thank you for watching. remember, you can watch the nightcap again on saturdays at 11:00 p.m. eastern on msnbc. if you missed it you can watch tomorrow. catch the latest installment of the turning point documentary series from trevor noah. this weekend is about georgia. tune in on sunday at 9:00 p.m. eastern right here on msnbc and tomorrow morning . on that note, i wish you a very good night. from our colleagues from nbc news, thank you for staying up late. i will see you on monday. .

welcome to a special two hour edition of the beat. you know, we are nearing the end of the first criminal trial of the former u.s. president, donald trump. by next week the case could be in the hands of the 12 member jury. but before that happens, trumps former fixer and personal attorney will be back on the stand monday for a third day of cross-examination. the defense is focused so far on trying to portray the state's key witness as a serial liar, someone who cannot be trusted, and who is only out for revenge against his former boss. the word lie was used more than 60 times in court yesterday. and through what felt at times like a meandering cross- examination, they had been able to poke a hole in credibility

during questioning about one of the phone calls from october 2016. that netanyahu testified he had made with trump, allegedly telling him the payoff to stormy daniels was being handled. yesterday netanyahu admitted he was having trouble recalling his telephone calls on specific dates going back to 2016 after he was confronted with evidence that the call may have been only with trump's bodyguard about a completely different issue. but, perhaps and unsurprisingly, the defense has so far failed to raise on cross- examination any questions about the many documents presented as evidence about the falsification of those business records in order to hide the reimbursement of that $130,000 hush money payment. and let's remember, that for the prosecution, they are not relying solely on netanyahu's testimony, but have been spending the past few weeks presenting the jury with cooperating evidence to nearly everything he has testified

about. about. the lawyers for both sides have told the judge that they expect to be finished with cohen by monday, when the prosecution indicated that as of yesterday they do not expect to call any other witnesses, thus handing over the case to the defense. for their part, the defense said they are deciding if they will call any witnesses, including donald trump. that will only leave closing arguments, a final opportunity for both sides to tell the jury how the evidence supports their theory of the case. for the defense, it could be a high bar, given that during the opening statement todd blanche told the jury, "you're going to learn that the money paid to cohen by trump was not a payback, the $33,000 a month was not a payback to mr. cohen for the money that he gave to miss daniels, he was president trump's personal attorney, but the evidence presented so far tells a completely different story.

joining us now is lisa ruben, msnbc legal correspondent, harry lipman, former u.s. attorney and joyce vance, former u.s. attorney and senior fellow at the brennan center for justice at nyu schools of law. so for my leadoff panel here i want to start there, where i just ended, because that is a promise that blanche made to the jury, that he has not only failed to deliver on, but the prosecution brought out evidence to prove that this was a reimbursement to michael cohen. there are the handwritten notes on the bank account statements showing the $130,000 wire transfer to stormy daniels lawyer and noting the breakdown of that repayment plan. we got trumps signed the 17 public financial disclosure report. that says that michael cohen was reimbursed, and trumps own tweet from may 2018. i mean, harry, i'm going to start with you, can we expect

the prosecution to cover what i just went through in the span of 10 seconds, do you think they're going to cover this on redirect, or will the prosecution wait until closing to tie it all together? >> it is interesting, they have a very good choice here. you know, blanche is a prosecutor by background and you are taught never, never overpromise in the opening. and it is just tailor-made for an absolute bludgeoning of this very point. will they bring it home? i think it will be clear. it is already clear to the jury that it has been a reimbursement. they might hold it for summation. new york, the prosecution will go last and the defense first, so they will have the final word, and i think a good strategic move would be just to hold it and say remember what mr. blanche promised you? well, what have you heard? it is an odd promise, because

the evidence seems so clear from the start that is what this was. i think it is a bad self- inflicted wound. flicted wound >> blanche's biggest blow to cohen's credibility, although this is subject to interpretation, was the october 24 phone call in 2016. that was only one of at least six other calls. in october 2016, that michael cohen testified in which trump gave him directives about how to deal with and to do the stormy daniels payment. none of those other calls had been brought up by the defense. we have also not heard any questioning about the actual meetings that michael cohen said he had where they discussed the whole scheme. so again, is that something that the prosecution goes to on redirect to kind of rehabilitate his credibility? there seemed to be a moment in time that when we were listening on thursday a lot of a set is there something there?

