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Erin Burnett Outfront

Closing Arguments Wrap, Trump Case About To Go To Jury. Aired 7-8p ET

Aired May 28, 2024 - 19:00   ET




Breaking news, the Trump trial in its fourth hour tonight on closing arguments, and the final word from the prosecution still going. How is the jury responding?

Plus, guilty. That is what former Trump White House attorney and OUTFRONT regular Ty Cobb is predicting tonight. He's here with us to tell us why.

And a family affair. Trump's adult children in the courtroom room today, except for Ivanka. Where was she?

Let's go OUTFRONT.

And good evening. I'm Erin Burnett.

OUTFRONT tonight, the breaking news: the prosecution in Trump's criminal trial is about to resume its closing argument. They right now are in a very brief break and it is continuing. We are now going into the evening as they tried to get this done.

The prosecutor, Joshua Steinglass, has been speaking for nearly four hours. This after the defense had gone for two-and-a-half hours. It's been a long day.

Steinglass for the prosecution right now, laying out his case chronologically as he tries to dismantle team Trump's arguments. So far, basically, they've tried to take five weeks of testimony from 22 witnesses and put it on an actual timeline. So that means David Pecker, Hope Hicks, Stormy Daniels and a lot of time, well over an hour today, spent on Michael Cohen and the reason that Steinglass did that was that the defense in their closing statements spent much of the time going after Trump's former fixer.

Steinglass telling jurors, quote: We didn't choose Michael Cohen to be our witness. We didn't pick him up at the witness store. The defendant chose Michael Cohen as his fixer because he was willing to lie and cheat on his behalf, adding: This case is not about Michael Cohen.

Well, that, of course, is the big question whether the jury buys that or not. And according to people inside the courtroom, juries -- jurors are paying close attention to Steinglass. Their eyes watching his every move, and the jurors also intently watching Trump's attorney as he tried to pin the entire case on Cohen and his lies, saying if -- putting this on Cohen, and you can't convict.

At one point, Blanche, Trump's lawyer, listed every person that the defense says Cohen has lied to and they listed his wife, his children, his co-workers, his banker, the Justice Department and, quote, every single reporter he talked to for about a year.

And then they tried to really lay it on fix, saying Michael Cohen is the GLOAT, literally the greatest liar of all time. That's what they want the jury to take away from this tonight. And the major question is how these closing arguments will affect the jury. Will they sway the men and women, seven men, five women on Trump to convict or acquit?

Paula Reid is OUTFRONT live outside the courthouse to begin our coverage.

And, Paula, I was down there with today. I know you've been working, so much reporting here and you've got some news from your sources on the Trump team. What are they telling you?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Well, it's always been the belief that the likely best-case scenario for the Trump team would be a mistrial here. But I'm told there are a lot of concerns that if the jury comes back and they are indeed deadlocked after they've done -- they're deliberating over several hours or potentially days, that there's an instruction that the judge will give them. It's the so-called Allen charge.

This is not special for the Trump trial. This is something that happens in New York state, but the concern on the Trump's side is that once the jury gives us instruction, he will tell them he will say, look, I want you to go back, continued to deliberate and trying to find some consensus either to acquit or to convict.

And there's a worry that that will apply some pressure. The jurors will feel the weight of the historic nature of this case, all the resources that have been expended, and they might try to compromise and potentially convict Trump on some charges. Like, for example, the checks that he signed.

So, obviously, a mistrial is something that both sides want to avoid, which is why we heard today bolster sides, trying to convince the jury to either a quit or convict.


DONALD TRUMP, FORMER U.S. PRESIDENT & 2024 PRESIDENTIAL CANDIDATE: This is a dark day in America we had a rigged court case that you should have never been brought.

REID (voice-over): Donald Trump's hush money trial entering its final phase today with closing arguments. Attorney Todd Blanche telling the jury, the district attorney has not met their burden of proof, period, maintaining Trump's innocence, saying it's a paper case, not about an encounter with Stormy Daniels 18 years ago that Trump has unequivocally and repeatedly denied.

Blanche saying the hush money payments were not illegal, and Trump was unaware. There's no evidence at all, not even a little bit of evidence that President Trump knew anything about these false filings.

Zeroing in on the prosecution's key witness, Michael Cohen sharply saying Cohen lied to you.


He's literally like an MVP of liars, Blanche remarked. Telling the jury: he lied to you, make no mistake about it. And later calling Cohen the GLOAT, greatest liar of all time.

Blanche claiming Cohen was the human embodiment of reasonable doubt, and that the jury should not convict based on his testimony. Blanche concluded his argument by telling the jury you cannot send someone to prison, you cannot convict somebody based on the words of Michael Cohen.

But that comment angered Judge Juan Merchan, who immediately admonished that comment as outrageous and highly inappropriate, later instructing the jury to disregard it, saying they could not discuss, consider, or even speculate as to matters related to a sentence or punishment. That is a job for the judge.

Then prosecutors kicked off their closing arguments, playing clean up. We didn't choose Michael Cohen to be our witness. We didn't pick him up at the witness store, Joshua Steinglass, told the jury. Mr. Trump chose Mr. Cohen for the same qualities that his attorneys now urge you to reject his testimony, insisting it's a deflection for the defense to make the case about Cohen.

Steinglass explained, Cohen's role was just to be a tour guide through the physical evidence. But those documents don't lie and they don't forget.

The prosecution then accused Trump and the publisher of the "National Enquirer" of trying to pull the wool over voters' eyes in a coordinated fashion. They didn't use the term catch and kill, but that's exactly what it was, Steinglass said.

And that's the illegal part because once money starts changing hands on behalf of the campaign, that's federal election campaign finance violations.

This is not normal legitimate press functions, Steinglass remarked, calling it overt election fraud.


