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Anderson Cooper 360 Degrees

Stormy Daniels' Ex-Lawyer Back On The Stand Today, Defense Atty. Presses Him On Whether He Had Studied Extortion Law; Prosecutors Play Audio Recording Of Crucial 2016 Phone Call Between Michael Cohen And Trump; New Detail Just Released From Today's Court Proceedings; Transcript From Today's Gag Order Hearing Released. Aired 8-9p ET

Aired May 02, 2024 - 20:00   ET


JASON CARROLL, CNN NATIONAL CORRESPONDENT: I mean, they shot an episode of The Apprentice at the Playboy Mansion back in 2006 and Hugh Hefner was a guest on that particular episode, so yes. But clearly there was a change of heart because just before Hefner's death, Hefner's son said that his father had a change of heart, basically saying that after that 1990 cover story came out on Playboy Magazine, years later he said they just really felt as though it was an embarrassment.

ERIN BURNETT, CNN HOST: Wow, that's pretty amazing to think about that.


BURNETT: All right. Jason, thank you very much. Thanks to all of you. Anderson sits now.

ANDERSON COOPER, CNN HOST, "ANDERSON COOPER 360": Good evening. Welcome to our continuing special coverage of the Trump New York hush money trial, day 10 (INAUDIBLE) prosecutors put four more alleged gag order violations before the judge and the defense paint expected witnesses Michael Cohen and current witness Keith Davidson as the true culprits in this case, not Trump.

Davidson, as you know, represented Stormy Daniels and Karen McDougal and secure deals for their silence about alleged affairs with Trump in the crucial months before the 2016 election. But any effort to make them the villains and Donald Trump the victims countered by prosecutors who played the phone conversation Michael Cohen secretly recorded and CNN exclusively obtained, featuring Donald Trump taking an active role in the Karen McDougal deal.


MICHAEL COHEN, FMR. PERSONAL ATTORNEY FOR DONALD TRUMP: I need to open up a company for the transfer of all of that info regarding our friend, David, so that - I'm going to do that right away. I've actually come up and I've spoken ...

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: Give it to me and (INAUDIBLE) ... COHEN: And, I've spoken to Allen Weisselberg about how to set the whole thing up with ...

TRUMP: So, what do we got to pay for this? One-fifty?

COHEN: ... funding. Yes, and it's all the stuff.

TRUMP: Yes, I was thinking about that.

COHEN: All the stuff. Because - here, you never know where that company - you never know what he's ...

TRUMP: Maybe he gets hit by a truck.

COHEN: Correct. So, I'm all over that. And, I spoke to Allen about it, when it comes time for the financing, which will be ...

TRUMP: Wait a sec, what financing?

COHEN: Well, I'll have to pay him something.

TRUMP: No, pay with cash ...

COHEN: No, no, no, no, no. I got it.

TRUMP: ... check.


COOPER: A forensic analyst from the D.A.'s office also took the stand today testifying to the chain of custody of that recording that you just heard. Now, this was necessary because unlike in most trials, the defense is refusing to stipulate that certain evidence entered into the record is true. As to this morning's contempt hearing, prosecutors asked Judge Juan Merchan to sanction the former president for a second time this week for an additional four violations, they say, of his gag order.

After court today, he mentioned those restrictions and cited them inaccurately to make this false claim.


TRUMP: Well, I'm not allowed to testify. I'm under a gag order, I guess. I can't even testify.


TRUMP: Now, we're going to be appealing the gag order, but I'm not allowed to testify because this judge, who's totally conflicted, has me under an unconstitutional gag order. Nobody's ever had that before. There's never been any abuse like this before. This conflicted judge ought to get out of this case. He shouldn't be - he should not be having this case. He gives us nothing. It's such a rigged court.

So I'm not allowed to testify because of an unconstitutional gag order. We're appealing the gag order and let's see what happens.


COOPER: That plain and simple in legal terms is nonsense. He has every right to testify in his defense. He has said that he would. Then last week, he waffled, saying he would testify "if it's necessary." Now, he seems to be laying the groundwork for backing out entirely.

As always, plenty to talk about, back with us is New York defense attorney, Arthur Aidala, former federal prosecutor, best-selling author, Jeffrey Toobin, CNN NewsNight Anchor, Abby Phillip, The Source's Kaitlan Collins, CNN Senior Legal Analyst, Elie Honig and the New York Times' Maggie Haberman who was in court today.

Maggie, what was it like in court today?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: It's surreal every day, but I would say that the strangest moment came toward the end of the day, and it was a rough day of testimony. Keith Davidson, the former lawyer for Stormy Daniels, testified for a long time, and Trump's lawyers actually did get some dings into him on cross-examination. It got very tense. He got very flustered. He ended up sounding pretty weaselly as he was giving answers.

But prosecutors played this exchanges between - that Cohen secretly taped. One was with Keith Davidson and then the other was Michael Cohen and Trump, which you just played. And that tape is basically what jurors were left with as the most dramatic testimony for the day.

There was some other not particularly interesting testimony at the very end, as you say, from a custodian of records, basically saying that he had checked out Cohen's phone and that it was all forensically true that this material came from it. But we still don't really know what the jury thinks, and I think that's something really important to bear in mind.

COOPER: You described the Cohen-Trump recording as a doozy.

HABERMAN: Well, I mean, look, we've heard this tape for ...

COOPER: Which, again, is a legal term.

