Sara and Jim are excited to release their first new podcast of 2024. The hosts welcome lawyer, crisis manager, and political consultant Lanny Davis to the show, and discuss the recent mock trial that Sara and Lanny participated in. They also highlight the importance of the presumption of innocence, and how innuendos in journalism and media create a presumption of guilt instead. The hosts ask Lanny about his recommended come-back strategy for Gov. Andrew Cuomo, as well as his adversarial relationship with ‘cancelled’ Senator Al Franken.
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Episode Transcript
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(00:22):
Hello everyone, and welcome to thepresumption. Happy New Year. We hope
that all of you have great holidaywith your families and friends, and we're
excited to be back. We maygo through some slight programming changes, but
we are back in full force andI'm here with my esteemed colleague and partner
in crime, Jim Griffin, Hey, Sarah, and Matt Fondelier, our
(00:45):
producer extraordinaire, and Happy New Yeareveryone, and the wonderful man that you
see on the screen joining us,who I had the honor of recently meeting
but I've known for years is LannieDavis. Lanny, Welcome to the show.
Thanks for all right. Lannie Davisis the co founder and partner of
the law firm Davis, Goldberg andGalper and co founder and partner of the
(01:07):
public relations firm Trident DMG. He'sa lawyer, crisis manager, consultant,
author, and television commentator, providingstrategic counsel to clients under scrutiny on crisis
management and legal issues. By combininglegal, media and political strategies, Lannie
develops and managers communications programs around litigationand crises to protect brand reputations. Lanni
(01:30):
represents individuals, companies and countries,and high stakes global crises, litigation,
government investigations, and crisis management.He has conceived, created, and led
media strategies for clients that have includedCEOs, sports celebrities, political leaders,
world leaders, and both US andinternational companies. He's handled the cases of
public figures from Martha Stewart to DanSnyder, companies from Whole Foods to Starbucks,
(01:53):
and political figures from President Bill Clintonto Representative Charlie Rangel. Most importantly,
Lanny is the antithesis of today's dividedAmerica. Though a Democrat, he
has friends on both sides of theaisle. During the Clinton administration, Lanni
served as special counsel to President BillClinton and was a spokesperson for the President
(02:14):
and the White House on matters concerningcampaign finance, investigations and other legal issues.
In two thousand and five, PresidentGeorge W. Bush appointed Lanny to
serve on the five member Privacy andCivil Liberties Oversight Board created by Congress as
part of the two thousand and fiveIntelligence Reform Act. He went on well
sorry. Lannie went to college withone president and law school with the other
(02:38):
president. So good friends and goodplaces. Beginning in twenty eighteen, Lanny
has been counseled to Michael Cohen,personal attorney to Donald J. Trump within
the Trump organization. Michael Cohen willbe a key star witness in the criminal
trial of Trump's scheduled from March twentytwenty four. This is the trial that
the New York AG's Office is.Lanny has authored six books, with a
(03:01):
seventh coming soon to all bookshelves nearyou. So I'm going to, you
know, turn it over to Jimto we are the Presumption Podcast. We
do believe that everyone deserves a fairtrial, and that goes for both the
councel culture and of course due processin court. So I'm turning it over
to Jim to talk to you alittle bit more about some something recently you
(03:23):
did. Yeah, hey, Lannie, And it's an honor to speak with
you. Welcome to the show.Is it truly is an honor. I'll
followed your career for many, many, many years, and thank you and
your consummate attorney, no question aboutthat. Thank you. So we just
passed the anniversary of January the sixth, and you and Sarah recently did a
(03:46):
mont draw where you were actually theprosecutor for against Donald Trump, and Sarah
defended Donald Trump in relation for aclaims. And I think Matt's got a
clip that's play for us of thatright quick. And then we're going to
follow up some questions. Hey,Lenny, what do you make of the
First Amendment argument? Well, it'sa bit shocked. I know you're a
(04:09):
very big defender of the First Amendments. I am, and you're to see
how you feel a civil libertarian defenderquite strongly. But you can't use the
First Amendment to protect shouting fire ina movie theater because that causes harm.
If there's no fire, you certainlycan't use the First Amendment if somebody knows
that they're lying to undermine our constitution, our democracy on the counting of people's
(04:32):
votes, honestly, and sixty onejudges all said show me the evidence,
and some of his lawyers in thecourtroom said, no evidence. And I
challenge my distinguished colleague, as Ichallenge respectfully, mister Trump. Not one
single fact has been introduced by misterTrump or his lawyers showing enough voter fraud
(04:55):
to change the election. That's whyhis own Attorney general said no, his
own White House counsel said no.Sixty one judges said no. And by
the way, the last judge inPennsylvania did find some voter fraud, but
not enough to change the election.So at sixty one out of sixty one.
So I challenged, mister Trump,my distinguished colleague, tell me one
(05:16):
lawyer that cited facts to show enoughfraud to change the election. The answers
to date silence. The answer isbecause there are none, Sarah. Yeah,
you go ahead, sir. Iwas going to yeah, prompt the
question, but I think you wantto go for it, so go forward.
Yeah. Well, his advisors,many of whom were lawyers and constitutional
lawyers, did believe sharing the samebeliefs, and there's ample evidence of that.
(05:40):
But let me say this to misterDavis. Where there is smoke,
there is fire. So you're talkingabout yelling fire in a movie theater.
Where there is smoke, there isfire. President Trump smelled and saw smoke,
and saw flashing lights, and genuinelybelieved there was a fire. He
called on the fire department to investigate. They came, and they too saw
the smokes up the smoke, andsaw the lights and agreed, there must
(06:02):
be a fire. We need toinvestigate, and investigation is at least warranted.
So yelling fire on January sixth,then in the weeks leading up to
that time, was really based ona genuine belief that there was in fact
a fire, that fire being electionirregularities that had to be investigated. And
because that speech pertains to a matterof politics, it's not a crime.
(06:23):
It's at the core of our democracyand our elections. It is speech protected
by the First Amendment. I mean, what else, She's good? Now,
you know what I was saying aboutbeing up against Sarah, Yeah,
yeah, yeah, Lannie. Beforehe came on the air, you you
did give a great compliment of Sarahthat she kicked aster and the defense of
(06:47):
truth and so kind. I doubtthat. But but you know, following
up on what you know, yousaid as the you know, prosecutor here,
Lanny, I mean, has beena politician that didn't look the camera
and look up American people in theeye and lie to them. I mean,
so Donald Trump's out there, youknow, misstating what happened the election,
(07:09):
and I do think that the youknow, January sixth riot, you
know, he gay engage in recklessconduct. But I mean, did he
incite a riot to the level thatwould go beyond the presumption of innocence and
the proof beyond a reasonable doubt.I mean, what do you think,
Well, of course, I thinkhe did knowingly and willfully lie. It
(07:33):
wasn't a belief, it was alie. He knew he was lying when
he lied, and that's going tobe up to the prosecution to prove beyond
a reasonable doubt proving mental state ofmind. Sarah very effectively has pointed out
is a great difficulty for the prosecutionand will have to overcome that in order
(07:54):
to convict mister Trump. I wouldrespectfully disagree, and I think probably Sarah
will agree with me in the disagreementthat where there's smoke, when it comes
to due process of law, thereis not fire. That's the problem with
what we're going to be discussing todayinvolving specific instances were instead of a presumption
(08:15):
of innocence, there is a presumptionof guilt using smoke innuendo. That's the
nature of the disease of today's mediaculture and most Americans who think the word
indictment is the functional equivalent of guilt. When an indictment is nothing, it's
not evidence can't be introduced as evidence. It's one sided presentation by prosecutors to
(08:41):
a grand jury who votes based upona one sided argument. So I would
say that the Presumption of Innocence isa great title for this podcast. I'm
really honored to be on and toadmit that, especially having gone through this
with Sarah, this is not aneasy case for the You should to prove
(09:01):
beyond reasonable that that Donald Trump knowinglyand willfully lied, and that will be
the challenge. Once that's done,it'll be much easier to win the rest
of the case. Wall did Jimsay that he doubts that I kicked as
No. I did not say Idoubt it. I just said I so,
(09:28):
Lenny, you know, we lawyers, you know, we analyze cases
through the lens of presumption and innocenceand the burden. But you know,
when you get to the jury trial, I mean, it's what twelve people
think it is. And so isn'tit I mean, isn't Trump, former
(09:48):
President Trump facing an uphill battle goingto trial on this case in the District
of Columbia, and that a reallytough tough pill to climb for him.
So I really little do respect resentmentioning the District of Columbia because it's used
as a dog whistle for black people. And you didn't mean it that way,
(10:11):
nor do I think Sarah ever meantit that way, but I have
fallen into that unconscious reference to theDistrict of Columbia. I believe in the
jury system and the Vardar system.Sometimes juris will violate the law, violate
the judges instructions, and nullify whatthey're supposed to do as citizens, which
(10:33):
is to only make judgments on theevidence, whether they're black, White,
Jewish, or Christian or Muslim.So that to me is the challenge in
the District of Columbia. The judgewill instruct you can make your decision based
only on the evidence and on theissue of lying. If I could just
(10:56):
go on, or unless you wouldlike to respond to that, Jim,
regarding my reference to the District ofColumbia, I believe in the jury system
center principle violate their instructions, butmost juries do not. And I agree
wholeheartedly with you, Landing, Andas an example would be what I believe
in an example would be the PaulManafort trial. I mean that jury worked
really hard, gave a fair trial. He was not convicted. Of all
(11:20):
councils, I recall, and itwas, but it was a I mean,
it was a shining example of howjurors are supposed to operate, in
my opinion, Well, if Icould just go on regarding the need to
prove subjective intent, which is thechallenge when you say someone is lying.
(11:41):
I always avoid that word when I'mdoing any TV appearance. Unless I can
prove somebody at a subjective intent,I stay false. And it is not
a crime to say something false.If it were, there wouldn't be enough
jails in the country for politicians whosay things that or false. But let's
just go to the heart of Sarah'svery I thought brilliant defense, which is
(12:05):
how do you prove somebody's subjective intent. That's been a problem for prosecutors for
a long time, certainly in mobcases. Under RICO, which is a
racketeering conspiracy statute, the prosecutors hadto prove the Godfather's intent to be part
of the conspiracy to kill people.And of course the Godfather never said kill
(12:28):
that guy. He might just sayor she might the same. In this
case, it's he. In theFive Family, Charles Brooklyn and in New
York. I don't like that guy, and that's all. And the guy
would be killed or whacked. Sothere's circumstantial evidence that a jury go to
your point, Jim has to useits common sense. It won't be a
(12:52):
smoking gun. I lied and Iordered a death. He did a signal,
a code, or there's an inferenceset's unavoidable. You go to bed
at night and there's no snow onthe ground, You wake up in the
morning and there's snow on the ground. There's an unavoidable inference that most common
sense jurors would say, yep,I am certain beyond a reasonable doubt that
(13:16):
it snowed overnight, even though nobodysaw it snow. That's the challenge of
the prosecution. Well, so myresponse to that was one we'll legend decide
if it makes sense to the jurys, and common sense was that we don't
know, you know, I mean, I just read something about Trump's cell
phone records being subpoenat or Jack Smithgetting the cell phone records and what,
(13:39):
so we don't I mean, wedon't know what the government has in terms
of evidence. But my argument wasthat typically you know when somebody is lying,
they are inconsistent. And I meanthat's how as lawyers we get people
on cross examination, is that theirstory has changed. You know, It's
(14:00):
it's like either become more elaborated orat least it's materially different. So my
argument to this jury and the mocktrial was well, privately and publicly,
Donald Trump was always consistently standing byhis belief that he had won the election.
