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Anderson Cooper 360 Degrees

Judge Denies Defense Motion for a Mistrial Over Daniels' Testimony; Defense Atty. Attacks Stormy Daniels' Credibility in Combative Cross-Examination; Stormy Daniels Wraps Testimony After Combative Cross-Examination; Trump Org. Bookkeeper Testifies On Trump's Checks. Aired 8-9p ET

Aired May 09, 2024 - 20:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[20:00:00]

BRYNN GINGRAS, CNN NATIONAL CORRESPONDENT: And I have to point out, we've actually met people from all across this country. I talked to one couple from Utah in New York City as a tourist and they were like, hey, let's just go stand in line for the Trump trial. Everybody really wants a piece of this history, Erin.

ERIN BURNETT, CNN HOST: It's nice to see people care so much and be willing to do that.

GINGRAS: Yes.

BURNETT: Fifty bucks an hour for the line sitter. He's a busy man. All right. Thank you so much, Brynn.

GINGRAS: I'm going to let your husband know your birthday present, Erin.

BURNETT: That's right. Thanks so much to all of you for being with us. We appreciate it. It's time for Anderson.

ANDERSON COOPER, CNN HOST: Good evening. Welcome to our continuing special primetime coverage of the Trump New York hush money trial.

Day 14 saw prosecutors focus through a current bookkeeper and a former White House staffer on how closely their boss watched every dollar, including far smaller sums than his checks to Michael Cohen.

Also, day two of cross examination for Stormy Daniels, perhaps at the defendant's behest, whether or not it helped his case. And after the jury left, two defense motions, one to modify the gag order that Mr. Trump is under to allow him to talk about Stormy Daniels, the other asking for a mistrial for the second time this week.

Judge Juan Merchan denying the gag order motion saying, and I quote, "Your client's track record speaks for itself." He also denied the mistrial motion, which the defense had based on what it claimed was prejudicial testimony by Stormy Daniels about sex with Mr. Trump.

The judge said the defense brought it on themselves by denying a sexual encounter had taken place, meaning he said that the jury needed to be able to determine whether to believe her or the defense. He also scolded the defense for not objecting to items they were now citing as grounds for a mistrial.

Prosecutors meantime said they will not be calling the other woman who is alleging an affair with the former president, former Playboy model Karen McDougal, whose silence he also secured prior to the 2016 election. Afterwards, he had this to say.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: I don't think we have to do any explaining. I'm not allowed to anyway, because this judge is corrupt. He's a corrupt judge. This judge, what he did, and what his ruling was is a disgrace. Everybody knows what happened today. He's a corrupt judge and he's totally conflicted.

(END VIDEO CLIP)

COOPER: As for the woman he tried and failed to get his gag order lifted for Stormy Daniels. She tweeted this about an hour ago, quoting now, "Real men respond to testimony by being sworn in and taking the stand in court. Oh ... wait. Nevermind."

Joining us now, New York defense attorney, Arthur Aidala who's in court today, also best-selling author and former federal prosecutor, Jeffrey Toobin, CNN primetime anchors Abby Phillip and Kaitlan Collins. Also someone who's known Judge Merchan for more than 15 years, former New York judge Jill Konviser and CNN Kara Scannell who's been covering this case from the beginning.

I want to talk to the two people who were in court. Kara, what did you - what was it like?

KARA SCANNELL, CNN CORRESPONDENT: I mean at the end, when the judge was going back and forth with Trump's attorneys over these motions, it got heated, separate and apart from the testimony today, and that was in part because Trump's team was arguing for a mistrial. The second time this week that they've done that and saying that this was unfair testimony, it was prejudicial. They're saying Stormy Daniels changed her story because some of her testimony intimated that there was a power dynamic at play, and a height differential, and she wasn't sure she could leave. But they said that that was unfair to the jury because at the time in 2016, she was saying that this was consensual, and that is what Trump was trying to stop, if you believe the prosecution, and not these additional details.

But the judge said that this was of their own making. He said the other day he was surprised that Trump's attorneys didn't object more, and that he sustained the first objection. He objected himself. But today he went even further, and he said, "Why on," he's talking about Trump's attorney, "Why on earth she wouldn't object to the mention of a condom, I don't understand."

So he was saying that they let far too much detail come in themselves before they objected, and he was saying that, in fact, because they denied that this affair ever happened, that the jury was - it was fair for the jury to hear the detail, to draw their own conclusion about whether they believed her or not.

COOPER: Okay. Here's what I really want to know. I want to - we were outside the court reading your missives and others, our reporters inside the court. It was very hard for us on the outside, and we talked about this on the air, to see - to get a sense of how was the jury responding to this tense cross-examination of Stormy Daniels.

Stormy Daniels, at times, seemed more relaxed, perhaps, than she had been in her actual testimony the previous day, although it's hard to tell just from text messages, but she seemed to be laughing more. And I'm wondering, I want to get your take on this, and then Arthur, because you were also there, what was it like inside the courtroom? How was the jury responding?

SCANNELL: I mean, out of the gate, Susan Necheles just was pounding her with questions, and Daniels was responding so quickly that twice the judge had to both tell them, stop, you're talking over each other. The court reporter can't take this down.

[20:05:02]

So it was very combative, but Daniels was holding her ground. She would - she was making some jokes. She made a joke about she's being pressed on how she's profited from this, and she said, well, not unlike Mr. Trump over there, who's profited from his indictments. This jury is very poker-faced. I have not seen any reaction from them reacting to testimony. They've just taken it all straight. They take notes, a number of them, flip through their notepad, but I have not seen any reaction.