REID (voice-over): Court continues in the building right behind me. The judge just took the bench again after giving the jury a short break. Now, prosecutors been going for four hours and just clear the judge is getting a little impatient with this. There's no time limit on closing arguments, but the judge just top prosecutors a short time ago, urge them to halt with an argument. They're making about Stormy Daniels and just move on, citing the length so far of this closing argument.

Erin, it's unclear at this point how much longer they're going to go. Earlier, the judge had said that the jury was open to going as late as 8:00.

BURNETT: All right. Paula, thank you very much.

And here we are 7:07 and they're coming back into the courtroom. And it's going to continue.

All right. So, our experts are here. As they're coming back into the courtroom, I just want to start, Ryan, this Allen charge that Paul is breaking reporting here. This concern that to Trump team has that is this wraps up tonight that their biggest threat could be this Allen charge.

RYAN GOODMAN, FORMER SPECIAL COUNSEL AT DEPARTMENT OF DEFENSE: I think that's right. If I were them, I'd be very concerned about it because I think right now, they're getting for one or two jurors as the holdouts who then could hang a jury. But if they get this kind of charge and they are forced to get a consensus of all the jurors agreeing that puts the pressure on super majority of the jurors being in favor of a conviction.

So I think that's right --

BURNETT: Basically, they cave on the ones who would be the ones that would cause a mistrial would cave on a few counts.

GOODMAN: Especially if it's only one juror that's a holdout. They're much more willing to then bend to the super majority. If it's two together, they might band together, but either way, that's not favorable to the defense when the jury gets that message.

BURNETT: All right. And this is this is New York law, as Paula said but it does make you look at this a little differently if you were trying to go to pick off one juror, it might change that calculus as they're sitting in that room tonight.

JOEY JACKSON, CNN LEGAL ANALYST: So, Erin, it could. Now, obviously, it's premature, right? Because we don't know when the jury goes back, them have a quick verdict and it made me to quit. They may go back and have a quick verdict to convict.

And so until you get a jury that is somewhat deadlocked and are having real problems and making a determination rendering a verdict. That's when the dynamite charge comes out.

And just very briefly to be clear, the dynamite charge doesn't say to change your conscientious opinion. In fact, in the language itself, it says we're not asking you to do that. What were telling you is that there's no jury who would be better than you, who would evaluate this case differently from you, who would take it more seriously than you.

So go back there, do the best you can to not stay wedded to your view if there's an opinion that perhaps can move you out of it. And I think that is appropriate. It's been used throughout time and I don't think it is something that should be overly concerned.

BURNETT: All right. So the jury is coming back in the room right now.

Mark O'Mara, let me just ask you about as Trump came in and he came in before the jury. We saw -- I don't know if we have the video here, but he gave a fist pump as he walked back in. And that was to -- so you'll see it here.

All right. Now, whether he whether he's right or wrong is a separate point, but, Mark, do you think he's justified to do that at this point from what you've seen in these now, close to seven hours of closing arguments?


MARK O'MARA, CNN LEGAL ANALYST: No, any criminal defendant is not justified in doing that, but Mr. Trump has shown itself not to be traditional in any fashion. So this fist pump for is for the TV, it's for the election, is for the audience.

I -- if my client ever did that, I would take him down a level, you cannot do that for any reason whatsoever. Not to mention the jury. The judge might see it, (INAUDIBLE) might see it. It's just not the way you're supposed to act in a criminal courtroom, but former President Trump has never acted the way he was supposed to. Most places, particularly not in this courtroom.

BURNETT: And he -- giving that fist bump as he's back in the courtroom. So right now as we're all talking, the jury is back and they are going to listen to Joshua Steinglass, continue with the closing argument.

You, Terri, are sitting with me, but the half an hour ago, 40 minutes, you were sitting in that room and you sat there for six plus hours? Okay. Number one, did you -- could you follow it all that time? And you know, you're obviously at the standard if you're following this in and out and how was the jury following it?

TERRI AUSTIN, FORMER TRIAL ATTORNEY: Well, I've got to say, I was taking copious notes, obviously, and I was following it, but it wasn't easy and I'm a little bit disappointed in Steinglass because I thought it was way too detailed. He is making a big deal out of all of these telephone calls.

And he started out by talking about some of the points that Blanche made when he did his closing argument. That's fine. But he did too much of what he said this and this is what we think. And I think you have to get into your story immediately.

And he did get into the story. He talked to about what happened in August of 2015 and the Trump Tower, how the conspiracy started. Then he got into the minutia, Erin, he started talking about on this day, this call happened in on the 24th at 8:04, and he just went too detail.

The jury was following. They were all alert. I've got to say once again, best jury I've ever seen, but I thought it was too detailed.

BURNETT: And the prosecutor, Steinglass, just a moment ago said thanks for sticking with us as he's beginning his comments again PowerPoint. And he's presented the jury, Mr. Trump involved every step of the way. Thanks for sticking with us, in acknowledgement of this. Now we're in four plus hours.

Is that just too long for anybody? And by the way, keeping in mind the jury doesn't get a transcript of everything afterwards. That's not the way it goes in the New York criminal system.

GOODMAN: It seems like its going too long and it seems like its actually winded up and done it twice. He first went through this whole description of the framing, the case, and he started again from the chronological beginning and then walked his way through. So you could have done just start at the chronological beginning and then you've got your narrative and go through it.

And so it does seem as though maybe he's trying to say to the jury this really is, as you said, a mountain of evidence and they now have in presenting them every piece of that mountain so they're left with that impression. But at the same time and at a certain point it's going to exhaust them. They can't -- they can't retain all that information.

BURNETT: No. No. I mean, nobody can, right? I mean, it's too much information. It's long.