HABERMAN: ... so - right, thank you for clarifying it for me. It's been six years almost today that we know about this tape, and so it's obviously not new to us. But I think when you were hearing it, A, as a juror and, B, in the context of that courtroom, it just sounded very different, particularly at a time when Trump's lawyers were arguing that this was essentially all just Keith Davidson and Michael Cohen.


They didn't make this argument explicitly, but they were leaning into the idea that these two were just freelancing and that Davidson was essentially extorting Trump. And so that didn't get dispelled from that tape, but the idea that Trump didn't know would have.

KAITLAN COLLINS, CNN ANCHOR, THE SOURCE: It's also the first time that the jury has heard from Trump.

HABERMAN: That's right.

COLLINS: Because, I mean, we see him talk, going into the court, coming out of the court, saying things that aren't true, as you just showed there, even though Todd Blanche, his attorney, shook his head yes when Trump (INAUDIBLE) ...

COOPER: But the idea that he's not allowed to testify is just ridiculous.

HABERMAN: It's not true.

COLLINS: It's not true. And Trump looked at him for affirmation and he shook his head yes. But in the courtroom, Trump is very quiet. He whispers to his attorney something that they were kind of annoyed about. It sounded like today when it's reported how often they're speaking, but you can't hear what he's saying. And for the most part, he has his eyes closed a lot during the prosecution asking questions of the witnesses he was watching as Keith Davidson was being cross- examined today.

But this is really the first time the jury has actually heard Trump's voice, which I think is what makes that tape so remarkable.

ABBY PHILLIP, CNN ANCHOR, "NEWSNIGHT WITH ABBY PHILLIP": There's so many elements of that tape to analyze. And if you're the juror and you're going home for the night and you're replaying it in your mind, maybe some of them have heard it before. To Maggie's point, it's been out there for a while.

But first, just the fact that it exists, I think, is incredibly notable. Michael Cohen's tone in the call is also incredibly notable. Trump, then kind of correcting him about the means of funding this thing, that strikes out to you immediately, that he wants it to be in cash, not "finance."

There's so many elements of it that if you're - just from a human perspective, not a legal perspective, that replays in my mind. I imagine the jurors would be thinking about all of those aspects of it as they're trying to analyze that tape.

COOPER: Let's here from the lawyers.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: But what I think today we saw almost for the first time is there is a coherent theory of the defense in this case. You may not buy it and the jury may not buy it, but the theory here is that Michael Cohen and Keith Davidson cooked up a profit-making scheme to get money out of Donald Trump on the eve of the election. And, by the way, Michael Cohen made over $400,000 out of this scheme, which he got later in 2017 and that's the defense here. It's not crazy. And it may yet be refuted by the prosecution. But at least it is a theory of why Donald Trump is innocent.



TOOBIN: No, I'm just trying to be accurate.


TOOBIN: I know. I'm trying to be fair.

AIDALA: So since you did my job for me, Anderson, the part that I'm still struggling with is that an individual who was the president of the United States, who wants to be the president of the United States, said something as really so foolish that I can't testify because of this gag order.

As a citizen, I'll take my hat off as the defense attorney, as a citizen, that's scary, actually. I mean, you learn that in, like, sixth or seventh grade, right? You have a constitutional right to defend yourself. You learn about Miranda rights. Anything you say can be held against you. And, look, I feel my heart goes out to Todd Blanche, who I don't know you do.

But you're in that position and Trump is such an overpowering presence, and he says something ridiculous like that and your instinct is to protect him, but you want to correct him and that's a disaster.


TOOBIN: So what - why does (INAUDIBLE) ...

PHILLIP: I mean, he didn't even attempt to correct him.

HONIG: It's a ridiculous statement, but it doesn't impact the trial.

TOOBIN: Yes, right.

AIDALA: No, it doesn't impact the trial but ...

HONIG: Let me talk about this tape for a minute. Because that, to me, is maybe the single most important piece of evidence in this case. This is the tape Michael Cohen made secretly of Donald Trump when Michael Cohen was the lawyer and Donald Trump was the client in 2016. I promise ...

COOPER: Which shows you a lot about Michael Cohen's confidence in his client.

PHILLIP: Yes. Yes, and hear it in his voice.


HONIG: So that's the first place I was going to start. And I have scrutinized this tape. I have listened to it. I have a piece coming out on it tomorrow. I've listened to every word of it. I hate this tape from a prosecutor's point of view. First of all, the circumstance is how shady is that for Michael Cohen to secretly record? Arthur Aidala, have you ever secretly recorded one of your clients?

AIDALA: I mean, I think about it, but I'm not going to do it.

HONIG: Exactly, so ...

COLLINS: So this is the Trump universe, it's different (INAUDIBLE) ...

HONIG: Right. But it's on Michael Cohen, right? And it shows how - so that's point number one.

Point number two, the tape itself, it's good for prosecutors in that it shows for sure Donald Trump knew about the payments to Karen McDougal, knew it was $150,000 and was okay with it. But that's not the crime. I keep saying the crime is in the accounting of it, the structuring of it.

And when it gets to that, Trump is fairly ignorant of that. And Cohen says to him, and I quote, no, no, no, no, no, I got it. And later he says, leave the stuff, leave the nuances, the details, to Allen Weisselberg and me and that's the defense right there. Donald Trump knew they were paying hush money. Hush money is not a crime. The structuring of it, that was Michael Cohen and Allen Weisselberg. They kept Trump out of it.

COOPER: Maggie?

HABERMAN: That's what we know from the tape.