This was not a big lie.It was a big truth. But
you know, if the government comesout with some sort of a text message
(14:22):
or something to you know that itconfirms that he actually knew what he was
believing and saying is false, thanto Lanny's point, that's clearly evidence of
criminal intent. But from the indictment, I don't see anything. You know
anyway, since we've already heard theairing of our debate on NPR and commend
(14:50):
to your viewers to go look forit. The here are two kinds of
evidence against Trump that are now theindictment. One is direct evidence, So
it's not true, Sarah. Thereart there will be witnesses already identified that
Donald Trump told me he knew helost. Now I don't Yeah, well,
(15:13):
there are a few of those notmany, but there are a few.
But I and my debate with you, argument with you in the mock
trial, I said, I'm notrelying on that. I go back to
Jim on the notion that in frontof a jury can say, use your
common sense. If somebody is lookingat a black wall and he calls it
(15:37):
a white wall, and you're seeingthe black wall, you do not have
to have his smoking gun admission thatit's actually a white wall that he's seeing
and he's lying. Right, youcan infer yeah, before he's lying.
And that's really what I'm resting onwhen I use the Supreme Court eight to
(15:58):
one decision that's just civically said,WillFull blindness is the functional equivalent of subjective
intent. You can you can inferlying by closing your eyes to what is
in plain sight. Right. SoI want to ask you Lannie about and
you know, I know you're representingMichael Cohen. We don't, you know,
(16:18):
we always respect we're both practicing attorneys. We're not podcasters. So we
respect the idea that you know,you might not be able to speak about
your case in which the star witnessesyour client. But you know, people
that don't like Donald Trump that definitelydon't want to see him reelected. Are
(16:41):
hoping that the day will come thatthis man is convicted on something anything.
I mean, he's facing so manydifferent charges for different things in different jurisdictions.
And and you are involved, orMichael Cohn's involved in the New York
AG's case, Letitia James's case,which is going to trial, can you
(17:03):
tell us in your view? Youknow what you think? Do you think
the AHG has a strong case?Even look, your client respectfully has credibility
issues. I mean, he pled, he was co conspirator with individual number
one, which is Donald Trump inthe campaign finance indictment. He did time
on it. He switched a storybefore Congress came clean eventually. But you
(17:29):
know, you know, once aliar, always a liar kind of thing.
So your client doesn't have, likeyou know, the most the best
track record. So, taking awayMichael Cohen from this equation, how does
that case look? Is that acase? Because I asked this because presidential
immune i mean presidential pardon power doesn'textend to a state conviction. So that
(17:52):
might be the one conviction that couldmake a difference. So let me do
as to keep this short, becauseI could go a much too long.
I note too much and it willbe much too long. Yeah, two
quick things about this case. I'mnot relying for my first part of the
answer on what I say over MichaelCohen testifies. Let me rely on the
(18:18):
federal prosecutors of the most prestigious federalprosecution district in the United States. It's
called the Southern District of New York. Those of us who aren't great fans
of some of the prosecutors in thatoffice would call it. They think it's
the sovereign District of New York.But let me quote them. Don't believe
me. Don't believe even mister Braggwho brought the indictment. It's the District
(18:44):
of Attorney of Manhattan, by theway, not the Attorney General who but
oh I'm sorry, Yeah, thed Bragg, right, A brag is
the criminal case. So let mequote the Southern District of New York prosecutors
about the case against Donald Trump.It's the same case that Michael Cohen pled
guilty to and went to prison,same case, same facts, same issues,
(19:07):
the payment of the hush money,destroy me Daniels. The Southern District
of New York and a sentencing memorandumdid not talk about hush money for a
sex or an affair. They said, and I'm almost quoting directly. You
can find the sentencing memo aided Decembersixth, twenty eighteen that they sentence that
(19:29):
they put into the judge to recommenda long sentence for Michael Cohne for the
same crimes, central crimes of payingthe hush money and not recording it on
the books. Honestly, Michael Cohenwent to jail. And here is what
the Southern District said. These crimesimpair our democracy. Not about sex,
(19:55):
about our democracy. The Southern Districtsaid, because by paying people with negative
information that might influence voters before anelection, those payments were made a few
days before the two thousand and sixteenelection, twenty twenty elections, they said,
(20:18):
by allowing somebody to pay off peoplewith negative information that might change votes
is an impairment of our democracy.That's what was an issue. That's why
they recommended a maximum sentence. Whatwas never in dispute is that Michael Cohne
wrote a check at the direction andunder the coordination of President Trump as a
(20:41):
private citizen. Excuse me, itwas before the twenty sixteen election. So
those words are what brag is restingon, same facts, and therefore this
is the in my opinion, thestrongest case. Maybe the documents case and
classified documents case is stronger. Yeah, there's no need to prove intent,
(21:04):
as mister Smith will have to proveright. Facts are on record undisputed found
by the Southern District. Donald Trumpdirected Michael Cohne to pay one hundred and
thirty thousand dollars. Yeah, Imean, look that the document case,
I think Jim and I have talkedabout this before with another guest, I
think is the strongest case. You'vegot footage, you know, you've got
(21:29):
video footage, you've got text messages, you've got lawyers who are testifying.
But again, that's another federal case. And even if he's convicted, he
could be the shameless president that thefounders did not envision would be in power
one day and that he would,you know, pardon himself. So that's
why I was curious about the DAcase. But Jim, you were gonna
(21:51):
think, yeah, yeah, yeah, Lenny. The foreign presidents facing a
number of indictments in Georgia, youknow, the election interference case has come
up his A lot of people havealready pled guilty, and I agreed to
cooperate. We've got the January sixthtrial on the schedule to go forward in
March in DC. Then the documentcase in Florida seems to be behind that.
(22:14):
I guess there's some significant discovery issuesbecause they're classified documents. And then
the New York case, as youmentioned, So how do you see this
playing out? Landing Well, Ithink that Trump will be convicted in the
New York City trial and it'll bethirty three felonies because each time the books
(22:34):
recorded the payments by Michael Cohen asa legal expense. The federal prosecutors in
writing said that Donald Trump knew therewas never a legal agreement with Michael Cohen
when he spent one hundred and thirtythousand dollars and then as a sitting president,
(22:55):
a lot of people forget this.He wrote checks to Michael Cohen thirty
five thousand dollars a month from DonaldTrump's personal bank account. The checks I
put with Michael on television during hishearings, signed by Donald Trump while he
was president, and recorded on thebooks of his company as legal expense when
(23:15):
he knew and Michael knew, andthey both knew there never was illegal retainer.
And in case anyone doubts the wordof Michael Cohne or Donald Trump,
again, don't believe me. Believethe federal prosecutors. They found that both
of them knew there was never alegal retainer agreement. That was a reimbursement
(23:37):
to Michael for the one hundred andthirty thousand dollars of illegal hush money with
any political motivation. Makes it afelony. It wasn't about protecting his wife,
Missus Trump from the knowledge of theaffair. So when was that case
schedule? Will it go to trialbefore? I am told end of my
(24:00):
March latest, depending on what happenswith mister Smith's earlier case, that may
be delayed. There will be,and I can say will be because I
do talk to the prosecutor team workingfor mister Bragg. The judge has said
there will be a criminal trial inMarch, no matter what, and no
(24:21):
federal judge can change that. DonaldTrump can't change that. The judge in
New York, very strong judge saidthere will be a criminal trial in March.
I mean this dude's knocking up.This guy's not going to have any
time to campaign. He's gonna beso busy going from court to court,
(24:41):
it's crazy. Okay. So,like Lannie, one of the first things
you said to me when we firstspoke on the phone for that mantra was
there's innuendo and journalism and innuendo isnot a fact. And when you spoke
about this earlier too today is thatwhen it comes to the presumption of innocence
in the court of politics, it'smore about the presumption of guilt, Jim
(25:04):
and I call it the assumption ofguilt on the on the courtroom side.
You know, as a crisis manager, you've worked closely with two presidents and
a number of other clients who arepolitical players, and so we really wanted
to talk to you about to takea few minutes on each story on the
cases of or I should say,the saga scenario of Governor Andrew Cuomo and
(25:30):
then Al Franken, Senator Franklin.So starting with Governor Cuomo, you know,
I've always believed he was railroaded,and just recently Melissa de Rosa,
has top senior advisor and member ofhis cabinet, sent me a book which
sort of gets into the truth behindall of this, uh and it You
(25:51):
know, both of these cases we'retalking about are based on me too allegations
by women. Obviously, two menin a position of power, both Democrats
and the Democratic. Their Democratic colleagueswere not very kind to them, essentially
pushed them out of office. Uhmore so than even the right. But
(26:15):
Governor Cuomo's case was about technically abouteleven women who were unnamed. The laws
that were broken were uncited to andessentially New York A g Leticia James put
out this report saying, believe thesewomen and the women just to recap for
(26:36):
our listeners who may have forgotten thisstory. You know, one was a
non employee at a wedding reception whereshe said that the governor touched her face
and put his hand on her lowerback. Another non employee in a public
rope line event. Uh, similarallegations. Another one at a public event
in upstate New York. Again anotherphoto op. A woman named Caitlin who
(27:00):
essentially said I was not sexually harassed, but she was in this report,
and Alyssa also said she was notsexually harassed but was in age The AG's
report a female doctor who was onnational TV during the pandemic and gave the
governor a COVID test, and shewas dragged into this report, and apparently
(27:25):
he had said, you make thatgown look good. She also said I
didn't feel like I was sexually harassed. Alyssa McGrath was one where I guess
there was some reference to being singleand ready to mingle. Britney Comiso.