Mark, our reporter in the room noted that there was a moment where a juror smiled softly and raised her eyebrows when Joshua Steinglass, the prosecutor in this four plus hour closing arguments said, hope you're getting all of this.

Now, Mark, I'm not trying to read anything into her reaction. You know, people are standing very close to each other in these settings and having some sort the connection.

It does raise the question though bigger picture, have the jurors already made up their minds and obviously you've done so many cases from Zimmerman and others. Is this -- how much weight do these arguments have?

O'MARA: So I think the arguments have a lot of weight with the lawyers who are stating them because that's why we went to law school, right? But the harsh reality is human psychology of jurors as we bring them into your courtroom, sit around for a couple of hours and give him a bunch of information, it's always my position that most jurors individually have made up their mind well, before closing argument. Unfortunately, they may or may up their mind before the trial is finished. The evidence presentation, but that's just the harsh reality of who we are because we are so used to making up our decisions in a moment.

It is not human, humanly possible for us to wait until the very end. But we tell them to. So in this case, the smile by that when jurors probably seen that going guy get ready, move on. I will tell you, I think four hours for closing argument by the state is way too long.

Keep it simple. Here's the facts. We proved it. Come up with a dozen maybe facts that are undeniable and then show the law and say, go back and convict.

And tell them that we know you listen and move forward this four hours. I think really almost causes if you think about it very quickly prosecution is hurt by complication. The defense is helped by complication. You make it more complicated. There's reasonable doubt.

You go into here. It's very simply. And then the jury will listen to you in the building and so many complications that the jury thought about that and worried about that.

BURNETT: And to that point, Steinglass right now is put up a timeline and we're back in August of 2015.


One could be forgiven for thinking, oh, my God, we're back in August of 2015 and it's only 7:14, and how am I going to be here tonight? Because that's a lot of years to get to where we are.

JACKSON: Without question. And I do agree with the panel and I will not be just a contrarian, just to be one. The reality is, is that this is human nature.

When you have and you're trying to relate to people, you want to connect with them. You want to make your point and sit down, tell them what you're going to do. Do it, tell them you did it.

This is what Trump did. This was his intention of doing it. This was his motivation with respect to doing and this is how he did it. That's it.

And so, I just think there comes a point where too much is way too much. And I think the reality is when you lose people, you do yourself a disservice and that's not the point of closing argument.

The point of it is to sum it up, bring it home, and let them know this is why I win. You lose the jury, you lose the case.

BURNETT: I want to bring in Paula Reid here because as she's again outside the courthouse with your sources on both teams of attorneys here, Paula.

But I'm curious as to what you understand the strategy of Trump's team was. I mean, that was a two-and-a-half-hour of closing argument, right? Did they -- did they think that was going to be short relative to what the prosecution is going to is doing right now, do you think they're surprised by the length of this prosecution close? REID: Yeah. I think they are. Earlier today, as we reported, they expected to go about two-and-a-half, three hours because they believe that's about as long as any juror wants to hear from a lawyer and closing. Todd Blanche stuck pretty close to that. He was around three hours.

But they had another goal and that was to prevent Joshua Steinglass from going into tomorrow. So they were trying to keep it short enough that Steinglass did try to draw this out too long. It would annoy the jury.

Now, with some help from the jurors who are willing to stay late tonight. And the judge, it appears that this will likely wrap today, but they have a lot of reasons for wanting to keep it tight. What was so interesting to me though, about the defense, this morning is it had been laid out for me that they, of course, are going to try to distance the defendant from the allegedly falsified documents.

Of course, you're going to do that. That's right the heart of the case. Of course, they're going to attack Michael Cohen's credibility. But what was surprising is everything that happened in-between those two arguments, Todd Blanche spending a lot of time, getting a lot of oxygen to things that really just didn't matter.

And I think that that's one of the things that surprising that he brought up Karen McDougal, that he sort of went into the weeds and a lot of issues. These are really won't make or break the case. And the general consensus seems to be, he could have done a great job in just an hour, hit a few key themes and instead he was, as he has been throughout this trial, effective at times, but also rambling and sorst of taking a long winding road to get to that key point.

BURNETT: Well, an interesting, as you pointed out, maybe both could have done what they needed to do an hour, Ryan. Which raises the question here as to why they're going so long and I'm wondering, taking a step back here. The jury's given a week off, not -- and able to go about in the regular world, not sequestered. And they don't get transcripts of what happened in the prior month.

So is there somehow a psychological pressure on the lawyers? Well, they checked out for a week and they're not going to remember anything I said in the past month, so I'm going to try to like diarrhea them out, the whole thing today?

GOODMAN: It's a great point, that could be why they've overcompensated or compensated in this direction because the jurors memory will fade over six-day period and now they want to bring it all back. So that's might be why they've gotten -- both teams have gone in the direction of longer closings, but have over compensated gone seems at least in the prosecutor side way too long.

But that would explain it.


O'MARA: The mistake, leaving that jury alone for a week was a massive mistake. I cannot believe that they did not have jury instructions ready for that jury at the very end of the case. It seemed to me to let them not only be exposed are infected by outside information which now has to be disclosed and its going to be litigated. But yes, they do forget, we are so used to this because we look at we report on it, we take our notes, juries don't. This stuff has become sort of intellectual gobbledygook with them by the time the jury or the witness got off the stand.

Very difficult and maybe the reason why they had to go back over and back over, back over, but I'm telling you, four hours. You've lost the jury at two, even though they're still looking at you.

BURNETT: So, to the point Mark O'Mara just made about sequestering. So they're not sequestered. They go about their reasonable -- their normal lives. So the odds that one of them saw a newspaper article about this or went to a Memorial Day party and someone finds out there on the jury, the bottom line is the bottom line is a conversation happened or something happened that shouldn't happen --

JACKSON: It's likely.