HONIG: Right.

HABERMAN: I would make the argument that we don't know what Cohen is going to testify to. We do know that Cohen versus Trump would be or Cohen versus the defense, will be a he said, he said and then the jury is going to have to decide which of them they believe.



HABERMAN: We have seen the prosecutors already extracting testimony from various witnesses that is not favorable to Michael Cohen, because what they're clearly trying to do is take the air out of a big reveal when the defense cross-examines Cohen. But I don't know that all we know is on this tape, that all we can definitively know is on that tape, but I don't know what else is going to be said.

And I do think that the documentation in this case, look, I think we have not heard a whole lot about what the actual crime is. We have heard a lot about a conspiracy. We have not heard a whole lot about what the actual crime that they have charged him with, and I think that you will hear the defense talk about that. But I do think that the documentation in the case and that evidence is pretty significant. It's not just relying on testimony. COLLINS: Yes, I will say the Trump team feels really good about how the cross-examination of Keith Davidson went today.

PHILLIP: That's true.

COLLINS: Especially where he was talking about Michael Cohen and how Michael Cohen called Keith Davidson, kind of using him as a therapist to lament the fact that Trump was not going to bring him into the administration. And Keith Davidson testified that Cohen seemed suicidal at that point because of everything that was happening.

But where they felt that it was really the most effective was going after Davidson, where it got incredibly contentious for the first time that we've really seen it be that high of a temper, I think, inside the courtroom as they were drilling down on him, questioning him about whether or not he was extorting Trump, likening the other people that he has worked with when it comes to Hulk Hogan, Lindsay Lohan, Charlie Sheen and kind of trying to fluster Keith Davidson, which it seemed to be somewhat successful. I don't know what - how it read in the courtroom.

HABERMAN: It read in the court - it was tough sledding. I mean, it was really hard watching it just in the will of the court.

COLLINS: Which is not how he was two days ago.

HABERMAN: No, two days ago he was polished and he got almost timid. One thing that was very striking to me and my colleagues watching this is that when David Pecker was walking, who was the former AMI head, was walking through his details of his engagement with Michael Cohen and really this business of sleaze that he was in charge of, he didn't seem ashamed at all. He was almost carefree about the whole thing.

Keith Davidson seemed really embarrassed as he was getting pushed on the kinds of deals that he was seeking over and over and over again in terms of pushing celebrities for I have this client who claims they had an affair with you or this, that and the other. And in that way, Pecker is actually much more like Trump, where there is just this sort of I'm not going to be shamed out of the ring.

Davidson came off angry, sheepish, uncertain, hostile at certain points and he got his back up a few times and seemed to find his footing. But it wasn't - it was not a great outing for him. There's a reason.

And Emil Bove has been very strong in these cross examinations, so he - and he's one of the defense lawyers.

AIDALA: Maybe one of the reasons and the lawyers here can talk to it, that the difference between Pecker who's a businessman, he's in this just to make money. He doesn't care as lawyers. We have like these ethical obligations. We're taking oaths. Where's there's supposed to be a moral high ground. You're not supposed to be extorting people. You're not supposed to be accused of extorting people as a lawyer. You're not supposed to be investigated for extorting people as a lawyer and all of those things happen to him. So I can see him being much more defensive than Pecker saying, yes, I did this and I made the company millions of dollars.

TOOBIN: One thing I think we learned today was why David Pecker was put first by the prosecution. Because the argument in the prosecution is look, Pecker and Trump in person, not some deputy, but Pecker and Trump made this agreement to protect him before the election. All the rest of this is the execution of that.

And sure, these people are - the defense is Keith Davidson is terrible. Michael Cohen is terrible. But the question the prosecution is going to ask at the end of the case is who benefited from all this? Who is the person who is above it all of the fine details, but who set this process in motion?

The argument that prosecution is going to make is that it was Donald Trump and he was - he set it in motion and he was the beneficiary. And all these sleaze fact - all these sleazy people were just doing what Trump wanted.

COOPER: Well, also is the argument that all these sleazy people are living in the Petri dish that Donald Trump has built.

HABERMAN: Well, I think that's the real risk and I'm curious what the lawyers on this panel think, but I think that is the real risk for the defense with what the jury hears. Does the jury hear that there's gradations of this or does the jury hold Donald Trump accountable for everything they're going to hear about Michael Cohen, about David Pecker, about Keith Davidson, that this was what was taking place.

Michael Cohen worked for Donald Trump for a really long time. And it's probably going to be a big stretch for the defense to ask the jury to believe that Michael Cohen was off doing his own thing all the time.


HABERMAN: I mean, especially given that relationship.

PHILLIP: I a hundred percent agree. I mean, the question comes up, I mean, how do you substantiate whether Donald Trump was fully aware of all the contours of it? Not just that the payment was being made, but that it was being made for the purposes of the election, et cetera, et cetera.


But one of the things that I think some of these witnesses have - has established is that Trump uses emissaries, intermediaries to execute the things that he does. And from a common sense perspective, if you're on the jury, I don't think that's hard to understand that a person like Donald Trump would use a Michael Cohen to do his dirty work. I mean, it's just not that hard to bridge that gap from just a common sense perspective.

COOPER: We've got to take a quick break. Next, John Berman, who's been going through today's trial transcript with a closer look at the picture that jurors are getting of Michael Cohen.

Also the very latest from university campuses around the country, including UCLA where police moved in overnight.