And then of course Lindsay Boylan,who had all kinds of political motivations because
(27:45):
of things that had happened in theoffice when she had worked for Governor Cuomo
and denied promotions and things of thatsort. So and there was a state
trooper, sorry I forgot the copwho said that he put his hand on
her waist or something like that.The Attorney General refused to rule out the
(28:07):
fact that she was actually running forgovernor for the governor's seat, and brought
in a federal prosecutor who was alongtime Cuomo adversary, had animus to do
this investigation and basically run the show. And despite publicly saying that she would
release all of the evidence, thenotes, the transcripts, all of that
(28:29):
backing up her investigation. To thisday, she's refused to do so,
and Cuomo has actually been litigating thisissue for two years, trying to get
the evidence to come out to,you know, to sort of lay out
the truth. So, Jim,I mean, I think one of the
things you wanted to discuss with Lanniewas about the due process and all of
this. Yeah, I mean,and Lanny, is that due process and
(28:52):
what's he entitled to due process?Or was this a political issue? Well,
it's unfortunate that you're writing showing acontrast between the two because that's today's
culture, that's today's media. It's, in fact, a presumption of guilt
media. It's a presumption of guiltculture, and it's contrary to do process.
(29:14):
So I have to restrain the furythat I always experience when I read
in the media innuendo and a presumptionof guilt. It is definitely a fact
that media reports optics and reports asone or more media, mainstream media excellent
(29:37):
reporters would say to me, Isaid, why did you report that story
when there's no evidence to support it. Well, it's out there. So
that's the smoke that you and Italked about. Sarah and the innuendo is
smoke, so right now, AndrewCuomo has never gone to trial. His
accusers have never been subject to crossexamination, and indeed worse than an indictment,
(30:03):
which isn't worth more than a hamsandwich because it's a one sided argument.
It's even worse when you're accused inthe media and everybody assumes you're guilty.
Why because it's out there. Youget a million Google hits when you
see any Cuomo guilt. That's sodangerous for those of us who believe in
(30:25):
due process, and that's really whatis happening with some of these instances.
Having said that, I've also beena supporter of involved with the Me too
movement, and I think it's possibleto say there's a presumption of sincerity when
a woman makes the accusation and oftensuffers a lot of tax because of the
(30:48):
accusation against public figures. It's worthsaying, let's presume that a woman that
makes the accusation is telling the truth, but it's still only a presumption.
It Does it mean she's telling thetruth she's presumed take her seriously, Yes,
but it's not the truth yet.The truth is only have to do
(31:08):
process, which is cross examination,look at the facts and then let a
jury decide, and don't bend therules, you know, because because what
this movement has done in the courtroomis that it has opened the floodgates to
evidence that otherwise would not be admissible. Judges are yeah and just all like,
(31:32):
you know, unlimited number of badact witnesses coming in to get their
day in court, which is highlyprejudicial. And then you know, bending
the rules in terms of creating weirdexperts who could tell the jury what it's
like to be this and that.And you know, we just saw that
with the Church of Scientology. Thejudge literally made somebody a scientology expert to
(31:57):
and I'm not you know, I'mnot defending scientology, but you know,
but it's like all kinds of rulesare being bent to sort of support what
you know, that believe them whenthey say it. And I'm like,
this should not be different than anyother allegation. Any allegation in court requires
(32:19):
proof, requires corroboration. Why isit that just because by virtue of your
sex you get to come in andbe believed. I mean, I think
that listen, Deborah Cats made astatement about this. I think with respect
to al fr al Franken Debracats representsa lot of women with me too,
claims, and she said, youknow, the allegations leveled against Senator Franken
(32:42):
did not warrant his forced expulsion fromthe Senate, particularly given the context in
which most of the behavior occurred,which was in this capacity as a comedian.
We'll get to that, but alloffensive behaviors should be addressed. Not
all offensive behavior warns the most severesanction. So this backflashes. It's like
a backlash narrative that somehow men arevulnerable to even the most frivolous allegations.
(33:06):
And I'm just like, well,let's treat it like any other allegation.
Why is this like why are wewearing these, you know, just golden
gloves and like doing all these weirdthings with this particular type of allegation.
My question to you, Lannie isis you know the Cuomo DNA just does
not give up. Okay, SoI don't look at Andrew Cuomo and think,
(33:29):
oh he's done. I feel likehe still has some sort of a
future in politics. And so whatdo you think as a crisis manager?
The best strategy would be for himto come back, well, I think
he's failed at doing the initial beststrategy. I tried actually to reach out
(33:51):
to him, and I know Chrishis brother very well. Yeah, me
too. You can't wait to getyour facts out. You can't be strategic
and do the right timing or waitfor the trial, or do whatever your
lawyers are telling you to do.You've got to do it immediately within the
first news cycle, or keep doingit over and over again. And so
(34:13):
if I were able to get throughto Andrew, I would say, do
exactly the opposite of what your lawyersare telling you. Do a press conference,
take every question and do what GeraldineFerarra did when she was accused of
something that her husband actually did.At the time, those of you are
too young to remember, she wasthe vice presidential candidate nineteen eighty four,
(34:34):
the first female almost president, andshe was accused of being involved or knowledgeable
about accusations made against your husband thatwere never taken to court, never proven.
And instead of waiting for the legaladvice, don't say anything you may
at your husband in trouble. Youknew too much about his tax returns.
It was about basically tax returns.She held a long press conference and it's
(35:00):
used as a proper now nowadays.Do with Geraldine Ferrara is what I wanted
Andrew to do. And I've knownthe governor, so I can call him
Andrew. Yeah, she said atthe beginning of her press conference. All
my lawyers have advised me something likethis, not to do this. I'm
not leaving this room until I answerevery question you have about my husband and
(35:22):
my conduct. And she stayed andstayed and stayed, and once she did
it, it was basically open.So that ship has sailed. But now
that he is fighting to get theevidence and to you know, too late,
not too late. You should doit tomorrow morning. Really, okay,
really, because he's not show upwith the goods. Once he has
the goods, well he can doit. It's a it's a process.
(35:45):
But he hasn't done it yet.No, no, no, he is
litigating to get the materiat but wegot to wait for the trial, for
the litigation and the judgment. Yeah. Yeah, I think that Andrew has
facts on his side. He alsohas a mayor help that he could do
right. Whatever I was doing.In my mind, I can understand that
(36:07):
the woman took it the wrong way, or I shouldn't have done it to
begin with. There's no crime inadmitting to responsibility, perhaps to be the
truth. Some of the women wereoffended, and he should respect that,
even if he said I didn't meanit to be well. But see,
that's what every guy says in theIn this context, everybody comes out and
(36:30):
issues a statement and says, I'msorry, I didn't intend to do it.
I'm Italian, I'm touchy feely.You know, I'm sorry I offended
you. That was not my intention. But culture, the culture doesn't take
that as genuine and they can Ihave a long standing response. You can
imagine that. When I do mytrade of crisis management, I'm always asked
(36:52):
that question, and I have astandard answer. I don't really care.
I just want you to tell thetruth, and if it's not believed,
just keep doing it. And Idon't really care if people don't believe you,
because that's a guy's excuse. Evenif you're a sexual harasser. You
tell the truth, and you ownwhat you do, acknowledge you shouldn't have
right. And if a woman isoffended and you don't know her by touching
(37:14):
her back, her shoulder or sayingsomething intimate, then own it and apologize
for it. Oh well, peoplewon't believe him. That's just I don't
care how people react. Just dothe right thing. Just tell the truth
and keep doing it over and overagain. Can't do it once, have
to keep doing it. That's mycrisis management. So Jim, should we
(37:35):
move on to Al Franken? Sure, that's around time. Al Franken.
It's a long story, but I'mgoing to shorten this. He was a
comedian. He was on SNL.He then had the Al Franken radio show,
and then he went to the USSenate. During the time that he
had that Al Frankin show, hedid the I think it was a two
(37:57):
thousand and six USO tour the Troopsand all and Leanne Tweeden, who is
a conservative radio host who I alsoknow very well from a panel that I
did for Doctor Drew. Her andI were regulars on that panel. Client
came out this was around the twentyseventeen you know, Weinstein allegations and all
(38:19):
that, and said that Franken hadassaulted her by forcing a kiss on her,
sticking his tongue in her mouth,and that later, when she was
asleep, he touched her breasts andthen for a photo op. Well,
except all of this was part ofa skit that al Franken had written.
And then she later made a statementthat he purposely wrote the skit to do
(38:43):
this with me. And then therewere women who were coming forward and saying,
no, al Franken is a goofball. He's a nerd. That's his
character. That's how he makes peoplelaugh. And you knew you werehearsed this
right, And so al Franken wason in no time, and he is
very unequivocally talked about how he regretsresigning from the Senate and how Senator Gildebrand
(39:09):
and Chuck Schumer basically gave him theultimatum, and Chuck Schumer was like,
you need to be out by fivepm or else, and so where's the
due process? Right? Like youwere just talking to Jim about it.
So I don't I mean, SeanAddity was involved. He wanted the tape,
(39:30):
he wanted to be the first oneto show it, or the photo
with the breasts and whatever, andso I mean, what about Franken,
what are your thoughts on him?Well, I'm sympathetic even though I was
the victim of his talk show.Nest in this towards my friend and Senator
(39:50):
Joe Lieberman, and he and Iexchanged some marsh words about his treatment of
me on his radio show. Heactually hung up on me when I was
different Joe Liberman. So I don'tspeak with any friendship or kindness towards Al
Franklin given before he was a senator, the way he had treated me on
his talk show. But I amstill very sympathetic because he was run out
(40:14):
of town without a trial. Ithink he did apologize for what he did
do in whatever way that he apologized. I accepted his apology, but he
was not It wasn't right that hewas given an ultimatum by his colleagues.
He deserved a hearing, He deserveda chance to defend himself. He deserved
(40:37):
a chance to apologize. But itwasn't an offense given the circumstances that should
have driven him out of the USSenate. So he didn't get to process.
And I'm very sympathetic towards him.I'm glad I've got my chance to
say how really rude he was tome, but he just it's a long
time in my being able to saythat, but not maybe increasing is my
(41:00):
favorability by I'm very sympathetic. Heshould not have been run out of the
same You're not going on his podcastanytime soon, are you. Well.
I still really love the guy asa US senator. Is views on issues
but the same as mine, quiteliberal, and he was a great comedian.
He just could be, as peoplewill tell you about him, very
very rude when he wants to tellyou he doesn't like you or your friend
(41:25):
turning over to Jim Yeah, youknow, you know, on these issues,
particularly these sexual harassment claims, Imean, it really does depend on
my view is whether the accused whenwhen you're in the political arena, is
the accused of Democrat or the accusedof Republican because Republicans will stand by,
you know, you know, theaccused, whether and won't throw him out
(41:50):
with the bathwater the way the Democratswill with Al Franken, Andrew Como and
and you know, and and another. Supreme Court is a whole different,
a different venue and has such longlasting consequences. But you just look at
Brett Kavanaugh for example, I mean, I mean, the Republicans stood by
him in the face of weathering accusationfrom his college days, and I just
(42:15):
don't think a Democrat could have survivedthat. I'd like to hear your assessment.