BURNETT: -- are likely.

Is that -- someone finds out about that, is that a mistrial?

JACKSON: It is not. And so the issue is, look, this is real life and you're going to be at a barbecue on Memorial Day weekend and people are going to raise issues and you're going to walk away and you're going to hear things and you're going to be driving and you're going to hear the radio and you're going to be walking, and people are going to be talking and arguing and debating.

The issue is notwithstanding, that, can you confine your real role to the merits of the case is heard in the courtroom and just on the issue of in terms of memories, there's something called readback, Erin. And in readback, what essentially that means is if the jury is having really a memory gap with respect to a critical piece of evidence. They send a note out to the judge --


BURNETT: About a phone call.

JACKSON: Correct.

BURNETT: And gets that part right back.

JACKSON: Absolutely. You send a note out to the judge. It comes out to judge assembles. The lawyers says, hey, we have a note with respect to this evidence. Do you want direct, you want cross and you read it back to them? That's how you refresh their recollection.

But I don't think there's any basis whether there's a week or two week, all right, layover to going into this detail, but everyone does it differently. BURNETT: So what is the bar for a mistrial if when you don't have a

sequestered jury and people are out living their normal lives? And what is that, Ryan?

GOODMAN: So the bar would be if a juror actually admitted, for example, that it did affect their thinking or something like that, but we've also got --

BURNETT: So, they tell somebody or I didn't know what to call it.

GOODMAN: The judge actually asks them if there's evidence that they've been exposed to information that they shouldn't have been in the judge can ask them about that, but we've also have a bunch of alternatives on the jury pool.

BURNETT: Yeah, they've been sitting there the whole time.

GOODMAN: Yeah. So I don't think were heading in that direction unnecessarily, but the problem is that we -- the court system might not detect this improper influence. So that's another issue, but it's not good. It doesn't go to the question of a mistrial, but it does go to a question of the integrity of --

BURNETT: So, in -- right now, they're doing what you were saying they were doing all day. They're now talking about the dates of calls, call on the 24th on like this, this happened this day. This is right now what you see on the screen live from the courtroom. This is the prosecutor Peter Joshua Steinglass, who is speaking, as we speak is this is continuing into the night.

Were there, Terri, specific moments today that did resonate with the jury, that you were able to see someone, whether nodding or I suppose furiously taking notes, could you tell?

AUSTIN: Well, I guess on the defense, side to tell you the truth, I think Blanche made some points today, one of the things because he did was he said, look reasonable doubt, there are ten reasons why you can have reasonable doubt. And I think the jury was paying attention to that. He was saying that Trump had nothing to do with the invoices and Trump did not intend they have no evidence of that. And I think that that did hit home and the jury focused on that.

As far as the prosecution is concerned, I think that when he started to tell his story, that's when the jury perked up. He wasn't going all over the place. He wasn't attacking what the defense was doing.

He was saying, look, this is a conspiracy. There's no question. They got on that call. They were in that room and they tried to influence the election and he went over the three laws that could possibly be the underlying law that he breached, you know, the tax fraud, the campaign finance, and the election law.

And I thought he did a good job of that. And I think the jury understood what was going on.

BURNETT: Mark, looking at it as a defense attorney, do you think Todd Blanche successfully from what you could tell raised what reasonable would be, when you put it in front of the word "doubt" for that jury?

O'MARA: Right. So I think he tried I if I were to critique, I don't think he did quite a good enough job to let the jury know what reasonable doubt is and isn't. He sort of presumed it and then say, here it is, here it is, here it is.

But remember, those jurors, even though we told them to do it this way, you have never in their life use the standard of reasonable doubt. What do we do as humans? We go right back to what we call a preponderance, right? Just let me know and I'll make a decision. Do that 1,000 times a day. So if you're not sort of sensitizing that juror to the fact that this is the highest standard we know beyond virtual certainty is beyond a reasonable doubt.

And he didn't really hit that enough to let these jurors know, it is not innocence we're talking about. It is say, prove their -- prove guilt beyond a reasonable doubt. If not, you just tell the prosecutors, better luck next time. You did not convinced us, not that he's innocent, but that you didn't convince us of your case to the standard you told us to follow that.

BURNETT: So Joey, take us into the room right now that it looks as if from what we understand that Steinglass appears to be putting a timeline graphic up again, right? To summarize, his summary to ferry. So we'll see that we didn't -- thought that they might be done by 8:00 p.m. Eastern, 7:23. So we'll see if that's what he's really doing.

But then what happens?

JACKSON: So what happens is that he'll sum up, he'll conclude and then tomorrow, the jury will come in and let me talk a little bit about what Mark was talking about in terms of reasonable doubt, the judge will then give the jury specific instructions as they relate to this case.


JACKSON: The judge will also give instructions about reasonable doubt, not a mathematical certainty, but about doubt. That's within reason. He'll go over. That is judge Merchan, the specifics of the jury instructions.

What is falsification of business records? How does that apply here? What is an intent to commit another crime? And they're to be clear, could be, right, a lot of questions surrounding that. You don't raise your hand at the time if you're a jury, say, hey, what's that again?

But what will happen is, is that once the judge goes through those jury instructions, which well take a quite an amount of time to take, witnesses who might be an interested witness and what that means, et cetera, whole bunch of stuff, Erin.

And so, when they go back into the jury room to deliberate, they may have questions -- questions on testimony, questions on the law, questions on reasonable doubt, questions on a number of other things.


They'll call them back into the room after they send out a note and the judge will delineate an answer to their question, what the specific answer is, and be responsive.

BURNETT: All right. So there are two people, Terri, who could have testified and made this a beyond a reasonable doubt. There's a closed -- closed bookcase, easy, guilty or innocent.