COOPER: We talked before the break about how the defense in cross- examining former Stormy Daniels and Karen McDougall attorney, Keith Davidson tried to leave jurors with the impression that he was in effect trying to shake down their client. Also to cast doubt on the credibility of expected upcoming witness, Michael Cohen.

Six years ago, CNN Sara Sidner talked to Davidson about his dealings with Cohen. He had this to say about the financial arrangement at the heart of this trial.



SARA SIDNER, CNN ANCHOR & SENIOR NATIONAL CORRESPONDENT: Did Michael Cohen ever indicate to you that he was paying this $130,000 for Stormy Daniels out of his own personal finances?


SIDNER: And back then, did he say to you, look, I'm having to take a loan out of my house to get this done?


SIDNER: Was that a yes?

DAVIDSON: No, no, there was never any conversation about that.


COOPER: Joining us now with more of Keith Davidson's final hours on the stand, John Berman. The prosecution asked Davidson about that exchange in that interview.

JOHN BERMAN, ANCHOR, CNN NEWS CENTRAL: Yes, very specifically. And once again, told the jury, the same thing, basically, he told Sara Sidner, Steinglass, the prosecutor asked, "My next question is, did you - directing your attention, I guess, to early April 2018, did you go on CNN and say that Michael Cohen used his own funds to pay Stormy Daniels?" Davidson says, "I believe so." The prosecutor asks, "And why did you say that?" Davidson says, "Because I understood that he did."

Prosecutor: "Based on the same statement that he made at the time of the transaction?" Davidson says, "And even later on, that December 9th conversation that I had with him at the department store where he said he had not been reimbursed."

Just so you know, in that conversation, Davidson said, "That effing guy is not even paying me the $130,000 back." So you can see here, he wants, again, is saying it was specifically from Cohen. In one other bit I want to read you that just came out, they just released the second part of the transcript from the day. And this gets to what you were both saying, Jeffrey, which is the theory of the defense that in a way Trump was being extorted to pay this money.

This is an exchange about leverage. Emil Bove, the defense attorney in this case asked Davidson, "That was Ms. Daniels' goal, was it not, to create leverage over president Trump?" Now, Keith Davidson initially says, "No." Then later Emil Bove says, do you recall saying to Mr. Cohen, I wouldn't be the least bit surprised if he comes out and says, as you know what, Stormy Daniels, she wanted this money more than you could ever imagine. I remember hearing her on the phone saying: You effing Keith Davidson, you better settle this goddamn story because if he loses this election, and he is going to lose, if he loses this election, we lose all effing leverage. This case is worth zero." Do you recall saying that to Mr. Cohen?

This time Davidson says, "I do."

HONIG: Okay. So this is the sleaze factor and it is through the roof in this case. And part of it is atmospheric. They want to just turn off the jury. The defense wants the jury to just think, who knows? This is a bunch of people who lie and threaten each other, pay each other off. But it also goes to an important prong of the defense. If the defense believes this is a shakedown and I'm not talking about the legal elements of extortion, just in the normal use of that phrase, a shakedown, it's over. There's no crime here.

The alleged crime is they're trying to do something to get benefit in the campaign and they're intentionally trying to get around campaign finance laws - that - none of that works if this is a shakedown. And I was surprised today by the extent to which the prosecution allowed and the judge allowed this specter of extortion to be injected into the case.

Were you investigated, Mr. Davidson, for extortion? Yes, I was. Not charged, but investigated. And boy, every time the defense just says that word extortion over and over, it's ringing a bell, I believe with the jury and I think it's going to be a problem for the prosecution.

AIDALA: Do you remember - to your point, do you remember Todd Blanche opened on it in his opening statement and he called her - I believe he either called her - Stormy - an extortionist or referred to extortion. Objection sustained, strike that from the record.

So in his opening, when Todd Blanche said, the evidence is going to show Stormy Daniels was extorting you, the judge wouldn't let him use that word, but it turns out it's - that's the direction they're heading.

COOPER: But let me ask ...

BERMAN: (INAUDIBLE) just read one little bit of that.


BERMAN: "In this case, the defense attorney says in 2016, you were pretty well versed in getting right up to the line without committing extortion, right? And then Davidson says, "I don't understand your question." Just getting the word in like you were saying, Elie.

HONIG: Right. Yes.

COOPER: But, I mean, Jeff, if - even if it is extortion or was an attempt of extortion, if - why would that nullify it as, I mean, if Trump decides to pay it off to avoid that to, to, to meet their demands, couldn't that still be about the election?

TOOBIN: Well, I think if he is the victim of a crime, you would not - I don't think the jury would find that he's (INAUDIBLE) ...

COOPER: What is the difference between extortion and what David's doing?

TOOBIN: Well, but that's the - that I think is the key issue here is that anytime you pay someone not to say X, which is not illegal. I mean, you pay someone or you have a non-compete agreement, you are paying someone so they will not do something. And you can argue that that was extortion. But this, I mean, I can see why the government would respond and say, look, this, this is an extortion. This is Donald Trump paying to make sure a bad story doesn't come out, period. That's ...

COLLINS: And Keith Davidson was so parsing his words today with the prosecution when they were wrapping up with him before the cross examination. He wouldn't even call it hush money. He would even go that far the way he was describing this agreement with Stormy Daniels.

What I was most struck by was how also they got into just how far the stretched - when Donald Trump was in the White House.