>> yeah, sure, so this is only a problem for the prosecution if they don't fix it on redirect. as you have pointed out, there are other calls, there is a call two days later on the 26th that is far more important, because that is the day that michael cohen forms the company, the shell company that is used to transfer money to stormy daniels. that happens after a couple calls with trump early in the morning. on redirect the prosecution will be able to support his credibility. he takes a hit here, but it does not need to be a fatal one. and you know, i may just be a country lawyer from alabama, but one thing that i know from having tried 40 or 50 cases is that something that juries hate is when someone makes a promise to them, a lawyer makes a promise to them, and then the lawyer breaks that promise. i think the broken promise from the defense's opening statement will matter a lot more in the final analysis for the jury

then some sort of temporary damage to cohen that will be fixed by the redirect. >> into your point, there was an all or nothing proposition that the defense omitted itself to that will come back to bite them later on. so another part of the defense's argument so far is that he just made this $130,000 payment on his own accord without any guarantee of ever being paid back, but we have other witnesses that have testified that it is definitely not something he could or would even want to do. and did the idea that would have made a $130,000 payment to stormy daniels, was that consistent with your interactions with him? and he said that would be out of character and why would it be out of character i did not know michael to be an especially charitable person or a selfless person. he is the kind of person who

seeks credit. and then we also have david packer's testimony, you told us that cohen told you the boss would take care of it, would you pay you back, how did you feel about his representation that mr. trump would reimburse you? over the years that i worked with michael cohen i knew he did not have authorization to spend or disburse funds from the organization. every time we went out for lunch i always paid. he never paid. so i do not think that he had any authorization to buy or acquire or spend any monies. without mr. trump's approval? david packer, without mr. trump's approval. i mean, lisa, how important is it that we have cooperated testimony from pro-trump -- put that in quotes, pro-trump witnesses? >> it is huge, katie. there is another conversation that he testified to as well, because netanyahu testified that he or his representative was stiffed on his bonus at the end of 2016 by almost 2/3. and david packer testified that

michael cohen not only shared with him that he had been stiffed on his bonus, but his outrage that trump, by late december 2016, had not repaid him, and he asked if he could talk to the boss about this. he said that he then had a conversation with trump in which trump never answered him directly, but instead raised the issue of michael cohen's significant wealth outside of his work for the trump organization, including through his taxi medallions. i think that they both have said that cohen paying on his own would be out of character and on any authority that he had and that he complained specifically to that, that is huge in terms of bolstering michael:and cooperating his testimony. >> there's also the secret ordering of donald trump and cohen discussing the karen mcdougall payment that counters the narrative that the stormy daniels payment would have been done ever without trump's knowledge. take a quick listen, guys keep.

>> i spoke to alan about it when it comes time for the financing. no, no, no. >> so, he tried to make a big deal about netanyahu secretly recording a client, but harry, that ended up falling flat when he said hey, there is also a crime fraud exception to any kind of attorney-client confidentiality. you think the jury picked up on that nuance right there? >> this, by the way, is an especially difficult jury to read. i think they are aware of their historic role in the file in like soldiers of justice. they do not chat with one another. the short answer is i don't know, but the real answer is it doesn't matter. whatever they think about that, and whatever they think about the ethics of taping whatever, trump's words responding immediately, how are we paying? including blanche tried to say

well, maybe cash versus check, it has to do with the method of financing, again, and extraneous detail. what we hear is trump acknowledging knowing what is going on and the same thing when he talks to hope hicks later. he knows that he is reimbursing this phony baloney scheme. that is what stands out and will stand out when they deliberate. deliberate. >> joyce, you wrote today about that moment yesterday regarding that october 24 phone call that we just discussed. you write, before trump's defenders get too excited, they need to remember this is just one moment in a long drawn out cross-examination. will the jury remember it by monday when cohen is back on the witness stand for a fourth day? let alone during closing arguments when the defense is certain to hammer home the point that cohen is lying? pundits are vociferously debating whether it was a yawn or a homerun but this is an

