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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone, in our spring membership drive, trying to reach our goal of 10,000 donors. Thank you for being one if you can at wnyc.org. Andrea Bernstein, who's covering the Trump criminal trial in lower Manhattan for NPR, is with us on this day off from the proceedings. They've been taking Wednesdays off, and Andrea has been taking Wednesdays on to join us on the show.

The drama this week, of course, has been the testimony of former Trump lawyer and fixer Michael Cohen. I'm really interested in getting Andrea's take because some of the analysis I've heard elsewhere has been really contradictory. 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 them get elected president in 2016. Michael Cohen was at the center of these transactions but did he pin them on Trump?

Also, yesterday there was the bizarre spectacle of the Speaker of the House of Representatives and other members of Congress gathering outside the courthouse so they could basically violate the judge's gag order on Trump's behalf, criticizing jurors and witnesses and people's family members in a way the judges concern will put them at risk of harm, but is it really legal to be somebody's gag order violation surrogate?

Andrea Bernstein, as many of you know, is 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 events leading up to January 6th and is the author of the book American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power. Hi, Andrea, thanks for doing another Wednesday off from the trial on with us. Welcome back to WNYC.

Andrea Bernstein: Hey, Brian, great to talk to you again.

Brian Lehrer: Listeners, if you have a question about the trial, we can take a few calls or texts. I think some of this has been confusing and contradictory in the analysis you may have been seeing. If you have a question, keep it to questions on the trial for Andrea. Call or text 212-433-WNYC, 212-433-9692, or lawyers tell us what you think. Andrea, putting all the hoopla aside to start out, just remind everybody what was the actual reason the prosecution called Michael Cohen because they have all these documents as physical evidence, why did they need Michael Cohen at all?

Andrea Bernstein: Well, Michael Cohen is a key witness because he is, as the DA defines it, a co-conspirator. What the DA is charged is a 34 counts of falsifying business records. In New York, for that to be a felony, there has to be an underlying crime. In this case, the DA says that crime was making these illegal campaigns finance contributions to influence the outcome of the election essentially which is a crime in New York you can't do that.

Cohen, according to the DA, is in this plot every step of the way. He is in from August of 2015 where there's a meeting with Donald Trump, Michael Cohen, and David Pecker, the former publisher of the National Enquirer, where they agree that Pecker is going to be the eyes and ears and is going to catch or is going to keep an eye out for negative stories about Trump, going to publish positive stories about Trump, publish negative stories about his opponent.

If he sees those negative stories bubbling up, particularly from women, and David Pecker, the former publisher of the National Enquirer, specified that what he was concerned about was stories by women coming out against Trump. That he would watch for them and he would try to buy them as he described it, to take them off the marketplace, that is, the National Enquirer would buy them so no one else could get them and then not publish them so that's part one of the conspiracy, the formulation of it, that they're going to do that.

There's a lot of evidence about the hush money deals, the payoff to Karen McDougal, the former Playboy model, and the one to Stormy Daniels, which is the reimbursement, is the basis for the falsifying business records charge. Cohen is in that meeting. Cohen is involved in both hush money payments. Then ultimately, what happens is Cohen testified this week as at the end of it.

He makes this arrangement to get paid back by the Trump organization with Allen Weisselberg, the former Chief Financial Officer, who is, by the way, not testifying in this trial because he is at Rikers Island because of his perjury plea related to another Trump case, the New York attorney general's civil fraud case. Anyway, Cohen testifies this week that he and Weisselberg meet and they discuss a plan for him to get reimbursed. Then, as Michael Cohen describes it, they go into Trump's office and Trump signs off on it.

Cohen says he says it's going to be a heck of a ride in DC. Then what happens is about a month later, Cohen goes down to Washington, the White House, meets with Trump in the Oval Office. Trump says to him, "Don't worry, Michael, you're going to get your payments. It just takes a while to get these checks FedExed here through the White House system." Over the course of the year, yesterday, we watched as Cohen verified each of the checks he gets.

It's a monthly payment, but one of them was a double payment, so he gets 11 checks. Eight of them are signed by Donald Trump himself, and each of them has a stub attached. The stub says that it is for a retainer or a legal retainer, and in each case, prosecutor walks him through it. What was this check? Was it for legal work? No, that was false. It was for reimbursement. Who signed it? Donald J. Trump. We go through that over and over again, we see all the checks, and that is the basis for the false business record statement.

What Cohen is doing that a lot of pieces of evidence National Enquirer Publishers, as we mentioned, a lot of current and former Trump aides, including his current junior bookkeeper who talked about indeed how difficult it was to FedEx documents down to Washington from a White House aide who testified to the same. Showed a meeting memo with Cohen and Trump at the Oval Office. What Cohen does is he sews this all into a narrative to show the jury, and that's what he is doing testifying in this trial.