The only reaction I saw from a juror today was when a different witness had become emotional. They lifted up a box of tissues and handed it to the security officer who handed it to the witness. But otherwise, I've not seen any reaction. They just follow it like a tennis match, lawyer, witness, lawyer, witness, going back and forth.

COOPER: Arthur, how would it ...

ARTHUR AIDALA, NEW YORK CRIMINAL DEFENSE ATTORNEY: Well, just picking up on the jury, being in the courtroom for the first time, I always - one of the things I gauge on how serious a juror is taking this, probably most important thing they do civic duty-wise is how they dress. Do they come in like slobs, like they don't care or are they dressing like they're going somewhere that matters? I'm not saying you have to dress like you're going to a wedding, but, and they look like a professional jury, and yes, what Kara said was, like, they're just Susan Stormy, Susan, Stormy. They were going back and forth.

Let me just put my cards on the table. I went there for one reason today. I went there as a student. Susan Necheles has a reputation in the legal community of being a spectacular lawyer, and I went there to learn from her, and I did. And what I learned was it just solidified what I knew. There is no substitute for preparation. So all of Stormy's quick answers back, Susan had a retort right back at you. Oh, really? Well, let's go - let's talk about what you said to Anderson Cooper.

Oh, really? Let's look - let's talk about what you wrote in your own book.

So she had it off the top of her head, and then she's able - there's so much technology, then she's able to call up on the big screens exactly what the - she wanted to see, the whole thing with the saint candle, the saint of indictments. And she called up a picture, and she made it very clear that this was, number one, about money.

You wanted to make money and I - and she said, I didn't get paid for the Anderson Cooper interview.

And then Susan calmly says, but how much money did you make after the Anderson Cooper interview? You made $800,000 on a book advance. You made $200,000 on a television show. You got the $130,000, so you made millions.

No, I didn't make millions. That's only a million. A little bit more than a million, so I didn't make millions.

So it was obvious the whole thing about money was off base. But overall, Anderson, she kind of held her own, I mean, pardon the pun, but she weathered the storm. Susan Necheles brought a storm, and I'd even say, like, her body language, like, towards the end, she was kind of firm. I thought, Kara, her jokes kind of felt flat, she tried to make, like, three or four jokes, no one really laughed.

The biggest part that I was like, uh-huh, was Susan said - Susan Necheles, the defense attorney said, so you've written the scripts for - is it 150 pornography movies? And she gets all proud, Stormy, she's like, yes. And I think she said, I directed in them and she's like, so, you know how to write imaginary sexual encounters, don't you, and isn't that what happened here? No, this was real, and if I was writing about it, I would have written a better story than this one.

But it just goes to her credibility, but overall, like, we've been saying, she's not a material witness, she doesn't - at the end Susan says, do you know something, like, do you know how he keeps his checks, do you know how he keeps his checkbooks, do you know how the books and records are kept? No, no, no, no, no.

COOPER: Jeff, what ...

KAITLAN COLLINS, CNN HOST: But it's ...

COOPER: Go ahead.

COLLINS: Well, I just want to say, because it's interesting that you say you're going to see Susan, she has this reputation as this tough defense attorney, she certainly was tough in the cross-examination of Stormy Daniels on Tuesday, it's interesting how they ended today, though, because the judge took a serious amount of time as Kara was noting there, when he was denying their motion for a mistrial, to really focus on Susan Necheles particularly.

He said her name multiple times and Trump was kind of seated back in his chair like this with this kind of scowl on his face, listening to the judge really condemn Trump's team for how they carried that out. Susan Necheles was the first attorney in that chair, Stormy Daniels was initially on the witness stand, and when they were getting into those graphic details, which the prosecutors made clear today, they held back on a lot of what was in their initial interview with Stormy Daniels, that's why they in part denied this motion for a mistrial of the judge.

But the judge's decision here was so thoughtful, that he said yesterday, and there was no court, he went into his chambers, and he reviewed the testimony from Tuesday, he went over it. And he looked at the past evidence of her interviews, and what she had said previously. He said, her account's not all that different, she didn't come in here and say things that are all that different.

And he said what Kara was noting, which is essentially that you guys made this a decision for the jury because you came out in your opening statement and questioned her credibility.

[20:10:05]

So the prosecution had to restore credibility.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: That's a very important point about her consistency.

COOPER: And - well, let me just read what the judge said. He said about Stormy Daniels' version of events, "I disagree with your narrative that there's any new account here. I disagree that there's any change in story. What's happened is people have gone into more detail than they originally planned.

TOOBIN: Right. And I thought the big difference between yesterday's cross-examination and today was that yesterday, Susan Necheles very much focused on Stormy's hatred of Trump and her financial motives. Today she went into a new area, which was trying to prove that the description of the sexual encounter was different and, and that, I think, was a mistake.

I think that's a waste of time, it allowed Stormy to talk about it again. I think the judge is right. I don't think there were any major inconsistencies, and that struck me as an example of client maintenance. That this was because Trump wanted to dispute - whether the sex took place, even though, in my opinion, maybe you disagree, maybe you all disagree, that's just not a worthwhile area to pursue.

AIDALA: And, Jeff, I think you may be right about client maintenance. But one of the things, Anderson, that also stood out, which is a total silly answer from Stormy, Susan says, you testified here today that you guys never ate anything. You ordered dinner, but the dinner never came up. That's true. Let me read from, I believe it was your book, where you said, we came up and we had dinner together. So in your own book, you're saying you had dinner, and now you're saying you never ate.