I mean, it was January 2018, Donald Trump was delivering the State of the Union, all of this stuff was percolating out there. The Wall Street Journal was reporting and following up on it and other outlets. And I remember that was the State of the Union where Melania Trump drove separately from Donald Trump because she was irritated by what was becoming public. What we were learning about.

Meanwhile, they were furiously racing around Keith Davidson and Michael Cohen to stop her from speaking publicly.

TOOBIN: But even that excerpt from the testimony that Berman just read, Stormy Daniels knows this is all about the election. She says when this is over, I don't have any leverage anymore. That suggests to me, everybody involved in this transaction knows that the money is being paid to keep this information away from the voters.

PHILLIP: But haven't we been talking about how it's not about whether the money was paid or not, it was about how it was done and the way it was kept from the public, so I guess I'm wondering, I mean, if Donald Trump was the victim of extortion, maybe, but either way, he still concocted a scheme to pay the money in a way that was allegedly illegal.

HONIG: And I think that's a helpful reminder, just again, because people sometimes may lose track of what exactly the crime is. The payoff to Stormy Daniels is a two part transaction.

First, Michael Cohen took this $130,000 down off his mortgage, paid himself over to Stormy Daniels through Keith Davidson. Then in the weeks and months after that, he was reimbursed for multiples of that 400 something thousand dollars through Donald Trump and The Trump Organization through a series of checks.

And the allegation here is that reimbursement using this series of checks was a fraud. They tried to make it look like Donald Trump was paying legal fees, retainers to Michael Cohen to cover up the fact that what was really happening is they were reimbursing him for the 130 that he paid to Stormy Daniels to keep her quiet in connection with the campaign.

And I agree, by the way, the evidence that this is related to the campaign is overwhelming. I don't see how any realistic juror could think there was not some substantial campaign relationship ...

COLLINS: So Michael Cohen, really quickly, just - he didn't make money off of this. The reason it was higher than what he paid is because of the tax that he was going to take. I think he got 60 grand (INAUDIBLE) ...

PHILLIP: He did get (INAUDIBLE), yeah.

COLLINS: Sixty - but $60,000 was for actually doing this. It was - that's what he says he was paid for.

AIDALA: It was the - yes, he's saying that was part of his legal fee.


AIDALA: But to your point, I think if the defense, in Jeffrey's point, if the defense is successful with that line, like it - we're going to lose all leverage. Leverage of what? Leverage of what? Leverage to extort him. Leverage to get the money from him. We're going to lose all leverage.

In other words, why - if he's not running for president of the United States, then he's got no reason to buy this.

TOOBIN: Not all - I'm sorry.

PHILLIP: Maybe we're about to make the same point. You can say it's leverage for extortion, but it can also be leveraged because she wants to be paid for her ...

TOOBIN: Exactly.

PHILLIP: I mean, that doesn't have to be ...

AIDALA: That's extortion.

PHILLIP: No, it's not.

TOOBIN: No, it's not. No, it's not.

AIDALA: If you don't, if you don't, hold on ...

PHILLIP: It is extortion.

AIDALA: ... you're running for president of the United States, if you don't give me money, I'm going to tell the world that you're a sleaze bag who sleeps with porn stars.

PHILLIP: Here's another scenario ...

AIDALA: That's extortion.

PHILLIP: If you are - if you're a victim of a - if you're a victim of sexual harassment and you've sued someone and you - there's a limit to the amount of time that you have to do that, right?

AIDALA: That's a lawsuit.

PHILLIP: Okay, sure. But isn't the idea that - this came up recently, you come up to the edge of that statute of limitations, let's call it. And then you say you want to get some civil money (INAUDIBLE) ...

AIDALA: (INAUDIBLE) but you're hiding behind a law suit.

PHILLIP: That's not extortion. That's not extortion.

AIDALA: Not if there's a lawsuit, but Elie can tell you, if there's not a lawsuit, Michael Avenatti is doing jail time for something very similar, because there was no lawsuit. He went in and said, if you don't give me - I defer.

HONIG: Let me speak about extortion for a second, because I charged a lot of extortion cases. No, I did the easy kind, the I'll break your knees kind, juries understand that. But ...

TOOBIN: (INAUDIBLE) just to be clear.


HONIG: Oh, yes, yes, thank you. Prosecuted, right.


HONIG: Then there's this gray area, and Arthur's right, where what if someone's saying I'm going to come out with information that's damaging to you, sometimes that gets prosecuted. Michael Avenatti is in jail because he extorted Nike. He said, I have this information that's going to be damaging to your company, hence you have to pay me. Bill Cosby, before he got in trouble, before that all came out, there was a prosecution of a woman who extorted Bill Cosby.

Where that line is - I'll tell you the legal answer, wrongful. What wrongful means is in the eye of the beholder, it's in the eye of the prosecutor, it's in the eye of the jury. It's a gray area.

BERMAN: And as a non-lawyer, I can say one of the reasons perhaps that they've had David Pecker and everyone explaining the whole catch and kill scheme, one man's catch and kill is another man's extortion. You have meetings that Donald Trump was part of where they're discussing how to buy these stories or how to keep them from being published. That indicates a certain intentionality that may not be extortion.

PHILLIP: And does it matter, Elie, do you think, if Stormy Daniels was telling the truth?

HONIG: It does. It goes to the wrongfulness, because it is different in the law's eyes and the jury's eyes.


Imagine she fabricated this. And I said wrongful is the key question here. It's way more wrongful than if it actually happened.