important point, right? it felt like there was a lot of chicken little going on yesterday about people being freaked out about that moment with michael cohen. i did not think it was that big of a deal, why has this cross been going on for days? i don't see where the punches are being landed, and to your apartment, even if there was a glancing blow, is anybody going to remember it when it comes five days later? >> you know, i think that what blanche strategy is, i know people have been critical, but i think that he has one in sight that might be valuable, and that is that sewing chaos and making the case difficult to follow is the sort of environment where perhaps you can convince one or more jurors that there is reasonable doubt. so instead of following a timeline, he has been very scattershot all over the place. we will see him make what he can of that in closing arguments

and it all comes down to whether or not there are one or more jurors looking for a reason to find reasonable doubt, because the government's case has been tried very well up until this point, far better than we expected it to try. >> i think this is maybe -- a little bit ahead of the game here, but i really wanted to ask you this question, you know, we have two lawyers on this jury and i have had several conversations with really brilliant folks about this. i mean, there are different schools of thought on whether or not it makes sense that this is good for the prosecution to have two lawyers on the jury because maybe there are some more complex legal issues that might be up play during the deliberations. want to get your thoughts on whether you think it is actually good to have those two lawyers on the jury when it comes to deliberations. ib >> i do think it is ergood to have those lawyers on the jury when it comes to deliberations, not necessarily because of the sophistication of the legal concepts, but remember, this is a lot about the negotiation of what our standard for print deal documents done for anything but a standard corporate purpose.

so the fact that we are talking about, for example, payment of a retainer without any retainer agreement, both of those gentlemen you refer to who are lawyers, we understand them to be in private practice. the fact of representation at that kind of money without a retainer agreement, that might strike both of them as the sort of thing that is anomalous stick and adds to the credibility of the case given the particular life experiences. experie >> don't go anywhere, folks. joyce harry and lisa are sticking with me. we will be looking at the argument starting as early as next tuesday. stay with us. with bounce pet, you can cuddle and brush that hair off. bounce, it's the sheet. only purple's gel flex grid passes the raw egg test. no other mattress cradles your body and simultaneously supports your spine. memory foam doesn't come close. get your best sleep guaranteed. save up to $800 during our memorial day sale.

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scotts turf builder healthy plus lawn food today. feed your lawn. feed it. back with me are joyce, vance, harry lipman. we have talked a lot about pregnancy recently and the idea you start strong and and strong when it comes to the presentation of your case. i want to get your thoughts about the prosecution deciding they will end their case in michael cohen. >> it is surprising. we do not anticipate that in advance. it seemed like an awful lot to risk the whole primacy and recency thing comes from psychology. jurors remember best what they hear first and last. and so it suggests that prosecutors were confident that cohen would stand up on cross- examination. of course, they will get a final shot. harry pointed this out, new

york state court is different from what we are used to. in federal court, and in most states, when you get to closing arguments, the prosecution goes first. they have a longer piece, followed by the defense and prosecution gets a rebuttal. here in new york there, the defense lays out their case in the prosecution lays out there's, and that is it. the prosecution goes last because of course, they bear the burden of proof beyond a reasonable doubt, that is a high and heavy burden, but they will have the last chance to make an impression on the jury. >> when it comes to the defense in this particular case, it is donald trump, right? one question that remains open ended, to which we will get an answer from blanche is whether or not donald trump will take the stand. most conventional wisdom, he is not going to testify, but remember, he has an outsized presence when it comes to doing with his lawyers and influencing his lawyers to take positions in court that are a

little bit absurd. what you think are the chances that donald trump could say to his lawyers, thanks for the advice, but i'm not going to heed it. >> around a 50%-20% chance donald trump still testifies because of who he is and the most recent trial at which he was a defendant is one at which he did testify, i'll be it in a circumscribed way based on the pre-rulings based on the second trial in which a jury awarded her $83.3 million in damages. perhaps because of donald trump's testimony, not in spite of it. so looking at that history, any good criminal defense attorney would say this is not a good idea, sir. and i have no doubt that todd blanche is saying that to him. on the other hand, you know as well as i do that a client directs the defense, and this is a particularly strong willed

iconoclastic client. so my hope for all of our sakes is that good sense prevails and yet i would not be shocked if donald trump, at his own insistence, takes the stand. >> speak for yourself, if this man takes the stand, i think it would be great, but not because of the media value, but because i think he would do himself in. when it comes to closing arguments, the judge will read the instructions. and i want to read something from the new york times, it says executors not actually have to prove to the jury beyond a reasonable doubt that mr. trump committed that election crime and it is not clear how the judge will explain to the jury what they should consider. his explanation will be important in the outcome of this complex case. harry, how does this issue of elevating it from a misdemeanor to a felony, how does this get