I mean, you've got friends onboth sides of the isle, but
it does seem to be a politicalequation when it comes to treatment of the
accused in that arena. So look, let's go back to the very very
important name of your podcast, andthe importance of your podcast is your need,
(42:37):
and that is the absence of thepresumption of innocence. And there's more
hypocrisy on the side that I liveon, which is on the left.
I'm a card carrying member of theliberal wing of the Democratic Party on every
issue I can think of. Maybefiscal conservatism appeals to me sometimes, but
the fact is we liberals are morehypocritical and the Republicans less by giving the
(43:04):
presumption of innocence. When it wasJoe McCarthy, as I was raised before
you two maybe were born, whenSenator Joseph McCarthy used pure innuendo, no
facts, and no evidence to ruinpeople's lives. He actually led people to
admit suicide when they were accused ofbeing a communist and they had no evidence,
and they were black, bald,and some of them took their own
lives. We liberals would say,wait a minute, it's just innuendo.
(43:29):
It's just and now, when itcomes to Donald Trump, or when it
comes to anything that involves an accusationby a woman, we go to the
presumption of guilt rather than staying withthe consistency of what we said in the
McCarthy era, is as a presumptionof innocence when you're accused of being a
communist. So this is the lessonof our times. And I know my
(43:52):
fellow liberals get upset with me whenI point out the hypocrisies of having one
standard if it's McCarthy, another standardit's Trump. And I think we have
to I think we need to beintellectually consistent as believing in due process.
I don't agree with you more.Just back to al Franken. Obviously you
(44:13):
would not have been advising him,considering your past, But had you been,
I would have. I would haveActually, like a good lawyer,
what would your advice have been,Get out in front there. I would
have said, hang in there,don't let anybody bully you, whether it's
(44:34):
a colleague from New York, asenator, or anyone demand a hearing and
get your due process, and theni'd say, ps al you Omi an
apology. I have a question andclosing before we leave, what politician client
in your career would you? Wellwait, wait, actually in the backup,
(44:59):
were you advising President Clinton when thatMonica Lewinsky thing was going on or
is it a different time. No, I was out of the White House.
My wife is about to deliver arenow twenty five year old son.
But I remained a private citizen.I did a lot of television to defend
him on the impeachment because there wasreally nobody else available, and he was
(45:22):
an old friend. But I didfind my own way as a private citizen
to talk to him and to tryto give him advice. So what client
and what politician client of yours wasyou think the biggest success story you've had
in terms of being able to dodamage control, get in front of it,
(45:43):
manage the crisis. Well, Icould plug a book that I wrote
called Crisis Tales, Five Rules forCoping with Crises and Business Politics in Life,
and I give a lot of casestudies of my favorite stories, but
Martha Stewart was one of my favorite. Unfortunately, not a success story in
the outcome of her criminal case becauseher criminal lawyer forced me to be terminated
(46:07):
after I placed and worked with ratherworked with Jeffrey Tubin and published a story
The New Yorker entitled Lunching with Martha, where I invited Tuban to sit down
with Martha Stewart and hear her story, which was never a crime of insider
trading. Someone named James Comy theUS Journey at the time, the same
(46:30):
comy that delivered the election to Trumpby writing an illegal letter to Congress eleven
days from the election in twenty sixteen. Don't get me started. In any
case, Martha Stewart story is agreat story where I defied the legal advice.
We went to The New Yorker.The story that Tuban independently researched.
(46:51):
Fan note it couldn't be insider tradingbecause she got a tip from a broker,
not from an inside official from thecompany, and ultimately, mister Komi,
who I think acknowledged that jeff Tuban'sNew York history influenced him, did
not charge her with insider grade eventhough the media had convicted her in headlines.
(47:13):
I've been side ertained. That's oneof my favorite successes. Did you
end up helping Cuban? Also?No, well, I certainly didn't get
called on to help him. Iwas very sympathetic to what happened with him
to this day. I'm a greatfan of Jeff as a journalist, as
a lawyer, and in all otherways, and I think what happened to
(47:35):
him was very unfair. Lannie.That just points out the difference between I
guess a crisis manager and a defenselawyer. And we talked at the beginning
of the show about how it's difficultit is to prove intent, and what
we see in most of these whitecollar cases is the charge ultimately that sticks
(47:55):
is making a false statement. Butyou have to make it to a federal
investigator. You can't make it tothe media. But that's why defense lawyers
tell their clients don't talk, andthat's not the best strategy for someone in
the public. I obviously trying toget ahead of a story. Yeah,
there's no question I respect my fellowlawyers. The reason I stayed as a
(48:20):
lawyer, as a practicing lawyer.By the way, I am now on
my own with the name Landy J. Davis Associates. So the prior identification
in your wonderful introduction of me hasbeen updated, Sarah. But my decision
to do this work and always doit as a lawyer is because I needed
to be in the room with myfellow lawyers under attorney client for so they
(48:44):
could tell me the risks of goingpublic in the media. And I always
cleared my messages with fellow lawyers thatthey were facts that wouldn't prejudice the client.
So whatever my rules of being outin front, my expression in the
White House that was a subtitle toa book I wrote about my White House
experience, tell it early, tellit all, tell it yourself, has
(49:06):
some exceptions, and that is acriminal defense lawyer, I do not want
to say anything to the media thatwould prejudice the case because it's not important
enough to save a reputation if theperson's going to jail. So there's got
to be a balance between the legalrisk and the reputational strategies, and it's
not an easy balance to strike.But I need to be a lawyer trusted
(49:29):
by fellow lawyers to at least sharefacts with me under attorney client. You
know who did that, Lannie andJim, and the recent past was Alec
Baldwin Alec Baldwin did not care whathis lawyers were telling him about the Rust
shooting. He was on with GeorgeStephanopolis giving an interview very detailed. He
was on all these different and hewas on social media talking about the incident
(49:53):
while criminal charges were pending against him. But I mean, ultimately it worked
out. But the the statements hemade were not they were hurtful to him.
There is that sort of they droppedcharges. I'm not sure how hurtful
they were. No, No,they dropped Yeah, that's what I'm saying.
They dropped the charges, but forevidentiary reasons had they brought the charges,
(50:16):
his statements were not good. Imean, and they're still not good
on the civil side. I thinkhe ended up settling. But my point
is is that that is always aconcern. But I also think that,
you know, lawyers are good crisismanagers because we deal with that all the
time, although you do it ona whole other levels. I'm not at
(50:37):
all comparing. No, you're bothof you get the idea that if we're
going to get due process, wehave to get our facts out into the
media, because media is poisoning publicopinion, which can infiltrate. Notwithstanding what
I said earlier about the roar ideaand the jury system, it considerably infiltrate
(50:59):
into the mindset of a jury.If this prejudice, hope listen. But
I know one thing. You onlyget one chance to keep your reputation intact,
and in the age of Google,if you don't immediately get into the
news cycle to contradict a false statement. The one thing I always say to
lawyers, and I am unyielding onthis, I'm always willing to listen to
(51:21):
the legal risks of going public.If I've got a positive fact, don't
tell me that it's going to hurtthe client. For me to get a
positive fact into the media. Maybeit's not the client speaking, maybe it's
me speaking as its lawyer. Butthe positive fact, if I'm sure it's
a fact, cannot be harmful,and I have to win that argument with
(51:42):
my fellow lawyer. Now, sometimesI lose the argument and I then go
along with me what the lord wantto Always make the argument, you know,
Lannie, as lawyers, we haveand once there's a pending case,
there's an ethical rule that kind oflimits us. Is what we can actually
say in the public, man,I interrupt you and say that's not true,
and we have a respectful disagreement.That's always said, yeah, I
(52:07):
will you the ethical rule, chapterand verse. It's got to be prejudicial.
Don't forget the word prejudicial. AndI always say to my fellow lawyers,
and not one single judge I've beenchallenged on that ethical rule. You're
not allowed to use the media doingyou can't litigate in the media. Excuse
me, your honor, Read whatthe rule says. I can't say anything
(52:30):
prejudicial to the media. I havean obligation to my client to correct the
record with facts. So I turnedto my lawyer, the other lawyer who's
challenging my going to the media,can you tell me whether what I said
is factually accurate, because if itis, there's no violation. And I
never get challenged beyond that challenge,because of course, I don't say anything
(52:52):
to the media that I don't havebackup on documentary evidence that I know what
I'm saying it's true. Sorry.I appreciate that what we're seeing as a
trend where judges are imposing gag orderson the lawyers and some of the hot
profile criminal cases, and then youknow President Trump. I mean, he's
subject to some restrictions on what hecan say, and so that's so Again,
(53:15):
it's a very difficult balance in thecase of a judge who's trying to
keep a jury from being unbiased.It's very difficult to criticize a judge when
it comes to somebody who's constantly usingsocial media and constantly making statements that are
opinion statements and not backstatements. Sojudges have a tough job, and sometimes
(53:37):
they get airing on the side ofa gag order is necessary. But in
my case, I'm very careful withwhat I say to the media in litigation
as well as even not litigation.I better be right. I have made
mistakes in comments I made to themedia, and I learned a lot of
lessons from those states. So atleast we can all agree that if a
(53:58):
client is being hard armed in areputation, as certainly Al Franken was,
as Andy Cromo has been, asother people have been, the truth is
the only defense, and if alawyer has the facts and can document them,
I think it's the lawyer's obligation toget out in front and worry about
reputation as well. As the case. Well, I mean, look,
(54:22):
when we represent clients, it's it'sholistic. Of course, number one focus
is you know, their defense andagainst the criminal charges. But we also
have to consider collateral consequences. Isthe guy going to get deported, is
the guy going to you know,loses professional license. I mean there's all
(54:43):
these you know, there's a wholespectrum of things that you know. Literally
I say, you know, Ido this work because it has to do
with life and liberty. I'm notfighting over much and it is life and
liberty. Yes, And let meget it again for almost ending our time
to compliment you on your choice ofwords in what you're doing on your podcast.
(55:04):
The word presumption is in our constitution. At least it's an inference from
the due process clause. The presumptionof innisence actually doesn't appear in the Constitution,
but it's been inferred over the yearsby courts because that's what due process
means. When we see an indictmentannounced by a prosecutor at a press conference,
(55:24):
no, it's requiring that prosecutor tohold the press conference. Why does
the Justice Department allow a federal prosecutorto hold the press conference? To put
out a press release. What's goingon there? Is it okay for prosecutors
to try to influence juries by holdingpress conferences, and then when defense lawyers
(55:44):
try to answer the press conference,it's too late. The headlines have already
been dominated by the prosecution. I'dlove to see Merrick Garland. Of course,
it will never happen, say nomore press conferences. Will let you
all read the indictment, and theindictment speaks for itself. And you may
remember mister Fitzgerald at one point,who is a special counsel who indicted I
(56:07):
think in the Bush years, andhe said at the beginning of his press
conference, let me remind everyone thepresumption of innocence is the person we indicted
is innocent until proven guilty. Atthe very least. I'd like to require
that to be the rule for everyprosecutor who holds a press conference. But
(56:29):
it's never gonna happen. Brilliant idea. That's a great, great ending.