Brian Lehrer: I've heard a legal analyst say there is no case without Michael Cohen because only Cohen and only if the jury finds Cohen credible, only with Cohen can they show that Trump himself was involved in falsifying the business records, and I think that's what you were just laying out. How much do you agree that that's the central point?

Andrea Bernstein: There's been a lot of evidence so far, but yes, indeed, I think that Cohen is the one who provides all the context, makes a narrative, and puts the intent squarely with Trump. Up to now, one of the major defense strategies, for example, when speaking to Stormy Daniels's lawyer about the agreement that was made, that lawyer Keith Davidson acknowledged he never spoke to Donald Trump, only to Michael Cohen. Without Cohen there and with Weisselberg out of the picture, Cohen is the person who can do that.

Brian Lehrer: Would you remind everyone then what the falsification actually involved? The hush money is legal, the falsification of records about the hush money is not. What exactly did they falsify? I'm going to come back to this question of whether they've succeeded in pinning it on Trump personally because that's the crux of the case, but what exactly was the falsification?

Andrea Bernstein: Just step back for one second, one of the things that I learned that was new to me, and I've been paying close attention, including when Cohen testified about much of this before Congress in 2019. One of the things that was interesting was how closely that testimony, which I listened to and read over and over again, aligned with what he said in court this week. One thing new that I learned is that at the end of 2019, they actually cut Cohen's bonus that they had given him from previous years.

Cohen says, "I'd done so much, I couldn't believe it after all I've done," He says he's told by Alan Weisselberg, "Don't worry, we'll figure it out." They go back and they have a meeting shortly before the inauguration. Cohen brings documentation, he brings the payment that he's wired, the bank statement of the money that he's wired to Stormy Daniels. You can see a document with his handwriting and Alan Weisselberg's handwriting, and they're scribbling numbers.

The numbers are $130,000 for the hush money payment, $50,000 for another reimbursement that Cohen didn't get over the course of his employment with Trump. Then they are, what they call, grossing it up, which means they're basically doubling it to account for taxes, and then they're adding in that bonus or part of the bonus that Cohen didn't get. The total is $420,000, which they agreed to pay in annual installments of $35,000. It's a reimbursement, and they are describing it as a legal retainer and that is the documents. That is the basis of the document. These false checks and other records that the Trump Organization kept around them. That called it a legal retainer when Cohen said he wasn't really doing any legal work. A little legal work, a little work for Melania Trump, this and that, but nothing that he was charging for because as Cohen quite candidly said, and this is something we reported on when we were doing the Trump Inc. Podcast with Republica.

Cohen quite candidly said, "There was a market for people who wanted to know about Donald Trump. That's how I was going to make my money, by [laughs] selling myself to those people, not from any legal work I was doing for Donald Trump." He said the title personal attorney was just a ruse to draw in those clients.

Brian Lehrer: Yes, but that gets to the question of Cohen's credibility here. If they need Cohen to tie Trump credibly to personally falsifying the business records, the defense argues that Cohen lied in the past. We know he was convicted, pleaded guilty to lying to Congress on Trump's behalf in another matter. He lied then because it was in his interest to help Trump get away with stuff, but it backfired, Cohen got caught.

Now the defense would argue, it's in Cohen's interest to lie to hurt Donald Trump because now Cohen is making a living off being a Trump antagonist. They established that he's selling Trump in jail T-shirts, for example, and I guess they showed Cohen wearing one on TikTok just last week. They say he's trying to launch a new reality TV show called The Fixer. If that's all accurate, could you get any impression of how that landed with the jury regarding its relevance to the credibility of his testimony here?

Andrea Bernstein: Yes, I think that [laughs] there is no question that Michael Cohen is a liar. He has lied to Congress, he's lied to banks, he's lied to journalists. He talked in detail at the trial about all the different lies he told about Stormy Daniels to keep the story from the public. I've covered Michael Cohen for a long time, and he has really lied a lot, but that doesn't mean that everything he says is a lie.

What the prosecution is trying to do is to align Michael Cohen's story with all of the other evidence, much of it from people that have been extremely loyal to Trump and many of whom who are to this day. I'll give you one example. Hope Hicks, the former communications aide was asked about how Trump reacted after the Stormy Daniels story broke in 2018. She talked about a conversation with Trump where he had said to her something to the effect of he was glad that this story came out after the election because it was much less damaging after the election.