COLLINS: But that's also why the prosecution made the point with Keith Davidson. Donald Trump does not part with his money easily and anyone around Donald Trump knows that. He's not just paying someone six figures to keep them quiet.

HONIG: Remember they did quiet one guy who had false allegations, the doorman, $30,000.

COLLINS: But that was not Donald Trump, that was the --

HONIG: It was AMI, right, AMI. You're right.

COOPER: Coming up, we're going to have more new transcripts this time from the gag order hearing and why the defense argues the former president was not attacking the jury when he said the jury was, quote, "95 percent Democrats." More ahead.


COOPER: More new transcripts, this time detailing an important moment in the gag order hearing about one of the four more recent alleged violations. This was an interview the former president gave Monday last week when he said that the jury was, quote, "95 percent Democrats." Judge Merchan said, "He spoke about the jury, right? Then the defense attorney, Todd Blanche responds, "Pardon me?" And Judge Merchan says, "And he said that the jury was 95 percent Democrats and that the jury had been rushed through and the implication being that this is not a fair jury.


That's the implication that was given to anybody that heard that comment. This is not a fair jury." Moments later, Blanche responded, "Again, he's talking about, again, in a passing phrase about the overall proceedings being unfair and political, the jury."

Joining our panel now former federal judge, Nancy Gertner. What do you make Judge Gertner, just in general of how Merchan is handling the gag order drama so far?

NANCY GERTNER, FORMER FEDERAL JUDGE: I think he's doing a great job. I mean, he is not being baited. He's sort of, you know, hewing to the language of his order, which has been affirmed, measuring what Trump did by that, and really resisting being baited. The gag order during the course of a trial in one sense is even more important than a gag order before, because you have a juror sitting there knowing that they are the decision makers.

So this -- the kinds of threats about witnesses and about the jurors themselves matter more than if it's just diffusely going out into the public. So I think he's doing a great job.

COOPER: Regarding Michael Cohen, I mean, is it legally relevant that Michael Cohen had been, at least until recently, going after Trump online? I mean, should the judge amend the gag order so Trump can hit back at Michael Cohen?

GERTNER: The judge is not supposed --

COOPER: And Michael Cohen is sort of a public figure. He has a podcast, or, I think.

GERTNER: I mean, the judge is not supposed to be concerned about the give and take in the public arena. He's trying to sort of hermetically seal his courtroom. And you know, Michael -- there's no sort of invited response. Michael Cohen can say whatever he wants, although I suspect the prosecutors are probably calling up his lawyer now and saying, would you please shut up, like now. But I -- that shouldn't matter.

The judge is only concerned about the people in front of him over whom he has authority, you know, and to make sure that they're not responding. Trump will have an opportunity to trash everyone as he surely will when this trial is over. So I wouldn't worry about his First Amendment rights.

JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR: I think Merchan was somewhat sympathetic to the Michael Cohen issue, because Michael Cohen has been beating the hell out of Trump. And there is, you know, a sense of fairness about the response. But that line about the jury, that's the thing that's worse than anything else --


TOOBIN: -- Trump has said, because that means he has been looking into the jurors backgrounds. That means he has reached conclusions about them. And her honor can -- Your Honor, can correct me, but I think judges are especially concerned about jurors, much more even than witnesses, especially public figures like Michael Cohen.

GERTNER: And we've already seen a juror who was, in the jury pool say, you know, I don't want to -- I don't want to deal with this anymore. So, I mean, he could be concerned about that. This is not a jury that has been sequestered, right? We don't really do that anymore. And so, these are threats that could affect the very decision makers in this case, as opposed to the public in general, which are more concerned about, you know, in gag orders before the trial.

ARTHUR AIDALA, NEW YORK CRIMINAL DEFENSE ATTORNEY: Judge, they're not threats. There's a big difference between a threat and saying -- and Jeffrey, I don't think you've got to do a lot of research to know that they're majority Democrats --

TOOBIN: Oh, come on.

AIDALA: When he got 13 percent of the vote --


AIDALA: -- and the Democrat got 87 percent of the vote, I mean, my 17- year-old could kind of figure out --

PHILLIP: I was going to say, though --

AIDALA: -- there's a majority of Democrats. And all he said was it was rushed through, which maybe was a little bit. And he said, I can't get a fair trial with this jury. That's not a threat.

GERTNER: He will have lots of opportunity to say it wasn't a fair trial. He doesn't do it during the course -- I'm getting -- I'm becoming a judge in a minute, during the course of my hearing, just saying.

HONIG: This is this is my kind of judge. The jury's a third round. You can't talk about the jury at all. I wouldn't talk -- if I could ask the judge while we have you, would there come a point -- could there come a point where if you were reassigned to handle the rest of this case and Donald Trump kept doing this, would you actually lock him up under contempt?

GERTNER: That's hard. It's -- I mean, I think, you may reach a point where you'd have to do that just to be able to preserve the legitimacy of the proceedings. But man, that would be right down the line. I think that Merchan did the right thing by threatening it.

Here's where we're going to start. We're going to start with money. And every time you're going to be, you know, have to pay money. And I'm going to consider and I detaining you, you know, in the bowels of this courthouse, which can't be very nice, you know, and then after that we'll go somewhere else. But I think any judge would hesitate.

HONIG: Why would you be hesitant, though? GERTNER: Because you don't want to -- well, one is a disruption that it will cause, there's no question about it. And the government didn't even seek his detention today. And I think it's one disruption to there'll be appeals up and down the line, and three, it'll martyr him.