Thank you so much Lanny for comingon. This has been very very informative.
Thank you for your podcast, anddo me a favor. I don't
want to be up against Sarah atleast in the area. And if you
want to check out that debate,you should go to open to debate dot
org. If they have a podcastchannel there you can see Sarah and Lanny
(56:51):
throwing it down. Or you canalso check it out on YouTube. And
while you're on YouTube, you shouldvisit our page YouTube dot com slash at
the presumption that's our social media handle. We're on all the podcast platforms,
so please subscribe. And just toecho what everybody said, hope everyone had
a great holiday season, Happy NewYear. We're so excited to keep releasing
shows for you guys. And untilthen, Sarah and Jim until next week,
(57:15):
we rest. Rest
Hello everyone, and welcome to thepresumption. Happy New Year. We hope
that all of you have great holidaywith your families and friends, and we're
excited to be back. We maygo through some slight programming changes, but
we are back in full force andI'm here with my esteemed colleague and partner
in crime, Jim Griffin, Hey, Sarah, and Matt Fondelier, our
(00:45):
producer extraordinaire, and Happy New Yeareveryone, and the wonderful man that you
see on the screen joining us,who I had the honor of recently meeting
but I've known for years is LannieDavis. Lanny, Welcome to the show.
Thanks for all right. Lannie Davisis the co founder and partner of
the law firm Davis, Goldberg andGalper and co founder and partner of the
(01:07):
public relations firm Trident DMG. He'sa lawyer, crisis manager, consultant,
author, and television commentator, providingstrategic counsel to clients under scrutiny on crisis
management and legal issues. By combininglegal, media and political strategies, Lannie
develops and managers communications programs around litigationand crises to protect brand reputations. Lanni
(01:30):
represents individuals, companies and countries,and high stakes global crises, litigation,
government investigations, and crisis management.He has conceived, created, and led
media strategies for clients that have includedCEOs, sports celebrities, political leaders,
world leaders, and both US andinternational companies. He's handled the cases of
public figures from Martha Stewart to DanSnyder, companies from Whole Foods to Starbucks,
(01:53):
and political figures from President Bill Clintonto Representative Charlie Rangel. Most importantly,
Lanny is the antithesis of today's dividedAmerica. Though a Democrat, he
has friends on both sides of theaisle. During the Clinton administration, Lanni
served as special counsel to President BillClinton and was a spokesperson for the President
(02:14):
and the White House on matters concerningcampaign finance, investigations and other legal issues.
In two thousand and five, PresidentGeorge W. Bush appointed Lanny to
serve on the five member Privacy andCivil Liberties Oversight Board created by Congress as
part of the two thousand and fiveIntelligence Reform Act. He went on well
sorry. Lannie went to college withone president and law school with the other
(02:38):
president. So good friends and goodplaces. Beginning in twenty eighteen, Lanny
has been counseled to Michael Cohen,personal attorney to Donald J. Trump within
the Trump organization. Michael Cohen willbe a key star witness in the criminal
trial of Trump's scheduled from March twentytwenty four. This is the trial that
the New York AG's Office is.Lanny has authored six books, with a
(03:01):
seventh coming soon to all bookshelves nearyou. So I'm going to, you
know, turn it over to Jimto we are the Presumption Podcast. We
do believe that everyone deserves a fairtrial, and that goes for both the
councel culture and of course due processin court. So I'm turning it over
to Jim to talk to you alittle bit more about some something recently you
(03:23):
did. Yeah, hey, Lannie, And it's an honor to speak with
you. Welcome to the show.Is it truly is an honor. I'll
followed your career for many, many, many years, and thank you and
your consummate attorney, no question aboutthat. Thank you. So we just
passed the anniversary of January the sixth, and you and Sarah recently did a
(03:46):
mont draw where you were actually theprosecutor for against Donald Trump, and Sarah
defended Donald Trump in relation for aclaims. And I think Matt's got a
clip that's play for us of thatright quick. And then we're going to
follow up some questions. Hey,Lenny, what do you make of the
First Amendment argument? Well, it'sa bit shocked. I know you're a
(04:09):
very big defender of the First Amendments. I am, and you're to see
how you feel a civil libertarian defenderquite strongly. But you can't use the
First Amendment to protect shouting fire ina movie theater because that causes harm.
If there's no fire, you certainlycan't use the First Amendment if somebody knows
that they're lying to undermine our constitution, our democracy on the counting of people's
(04:32):
votes, honestly, and sixty onejudges all said show me the evidence,
and some of his lawyers in thecourtroom said, no evidence. And I
challenge my distinguished colleague, as Ichallenge respectfully, mister Trump. Not one
single fact has been introduced by misterTrump or his lawyers showing enough voter fraud
(04:55):
to change the election. That's whyhis own Attorney general said no, his
own White House counsel said no.Sixty one judges said no. And by
the way, the last judge inPennsylvania did find some voter fraud, but
not enough to change the election.So at sixty one out of sixty one.
So I challenged, mister Trump,my distinguished colleague, tell me one
(05:16):
lawyer that cited facts to show enoughfraud to change the election. The answers
to date silence. The answer isbecause there are none, Sarah. Yeah,
you go ahead, sir. Iwas going to yeah, prompt the
question, but I think you wantto go for it, so go forward.
Yeah. Well, his advisors,many of whom were lawyers and constitutional
lawyers, did believe sharing the samebeliefs, and there's ample evidence of that.
(05:40):
But let me say this to misterDavis. Where there is smoke,
there is fire. So you're talkingabout yelling fire in a movie theater.
Where there is smoke, there isfire. President Trump smelled and saw smoke,
and saw flashing lights, and genuinelybelieved there was a fire. He
called on the fire department to investigate. They came, and they too saw
the smokes up the smoke, andsaw the lights and agreed, there must
(06:02):
be a fire. We need toinvestigate, and investigation is at least warranted.
So yelling fire on January sixth,then in the weeks leading up to
that time, was really based ona genuine belief that there was in fact
a fire, that fire being electionirregularities that had to be investigated. And
because that speech pertains to a matterof politics, it's not a crime.
(06:23):
It's at the core of our democracyand our elections. It is speech protected
by the First Amendment. I mean, what else, She's good? Now,
you know what I was saying aboutbeing up against Sarah, Yeah,
yeah, yeah, Lannie. Beforehe came on the air, you you
did give a great compliment of Sarahthat she kicked aster and the defense of
(06:47):
truth and so kind. I doubtthat. But but you know, following
up on what you know, yousaid as the you know, prosecutor here,
Lanny, I mean, has beena politician that didn't look the camera
and look up American people in theeye and lie to them. I mean,
so Donald Trump's out there, youknow, misstating what happened the election,
(07:09):
and I do think that the youknow, January sixth riot, you
know, he gay engage in recklessconduct. But I mean, did he
incite a riot to the level thatwould go beyond the presumption of innocence and
the proof beyond a reasonable doubt.I mean, what do you think,
Well, of course, I thinkhe did knowingly and willfully lie. It
(07:33):
wasn't a belief, it was alie. He knew he was lying when
he lied, and that's going tobe up to the prosecution to prove beyond
a reasonable doubt proving mental state ofmind. Sarah very effectively has pointed out
is a great difficulty for the prosecutionand will have to overcome that in order
(07:54):
to convict mister Trump. I wouldrespectfully disagree, and I think probably Sarah
will agree with me in the disagreementthat where there's smoke, when it comes
to due process of law, thereis not fire. That's the problem with
what we're going to be discussing todayinvolving specific instances were instead of a presumption
(08:15):
of innocence, there is a presumptionof guilt using smoke innuendo. That's the
nature of the disease of today's mediaculture and most Americans who think the word
indictment is the functional equivalent of guilt. When an indictment is nothing, it's
not evidence can't be introduced as evidence. It's one sided presentation by prosecutors to
(08:41):
a grand jury who votes based upona one sided argument. So I would
say that the Presumption of Innocence isa great title for this podcast. I'm
really honored to be on and toadmit that, especially having gone through this
with Sarah, this is not aneasy case for the You should to prove
(09:01):
beyond reasonable that that Donald Trump knowinglyand willfully lied, and that will be
the challenge. Once that's done,it'll be much easier to win the rest
of the case. Wall did Jimsay that he doubts that I kicked as
No. I did not say Idoubt it. I just said I so,
(09:28):
Lenny, you know, we lawyers, you know, we analyze cases
through the lens of presumption and innocenceand the burden. But you know,
when you get to the jury trial, I mean, it's what twelve people
think it is. And so isn'tit I mean, isn't Trump, former
(09:48):
President Trump facing an uphill battle goingto trial on this case in the District
of Columbia, and that a reallytough tough pill to climb for him.
So I really little do respect resentmentioning the District of Columbia because it's used
as a dog whistle for black people. And you didn't mean it that way,
(10:11):
nor do I think Sarah ever meantit that way, but I have
fallen into that unconscious reference to theDistrict of Columbia. I believe in the
jury system and the Vardar system.Sometimes juris will violate the law, violate
the judges instructions, and nullify whatthey're supposed to do as citizens, which
(10:33):
is to only make judgments on theevidence, whether they're black, White,
Jewish, or Christian or Muslim.So that to me is the challenge in
the District of Columbia. The judgewill instruct you can make your decision based
only on the evidence and on theissue of lying. If I could just
(10:56):
go on, or unless you wouldlike to respond to that, Jim,
regarding my reference to the District ofColumbia, I believe in the jury system
center principle violate their instructions, butmost juries do not. And I agree
wholeheartedly with you, Landing, Andas an example would be what I believe
in an example would be the PaulManafort trial. I mean that jury worked
really hard, gave a fair trial. He was not convicted. Of all
(11:20):
councils, I recall, and itwas, but it was a I mean,
it was a shining example of howjurors are supposed to operate, in
my opinion, Well, if Icould just go on regarding the need to
prove subjective intent, which is thechallenge when you say someone is lying.