teed up to a jury? putting aside the closing arguments, right? how do they take this into deliberations? >> it is tricky, and i do not disagree with lisa's point about the upside of a lawyer, but this is, if you're thinking about trump's conviction, a down side, because lawyers can take very seriously what i think would otherwise lead regular jurors to be befuddled. did he do it with the intent of covering up the other crime? i think it does get slippery, and there is a strategic choice for trump. they can actually request a lesser included offense, which would be conceding guilt on the misdemeanor charges, but it would invite a split verdict on the felonies and maybe he would declare victory if that is what the jury found. i want to make one point, country lawyer from alabama or big-city prosecutor, one of the best pieces of advice i ever got was right your closing argument first and take it from there. and in a big case like this,

they have really been appointing so much evidence towards how it will be on summation. a very good example, we saw those paralegals on the stand who got stuff in and nobody knew what was going on. in closing argument those will turn into very completely read out calls and that will certainly be part of a presentation that will really march through things. it is going to be really tying everything up in the summation and that is what much of the evidence has been presented for in the first place. . >> yeah, and to your point, lisa wrote something really great too about the summaries entered into evidence by certain witnesses and i have always said don't sleep on the custodians of records, they serve an important purpose, they might be boring for you, but for them doing what they do you would not be looking at

them in anyway if you are a member of the jury, but i want to stay on something that harry and lisa just said, this is the opening statement, the portion of the opening statements and if you go through, i flagged all the promises we have talked about that were made by todd blanche to the jury and the ones i have not seen come to fruition. one thing we have heard about the maneuvering is how does judge merchan deal with the timing of it? that is something we talked about a few hours ago. you cannot split it up. so how do we deal with the fact that we have these upcoming juror unavailability, holidays, etc.? i mean, the viewers hear it and it gets reported out by lisa and myself and sometimes it does not make sense, so talk about why the housekeeping issue of scheduling become so important when it comes to closings, charging the jury, and deliberations. >> it is a big deal here because judges will tell you that their preference is to let the lawyers deliver the summations to immediately

instruct the jury on the law, and then send them off to deliberate to make sure that they have a block of time to deliberate. something i hated as a prosecutor was three day holidays in the middle of jury deliberation, because it meant they got the case, they might deliberate for a day and then they would be off for three days and our memories fade. our focus can get a little bit you know, put off center. and so now judge merchan will have to deal with the situation because he has the impending three day weekend. we do not know if donald trump will testify or not and that will push the schedule back. all sorts of issues that could come up and make this very difficult to get that block of time that he needs to get the deliberations off to a good start. start. >> and harry was just saying four, and he is right, there is no court friday, saturday, sunday and the holiday is monday, so the jurors would be

out four days between closings as well as deliberations. also wanted to come back to you about something important, there is a lot of stuff that happens before jury selection happens and that is stuff you have been covering extensively, and that involves pretrial rulings. we have seen those come home to roost, but more notably, when it comes to a potential fec defense expert that the defense wants to come and testify that maybe the only witness, the only evidence from the defense next week, monday if donald trump is not testify. kind of walk as quickly through who is this person and why is there some type of contention towards what the testimony could be? >> they want to bring in bradley smith, the former commissioner with the federal election commission. they want to inform jurors about the customs and practices of the fec, the federal election commission, and how they interpret certain words

and phrases in the federal campaign finance law. the overall objective is to convince jurors that even if there was a falsification of business records, it cannot possibly be a felony, because there is no underlying crime here. specifically, there was no conspiracy to promote donald trump selection in a way that was executed through unlawful means, chiefly campaign finance donations that violates federal law. the judge has already ruled that he himself is the ultimate arbiter of what the law is. as you know, that is not usually an expert to interpret law, that is what a judge is supposed to do. and indeed, judge merchan has ruled that this expert's testimony will be very circumscribed. he does not need an alternative explanation of what this law is, particularly if jury instructions can get them there. there. >> i have less than 30 seconds but i have to go to you based