COLLINS: Judge, can I ask you about something that one of Trump's attorneys, Susan Necheles, who certainly knows the New York court system very well did today, she had this issue, this stack of articles, a lot of comments from legal commentators who are on Fox News, and she basically wanted the judge, she said, to look through them and make sure that Trump could post them without violating the gag order. And the judge said, I'm not going to be in the position of looking at posts in advance and determining that. I mean, one, how unusual is that? And two, I mean are they -- do you think that was effort in good faith or?


GERTNER: That whether the lawyer's effort was in good faith? No.

COLLINS: Does she actually want the judge to look through a bunch of random files?

GERTNER: No. I can't imagine that you would, and I can't imagine he would indulge that. I mean, I think that that was the right -- that's sort of a classic prior restraint. Here are the things that you -- here are the articles you may not post. Now, the other gag order is already a prior restraint, here are the areas you can't cover.

But he doesn't want to get into the nuances of who's saying what. He doesn't want to give Trump a script. He can say, don't do X, Y, and Z. And what Trump is doing is not even remotely subtle, right? He's attacking witnesses and jurors. It's not even subtle.

AIDALA: Judge, I know Susan did that in good faith. I know Susan Necheles for a long time. She's a fantastic, ethical lawyer.

TOOBIN: She's a great lawyer.

AIDALA: I am positive she did that in good faith. And she probably said, Judge, he wants to retweet this particular article. He doesn't want to violate it. It's written by Elie (ph), who is on his side, and he wants to retweet it, can he do that? She did that in good faith.

COLLINS: He can just read the gag order.

TOOBIN: But that's not a judge's job to --


TOOBIN: like review things in advance.

AIDALA: It's his order, of course, it's his job. It's like, what am I, in a twilight zone? It's his order. He could change it any way he wants.

TOOBIN: Yes, and he will evaluate if someone violates it. But he's not like there to be the lawyer.

AIDALA: You're totally doing --

TOOBIN: He's the judge.

AIDALA: I have done it -- I did it yesterday. Judge -- yesterday, judge -- when my -- in federal court that you're not allowed to speak to any of your co-defendants or any of the employees who work for the corporation. Well now he's pled guilty and for his sentencing memo, he wants letters from his former employees saying what a great guy he was.

UNIDENTIFIED MALE: That has nothing to do with this.

AIDALA: Hi Judge, can we violate your order, which you said he can't talk to the employees.

GERTNER: That's different.

AIDALA: And can we speak to them? Can you adjust your order?

GERTNER: No, no, if Trump had said, can I talk about X? And the judge can say, yes, that fits within my order or doesn't? Can I talk about why that would be different? But to look at an article and say, well, I think that it would violate the order, not that it doesn't -- that's way out of line. That's not his role.

He can say --

AIDALA: Asking permission.

GERTNER: -- here are the lines that I'm going to draw. And any rational human being would know whether or not they have violated.

COOPER: Judge, let me ask you about the pace of the trial. So far, Judge Merchan said earlier this week that appears to be running ahead of schedule. I mean, do you concur with that? Is that --

GERTNER: Well, he said six to eight weeks. The jury selection did take -- was quicker than anyone anticipated, which is actually may ultimately be an issue in the case. But it sounds like from his own model of when -- how long this was going to be, it is moving more -- it is moving more quickly, which goes back to the question about Trump's speech. His day will come. It's not that he will be forever barred from talking about this case, he's only going to be barred while jurors are sitting there.

TOOBIN: But if I could just add one point about the gag order, for all of trump's complaints he's been abiding by it You know, he gets up and he says this gag order is outrageous, the judge is unfair, all of which he's permitted to say. But ever since the contempt finding he has not talked about jurors, he has not talked about witnesses So I think actually in the system is working.

COLLINS: It's been like three days. TOOBIN: And is not -- and Trump is not prohibited from talking about this trial, he is prohibited about certain -- from certain categories, and he's actually following those rules as far as I can tell.

GERTNER: And the issues today concern stuff that predated the gag order.

TOOBIN: Right, well that predated the finding of the violation, yes.

GERTNER: The finding, yes. Right.

HONIG: To the judge's point, this case has -- there's been sorted elements of this case, Trump's conduct outside the courtroom I think has been abhorrent. But the trial itself is running smooth and efficient. I mean, everyone's behaving themselves. The lawyers generally are doing a good job. Judge Merchan, I think, is doing a nice job of keeping this thing on track. And I think that's important because everyone's watching this trial, and it really needs to be fair and efficient and not a circus.

And I think to all the party's credit, that's where we're at so far. Not making any promises, but as of today, that's my assessment.

GERTNER: It raises a different question, which is that, boy do I wish there were cameras in this courtroom.


GERTNER: I was a federal judge and we did not have cameras. I think that was so totally wrong. It would be wonderful to be able to see a dignified proceeding in the midst of a media circus. That would have been a --

COOPER: Yes. Judge Gertner, thank you, everyone.

More on the trial coming up -- coming up next after this break, the latest on the protests on some college campuses. These are the scenes from UCLA last night and this morning, smoke bombs and flash bangs used to break up the encampment there. We'll have a live report from that campus and what President Biden said today about the demonstrations across the country next.