And Stormy goes, well, where I come from, saying you had dinner with someone doesn't have anything to do with food, it just means the time of day you spent with each other.

COOPER: She called it dinner time ...

AIDALA: Yes.

COOPER: ... as opposed to actually having dinner.

AIDALA: Look, it's a little thing ...

TOOBIN: That's a great example of who cares.

AIDALA: Right, I know but ...

ABBY PHILLIP, CNN ANCHOR, "NEWSNIGHT WITH ABBY PHILLIP": Exactly, I mean, there were a couple of ...

AIDALA: But when you're a defense attorney, you've got to hit every little detail.

PHILLIP: But there were a couple of exchanges like that, that did kind of elicit, well, why are we even talking about this? I mean, I think generally when ...

COOPER: We heard a lot of the "Make America Horny" tour (INAUDIBLE) ...

AIDALA: Yes.

PHILLIP: Right. I mean ...

JILL KONVISER, FORMER NY STATE SUPREME COURT JUSTICE: The discrepancies that everyone is talking about almost misses the point. Because if there are discrepancies between what the witness said in the past off the stand as opposed to what she said here, that is never grounds for a mistrial. That is grounds for cross-examination. That's the purpose of cross-examination.

So to base an argument on a mistrial that somehow the story has changed, to me, makes absolutely no sense at all. And the idea ...

TOOBIN: In fairness, I don't think that was the argument. I think the argument was we should have a mistrial because it was too inflammatory, too improper. I mean, it is - I think they are good enough lawyers to know that a cross-examination allegedly inconsistent stories isn't ...

KONVISER: But the quote from Todd Blanche, at least what I read, was this is not the story she told us and we were not prepared for that. Something along those lines, which sounded extremely, as you said, something that a lawyer would never credit because that's the whole point of cross-examination. SCANNELL: And he keep bringing it back to this is a case about documents, why are we getting into such detail about sex? And the judge is saying, because you open saying that this never happened and that's why the prosecution has to put this on.

KONVISER: That's extremely important, because if the point is it never happened, then Stormy Daniels is a liar. If the point is Stormy Daniels is a liar, the people then have a responsibility to pull out as much detail as possible so this - so the jury can decide to credit her.

PHILLIP: And that's what the judge essentially said. I felt like his demeanor from Tuesday to today about the usefulness of Stormy's testimony and the detail really shifted. He seemed to really kind of settle into the idea that it was actually more necessary than not.

I also don't think that any of the inconsistencies even speak to the most important part, which is if they want to claim the sex didn't happen, none of those details, whether it's the dinner or anything else ...

KONVISER: Doesn't matter.

PHILLIP: ... really go to that. So I'm not sure that they really scored any points on that front except to seem like perhaps they were nitpicking on small things that really had nothing to do with the main idea.

COOPER: Did it seem in the courtroom, I mean, just reading it from outside, it seemed like they were kind of shaming Stormy Daniels in some of the cross-examination for what she does for a living. Did it feel like that in the courtroom?

SCANNELL: You know what's funny is that I talked to her two colleagues who were in the courtroom with me, Lauren del Valle and Jeremy Herb, and none of us took it as slut shaming, which is what some people I think on the outside took it as. It seemed more that she was challenging her on why would any of this be surprising to you, you're a professional, and not that you have been with so many different people.

And Stormy Daniels' reaction also did not seem defensive in that respect. She was correcting her on the difference in it, but not seeming defensive about being asked that question.

AIDALA: It was about the fainting. I mean, that's where Susan, and I agree with you, but that's when Susan went after a little bit.

[20:15:04]

So she goes, how many movies have you been in, like 200, and you're absolutely naked, right, and you're having sex in front of all these people, right? But now you come out of the bathroom and there's a 60- year-old man in boxer shorts and a t-shirt, and for that reason you almost fainted? And Stormy say, well, I didn't faint, it was just a little ... TOOBIN: Isn't it obvious that there's a difference between acting in a movie and something in your personal life?

AIDALA: It's not a regular movie, Jeff. We're not talking about Gunga Din here.

TOOBIN: No, no, but I mean ...

PHILLIP: I thought that actually ...

TOOBIN: ... again, I don't know how a jury's going to react to that, but it doesn't seem to me implausible that she would have a different reaction.

AIDALA: So the point was she blacks out?

TOOBIN: Well, she didn't black out.

AIDALA: Oh, she said she almost blacked out.

PHILLIP: I mean, I do think it was not a great look for Susan Necheles to be schooled by Stormy about what pornography actually is, when Stormy had to say it's real. It's not something that she makes up in a screenplay.

COOPER: By the way, as a film buff, I love a Gunga Din reference. I may be the only one in this panel who really has seen it multiple times. Judge Konviser, thank you very much. Appreciate it.

Up next, details from the full trial transcript, which just came out. CNN's John Berman joins us for that.

And later, what Trump biographer Maggie Haberman and New York Times' reporter Maggie Haberman made of her day in court. Her take on how the former president handled hearing more unflattering comments from Stormy Daniels and the fact they were listed by his defense team and how a jury consultant thinks all of this landed with jurors tonight.

(COMMERCIAL BREAK)

[20:20:16]

COOPER: Stormy Daniels was cross-examined today on her account of her sexual encounter with then-citizen Trump, which he and his defense team deny. Before bringing in CNN's John Berman, we have details from the trial transcript. Here's what she told me when I spoke with her for CBS' "60 MINUTES."