on lisa's response, the elevation of the misdemeanors to a phony could be campaign- finance or tax or something else, it is not have to be proven beyond into the exclusion of every reasonable doubt to have him found guilty but the fact that they are contemplating putting on a campaign-finance expert, does that mean the defense thinks that is what the elevation to felony offense is involving? >> the judge has already told the prosecution that they can go to the jury on three theories involving campaign- finance and tax. here is the explanation for how this works, it is a lot like the crime of burglary. the crime of trespassing, if i go on to your property is simple trespass. if i go on with the intent to commit another crime, no matter what it is, then it is burglary under most state codes. so this is analogous. if i create or cause to be created fraudulent business records, it is a misdemeanor. if i do that with the intent to

commit another crime, it becomes a felony, and that is what the prosecution has to establish to the jury. there will not be some trial on campaign-finance law, it is just an accelerant that turns the misdemeanor into a felony. >> okay, we can wrap the show now, that is all that we needed to have spread just to have you here to explain it all, because now i feel even smarter too. thanks for getting us started. coming up, despite trump saying he is willing to testify, and it probably won't happen, mostly because every time he has been under oath he has made things demonstrably worse for himself. more on that after the break. e provider about the number one prescribed h-i-v treatment, biktarvy. biktarvy is a complete, one-pill, once-a-day treatment used for h-i-v in many people whether you're 18 or 80. with one small pill, biktarvy fights h-i-v to help you get to undetectable—and stay there whether you're just starting or replacing your current treatment.

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this generation is so dramatic! move with xfinity. so it is the million-dollar question that we talked about, will donald trump testify in his new york criminal trial? he has repeatedly claimed that he would. take a listen. ten.

>> are you going to testify in your trial? >> it is a scam. >> i'm not allowed to testify, i am under a gag order, i guess. i cannot even testify. >> no, it won't stop me y.from testifying. testifying. >> here is a fact check, the gag order does not prevent donald trump from testifying. so now it is trump's decision alone whether to take the stand. last time he took the stand in his own defense it did not go well. he went off the rails in his new york civil fraud case, so much so the judge had to call a recess so that the defense could coach trump on proper courtroom behavior .4 in the defamation case where he appeared to confuse his ex-wife for i ching carol. >> you said marla is in this

photo? >> this is marlow. that is my wife. what he talking about? >> here. >> the woman you just pointed to is jean carol. >> trying to save the day. so putting trump on the stent comes with risks for the defense and trump likes to talk a big game but we will see if he chooses to do it when it counts the most. joining me now is the author of the big cheat, the founder of the dc report.com and syracuse law visiting lecturer. it is good to have you here, you know a lot about donald trump, so let's start with the oddsmakers in vegas. they say there is a 96% chance that trump is not going to testify. david, would you take that that? >> i think the odds should be more like 99.9-1. certainly his lawyers will counsel him, you do not want to take the witness stand, but you know, donald's ego and belief that he is all-powerful, he might do

it. i think it is unlikely. if he does, it will guarantee a conviction. >> i wanted to stay on we saw the matchup of all the different times he promises to do it, although we have heard that as we inch closer to the finish line of the presentation of evidence he is saying well you know it just depends on if it merits it or whatever which is typical trump to sit there and be bombastic and loud and very noisy about something but when the truth or the time comes to deliver the truth he does not do it. why is it the case of though that it is the boy who cries wolf ? why aren't people realizing already this guy was never going to take the stand? >> a lot of people do recognize that this is donald's game and he has played it many times. but the hard-core followers, the poorly educated, who he says he loves, he doesn't, they will buy whatever he wants to sell. so if he does not take the

witness stand he may say the judge set rules that are unfair and there is no point in doing it, it is unfair or we showed it was all shams, so why should i take the witness stand? he will come up with a explanation that you and i might find to be ridiculous but he will come up with one and sell it to his hard-core followers. >> speaking of this followers, isn't there an upside ? there an upside there with him testifying politically, taking the stand and saying what -- remember, he is standing outside everyday anywhere using the outside of that workroom in the hallway is what i call a bully pulpit to spew lies. couldn't he politically use it to his advantage? >> katie, you have hit on the reason he might testify, as much is i think it is unlikely, because you know, having this delusional belief about himself, he thinks he can make