COOPER: Another day of confrontations on some college campuses, a dozen arrests at Portland State University after police in riot gear cleared out a library occupied by pro-Palestinian, anti-Israel protesters. Inside, they said they found buckets full of ball bearings, tools, paint balloons, and other items. At UCLA, 10 -- 210 people were arrested after a pre-dawn raid, smoke bombs, and flashbangs used by police to clear out the encampment there while police were getting fire extinguishers and other projectiles hurled at them. Police have now arrested more than 2,000 protesters over recent weeks. More now from CNN's Stephanie Elam. (BEGIN VIDEOTAPE)

STEPHANIE ELAM, CNN CORRESPONDENT (voice-over): Uncertainty at UCLA after police cleared a pro-Palestinian encampment in the wake of a standoff with hundreds of demonstrators Wednesday night. Police breaking down barricades, shooting rubber bullets, launching smoke bombs and flashbangs, and arresting more than 200 protesters. The protest site dismantled after a clash erupted Tuesday night when counter protesters, some of whom were pro-Israel, threw objects at tents, hurled fireworks, and pulled down barriers set up by the pro- Palestinian encampment. UCLA's chancellor calling the attack a quote, "dark chapter in the university's history." In the morning light, only trash, graffiti and discarded tents remained of the encampment.


The campus now swiftly being cleaned up. Nationwide, more than 2,000 people have been arrested on college and university campuses in the last two weeks, including at Dartmouth College in New Hampshire and Portland State University in Oregon. Police officers in riot gear cleared barricades.

UNIDENTIFIED MALE: You are now under arrest for trespass.

ELAM (voice-over): Pushing out more than two dozen protesters hold up in the college library. But many of the protests in recent weeks have been peaceful, including this one at George Washington University with dueling demonstrators. Some universities like Columbia initially sought to negotiate with protesters, while others called in law enforcement from the start to manage emotional protests focused on a highly charged international crisis.

UNIDENTIFIED MALE: But I know objects were being thrown at officers during the night.

ELAM (voice-over): The unrest closing campuses and even canceling some graduation ceremonies. UCLA students forced into remote classes for the remainder of this week. Rutgers University postponing or relocating some final exams. The challenge now for college administrators where protests were held and where arrests were made at more than 40 campuses nationwide to move away from confrontation and focus back again on free speech, safety, and education.


COOPER: And Stephanie Elam joins us now from UCLA. So, you're learning some new information about what happened leading up to the police taking action last night, I understand.

ELAM: That's right, Anderson. We've heard through the chancellor of UCLA put out a statement saying that it was just becoming too much of a focal point of violence having this encampment on campus. And that is why they decided to dismantle it, even though the vast majority of the people were peacefully protesting. And he also noted that there were about 300 protesters that on their own volition decided to go ahead and leave the encampment before the arrest began. You have to keep in mind they were making many loud speaker notices telling people to leave before they started those arrests. Anderson.

COOPER: Stephanie Elam, thanks so much.

President Biden addressed the unrest on campuses seeking to strike a balance between the right to protest in America and the rule of law.


JOE BIDEN, PRESIDENT OF THE UNITED STATES: Vandalism, trespassing, breaking windows, shutting down campuses, forcing the cancellation of classes and graduations, none of this is a peaceful protest. Threatening people, intimidating people, instilling fear in people is not a peaceful protest. It's against the law.


COOPER: Joining us now is Senior White House Correspondent Kayla Tausche.

So, what more did the president say?

KAYLA TAUSCHE, CNN WHITE HOUSE CORRESPONDENT: Well, Anderson, the president was trying to outline very clear differences between what he sees as the right to peaceably assemble and issuing a forceful condemnation of anything like anti-Semitism or violence. Here's more of what the president said.


BIDEN: We are not an authoritarian nation where we silence people or squash dissent, but neither are we a lawless country. We are a civil society. An order must prevail. There's the right to protest, but not the right to cause chaos.


TAUSCHE Officials tell me that Biden was motivated in no small part by the imagery that we just saw from UCLA overnight, the repeated involvement of law enforcement on campuses nationwide and what he sensed was mounting pressure in recent weeks to step up and deliver some of these more forceful remarks. I'm told that senior aides were monitoring more official channels of I'm also here with the local governments and law enforcement. But younger staffers here at the White House were also adding some of their firsthand accounts from peers that they know who were on campus and sending some of these social media images and videos to sort of inform the way that the White House was thinking about this.

Remember, Anderson, President Biden himself is going to deliver two commencement addresses in just a few weeks time at both Morehouse and West Point. And when I asked the White House what sort of tenor they expected to encounter when he did that, they said they couldn't possibly predict that.

COOPER: Do you have a sense from White House officials what their strategy is going forward with these protests? TAUSCHE: Well, the president said today that he does not plan to call up the National Guard as some Republicans have called for. He also said that he's not going to change tack with his strategy in the region. Of course, the White House has been pinning all of its hopes on this deal that's currently being brokered by Secretary of State Antony Blinken in the region this week to usher in a ceasefire to free dozens of hostages. And White House Press Secretary Karine Jean- Pierre, when I asked her earlier this week about how close that is and, and whether that would end the protest, she said, we want the same thing as the protestors. We all want to end the war.


COOPER: Kayla Tausche, thanks so much.

Much more to come on day 10 of Donald Trump's hush money trial, what to expect tomorrow when the judge might rule on what prosecutors say are new violations of the gag order.



COOPER: Nine p.m. here in New York. Day 10 of the Trump hush money trial, ending with a false claim from the defendant that he's not being allowed to testify. The day began with prosecutors seeking additional contempt judgments against him, but things really heated up during the testimony of Stormy Daniels and Karen McDougal's former attorney Keith Davidson.