(BEGIN VIDEO CLIP)

STORMY DANIELS, FORMER PLAYBOY MODEL: I excused myself, and I went to the restroom. I was in there for a little bit and came out, and he was sitting on the edge of the bed when I walked out, perched.

COOPER: And when you saw that, what went through your mind? DANIELS: I realized exactly what I'd gotten myself into and I was like, "Ugh, here we go." And I just felt like maybe it was sort of - I had it coming for making a bad decision for going to someone's room alone. And I just heard the voice in head, "Well, you put yourself in a bad situation and bad things happen. So you deserve this."

COOPER: And you had sex with him.

DANIELS: Yes.

COOPER: You were twenty seven. He was 60. Were you physically attracted to him?

DANIELS: No.

COOPER: Not at all.

DANIELS: No.

COOPER: Did you want to have sex with him?

DANIELS: No, but I didn't say no. I'm not a victim. I'm not ...

COOPER: It was entirely consensual.

DANIELS: Oh, yes. Yes.

(END VIDEO CLIP)

COOPER: And joining us is CNN Senior Legal Analyst Elie Honig and John Berman.

John, you've been looking at the transcripts, a lot about the sparring with Stormy Daniels.

JOHN BERMAN, CNN ANCHOR: Look, and Arthur talked about this specific moment where Susan Necheles is going after Stormy Daniels for being involved in the porn industry. And she says, Susan Necheles, "Do you have a lot of experience in making phony stories about sex appear to be real, right" Daniel says, "Wow, I'm a," and there's laughter, she says, "that's not how I would put it. The sex in the films, it's very much real. Just like what happened to me in the room." Then Necheles says, "All right, but you're making fictionalized stories about sex; you write those stories." Daniel says, "No. The sex is real. The character names might be different, but the sex is very real."

Then a little bit later, Necheles asked, "And you bragged about how good you are writing porn movies, and writing really good stories and writing really good dialogue, right?" Daniel says, "Yes." Necheles then says, "And now you have a story you have been telling about having sex with President Trump, right?" Then Daniel says, "And if that story was untrue, I would have written it to be a lot better." And then the transcript notes laughter in the room.

COOPER: Elie, how do you think the defense did? ELIE HONIG, CNN SENIOR LEGAL ANALYST: I thought that piece of cross- examination backfired on the defense in a big way. I thought that was a mistake. I don't think it resonated with the jury. I think the cross-examination that Donald Trump's lawyers did the first day, back on Tuesday, was extremely effective. They undermined her in clear, crisp ways.

Today, I thought was meandering, and I thought it was off the mark. There is a way that you can cross-examine Stormy Daniels very effectively in 45 seconds.

COOPER: But do you think this - the reason they didn't do that is because this was a lot about what Donald Trump wanted to hear?

HONIG: That was our reporting yesterday and it seems to have played out that way in the court today. It's not optimal strategy. The points you hit are this: You hate Donald Trump, right?

Yes.

You want him to go to prison, right?

Yes.

You have posted Twitter fantasies about how glorious it will be when he goes to prison, right?

Yes.

You've made a million dollars from selling your story to various outlets.

Yes, I have.

And you signed a written statement denying that you ever had sex with him in 2018.

That's it. That's the heart of the cross-examination. All this stuff trying to attack her for being a porn star to me is way off the mark, and I think it undermined the effectiveness of what they were trying to do.

AIDALA: Well, in the courtroom ...

HONIG: Yes.

AIDALA: ... that part that we just talked about, like, I forget who was like the two or three people on my row. Someone was like, fantastic, because it was ...

HONIG: Meaning the questioning, not the answers?

AIDALA: No, the answer too. Like, look, you know witnesses know how to get out of an answer. But it's like you've written these. I mean, how many witnesses get - that you get to cross-examine, write fiction for a living? HONIG: Oh, I agree.

AIDALA: So you get to be like, this is what you do. You make up stories all the time. You make money by making up stories, don't you? Of course, she's going to give you a snide answer back. But it was - that moment was like, pretty cool.

HONIG: Okay. Yes, I mean, I'm not sure whether they're reacting to the questions or the answers and it's all in the eyes of the beholder.

AIDALA: The questions matter, you know that.

COLLINS: You know what? What the judge said at the end that - he made a strong point and he said, everything you're complaining about that you're saying should be a mistrial because it's not relevant. One, you didn't object to when she was asking about whether or not he used a condom. But that part, he said, I don't understand for the life of me why you went so long on that on the cross-examination, because you're just drilling it into the jury's ears.

TOOBIN: Exactly.

AIDALA: Well, it's like ...

COLLINS: You're just reminding them of everything that - you are upset that they heard on Tuesday.

AIDALA: But sometimes the toothpaste comes out of the tube, right? And you can't get it back in. So instead of it being that pure white, clean crest, you try to dirty it up a little. Like you don't know, Kaitlan, and you don't - like you - it's like a hot potato and you don't know how to handle it.

[20:25:06]

COLLINS: But the judge - one thing that he said when he - did go into his chambers yesterday and he reviewed the transcript, he looked at that part in particular that they cited as a reason why there should be a mistrial. And he said there was no objection here. You didn't objected in real time.

AIDALA: That's a mistake. I mean, look, I - obviously, that's a mistake. I was unpleasantly surprised at the lack of objections. I think at one point Susan said she thought there was a misinterpretation of the judge's ruling. And he - she thought he allowed certain - these things come in a pre-trial room ruling.