And that's Keith Schiller and Allen Weisselberg, one's in Rikers Island, one we don't know where he is. They didn't call either one, the prosecution because they didn't think that they would answer the questions or whatever it is. But does that weigh on the jury?

That they know that there are two people out there who actually know factually whether Trump knew or not, and neither one of them were called absolutely.

AUSTIN: Absolutely, ways on the prosecution, I think. I think the fact that Weisselberg wasn't called, I think the jury does know that he's not available and they know why he's not available. So I don't think it hurts that much.

Keith Schiller actually is somebody I think the defense should've called me because he could have confronted what, in fact, Michael Cohen was saying what happened on that call.

BURNETT: Speaking of the phone call, he's the one that Cohen said, oh, actually, I guess I did speak to -- maybe I spoke to Keith Schiller, but he handed the phone to Trump.

AUSTIN: Correct. Correct.

BURNETT: And had this conversation. So Keith Schiller knows exactly whether that conversation happened with Trump and Cohen about Stormy Daniels.

AUSTIN: Absolutely. I found it very interesting that the defense also arguing there were all these other missing witnesses, and they said in the closing, Blanche absolutely said, well, the prosecution could have called Donald Trump or Eric Trump or all these other people.

And I don't think that sat well with the jury because why would the prosecution called those people? Because those people aren't going to support what the prosecution is saying.


AUSTIN: So missing witnesses are very interesting for the jury to consider.

BURNETT: All right. Well, all of you please stay with us.

Steinglass again now going through the timeline here, talking about David Pecker, Donald Trump, Karen McDougal. As we are sitting here, those closing arguments continue. Our breaking news continues with our live coverage of that.

Plus, a guilty verdict in just days. That is what Trump's former White House lawyer, Ty Cobb is predicting tonight. Why? He's next.

And then this today --


REPORTER: Is your sister coming? Is she planning on coming?


REPORTER: Where's Melania?


BURNETT: Trump's wife, Melania, his daughter, Ivanka, were no shows at today's hearing, despite the fact that everyone else in the family was there. How come?



BURNETT: Breaking news, we're continuing our live coverage of the ongoing closing arguments in Donald Trump's criminal trial.

As I speak, the prosecution is making its closing argument. Judge Merchan urging the prosecution lead by Joshua Steinglass, who has given the closing argument tonight, to end the presentation by 8:00 p.m. By the way, that would be five hours of closing argument from the prosecution alone.

Merchan telling jurors that the court is, quote, taking full advantage of their flexibility tonight. So we're at 7:31 Eastern, seeing if this actually will conclude here in the next few moments.

OUTFRONT now, former Trump White House lawyer, Ty Cobb.

And, Ty, I appreciate your time.

So we're now getting into hour five possibly the prosecutions closing. How quickly do you think once this gets to the jury tomorrow morning, we believe, how quickly will there be a verdict?

TY COBB, FORMER TRUMP WHITE HOUSE LAWYER: So I think we'll have a verdict, you know, Friday afternoon at the latest. It could be Monday, but I think this case could easily be resolved by the weekend and Fridays are usually a trustworthy data estimate verdict return because jurors typically don't want to spend -- spend the weekend on this kind of stuff and they don't really want to come back the next week and delve had three full days to consider it. I think that's -- I think that's likely the day.

BURNETT: All right. So you think by Friday, you also think the jury will find Trump guilty. How come? COBB: I do. I think -- well, I think it's a combination of things, but

primarily its because the jury instructions almost require it. The judge is not going to instruct on any level of intent or knowledge that Trump should have had or for must have had with regard to the second crime, the generically referenced campaign finance crimes. And the jury certainly can't be unanimous on whatever that crime is because the crime itself hasn't been identified.

It's out there as multiple possibilities and both those concepts are a little at odds with traditional criminal requirements of knowledge and intent and unanimity. But this is very odd statute, I think as applied here the defense is going to have a good argument on appeal that it was unconstitutionally applied.

BURNETT: All right. So can you just explain ties so that just very, very simply, what instructions are you referring to here that the jury that have already been put out there that you're saying what would that basically say? They can't consider the motive of the campaign finance?

COBB: Well, it's not so much that they don't say that. It's you they omit any reference to what the standard is for Trump's knowledge and intent with regard to whatever that crime is, and they don't specify specifically what the crime is.

And there are multiple criminal possibilities under the campaign finance laws from false information to taking illegal contributions, either in-kind contributions, cash contributions, variety contribution, you know?


And there are a lot of elements to those particular offenses, none of which is going to be told to the jury.

BURNETT: So, all right, so you think that it is that that specific part about the underlying crime about campaign finance that is going to ensure the guilty verdict. And then just draw that line for me, from one to the other.

COBB: Sure. So, you know, they're going to basically be deciding really only the bookkeeping records and having to take it on faith from the judge and the prosecution that this was all based on campaign finance concern --


BURNETT: On the motive, on the motive. So, basically, you're saying that so they're going to have to decide do you know these checks were being signed or whatever, but not the motive that he would have done it.

COBB: That and the -- and what -- and what is knowledge and intent was at those crimes. I mean, you can't commit a crime that you don't understand to be a crime, and you can't commit a crime that you don't intend to commit. And that's true of the each of the elements of those crimes and the jury is going to hear none of that.

BURNETT: All right. So, let me -- let me ask you about one other point that I think flows from this tie and that is Trump's over the weekend, you went on social media and he was railing, it seems about what you're talking about that as the judge, the jury unanimously finds them guilty, of falsifying business records, Judge Merchan is not requiring them to be unanimous about the motivation, right, about the campaign finance.

So, it seems as if he's referring to what you're referring to, but what he -- how he put it was on his social media post. It's completely and then he puts an all caps un-American and unconstitutional. Would you agree with that characterization?