He thought this was the best thing and where he had told her what was their initial story at the time was this is something Cohen had done on his own, out of the kindness of his heart. Prosecution said to Hope Hicks, "Well, does that sound right to you?" She said, "Michael Cohen didn't do things out of the kindness of his heart. He did things to get credit." Cohen, in his testimony, talked over and over and over again about he wanted to tell Trump and keep him in and all of this because he wanted the credit.

You see the way in which the prosecution has tried to get these other witnesses who are not Trump antagonists, to give bits of information that Cohen, in his testimony is repeating. Now the jury has heard it twice.

Brian Lehrer: Then here's the question that we're getting multiple times from our listeners in text messages, versions of the question. Why can't Weisselberg testify from Rikers via affidavit or some other kinds of sworn statement? Because if there's somebody who can corroborate Michael Cohen's story, as you were describing at the beginning of the segment today, if there's somebody who can corroborate Michael Cohen's story when Cohen's credibility is in question, it's Allen Weisselberg. I've seen an analyst on television say the jury is going to be asking themselves, why didn't the prosecution call Allen Weisselberg? Why didn't they try to fill that hole? What's the answer?

Andrea Bernstein: It's a little unclear to me how the prosecution is going to try to answer that. Someone can take the Fifth Amendment. Weisselberg is in jail for lying about Trump previously. He himself would not necessarily be a particularly credible witness or add to the case. I don't think that listeners should underestimate the power of all these other pieces of evidence that corroborate and back up Michael Cohen's story.

There were many times during his testimony where he said, "I called Trump and said such and such," and then they showed the phone records of him calling Trump. They showed phone records of him having these conversations with the phone of Keith Schiller, who is Trump's bodyguard, at key moments. You can line it up with the timing of the agreements, the timing of the documents. It is not accurate to say that Cohen is just saying this stuff without any corroboration.

There's a lot of corroboration. All of that said, the jury can reject him. They can decide, or it just takes one member of the jury to have it hung. The jury can decide. I'm just not going to believe anything about Cohen because he's lied so much. That's what the prosecution is really going to try to explain. I'll note one other thing, that in the civil fraud trial where I also saw Michael Cohen testifying, he did a pretty-- It was disastrous compared to this.

Brian Lehrer: That was the business fraud trial.

Andrea Bernstein: The business fraud trial. The judge in that case said, "Yes, Michael Cohen is a liar, but in this case, I deem him to be credible." That is what I think the prosecution is hoping. Will it be? We don't know. The defense really wants to show he's motivated by money and fame. It's interesting because that is exactly what they led with Stormy Daniels, and it felt a little less effective the second time around. The sting had been taken out of that argument. Everybody is just out for money and fame. Both Cohen and Daniels testified that they were much worse off financially after this encounter with the Trump affair.

Brian Lehrer: So many people are after encountering Donald Trump in one way or another.

Andrea Bernstein: Yes, exactly.

Brian Lehrer: We're just about out of time, Andrea, but just one thing about this circus outside the courtroom, about Mike Johnson, the speaker of the House, and other republican members of Congress, Nicole Malliotakis, others breaching the gag order outside the courtroom, Trump himself, as the defendant, isn't allowed to put witnesses or jurors or family members of the judge at risk of harm by making them public targets.

He also may not direct others to do so, but if politicians aligned with Trump, like Speaker Mike Johnson and Congresswoman Nicole Malliotakis, want to do so allegedly on their own, they can, even though that same language might make those same people who are not the judge, not the prosecutor, at risk of some kind of targeting.

Andrea Bernstein: I think there's a few things going on here. The judge doesn't have control over those people. They are not criminal defendants. The DA probably at this point, doesn't want to sort of raise that. They just want to finish their case, is my guess. We know that Donald Trump, when he says something, moves people in a way that, with all due respect, Congresswoman Malliotakis may not.

That said, clearly what is going on here is there is the defense inside the courtroom, which is a difficult job for the defendants because they have all of these witnesses, some who believe they're friends with Trump, employees of Trump to now. They have all these documents and records and yesterday the defense didn't even try to take on check stubs. That may come tomorrow, but we're still waiting to see. There's a political defense that they're building.

The political defense is by pre budding a possible guilty verdict by saying all these things and getting people to reject that, which I think is very concerning for the criminal justice system when you have lawmakers and the speaker of the House and attorneys general from all over the country saying that this is rigged and corrupt and people shouldn't accept it.

It's just like the language that we heard prior to the 2020 election. I think that is disturbing and a subject for another day. I think that is probably more threatening than to whether they are attacking the judge's daughter, which they seem to have all done to a person yesterday.

Brian Lehrer: The trial continues tomorrow. Andrea Bernstein will hear you on NPR.

Andrea Bernstein: Thank you, Brian.

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