BERMAN: Let me read you what Judge Merchan said specifically about that. He said, "For some unexplained reason which I still don't understand, there was no objection to certain testimony, which was later used in the motion for a mistrial on Tuesday and again used today. For example, the mention of a condom. I agree that shouldn't have come out. I wish those questions hadn't been asked, and I wish those answers hadn't been given. But for the life of me, I don't know why Ms. Necheles didn't object. She had just made about 10 objections, most of which were sustained. Why on earth won't she object to the mention of a condom? I don't understand."

HONIG: Let me defend Susan Necheles here. I think that's actually unfair by the judge. One, if the judge thought it was wildly inappropriate, the judge can stop it. Judges all the time will stop a witness, even with no objection from either party. They'll say, no, hold on, stop. Objection sustained. Sometimes we'll do that on their own.

Number two, tactically, as a defense lawyer, you do not want to be - or prosecutor - you do not want to be popping up 10 questions in a row, 15 questions in a row, because it looks terrible in front of the jury. They think that you hate what's happening. You do have to keep something of a poker face. You have to play it cool. They did object several times, as the judge notes right there. I don't think it's the job of either party to say every single question, objection, you're going to look obstructionist. It's going to look bad in front of the jury. I don't think that's a fair take by the judge.

COOPER: She - I mean, I'm very curious to know what would be in the mind of Donald Trump listening to the judge admonish this attorney who he himself was sort of, you know, not, I mean, I don't know what, touching to tell her to object more on Tuesday.

COLLINS: Tapping her a lot.

COOPER: Exactly.

COLLINS: I mean, I was watching him particularly as the judge was reading - was saying everything there and he was sitting back like this. I - he just was making this motion with his hand. But he had this scowl on his face as he was listening, like he knew the judge was not going to grant their motion for a mistrial. And he just thinks this judge, even though from everything that I've witnessed and everyone who's been in the court, the judge has been quite fair. He's gone out of his way to not try to call Trump out in front of the jury when they're in there. And - but they just don't think - he personally goes out and calls this judge corrupt 10 times in the hallway.

AIDALA: Oh, my god.

COLLINS: And then goes in there and the judge is like doing his best to try to be fair.

TOOBIN: And by the way, I'm sorry ...

AIDALA: No, go.

TOOBIN: ... just especially the - this incredible denunciation of the judge over and over again from someone who claims that his First Amendment rights have been taken away, didn't sound like his First Amendment rights had been taken away to me. I mean, he is so free to talk about anything under the sun except the witnesses and the jury. That's really not much of a restriction.

And the idea that he's claiming this enormous victimhood while talking in the most scathing terms about this trial itself is particularly outrageous.

AIDALA: I mean, look, what he's saying about the judge and you're his lawyer, it's - I mean, it's embarrassing. I mean, I will have no problem telling you if that was me, I would add a sidebar and I'd be like, Your Honor, you know I have nothing to do with what my client is saying out in the hallway and I don't feel that way. That's how I would handle myself.

The other thing I found odd that must really do psychological damage to Trump, not all judges, Anderson, when you - when they come into a courtroom, make you stand. There are a lot of judges in the state court that just say, remain seated, remain seated because for whatever reason, it's a preference, it's whatever you prefer. But Judge Merchan has everyone rise and I don't know the last time Donald Trump had to rise when somebody else walked into the room.

COOPER: He also calls him Mr. Trump, which is correct ...

AIDALA: That's second.

COOPER: ... and second reference to a president, you can call him Mr. Trump.

PHILLIP: But his attorneys call him President Trump and everybody around him calls him President Trump.

COOPER: Yes, (INAUDIBLE) ...

PHILLIP: That's the way he wants it.

AIDALA: IT'S interesting, by the way, the judge doesn't have to allow that. The judge can say, no. In this trial, you're going to refer to him as Mr. Trump. So he's allowing that. And so Kaitlan's point about him being fair, he's allowing him to be called President Trump.

COOPER: John Berman, thanks very much.

Coming up more on the mistrial motion that we've been talking about, the contentious moment between the judge and the defense over it and Maggie Haberman's take on what she calls a test of wills. She was in court and joins us next.

(COMMERCIAL BREAK)

[20:33:38]

COOPER: We want to talk more about how the trial ended today, that combative moment between the judge and the defendants over its second attempted mistrial. Our next guest witnessed it all joining us, New York Times senior political correspondent, Trump biographer, Maggie Haberman, who has been inside the courtroom for the trial.

So you wrote about that contentious hearing of the gag order the mistrial, you said this is actually the kind of moment Merchan has largely tried to avoid in this trial, at test of wills with the defense. He made it clear how angry he was with the arguments and that he thought Trump's team was making them in bad faith. Can you just -- from your perspective, walk us through how that unfolded?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: Sure. So a couple of things that have struck me throughout this trial because I attended several days of the E. Jean Carroll trial, and the situation there was very different between Trump and the judge, Judge Kaplan in that case, that was a real battle of wills.

And in the Engoron case, the New York civil fraud case, it was something of a circus in that trial, and Trump and the judge were going back and forth too. Merchan, while the Trump team really doesn't like him. He has tried being really fair on a bunch of points, including in a sidebar earlier this week saying to Blanche when Trump was cursing twice audibly. I'm not doing this out loud. I don't want to embarrass your client. You got to get him under control.

This was the moment I thought when Merchan had finally just had enough and was making very clear that he didn't think the arguments that Blanche was putting forward, Todd Blanche, the main lawyer here, were in good faith. He really lit into Susan Necheles who had done the cross examination of Stormy Daniels and said, you know, she had every opportunity to object to XYZ and didn't. They argue that there were reasons she didn't that there was a misunderstanding over the judge's instructions about what can be testified to.