COBB: So I think he has a good argument, he and his legal team have a strong argument that its unconstitutional. You know, I think the un- American is -- that's always sort of a subjective thing and I rarely buy into Trump's screeds. But, I -- you know, I mean, I say this criticism of the approach of the prosecutors and the judge reluctantly because as you know, I think Trump is the greatest danger to democracy that the nation has ever seen.

But I do think in this case you know, there are certainly compelling legal issues that will be raised on appeal and quite likely maybe successful.

BURNETT: Can I ask your view tie as to why the judge would not include what appears to be so central?

COBB: So I think the judge decided even before the trial when he refused to tackle these issues. And during jury instructions when they again refused to tackle these issues that he was going to package this up for the appellate courts and appellate courts resolve these things. And there is an argument under the statute that they're not required to do what they're not doing, but I think that they may be wrong on that, and its going to take the appellate court to tell us that.

The prosecution is clearly intent to take a conviction and run, as I think Elie said last week and I think he's right that the prosecution is proceeding in a way that is pretty -- they lean pretty heavily into the evidence that was most questionably admitted in this case and they've spent a lot time and closing on that evidence. And I think that's risky on appeal, but good for their odds of conviction.

BURNETT: All right. Well, Ty, thank you very much. Appreciate it.

COBB: Always a pleasure. Thank you. Nice to be with you.

BURNETT: All right. You too.

And panel back with me.

Ryan, what's your understanding? Because the prosecution spent -- spent a significant amount of time making the point of what Trump's motive was, then it gets removed.

I mean, is this something that is going to become crucial, whether it be just some sort of a mistrial or as Ty is pointing out, for appeal?

GOODMAN: Not necessarily. I mean, especially because the appeal is going to stay within New York courts, essentially. And the law that they're using, it is very familiar to use this kind of a law to say that the jury does not unanimously have to agree as to what the unlawful means or they can have different views of what those unlawful means were to influence the election, as long as they all unanimously agree that Donald Trump used unlawful means to influence the election under the New York election law crime.

So that's -- I think they're pretty solid on that. What I don't know is if Ty's right, that the judge does not require the additional element of willfulness that Trump knew he was violating federal election law. That is a significant give to the prosecutors, but we don't necessarily know that yet.


GOODMAN: Well have to wait to see what the judge instructs the jurors tomorrow as to whether or not he says that.

There's an argument for unlawful means, means unlawful means, and that could mean civil violations, not just criminal violations of federal election law. That's what the prosecutors asked for. But we'll wait to see what and judge said.

BURNETT: Joey, I mean, the point about willful, right?


That you need to -- you need to have willfully done something and you have to have known that you were doing it.

JACKSON: Yeah, it's important, Erin, because it goes to this fancy term that us lawyers is called mens rea, and that's about what is your state of mind. And I think proving state of mind is essential in the criminal system. You want to know.

Were you acting intentionally, were you acting negligently? That is carelessly. Were you acting recklessly? Did you consciously disregard?

And so I think defining someone state of mind and having a ruling on that is critical. The other thing very briefly is due process is important. You can't prepare for something when you don't know what you're preparing for. And I think one of the things that has frustrated me in interest of full disclosure about this case, to conceal another crime.

What specifically should be the crime that was concealed? What specific mens rea is associated with the concealing of that, right, okay, intentionally concealing it? But define for me, don't say, well, it could be tax law, I could be campaign finance, it could be election law, it could be this, it could be that.

That's not the way this is played. The reality is, is be definitive with respect to what you're doing. And if you don't do that, it's problematic to me.

BURNETT: Mark, how do you see it?

O'MARA: So I look at it. I think it's problematic because we in criminal law look for certainty, right? If you're going to prove the case beyond a reasonable doubt, we know what it is you're attacking us over and we can defend to it.

This alternative way of arguing one, two, or three different ways is a little bit troubling to good in the gut come off as attorney is sort of like you have to prove up reckless driving. Okay. Is reckless driving value used to signal going outside the lanes speeding a little bit? And that's sort of what they're saying.

You can convict him of reckless driving, but you don't all have to agree it was because she did put on a signal or because you were speeding or because he will over the white line. As always, you know that it was reckless freedom to do that.

And quite honestly, that's what the prosecution probably should've said in a way to try and get it across as, too, they all alternative ways to the same goal.

BURNETT: It does seem, Terri, to the point that you're making sitting in that courtroom, though. And I think as were talking about it, every time you have this conversation, it's almost like you need to start yourself intellectually at the beginning and build it up. It's confusing and it's complicated.

AUSTIN: It is. And I do think the prosecution should have explained it a little bit better, but I think as far as the charge is a concern, the judge kept saying when they were arguing about these charges, I'm going to use the standard language and the standard language will or will not include the word intent. I think what the defense was trying to argue is you should talk about willful and they wanted it to be more intentional.

So, obviously, it's the fact that Donald Trump didn't understand that he's breaking the law. He wasn't intending to do it judge basically said, look, there these three alternatives, I'm going to read the standard language and to the extent that it does require intent, I'll be reading that. And we'll see tomorrow.

But he didn't say based on what I heard that, look, I'm not going to say anything about intent at all. If the statute calls for, he's going to read it.

BURNETT: So, we'll see because, of course, these instructions when they come tomorrow the crucial to this whole conversation and what he really says.

All right, well, as the prosecutions closing argument is now, were firmly in the fourth hour here. They were supposed to be done at 8:00 and we'll see right now, as you can see, Steinglass is talking, juries determine intent all the time actually talking about this issue, saying of the need to proven intent to defraud. So we're -- we're right on -- right on that right now. Right now as

Trump's in that room though, he is there with people from his family, a whole bunch of people, Don Jr., Eric, Tiffany Trump, all sitting in the front row during closing arguments, and, of course, everyone's taking note of who is not there, Ivanka and Melania not showing up for a single day of this trial.


