were particulars of her testimony which rhyme with things that the jurors have already heard. For example, she described how she was first approached by Keith Schiller, who was then Trump's security guard who asked her if he would come to dinner with Donald Trump and gave her or she got his phone number and she showed her phone with the phone record of his phone number.

One of the things that jurors have heard from other witnesses, for example, from the National Enquirer publisher David Pecker, was that Trump sometimes communicated through Keith Schiller. You hear that, we heard from Rhona Graff, who was Trump's executive assistant. The week before last, in which she testified about having entered Stormy's contact information into Trump's Rolodex, as it were. The entry just said Stormy about having seen her at Trump Tower. Daniels also testified to that. She testified about how Trump instructed her to contact her through Rhona. She had Rhonas' contact.

She also said Trump would call her honey bunch. The jurors actually heard a tape, there's this brief tape of Trump speaking to Michael Cohen. At the very beginning of this tape, he's speaking to somebody else, this was played in the courtroom, where he says, "Okay, honey." All of these things resonate with other evidence, and that's what the DA says that they're able to do. Now, as to whether they have sex, corroborating that story is not the subject of this trial.

Brian Lehrer: Right. Again, this is worth repeating. We established it at the beginning of the segment, but she could be lying or telling the truth and that doesn't actually matter because if he still paid the money and still falsified the business records, and it was still a cover-up to help his election chances by falsifying the records, that's all that matters. That's what he's charged with, right?

Andrea Bernstein: That is true. I just want to be cautious because the defense at some point, Stormy Daniels, obviously, issued statements denying the affair or the encounter before she said there was an encounter. There were various points in her testimony where she made efforts in 2011 to sell her story to In Touch magazine for $15,000, but also said that she was afraid to tell her story that year because she'd been approached by somebody in a parking lot who threatened her and her baby if she talked about it. All of this cumulatively, the defense is trying to use as a way to say she is not someone you should believe. You should not believe anything she says.

So far, the parts of her story that are material to this case, that there was an encounter, that she made a payment arrangement in 2016, that it was very much on her mind that if the deal was not concluded by the election, if she wasn't paid by the election, that Trump would no longer have an interest in paying her, which coincides with other testimony where Trump said to try not to pay until after the election. That is essentially what the prosecution needs for the jury to believe and what the defense wants is for there to reject everything she says because of contradictions in her testimony. The risk of her testifying about in such detail was that the defense can use all of this to impeach her credibility, which I expect them to continue to try to do on Thursday.

Brian Lehrer: When she's continuing to be cross-examined-- Didn't they already-- just last point about Stormy Daniel's testimony and then I want to ask you one thing that I've seen talked about a lot about Hope Hicks's testimony before we run out of time. Didn't the defense yesterday try to discredit Stormy Daniels by saying she basically extorted Trump? Because this all happened after the Access Hollywood tape came out. If that was when she was advised by her people that, "Hey, now, look, you could get Trump to pay you to not tell your story about him." That that's a form of extortion. How did that come up and how do you think the jury reacted to that?

Andrea Bernstein: They used that quite a bit in the cross-examination of Stormy Daniels's lawyer using the word extortion a lot. The word extortion came up yesterday, but there was so much else yesterday that the defense had to say. For example, "Don't you hate Mr. Trump, Ms. Daniels? Isn't it true that you owe him hundreds of thousands of dollars in legal fees from an unsuccessful defamation suit," and many, many things to that effect, trying to catch her on inconsistencies and dates and these other sort of, "You did want money. You did want to go public. You didn't want money. You didn't want to go public. Which is it? Settle on one of these things." I think what clearly emerged is that she had conflicting emotions at conflicting times about whether she wanted to tell her story, keep it secret, et cetera, et cetera.

Brian Lehrer: Let me sneak Rose in Metuchen in here because she's a retired lawyer who thinks she has a relevant point. Rose, thanks a lot  for calling. You're on WNYC. Rose in Metuchen, you there? No. Rosen gave up. All right. One thing about Hope Hicks's testimony, former communications director for the Trump administration, conservative, pro-Trump media is making a lot of the fact that Hope Hicks made a reference on the stand to Trump wanting to keep word of this from Melania. The context of that is John Edwards. Remember that former presidential hopeful on the Democratic side? He was acquitted in a similar case because he convinced the jury that he was trying to cover up an affair, not to help his presidential campaign but to keep it from his wife. Talk about that Hope Hicks moment.

Andrea Bernstein: I think ultimately, Hope Hicks's testimony was pretty damaging to Donald Trump. I think both of them understood it. I mean, she's somebody who was obviously an extremely loyal aid. They had stopped communicating after January 6th but you could see in the courtroom, these jurors are walking within feet of Trump. The witnesses are walking within feet. I mean the jurors too but the witnesses, and they're not looking at him.

Then somebody worked for him for years as an incredibly loyal aide and then they walk out and they don't look at him and then he doesn't look at her. Nobody doesn't look at Donald Trump, except for the witnesses in this courthouse. He's just somebody that captures your attention and always has, so it's an extraordinary thing. She was asked very specifically about a conversation she had with Trump after the story broke in 2018 from the Wall Street Journal and she said, he told her very directly, "I think it's a much better thing that this came out after the election because it hurt us much less." That was very harmful.

Brian Lehrer: That's really damning.

Andrea Bernstein: Then on cross-examination, the defense said, "Didn't he also tell you that he didn't want Melania to know?" She said, "Yes, he didn't want Melania to know." In fact, he asked me not to having the newspapers delivered to the resident so she wouldn't see the story, which is a quaint image.

Brian Lehrer: I guess he doesn't use the internet.

Andrea Bernstein: Both of those things can be true that he didn't want his wife to know but if his primary intent was to keep it until after the election, that underlines the DA's argument that the coverup was to keep people from knowing that.

Brian Lehrer: Andrea Bernstein covering the Trump trial for NPR as some of you know, she was co-host of WNYC's Trump, Inc. podcast about the intersection of Trump's business interests and the public interest, and here we are again because this is a business interest because it's falsifying business records. Also, the podcast will be wild about the time leading up to January 6th, and as author of the book, American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power, good luck. I hope they don't make it too cold in there again. I think we'll talk next Wednesday if there's anything to talk about, so thanks, Andrea.

Andrea Bernstein: Thank you.

 

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