[20:35:09]

But he went on at length. And he said something to the effect of, you know, no, I'm not going to adjust the gag. Because you can't tell me in good faith that your client is just going to answer rationally and not just attack these witnesses. And it sort of summed up the argument against a lot of what Trump has been saying, and what the defense has been doing.

Merchan said, you know, your opener was there was no sexual encounter, that then opens the door for all the other questions. And it's sort of hard to argue against that. Now, I assume they will use all of this if there's a conviction on appeal, and they might have some success of the Court of Appeals. But that's so ways away. And I think this just sets a tone for what we're going to see in jury instructions going forward.

COOPER: Do you have any sense of how Trump now, I mean, who he's angry or at the judge or his own attorneys, I mean, listening to your attorney has being, you know.

HABERMAN: Yes. I think there's enough to go around. I don't think he's -- I don't think -- I think he's pretty equal opportunity on that. I mean, you know, he has been -- he was very happy with how Susan Necheles did on Tuesday, in the cross examination of Stormy Daniels because she was very aggressive or Susan Necheles was very aggressive. Although Stormy Daniels, while she did get tripped up on certain more minor details. She did also have a pretty defiant posture that was consistent in defense of herself. And they were very happy because Stormy Daniels had a bit of a rough outing with prosecutors earlier that morning, but a lot of that went away today.

COOPER: And in terms of the job today that the defense did, I mean how did it play in the court in your perspective?

HABERMAN: It was rough. I mean, you know, there was -- these were pretty minor semantic details that Susan Necheles was pushing Stormy Daniels on over, did you actually eat dinner? Or was it just dinner where food was not consumed? And that point was made over and over and over again to essentially try to trip Stormy Daniels up and suggest her story had changed. And that was something that Merchan said after court, her story really hasn't changed.

But the jury sees this and it ends up risking looking like you're just badgering this woman who is not the defendant in this case. You know, Susan Necheles has a very strong reputation as a trial defense lawyer. She is much more experienced than the men on that table -- at that table. But I -- it's hard to separate when someone is working for Donald Trump. What's their own nature? This is what he wants.

COOPER: -- on the reporting because there was a lot of talk today that this was performative, perhaps for Donald Trump and his sense, or at least at the behest of Donald Trump.

HABERMAN: I mean, some of it certainly felt like something he would like whether, I mean, you know, she is -- Susan Necheles is known as a very tough, aggressive lawyer in the courtroom. But continuing to go at Stormy Daniels in this very contentious back and forth, felt in the courtroom, like a losing prospect after the first several times.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Isn't it also possible that the mistrial motions themselves are about pleasing Donald Trump? Those lawyers are smart enough to know, they're not going to win those mistrial motions. But they seem to be doing making these motions, because they get to denounce the proceedings, just like the way their client is doing in the press conferences afterwards. And, you know, I don't know what good that does them, especially when the judge, you know, just slams the door at, you know, at the motion the way he did today.

HABERMAN: Well, I would just go back to make a point to that end. I mean, yes, yes. I think the mistrials were their MO in the previous trial. So I don't think this is some new thing that we're seeing, number one. But number two, the point Merchan made about how their opening argument or their opening statement was not to say the false business records are not real. It was to say sex never happened. And that was their main focus. That's certainly pleasing the client.

ABBY PHILLIP, CNN ANCHOR, NEWSNIGHT WITH ABBY PHILLIP: I mean, it just -- the whole Stormy Daniels thing. I mean, it may have been a little bit of a trap for the prosecution to spend as much time as they did with her on Tuesday. But then the defense really fell into that trap wholeheartedly by arguing over that point, like it is completely irrelevant whether the sex happened or not. The idea that they would spend all of this time on that today just I don't understand it because it has taken us so far afield from what the jury is actually going to end up having to deliberate over as to whether or not Donald Trump was involved in falsifying those business records. It has sucked up so much oxygen this week in the trial. AIDALA: It goes to the whole picture in summation. You can't believe this one or look at all the lies this one told Peterson told, Pecker told, this one told, that one told. You got a pile on. Look, Anderson --

COOPER: Or the flipside of that is for the prosecution, this guy is lying about the sex, what he's lying about, I mean if he's going to lie to you about having sex.

AIDALA: So he's not testifying. They can't say that. They can't say that unless Donald Trump takes the stand. They can't say he's lying because he never took the stand. So they can say they want you to believe this, they can't say he's lying to you about this. But just in terms of how it works with the client and the defense attorney, if a defense attorney is not getting scolded a little bit by the judge here and there, you're not pushing the envelope enough. You got to push until you get right there. You don't want to jump over the line. They didn't jump over the line by asking for additional mistrial.

[20:40:22]

PHILLIP: But they're getting scolded for not going far.

AIDALA: Excuse me?

PHILLIP: They're getting scolded for not going far enough.

AIDALA: By Trump.

PHILLIP: By the judge. The judge is the one saying you guys should have objected and you did not object.

AIDALA: Right. Well, that's true. No, but I'm talking about the mistrial. And this is no like unique. Like any lawyer, he can tell you, it's not a unique strategy to ask for a mistrial as much as you possibly can. I want to do one a day.

TOOBIN: You -- I think you said earlier, you do it every day. Right. Yes. And that's what they're doing.