REPORTER: Is your sister coming? Is she planning on coming?


REPORTER: Where's Melania?


BURNETT: OUTFRONT now, Stephanie Grisham, former Trump White House press secretary.

So, Stephanie, I want to give some context when that reporter said, where's Melania? Terri, who's sitting here, said that reporter has said that to Trump every single day. So, every single day, that has been yelled as he's walked in that courtroom.

Do you think it bothers him to hear reporters asking where's Melania, and also a times, where's Ivanka, the two who are noticeably never there?

STEPHANIE GRISHAM, FORMER TRUMP WHITE HOUSE PRESS SECRETARY: Oh, absolutely. I know it bothers him, that kind of thing would bother him, if it Mrs. Trump wasn't at some event and it was really noted, he would definitely bring it up with her. So I'm sure in this context, it's definitely really bothering him.

BURNETT: All right. So there's a source close to the Trump campaign telling CNN that it's possible that Ivanka and Jared could make a joint appearance before the verdict. We're also hearing Ivanka specific concerns about her kids, awareness of the case because they're older now and obviously at the heart of it is their grandfather sleeping with a porn star.

Do you think Ivanka and her father have actually talked about this in any sort of an honest way, Stephanie?

GRISHAM: I imagine there have been conversations, but I don't know about how honest were going to get. I'm sure she has said, I just want to keep the kids out of this, but more of a not about the porn star angle, but just, you know, I don't want them to realize what's happening to you, father.


I think that would be the way she would she would stay in it.

BURNETT: She'd put it. GRISHAM: It doesn't surprise -- yeah. She would spin it.

It doesn't surprise me that she's not there. And as I've talked many, many times, of course, doesn't surprise me that Melania is not there. His family is really focused on optics. They are always focused on optics.

And so I know that today, they think they're showing this, you know, the four of them are there and that's good for the optics. And then, of course, the boys got to go out and shout over each other and talk about how horrible this is.

But, you know, I think that Melania and Ivanka are both thinking of their own optics and they haven't been here the whole time. I'm just not sure showing up now would do anything but cause more speculation.

BURNETT: I mean, do you think there's any chance that Melania shows up? I mean, obviously at the heart of this is something I know you've talked extensively about and she's -- she has strong feelings and it was a humiliating incident the way the whole thing happened and was covered for her. Nonetheless, for being there certainly does make a huge statement in his favor.

GRISHAM: There -- I would be absolutely floored if she showed up. There's just no way.

And again, she hasn't shown up this whole time now. And so in her mind, I think she would think that she was caving or even look weak to suddenly show up now. It's hard for me to explain what that is I imagine what her way of thinking would be because I'm sure the campaign has continued to ask if she would show up. I'm sure he's asked a couple of times for her to show up.

I'm sure it's crossed her mind, but at this point, I would absolutely be floored if she showed up.

BURNETT: All right. Well, Stephanie, thank you very much. Always great to see you and thank you.

And next, our breaking news continues. Live coverage of the closing arguments, which are going on. You can see right now on your screen that is live reporting from our reporters who were in the courtroom.

And if Trump is convicted, what will life be like for him? New York's former corrections and probation commissioner is next.



BURNETT: Breaking news, prosecution still continuing the closing argument. Joshua Steinglass, that problem prosecutor, right now talking about Pecker, and that he put the campaign first trying to make this tie, that this was to further a campaign finance violation in the Trump hush money trial here in New York. The prosecution right now is nearly five hours into its closing

arguments. It was supposed to be done by 8:00. Well see here in these next few minutes if they actually conclude.

And, obviously, Steinglass is trying to convince the jury to convict a us president for crime for the first time ever, while it may be unlikely Trump would serve time behind bars du to factors like his age and he's a first-time offender. Trump's like as life as he knows, it will likely never be the same if he's convicted because this is, of course, a felony.

OUTFRONT now, Martin Horn, former corrections and probation commissioner for New York City.

Martin, I'm glad to see you again and now here we are in these final hours, days of this trial, of verdict coming and historic way, whichever way it goes.

If convicted, there are two types of probation. I understand Donald Trump could get unsupervised, which I know you've said is sort of like the honor system or supervised.

Based on the usual protocols, what -- what does it look like for Donald Trump?

MARTIN HORN, FORMER NYC CORRECTIONS & PROBATION COMMISSIONER: Well, I'm not sure I understand your question.

BURNETT: I mean, which would he get?

HORN: There's a distinct difference -- there's no way for me to predict which he would get. I -- that's not a question that I can answer. I'm sorry.

BURNETT: Okay. Well, let me ask it to you this way. If he gets unsupervised, obviously his life won't change very much. It would see him because that's the honor system.

What are supervised probation if that were the option if convicted that Judge Merchan goes with, what would that look like?

HORN: Well, assuming that he is treated like every other individual who gets probation, which I would hope would be the case, he would have to come in and meet with a probation officer, initially, provide a great deal of information about his personal living situation he would -- given his age and his criminal history, probably be considered a low-risk probationer and in New York City placed in what's called a reporting track.

And individuals in the reporting track do not actually report to a life probation officer. They visit periodically, perhaps as infrequently as once a month to a kiosk typically located in the probation office entranceway. That's much like an ATM and after identifying themselves, answer a series of questions about where they're living, where they're working, whether they've had any encounters with law enforcement, and whether or not they need to speak with the probation officer.

The computer system, it cross-references, of course, the city and the state criminal history records. So it knows if the individual has been arrested. Most individuals are subject to periodic drug testing that might not be a requirement in this case. But if it were, there's sort of a random lead generated notice to report for a urine tests.