(11:41):
I always avoid that word when I'mdoing any TV appearance. Unless I can
prove somebody at a subjective intent,I stay false. And it is not
a crime to say something false.If it were, there wouldn't be enough
jails in the country for politicians whosay things that or false. But let's
just go to the heart of Sarah'svery I thought brilliant defense, which is
(12:05):
how do you prove somebody's subjective intent. That's been a problem for prosecutors for
a long time, certainly in mobcases. Under RICO, which is a
racketeering conspiracy statute, the prosecutors hadto prove the Godfather's intent to be part
of the conspiracy to kill people.And of course the Godfather never said kill
(12:28):
that guy. He might just sayor she might the same. In this
case, it's he. In theFive Family, Charles Brooklyn and in New
York. I don't like that guy, and that's all. And the guy
would be killed or whacked. Sothere's circumstantial evidence that a jury go to
your point, Jim has to useits common sense. It won't be a
(12:52):
smoking gun. I lied and Iordered a death. He did a signal,
a code, or there's an inferenceset's unavoidable. You go to bed
at night and there's no snow onthe ground, You wake up in the
morning and there's snow on the ground. There's an unavoidable inference that most common
sense jurors would say, yep,I am certain beyond a reasonable doubt that
(13:16):
it snowed overnight, even though nobodysaw it snow. That's the challenge of
the prosecution. Well, so myresponse to that was one we'll legend decide
if it makes sense to the jurys, and common sense was that we don't
know, you know, I mean, I just read something about Trump's cell
phone records being subpoenat or Jack Smithgetting the cell phone records and what,
(13:39):
so we don't I mean, wedon't know what the government has in terms
of evidence. But my argument wasthat typically you know when somebody is lying,
they are inconsistent. And I meanthat's how as lawyers we get people
on cross examination, is that theirstory has changed. You know, It's
(14:00):
it's like either become more elaborated orat least it's materially different. So my
argument to this jury and the mocktrial was well, privately and publicly,
Donald Trump was always consistently standing byhis belief that he had won the election.
This was not a big lie.It was a big truth. But
you know, if the government comesout with some sort of a text message
(14:22):
or something to you know that itconfirms that he actually knew what he was
believing and saying is false, thanto Lanny's point, that's clearly evidence of
criminal intent. But from the indictment, I don't see anything. You know
anyway, since we've already heard theairing of our debate on NPR and commend
(14:50):
to your viewers to go look forit. The here are two kinds of
evidence against Trump that are now theindictment. One is direct evidence, So
it's not true, Sarah. Thereart there will be witnesses already identified that
Donald Trump told me he knew helost. Now I don't Yeah, well,
(15:13):
there are a few of those notmany, but there are a few.
But I and my debate with you, argument with you in the mock
trial, I said, I'm notrelying on that. I go back to
Jim on the notion that in frontof a jury can say, use your
common sense. If somebody is lookingat a black wall and he calls it
(15:37):
a white wall, and you're seeingthe black wall, you do not have
to have his smoking gun admission thatit's actually a white wall that he's seeing
and he's lying. Right, youcan infer yeah, before he's lying.
And that's really what I'm resting onwhen I use the Supreme Court eight to
(15:58):
one decision that's just civically said,WillFull blindness is the functional equivalent of subjective
intent. You can you can inferlying by closing your eyes to what is
in plain sight. Right. SoI want to ask you Lannie about and
you know, I know you're representingMichael Cohen. We don't, you know,
(16:18):
we always respect we're both practicing attorneys. We're not podcasters. So we
respect the idea that you know,you might not be able to speak about
your case in which the star witnessesyour client. But you know, people
that don't like Donald Trump that definitelydon't want to see him reelected. Are
(16:41):
hoping that the day will come thatthis man is convicted on something anything.
I mean, he's facing so manydifferent charges for different things in different jurisdictions.
And and you are involved, orMichael Cohn's involved in the New York
AG's case, Letitia James's case,which is going to trial, can you
(17:03):
tell us in your view? Youknow what you think? Do you think
the AHG has a strong case?Even look, your client respectfully has credibility
issues. I mean, he pled, he was co conspirator with individual number
one, which is Donald Trump inthe campaign finance indictment. He did time
on it. He switched a storybefore Congress came clean eventually. But you
(17:29):
know, you know, once aliar, always a liar kind of thing.
So your client doesn't have, likeyou know, the most the best
track record. So, taking awayMichael Cohen from this equation, how does
that case look? Is that acase? Because I asked this because presidential
immune i mean presidential pardon power doesn'textend to a state conviction. So that
(17:52):
might be the one conviction that couldmake a difference. So let me do
as to keep this short, becauseI could go a much too long.
I note too much and it willbe much too long. Yeah, two
quick things about this case. I'mnot relying for my first part of the
answer on what I say over MichaelCohen testifies. Let me rely on the
(18:18):
federal prosecutors of the most prestigious federalprosecution district in the United States. It's
called the Southern District of New York. Those of us who aren't great fans
of some of the prosecutors in thatoffice would call it. They think it's
the sovereign District of New York.But let me quote them. Don't believe
me. Don't believe even mister Braggwho brought the indictment. It's the District
(18:44):
of Attorney of Manhattan, by theway, not the Attorney General who but
oh I'm sorry, Yeah, thed Bragg, right, A brag is
the criminal case. So let mequote the Southern District of New York prosecutors
about the case against Donald Trump.It's the same case that Michael Cohen pled
guilty to and went to prison,same case, same facts, same issues,
(19:07):
the payment of the hush money,destroy me Daniels. The Southern District
of New York and a sentencing memorandumdid not talk about hush money for a
sex or an affair. They said, and I'm almost quoting directly. You
can find the sentencing memo aided Decembersixth, twenty eighteen that they sentence that
(19:29):
they put into the judge to recommenda long sentence for Michael Cohne for the
same crimes, central crimes of payingthe hush money and not recording it on
the books. Honestly, Michael Cohenwent to jail. And here is what
the Southern District said. These crimesimpair our democracy. Not about sex,
(19:55):
about our democracy. The Southern Districtsaid, because by paying people with negative
information that might influence voters before anelection, those payments were made a few
days before the two thousand and sixteenelection, twenty twenty elections, they said,
(20:18):
by allowing somebody to pay off peoplewith negative information that might change votes
is an impairment of our democracy.That's what was an issue. That's why
they recommended a maximum sentence. Whatwas never in dispute is that Michael Cohne
wrote a check at the direction andunder the coordination of President Trump as a
(20:41):
private citizen. Excuse me, itwas before the twenty sixteen election. So
those words are what brag is restingon, same facts, and therefore this
is the in my opinion, thestrongest case. Maybe the documents case and
classified documents case is stronger. Yeah, there's no need to prove intent,
(21:04):
as mister Smith will have to proveright. Facts are on record undisputed found
by the Southern District. Donald Trumpdirected Michael Cohne to pay one hundred and
thirty thousand dollars. Yeah, Imean, look that the document case,
I think Jim and I have talkedabout this before with another guest, I
think is the strongest case. You'vegot footage, you know, you've got
(21:29):
video footage, you've got text messages, you've got lawyers who are testifying.
But again, that's another federal case. And even if he's convicted, he
could be the shameless president that thefounders did not envision would be in power
one day and that he would,you know, pardon himself. So that's
why I was curious about the DAcase. But Jim, you were gonna
(21:51):
think, yeah, yeah, yeah, Lenny. The foreign presidents facing a
number of indictments in Georgia, youknow, the election interference case has come
up his A lot of people havealready pled guilty, and I agreed to
cooperate. We've got the January sixthtrial on the schedule to go forward in
March in DC. Then the documentcase in Florida seems to be behind that.
(22:14):
I guess there's some significant discovery issuesbecause they're classified documents. And then
the New York case, as youmentioned, So how do you see this
playing out? Landing Well, Ithink that Trump will be convicted in the
New York City trial and it'll bethirty three felonies because each time the books
(22:34):
recorded the payments by Michael Cohen asa legal expense. The federal prosecutors in
writing said that Donald Trump knew therewas never a legal agreement with Michael Cohen
when he spent one hundred and thirtythousand dollars and then as a sitting president,
(22:55):
a lot of people forget this.He wrote checks to Michael Cohen thirty
five thousand dollars a month from DonaldTrump's personal bank account. The checks I
put with Michael on television during hishearings, signed by Donald Trump while he
was president, and recorded on thebooks of his company as legal expense when
(23:15):
he knew and Michael knew, andthey both knew there never was illegal retainer.
And in case anyone doubts the wordof Michael Cohne or Donald Trump,
again, don't believe me. Believethe federal prosecutors. They found that both
of them knew there was never alegal retainer agreement. That was a reimbursement
(23:37):
to Michael for the one hundred andthirty thousand dollars of illegal hush money with
any political motivation. Makes it afelony. It wasn't about protecting his wife,
Missus Trump from the knowledge of theaffair. So when was that case
schedule? Will it go to trialbefore? I am told end of my
(24:00):
March latest, depending on what happenswith mister Smith's earlier case, that may
be delayed. There will be,and I can say will be because I
do talk to the prosecutor team workingfor mister Bragg. The judge has said
there will be a criminal trial inMarch, no matter what, and no
(24:21):
federal judge can change that. DonaldTrump can't change that. The judge in
New York, very strong judge saidthere will be a criminal trial in March.
I mean this dude's knocking up.This guy's not going to have any
time to campaign. He's gonna beso busy going from court to court,
(24:41):
it's crazy. Okay. So,like Lannie, one of the first things
you said to me when we firstspoke on the phone for that mantra was
there's innuendo and journalism and innuendo isnot a fact. And when you spoke
about this earlier too today is thatwhen it comes to the presumption of innocence
in the court of politics, it'smore about the presumption of guilt, Jim
(25:04):
and I call it the assumption ofguilt on the on the courtroom side.
You know, as a crisis manager, you've worked closely with two presidents and
a number of other clients who arepolitical players, and so we really wanted
to talk to you about to takea few minutes on each story on the
cases of or I should say,the saga scenario of Governor Andrew Cuomo and
(25:30):
then Al Franken, Senator Franklin.So starting with Governor Cuomo, you know,
I've always believed he was railroaded,and just recently Melissa de Rosa,
has top senior advisor and member ofhis cabinet, sent me a book which
sort of gets into the truth behindall of this, uh and it You
(25:51):
know, both of these cases we'retalking about are based on me too allegations
by women. Obviously, two menin a position of power, both Democrats
and the Democratic. Their Democratic colleagueswere not very kind to them, essentially
pushed them out of office. Uhmore so than even the right. But
(26:15):
Governor Cuomo's case was about technically abouteleven women who were unnamed. The laws
that were broken were uncited to andessentially New York A g Leticia James put
out this report saying, believe thesewomen and the women just to recap for
(26:36):
our listeners who may have forgotten thisstory. You know, one was a
non employee at a wedding reception whereshe said that the governor touched her face
and put his hand on her lowerback. Another non employee in a public
rope line event. Uh, similarallegations. Another one at a public event
in upstate New York. Again anotherphoto op. A woman named Caitlin who
(27:00):
essentially said I was not sexually harassed, but she was in this report,
and Alyssa also said she was notsexually harassed but was in age The AG's
report a female doctor who was onnational TV during the pandemic and gave the
governor a COVID test, and shewas dragged into this report, and apparently
(27:25):
he had said, you make thatgown look good. She also said I
didn't feel like I was sexually harassed. Alyssa McGrath was one where I guess
there was some reference to being singleand ready to mingle. Britney Comiso.