AIDALA: Yes. And the judge got annoyed. Sorry, Judge, I'm doing my thing. But go enjoy a cup of coffee. We'll see you later. We'll be back tomorrow. There's like not a big deal.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: They're harmless, often their methods of client management for defense lawyers. What I'm struck by is just how much of this trial is in the eye of the beholder. I mean, even here with two smart people who were in the courtroom. Arthur said that the cross examination today was searing and a huge win for Trump's team, you seem to have seen it differently Maggie. And this is, by the way, why we all ought to wait. I mean, we don't -- you never know what a jury is going to do.

No, I agree. But and it's such an interesting example. I mean, both, either of you could have been on that jury. And you see things --

HABERMAN: No. I definitely could not have been.

HONIG: I think Trump would have struck you. That's probably right. But it's just so interesting to see the opposite meets.

COOPER: -- just having been in that court, you know, one once last week, how different it is, when you're actually there. And when you're just reading the messages on the outside, like we're doing. And we're doing the best we can to bring viewers into that courtroom. But without cameras or without actually sitting there it is, you just --

HABERMAN: You don't know.

COOPER: Yeah.

HABERMAN: And I was --

COOPER: And it's such a human experience. It is human beings and sweat and just, you know, smells and the whole thing.

HABERMAN: And well, he's also been, I mean, Trump is not exactly known for not telegraphing his stress. And so, you know, we have been able to see that, to the extent we can see his face, which depends on how close you are to the screen and whether you're allowed to use binoculars on a given day.

But there are days like this week when he has appeared visibly much more upset than at other times. And so you don't really see that. And it's also just hard to understand if you don't sit through, I mean honestly, if you don't sit through the whole trial, you don't really even have the same sense of it. You know, I have been talking to some colleagues who have been there episodically. And you just have a different sense of it if you have not heard all of the testimony, because it does all go to one story.

TOOBIN: And it seems to me even more than most trials. This one calls for humility on our part in terms of how the jury is reacting to things.

HABERMAN: Hundred percent, 100 percent.

TOOBIN: Because you're talking about what jurors think about sex, what they think about marital infidelity, what they think about porn, I mean, all of which, you know, I don't know what they think. And, you know, what are they offended by? Are they offended by the underlying conduct? Are they offended by how the questioning is going? I don't know. And I think it's very important to say we don't know how they're thinking.

HABERMAN: And there's two layers on the jury, which is the other thing to remember. And we don't know how -- which, you know, both sides, the prosecutors and the defense both feel really good about for different reasons, and one of them will be right and we don't know which one.

COOPER: All right, everyone, thanks very much. Everyone stay with us. Next more on the final day of testimony from Stormy Daniels and when a jury consultant makes the impact, that's ahead. (COMMERCIAL BREAK)

[20:47:32]

COOPER: We're talking about how difficult it is to know what a jury is thinking. There was certainly a lot for the jury to take in the Trump trial today on this final day of testimony from Stormy Daniels. That -- we're talking about that moment when the attorney, Susan Necheles, tried to use Daniels work as an adult film star against her. There's also what jurors heard when things seem to take a strange turn. Necheles asking Daniels quote, you have made a show and podcast claiming that you can speak to dead people right to which Daniels eventually replied, yes.

She then asked, you also claimed that you lived in a house in New Orleans that was haunted to which Daniels answered, yes, so the house was has some very unexplained activity. And then went on to say, quote, a lot of the activity was completely debunked, as you know, a giant opossum that was under the tape -- under the house.

Back with our panel, joining us now is jury consultant, Alan Tuerkheimer. You know, it's interesting because last time, Alan, we talked, you said that jurors don't like anyone wasting their time. And I'm wondering if what you made of kind of the rabbit hole, the defense tried to take Stormy Daniels down today.

ALAN TUERKHEIMER, JURY CONSULTANT: I can't pinpoint exactly when it happened. But I'm confident that at some point, Stormy Daniels fatigue set in on the part of this jury. She made her points. You talked about the encounter, and then how Team Trump didn't want to getting out. So I don't think impressions change that much today, or how the jurors see her role in all of this.

Now, with the subsequent witnesses, it was very interesting, because jurors were able to focus less on the seductive elements of the case and more on the important parts of the prosecution's case. They were able to see how unsigned checks went from New York to D.C., back to New York, with Trump's signature on them. It's very interesting, I think at this point, even though they're going to pay attention to the evidence and listen to the witnesses, jurors use their own common sense and their recollections of the Trump presidency.

And we saw some of that today when it was brought out that well, Trump spent a lot of time tweeting, we know that Trump spend time golfing. It's not a shot at him, presidents like to golf. He spend time calling and watching news and calling into the shows. So I think the jurors are thinking, yes, you know what, he probably knew what he was signing when he signed the checks.

And what's interesting is also that jurors tend to hold people at the top accountable. And the excuse, well, I delegated. Well, I didn't know about it. It seemed as a responsibility dodged by a lot of jurors. So I think at this point, they're favoring the prosecution. They're doing well. There's a lot to be left, but most jurors are probably aligned with the prosecution. COOPER: When you interview jurors in the case afterward and so you learn, you know, what registered with them, I mean, does it boiled down to who they trust and who they don't, like, I believe that, you know, in general I believe this person I may not have liked them but I believe them. I don't believe this person. Is that how or is it, I mean, there's two lawyers on this jury. I don't know if that would change that dynamic. But I mean, is that sort of how decisions are made of sometimes?