this all go away and answer questions that will show it is nonsense. he will do fine when his lawyers are questioning him, but on cross examination he won't know what to do and i'm sure the prosecutors have already filled out and if then the tree. as you know, they will if this answer ask that question and donald would not survive the amount of time on the stand we have already seen with michael netanyahu without implicating himself and harming himself. and this has happened in the past when he has had to testify in depositions or when he chose to testify in the courtroom. o >> and also trump's lawyers have had to rain and trump's out-of-court statements as he was hit with multiple gag order violations. excuse me. since trump does not want to be seen violating these gag orders he is having his surrogates do it for him. take a listen. >> the judge inside, his

daughter is making millions of dollars running against donald trump, raising money for his political opponents. the judge his own daughter is making millions of dollars doing online fundraising for democrats. >> the judge's daughter is a political operative who raises money for democrats. mocrats. >> i mean, this is how he rolls, right? he gets other people to do his dirty work, like a mob boss. he got michael netanyahu to do his dirty work, right? >> yes. and cohen lied all the time he worked for donald and because he paid him to lie and then he rewarded him by having the justice department prosecute michael netanyahu. what we just saw in those and other surrogates appearing outside the courthouse and announcing our system of justice , the republican party has decided to abandon the law and order theme and become the

party of lawlessness and disorder. this is a really shocking development to see among the republicans and we should all be very troubled about this, just as we should be troubled about the upside down flag that hung at the home of justice alito and other things. there really are a number of people in elected or high appointed office making it very clear they don't believe in democracy, they are perfectly happy to have donald trump become our dictator. ictator. >> thanks for being here, i appreciate it. eccoming iaup, it is not ju politics and legal junkies following the trial, pulling shows that america has been watching, and a majority think donald trump is guilty, we will be right back. ovato. dovato is a complete hiv treatment for some adults. no other complete hiv pill uses fewer medicines to help keep you undetectable than dovato.

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as the first criminal trial of the former president continues, donald trump has a rare day away from the defense table for his son, aaron's high school graduation. he actually went. while he has spent the majority of the month at the courtroom the current president has been out campaigning and selling merchandise, making fun of trump's trial schedule. it seems like voters have started to notice the poor optics for the presumptive republican nominee. a recent poll shows 52% of americans, a clear majority, think trump is guilty of

falsifying business records to conceal a hush money payment to stormy daniels. but what perhaps is more concerning, only 22% say that he is not guilty. join me as the strategist and political analyst. you know how i feel about polls, but this one, this one captured my attention, so i wanted to talk to you about this. this is the first polling we have seen on the real impact of this trial on perspective voters. i want to get your thoughts. >> there is no question that this is a net negative for donald trump. this is the first time a former president has ever been put on trial for anything. the fact the case looks solid, whether you're a trump supporter or not, it is tough to blank out the facts that keep coming and stuff even trump acknowledged took place, however, if you are a democratic strategist or joe biden, i think it is a major

mistake to try and tie this trial around what ultimately needs to happen in november. the american people have seen more than enough to show that donald trump has been guilty of crimes, whether he is found guilty in manhattan or whether or not other trials take place before now in november, whether it is the adjudicated conviction for what he did to jean carol or the front he committed, one of the largest fronts in american history through the trump organization, the insurrection that he saw and led, nobody doubts that happened. he and his family, what are the most corrupt families in history as far as taking foreign money, and then as presidents, the rights he took away, single-handedly taking credit for removing the roe v wade protections that imperil millions of women around the country now and the court of public opinion, he is way guilty, and i think that is what this needs to be about, less than the concern about this trial. trial. >> i will say no matter what he wants to say were supporters want to say, when i have been

at the courthouse over the past few weeks, there are not supporters there for him. there are maybe four or three people versus the throngs of people he suggested would be there, but which is a lie, he says they're not want to come or whatever. you think that this level of disinterest on the part of his supporters is actually a direct impact will result of what is happening down at the trial? >> i think it is, to the extent there are supporters, republican members of congress are his base and the establishment coming to kiss the ring in the disgusting display and you saw mitt romney call him out and it got to the point, but i think that all of this stuff has lessened or dampened the enthusiasm. donald trump today is not the same candidate he was in 2016 that inspired those types of responses and turnouts

men, at sometimes, our master of their faith.