And then of course Lindsay Boylan,who had all kinds of political motivations because
(27:45):
of things that had happened in theoffice when she had worked for Governor Cuomo
and denied promotions and things of thatsort. So and there was a state
trooper, sorry I forgot the copwho said that he put his hand on
her waist or something like that.The Attorney General refused to rule out the
(28:07):
fact that she was actually running forgovernor for the governor's seat, and brought
in a federal prosecutor who was alongtime Cuomo adversary, had animus to do
this investigation and basically run the show. And despite publicly saying that she would
release all of the evidence, thenotes, the transcripts, all of that
(28:29):
backing up her investigation. To thisday, she's refused to do so,
and Cuomo has actually been litigating thisissue for two years, trying to get
the evidence to come out to,you know, to sort of lay out
the truth. So, Jim,I mean, I think one of the
things you wanted to discuss with Lanniewas about the due process and all of
this. Yeah, I mean,and Lanny, is that due process and
(28:52):
what's he entitled to due process?Or was this a political issue? Well,
it's unfortunate that you're writing showing acontrast between the two because that's today's
culture, that's today's media. It's, in fact, a presumption of guilt
media. It's a presumption of guiltculture, and it's contrary to do process.
(29:14):
So I have to restrain the furythat I always experience when I read
in the media innuendo and a presumptionof guilt. It is definitely a fact
that media reports optics and reports asone or more media, mainstream media excellent
(29:37):
reporters would say to me, Isaid, why did you report that story
when there's no evidence to support it. Well, it's out there. So
that's the smoke that you and Italked about. Sarah and the innuendo is
smoke, so right now, AndrewCuomo has never gone to trial. His
accusers have never been subject to crossexamination, and indeed worse than an indictment,
(30:03):
which isn't worth more than a hamsandwich because it's a one sided argument.
It's even worse when you're accused inthe media and everybody assumes you're guilty.
Why because it's out there. Youget a million Google hits when you
see any Cuomo guilt. That's sodangerous for those of us who believe in
(30:25):
due process, and that's really whatis happening with some of these instances.
Having said that, I've also beena supporter of involved with the Me too
movement, and I think it's possibleto say there's a presumption of sincerity when
a woman makes the accusation and oftensuffers a lot of tax because of the
(30:48):
accusation against public figures. It's worthsaying, let's presume that a woman that
makes the accusation is telling the truth, but it's still only a presumption.
It Does it mean she's telling thetruth she's presumed take her seriously, Yes,
but it's not the truth yet.The truth is only have to do
(31:08):
process, which is cross examination,look at the facts and then let a
jury decide, and don't bend therules, you know, because because what
this movement has done in the courtroomis that it has opened the floodgates to
evidence that otherwise would not be admissible. Judges are yeah and just all like,
(31:32):
you know, unlimited number of badact witnesses coming in to get their
day in court, which is highlyprejudicial. And then you know, bending
the rules in terms of creating weirdexperts who could tell the jury what it's
like to be this and that.And you know, we just saw that
with the Church of Scientology. Thejudge literally made somebody a scientology expert to
(31:57):
and I'm not you know, I'mnot defending scientology, but you know,
but it's like all kinds of rulesare being bent to sort of support what
you know, that believe them whenthey say it. And I'm like,
this should not be different than anyother allegation. Any allegation in court requires
(32:19):
proof, requires corroboration. Why isit that just because by virtue of your
sex you get to come in andbe believed. I mean, I think
that listen, Deborah Cats made astatement about this. I think with respect
to al fr al Franken Debracats representsa lot of women with me too,
claims, and she said, youknow, the allegations leveled against Senator Franken
(32:42):
did not warrant his forced expulsion fromthe Senate, particularly given the context in
which most of the behavior occurred,which was in this capacity as a comedian.
We'll get to that, but alloffensive behaviors should be addressed. Not
all offensive behavior warns the most severesanction. So this backflashes. It's like
a backlash narrative that somehow men arevulnerable to even the most frivolous allegations.
(33:06):
And I'm just like, well,let's treat it like any other allegation.
Why is this like why are wewearing these, you know, just golden
gloves and like doing all these weirdthings with this particular type of allegation.
My question to you, Lannie isis you know the Cuomo DNA just does
not give up. Okay, SoI don't look at Andrew Cuomo and think,
(33:29):
oh he's done. I feel likehe still has some sort of a
future in politics. And so whatdo you think as a crisis manager?
The best strategy would be for himto come back, well, I think
he's failed at doing the initial beststrategy. I tried actually to reach out
(33:51):
to him, and I know Chrishis brother very well. Yeah, me
too. You can't wait to getyour facts out. You can't be strategic
and do the right timing or waitfor the trial, or do whatever your
lawyers are telling you to do.You've got to do it immediately within the
first news cycle, or keep doingit over and over again. And so
(34:13):
if I were able to get throughto Andrew, I would say, do
exactly the opposite of what your lawyersare telling you. Do a press conference,
take every question and do what GeraldineFerarra did when she was accused of
something that her husband actually did.At the time, those of you are
too young to remember, she wasthe vice presidential candidate nineteen eighty four,
(34:34):
the first female almost president, andshe was accused of being involved or knowledgeable
about accusations made against your husband thatwere never taken to court, never proven.
And instead of waiting for the legaladvice, don't say anything you may
at your husband in trouble. Youknew too much about his tax returns.
It was about basically tax returns.She held a long press conference and it's
(35:00):
used as a proper now nowadays.Do with Geraldine Ferrara is what I wanted
Andrew to do. And I've knownthe governor, so I can call him
Andrew. Yeah, she said atthe beginning of her press conference. All
my lawyers have advised me something likethis, not to do this. I'm
not leaving this room until I answerevery question you have about my husband and
(35:22):
my conduct. And she stayed andstayed and stayed, and once she did
it, it was basically open.So that ship has sailed. But now
that he is fighting to get theevidence and to you know, too late,
not too late. You should doit tomorrow morning. Really, okay,
really, because he's not show upwith the goods. Once he has
the goods, well he can doit. It's a it's a process.
(35:45):
But he hasn't done it yet.No, no, no, he is
litigating to get the materiat but wegot to wait for the trial, for
the litigation and the judgment. Yeah. Yeah, I think that Andrew has
facts on his side. He alsohas a mayor help that he could do
right. Whatever I was doing.In my mind, I can understand that
(36:07):
the woman took it the wrong way, or I shouldn't have done it to
begin with. There's no crime inadmitting to responsibility, perhaps to be the
truth. Some of the women wereoffended, and he should respect that,
even if he said I didn't meanit to be well. But see,
that's what every guy says in theIn this context, everybody comes out and
(36:30):
issues a statement and says, I'msorry, I didn't intend to do it.
I'm Italian, I'm touchy feely.You know, I'm sorry I offended
you. That was not my intention. But culture, the culture doesn't take
that as genuine and they can Ihave a long standing response. You can
imagine that. When I do mytrade of crisis management, I'm always asked
(36:52):
that question, and I have astandard answer. I don't really care.
I just want you to tell thetruth, and if it's not believed,
just keep doing it. And Idon't really care if people don't believe you,
because that's a guy's excuse. Evenif you're a sexual harasser. You
tell the truth, and you ownwhat you do, acknowledge you shouldn't have
right. And if a woman isoffended and you don't know her by touching
(37:14):
her back, her shoulder or sayingsomething intimate, then own it and apologize
for it. Oh well, peoplewon't believe him. That's just I don't
care how people react. Just dothe right thing. Just tell the truth
and keep doing it over and overagain. Can't do it once, have
to keep doing it. That's mycrisis management. So Jim, should we
(37:35):
move on to Al Franken? Sure, that's around time. Al Franken.
It's a long story, but I'mgoing to shorten this. He was a
comedian. He was on SNL.He then had the Al Franken radio show,
and then he went to the USSenate. During the time that he
had that Al Frankin show, hedid the I think it was a two
(37:57):
thousand and six USO tour the Troopsand all and Leanne Tweeden, who is
a conservative radio host who I alsoknow very well from a panel that I
did for Doctor Drew. Her andI were regulars on that panel. Client
came out this was around the twentyseventeen you know, Weinstein allegations and all
(38:19):
that, and said that Franken hadassaulted her by forcing a kiss on her,
sticking his tongue in her mouth,and that later, when she was
asleep, he touched her breasts andthen for a photo op. Well,
except all of this was part ofa skit that al Franken had written.
And then she later made a statementthat he purposely wrote the skit to do
(38:43):
this with me. And then therewere women who were coming forward and saying,
no, al Franken is a goofball. He's a nerd. That's his
character. That's how he makes peoplelaugh. And you knew you werehearsed this
right, And so al Franken wason in no time, and he is
very unequivocally talked about how he regretsresigning from the Senate and how Senator Gildebrand
(39:09):
and Chuck Schumer basically gave him theultimatum, and Chuck Schumer was like,
you need to be out by fivepm or else, and so where's the
due process? Right? Like youwere just talking to Jim about it.
So I don't I mean, SeanAddity was involved. He wanted the tape,
(39:30):
he wanted to be the first oneto show it, or the photo
with the breasts and whatever, andso I mean, what about Franken,
what are your thoughts on him?Well, I'm sympathetic even though I was
the victim of his talk show.Nest in this towards my friend and Senator
(39:50):
Joe Lieberman, and he and Iexchanged some marsh words about his treatment of
me on his radio show. Heactually hung up on me when I was
different Joe Liberman. So I don'tspeak with any friendship or kindness towards Al
Franklin given before he was a senator, the way he had treated me on
his talk show. But I amstill very sympathetic because he was run out
(40:14):
of town without a trial. Ithink he did apologize for what he did
do in whatever way that he apologized. I accepted his apology, but he
was not It wasn't right that hewas given an ultimatum by his colleagues.
He deserved a hearing, He deserveda chance to defend himself. He deserved
(40:37):
a chance to apologize. But itwasn't an offense given the circumstances that should
have driven him out of the USSenate. So he didn't get to process.
And I'm very sympathetic towards him.I'm glad I've got my chance to
say how really rude he was tome, but he just it's a long
time in my being able to saythat, but not maybe increasing is my
(41:00):
favorability by I'm very sympathetic. Heshould not have been run out of the
same You're not going on his podcastanytime soon, are you. Well.
I still really love the guy asa US senator. Is views on issues
but the same as mine, quiteliberal, and he was a great comedian.
He just could be, as peoplewill tell you about him, very
very rude when he wants to tellyou he doesn't like you or your friend
(41:25):
turning over to Jim Yeah, youknow, you know, on these issues,
particularly these sexual harassment claims, Imean, it really does depend on
my view is whether the accused whenwhen you're in the political arena, is
the accused of Democrat or the accusedof Republican because Republicans will stand by,
you know, you know, theaccused, whether and won't throw him out
(41:50):
with the bathwater the way the Democratswill with Al Franken, Andrew Como and
and you know, and and another. Supreme Court is a whole different,
a different venue and has such longlasting consequences. But you just look at
Brett Kavanaugh for example, I mean, I mean, the Republicans stood by
him in the face of weathering accusationfrom his college days, and I just
(42:15):
don't think a Democrat could have survivedthat. I'd like to hear your assessment.