[20:50:19]

TUERKHEIMER: Witness credibility is huge. And when I do talk to jurors, they usually reference one, maybe two witnesses, and then within those witnesses who they say are quite credible, believable, likable, they'll focus on a portion of the testimony that really did it for them. Sometimes it's known as aha moment where they think, yes, you know what, I was listening to everything. And then this witness said this, and then I kind of thought, well, I know what's going on with the case.

TOOBIN: Can I ask a question about sort of the buck stops here, you said, you know, they don't like jurors don't like when a big shot tries to blame, you know, the, you know, lesser status people. But the issue in this case is, did the corporate records that were signed -- that were prepared by lower, you know, people in the pecking order, did Trump know about that? What do you think a juror is going to think? It might a juror just think, you know, he was a billionaire, what did he know about how a bookkeeper prepared her records? Is that a good argument?

TUERKHEIMER: It's certainly the hope of the defense, but I just think it falls flat. And again, you just need one juror to think that what you're talking about. But most jurors, especially with when they learned about how Trump was so involved in the finances and interested in how things worked, and he didn't just give up everything about his business when he became elected president. So I think it's a tough sell. But certainly, if there's a juror too on there, maybe one of the lawyers on there, that'll help the --

AIDALA: One of the things that's come out in how the Trump operation worked, how to deal with that drop down menu, where when they had -- when they had to do bookkeeping, there were only certain places that categories that you could check off. And I got to tell you, I don't think the sitting President of the United States is really, I understand, look, people, in my opinion have proven beyond a reasonable doubt. He signed those checks. And he knew what they were for. Meaning they had to do with this Stormy Daniels non-disclosure agreement. I think that's done. That's not the crime.

The crime is the next piece of the puzzle. Does Donald Trump in Washington, D.C., in the White House, golfing, doing whatever he's doing. Does he know what's going on at the Trump Corporation, where in the log books or where in that click down menu it's being logged? That's -- that hasn't been proven at all yet.

TUERKHEIMER: Right. I think jurors make inferences to something like this. And I think they probably are. And some of them are thinking, yeah, he knew about it. And we haven't heard from the defense witnesses, they're going to be open to hearing what the defense narrative is to counteract that. But I just think jurors, what they bring with them their common sense, and once they start to arrive at how they think the case should turn out, then they need something that's pretty stark to contradict that to disabuse them at least.

COOPER: The difficulty is the person who Trump would have had that conversation with was Allen Weisselberg. Allen Weisselberg is not talking.

TOOBIN: And that's a tremendous gift to the defense that he's off limits. But I guess I don't know which way common sense cuts in this. Did Donald Trump know that this whole thing was designed to hide the fact that this was a pay off? Or does Donald Trump just not know or care how doc -- how checks are characterized on some ancient piece of software?

KAITLAN COLLINS, CNN ANCHOR, THE SOURCE: But the other question is, why is Keith Schiller not a witness? Keith Schiller's name has been mentioned as much as anyone's. He was Trump's longtime bodyguard. He was the one who was their president in 2006 when and he was one who felt the Stormy Daniels says, facilitated their dinner.

But also Madeleine Westerhout, the White House aide who was basically Trump's gatekeeper at the White House who testified late this afternoon also said that the checks were sent to two people, Johnny McEntee and Keith Schiller, they were the ones who sat right outside the Oval Office with her and that he was basically the one who had helped make sure the checks got mailed back and were sent when she was the one in charge of where they're being sent. His name has not come up. He's not a witness in this case, based on what we know so far.

TOOBIN: I wonder the same thing. But can I ask you a question about Keith Schiller, he was part of the Trump administration, but left early. He was not there to the end, or was he?

COOPER: No, no. He wasn't.

COLLINS: No. Keith Schiller was not there until the end and he left and the -- he was still getting paid by the Trump Organization when Trump left. It wasn't clear what he was actually doing for them, but it was kind of it was a setup, it seemed that he could still be taken care of still get paid to all the job. But no one has heard from him since then.

PHILLIP: I mean, I feel like if there's any witness that's going to be a hostile witness for the prosecution, it would be Keith Schiller. He would not, you know, take kindly to being asked to, you know, say negative things about his longtime boss, someone who basically Trump made I mean, Keith -- Trump took Keith Schiller from nowhere and basically put him in the White House.

So I think their relationship would be I mean, I don't know Elie if that would factor in for the prosecution by a witness like Madeleine Westerhout who still likes Trump but is not hostile is the best you can get. She's not going to be hostile to you as the prosecutor but she's not throwing her boss under the bus, Keith Schiller I think would be a hostile on this.

[20:55:14]

HONIG: I'm sure that's exactly the calculation. You cannot take a risk of putting someone on the stand who you think is a dyed in the wool loyalist of the defendant. And I don't think Madeleine Westerhout was at that level. One other important point, Kaitlan asked, you know, the jury is going to be wondering, Where's Keith Schiller? All of these questions. Where's Keith Schiller? Where's Keith -- Karen McDougal? Those are bad for the prosecution, because the prosecution is the one that has the burden of proving their case beyond a reasonable doubt, very common defense tactics. Stand up in closing you go, where is Keith Schiller folks? Don't you think you should have heard from him?

They didn't call him. I'm not saying it's fatal here. I don't think there's anyone who's so obviously missing, it's going to cost them the case. But all those missing witnesses are not great for prosecution.

COOPER: Alan Tuerkheimer, thank you so much. It's great to have you.

TUERKHEIMER: Thank you.

COOPER: And the rest are back with us in a moment as we dive into more testimony from the trial today. Plus what Michael Cohen is now saying about his expected testimony, ahead.

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