BURNETT: Martin, can I ask you one question, sorry, just to jump in, but on that kiosk, does he have to show up in person or Donald Trump's going to be going into do that, or would someone be able to do that as behalf in his case?

HORN: No, you have to do it in person. And there's -- the system uses a biometric identifier to determine that it's actually.

BURNETT: So, would -- how would this affect again, if this is the case, you're talking about supervised probation, he is the presumptive GOP nominee for president, he's going to campaign rallies across the country. He's going to Mar-a-Lago, Bedminster, all the things he would ordinarily do, can he do all of those things?


HORN: He can do them with the permission of the probation agency. So let's talk, first of all, about Florida and Mar-a-Lago. If he wishes to relocate there, he would have to request that the probation agency transfer the supervision of his probation to a probation agency in Florida, and there's an interstate compact that provides for that, but it takes some time for that to happen.

Typically, an individual who wishes to travel outside the jurisdiction, even if it's only to New Jersey from New York City has to obtain the permission of the probation agency. Now, once an individual has been on probation for a period of time, and the agency feels that they know the individual, they may give them a continuing variance or for permission to leave the jurisdiction.

But if he were going to fly off to another state Wisconsin, Arizona, he would have to get explicit permission from the probation agency.

BURNETT: It's just amazing to think about. I mean , when you're talking about a person who is a presumptive nominee for a party and could in fact be the next president, as well as a former.

Martin, thank you very much. I'm glad to see you again and I appreciate all of that.

I want to go back to Paula Reid right now, though, because 7:55, just under the wire, Paula, it appears are they wrapping -- are they done?

REID: It does appear that the prosecution has finally wrapped up its closing arguments after roughly five hours and the judge did suggest he was going to cut them off at 8:00. So, coming in just under the wire.

And here, Joshua Steinglass, he actually thanks the jury for their time and he said, I apologize for trading brevity, for thoroughness. I mean, he produced rehash the entire case over the past five hours, but or and he concluded is closing by saying, quote, the name of the game was concealment and all roads lead inescapably to the man that benefited the most, the defendant, former President Donald J. Trump.

He also said that Trump has a right to a fair trial and the prosecution has the burden to prove this case beyond a reasonable doubt. Of course, wrapping this up in front of the boss, the district attorney, Alvin Bragg, has been present all day for closing arguments, Erin, underscoring just how significant is closing arguments are in this historic case. And tomorrow, the judge has about an hour of its objection to the jury, and then it will begin their deliberations.

BURNETT: Alright. Paula, thank you very much.

And my panel back with me.

Mark O'Mara, the jury, not getting instructions tonight stands out to you?

O'MARA: Yeah. I think they should have gotten some because now they've got my example like a cake and the frosting, and they don't know what to do with it because the other hurdles information we have at least give them the definition of reasonable doubt. The standards, the rules for deliberation, to waiting to hear everything before you make a decision, you'd listen to the other jurors first.

I know that hell do it in the morning, but why not spend another five or ten minutes with just that quick don't forget, don't start yet. And I think you should have.

BURNETT: And, Ryan, what do you make of that? I mean, I guess there is something you're going to go home was one of those jurors and without the kind of constraints in which you're supposed to be putting your thinking, you're going to be thinking and you're going to form opinions based on what you heard.

GOODMAN: I think it'd be difficult for the judge to communicate enough information for them to be able to frame it.

BURNETT: It is a full hour to do what, I guess.

GOODMAN: Yeah. And it's not just that the prosecution went for five hours, but they went for five hours into the evening. We're about 8:00 at night in New York City, so it's really pressing the patience and the endurance of the jurors to be able to listen to all that. And then on top of that, listen to instructions that they need to retain for the next day, I think would be asking much too much of them.

BURNETT: So we're just told 10:00 a.m. Joey, there to be there tomorrow and they get an hour of instructions I can only imagine it would want to use the word blanche since that's the name of one of the attorneys, but I'm like you would literally say, wait, its going to take me an hour to get my instructions. I thought I was supposed to do guilty or innocent know. JACKSON: No, there's a lot the judge has to get through with respect

to what the legal standards are, how they apply, what the law is, et cetera.

And I think Mark raises a very good -- Mark O'Mara raises very good point with regard and giving them some guidance tonight. But then an accord with Ryan, they're tired. They'd been through a long day and I just don't think you get their attention.

I think tomorrow there'll be fresh. They know what they have to do, they will have heard all the facts. Now, what is their duty to apply those facts to the law and render a verdict.

BURNETT: All right. So in the courtroom tomorrow, obviously, you'll be -- you'll be there. So 10:00 a.m. they come in, they get the instructions and then, Terri, what happens?

AUSTIN: And then they go out to deliberate and the rest is up to --

BURNETT: In a room?

AUSTIN: They're in a room. They're talking to each other. If they have questions, they'll send notes.

One thing the judge DOJ does do every evening, though, is he gives a little instruction, don't talk about the case. I'm sure he did something like that tonight, too.


AUSTIN: So they're not going to start deliver waiting until tomorrow once they hear the instructions and those instructions will be detailed long and boring. They'll talk about the law and they'll deliberate and we'll see how long it is.

BURNETT: And because, Ryan, there's 34 counts. Even though I understand that it's often a signature here, a signature here. By definition, they have to get organized, right? So this, this quick 45- minute verdict, which I know the Trump team had thought would be obviously very bad for them. It would seem very difficult to imagine that just because of the sheer number of counts.

GOODMAN: I'm not sure because the 34 counts are almost like the same count, 34 times.


GOODMAN: It's almost like every check.

BURNETT: So, it could be fast if possible.

GOODMAN: It's possible.


All right. Well, thank you all very much. I appreciate it. Good to see you.

And tomorrow we'll see what we get.

Thanks for joining us.

Our breaking news coverage continues now with Anderson.