I mean, you've got friends onboth sides of the isle, but
it does seem to be a politicalequation when it comes to treatment of the
accused in that arena. So look, let's go back to the very very
important name of your podcast, andthe importance of your podcast is your need,
(42:37):
and that is the absence of thepresumption of innocence. And there's more
hypocrisy on the side that I liveon, which is on the left.
I'm a card carrying member of theliberal wing of the Democratic Party on every
issue I can think of. Maybefiscal conservatism appeals to me sometimes, but
the fact is we liberals are morehypocritical and the Republicans less by giving the
(43:04):
presumption of innocence. When it wasJoe McCarthy, as I was raised before
you two maybe were born, whenSenator Joseph McCarthy used pure innuendo, no
facts, and no evidence to ruinpeople's lives. He actually led people to
admit suicide when they were accused ofbeing a communist and they had no evidence,
and they were black, bald,and some of them took their own
lives. We liberals would say,wait a minute, it's just innuendo.
(43:29):
It's just and now, when itcomes to Donald Trump, or when it
comes to anything that involves an accusationby a woman, we go to the
presumption of guilt rather than staying withthe consistency of what we said in the
McCarthy era, is as a presumptionof innocence when you're accused of being a
communist. So this is the lessonof our times. And I know my
(43:52):
fellow liberals get upset with me whenI point out the hypocrisies of having one
standard if it's McCarthy, another standardit's Trump. And I think we have
to I think we need to beintellectually consistent as believing in due process.
I don't agree with you more.Just back to al Franken. Obviously you
(44:13):
would not have been advising him,considering your past, But had you been,
I would have. I would haveActually, like a good lawyer,
what would your advice have been,Get out in front there. I would
have said, hang in there,don't let anybody bully you, whether it's
(44:34):
a colleague from New York, asenator, or anyone demand a hearing and
get your due process, and theni'd say, ps al you Omi an
apology. I have a question andclosing before we leave, what politician client
in your career would you? Wellwait, wait, actually in the backup,
(44:59):
were you advising President Clinton when thatMonica Lewinsky thing was going on or
is it a different time. No, I was out of the White House.
My wife is about to deliver arenow twenty five year old son.
But I remained a private citizen.I did a lot of television to defend
him on the impeachment because there wasreally nobody else available, and he was
(45:22):
an old friend. But I didfind my own way as a private citizen
to talk to him and to tryto give him advice. So what client
and what politician client of yours wasyou think the biggest success story you've had
in terms of being able to dodamage control, get in front of it,
(45:43):
manage the crisis. Well, Icould plug a book that I wrote
called Crisis Tales, Five Rules forCoping with Crises and Business Politics in Life,
and I give a lot of casestudies of my favorite stories, but
Martha Stewart was one of my favorite. Unfortunately, not a success story in
the outcome of her criminal case becauseher criminal lawyer forced me to be terminated
(46:07):
after I placed and worked with ratherworked with Jeffrey Tubin and published a story
The New Yorker entitled Lunching with Martha, where I invited Tuban to sit down
with Martha Stewart and hear her story, which was never a crime of insider
trading. Someone named James Comy theUS Journey at the time, the same
(46:30):
comy that delivered the election to Trumpby writing an illegal letter to Congress eleven
days from the election in twenty sixteen. Don't get me started. In any
case, Martha Stewart story is agreat story where I defied the legal advice.
We went to The New Yorker.The story that Tuban independently researched.
(46:51):
Fan note it couldn't be insider tradingbecause she got a tip from a broker,
not from an inside official from thecompany, and ultimately, mister Komi,
who I think acknowledged that jeff Tuban'sNew York history influenced him, did
not charge her with insider grade eventhough the media had convicted her in headlines.
(47:13):
I've been side ertained. That's oneof my favorite successes. Did you
end up helping Cuban? Also?No, well, I certainly didn't get
called on to help him. Iwas very sympathetic to what happened with him
to this day. I'm a greatfan of Jeff as a journalist, as
a lawyer, and in all otherways, and I think what happened to
(47:35):
him was very unfair. Lannie.That just points out the difference between I
guess a crisis manager and a defenselawyer. And we talked at the beginning
of the show about how it's difficultit is to prove intent, and what
we see in most of these whitecollar cases is the charge ultimately that sticks
(47:55):
is making a false statement. Butyou have to make it to a federal
investigator. You can't make it tothe media. But that's why defense lawyers
tell their clients don't talk, andthat's not the best strategy for someone in
the public. I obviously trying toget ahead of a story. Yeah,
there's no question I respect my fellowlawyers. The reason I stayed as a
(48:20):
lawyer, as a practicing lawyer.By the way, I am now on
my own with the name Landy J. Davis Associates. So the prior identification
in your wonderful introduction of me hasbeen updated, Sarah. But my decision
to do this work and always doit as a lawyer is because I needed
to be in the room with myfellow lawyers under attorney client for so they
(48:44):
could tell me the risks of goingpublic in the media. And I always
cleared my messages with fellow lawyers thatthey were facts that wouldn't prejudice the client.
So whatever my rules of being outin front, my expression in the
White House that was a subtitle toa book I wrote about my White House
experience, tell it early, tellit all, tell it yourself, has
(49:06):
some exceptions, and that is acriminal defense lawyer, I do not want
to say anything to the media thatwould prejudice the case because it's not important
enough to save a reputation if theperson's going to jail. So there's got
to be a balance between the legalrisk and the reputational strategies, and it's
not an easy balance to strike.But I need to be a lawyer trusted
(49:29):
by fellow lawyers to at least sharefacts with me under attorney client. You
know who did that, Lannie andJim, and the recent past was Alec
Baldwin Alec Baldwin did not care whathis lawyers were telling him about the Rust
shooting. He was on with GeorgeStephanopolis giving an interview very detailed. He
was on all these different and hewas on social media talking about the incident
(49:53):
while criminal charges were pending against him. But I mean, ultimately it worked
out. But the the statements hemade were not they were hurtful to him.
There is that sort of they droppedcharges. I'm not sure how hurtful
they were. No, No,they dropped Yeah, that's what I'm saying.
They dropped the charges, but forevidentiary reasons had they brought the charges,
(50:16):
his statements were not good. Imean, and they're still not good
on the civil side. I thinkhe ended up settling. But my point
is is that that is always aconcern. But I also think that,
you know, lawyers are good crisismanagers because we deal with that all the
time, although you do it ona whole other levels. I'm not at
(50:37):
all comparing. No, you're bothof you get the idea that if we're
going to get due process, wehave to get our facts out into the
media, because media is poisoning publicopinion, which can infiltrate. Notwithstanding what
I said earlier about the roar ideaand the jury system, it considerably infiltrate
(50:59):
into the mindset of a jury.If this prejudice, hope listen. But
I know one thing. You onlyget one chance to keep your reputation intact,
and in the age of Google,if you don't immediately get into the
news cycle to contradict a false statement. The one thing I always say to
lawyers, and I am unyielding onthis, I'm always willing to listen to
(51:21):
the legal risks of going public.If I've got a positive fact, don't
tell me that it's going to hurtthe client. For me to get a
positive fact into the media. Maybeit's not the client speaking, maybe it's
me speaking as its lawyer. Butthe positive fact, if I'm sure it's
a fact, cannot be harmful,and I have to win that argument with
(51:42):
my fellow lawyer. Now, sometimesI lose the argument and I then go
along with me what the lord wantto Always make the argument, you know,
Lannie, as lawyers, we haveand once there's a pending case,
there's an ethical rule that kind oflimits us. Is what we can actually
say in the public, man,I interrupt you and say that's not true,
and we have a respectful disagreement.That's always said, yeah, I
(52:07):
will you the ethical rule, chapterand verse. It's got to be prejudicial.
Don't forget the word prejudicial. AndI always say to my fellow lawyers,
and not one single judge I've beenchallenged on that ethical rule. You're
not allowed to use the media doingyou can't litigate in the media. Excuse
me, your honor, Read whatthe rule says. I can't say anything
(52:30):
prejudicial to the media. I havean obligation to my client to correct the
record with facts. So I turnedto my lawyer, the other lawyer who's
challenging my going to the media,can you tell me whether what I said
is factually accurate, because if itis, there's no violation. And I
never get challenged beyond that challenge,because of course, I don't say anything
(52:52):
to the media that I don't havebackup on documentary evidence that I know what
I'm saying it's true. Sorry.I appreciate that what we're seeing as a
trend where judges are imposing gag orderson the lawyers and some of the hot
profile criminal cases, and then youknow President Trump. I mean, he's
subject to some restrictions on what hecan say, and so that's so Again,
(53:15):
it's a very difficult balance in thecase of a judge who's trying to
keep a jury from being unbiased.It's very difficult to criticize a judge when
it comes to somebody who's constantly usingsocial media and constantly making statements that are
opinion statements and not backstatements. Sojudges have a tough job, and sometimes
(53:37):
they get airing on the side ofa gag order is necessary. But in
my case, I'm very careful withwhat I say to the media in litigation
as well as even not litigation.I better be right. I have made
mistakes in comments I made to themedia, and I learned a lot of
lessons from those states. So atleast we can all agree that if a
(53:58):
client is being hard armed in areputation, as certainly Al Franken was,
as Andy Cromo has been, asother people have been, the truth is
the only defense, and if alawyer has the facts and can document them,
I think it's the lawyer's obligation toget out in front and worry about
reputation as well. As the case. Well, I mean, look,
(54:22):
when we represent clients, it's it'sholistic. Of course, number one focus
is you know, their defense andagainst the criminal charges. But we also
have to consider collateral consequences. Isthe guy going to get deported, is
the guy going to you know,loses professional license. I mean there's all
(54:43):
these you know, there's a wholespectrum of things that you know. Literally
I say, you know, Ido this work because it has to do
with life and liberty. I'm notfighting over much and it is life and
liberty. Yes, And let meget it again for almost ending our time
to compliment you on your choice ofwords in what you're doing on your podcast.
(55:04):
The word presumption is in our constitution. At least it's an inference from
the due process clause. The presumptionof innisence actually doesn't appear in the Constitution,
but it's been inferred over the yearsby courts because that's what due process
means. When we see an indictmentannounced by a prosecutor at a press conference,
(55:24):
no, it's requiring that prosecutor tohold the press conference. Why does
the Justice Department allow a federal prosecutorto hold the press conference? To put
out a press release. What's goingon there? Is it okay for prosecutors
to try to influence juries by holdingpress conferences, and then when defense lawyers
(55:44):
try to answer the press conference,it's too late. The headlines have already
been dominated by the prosecution. I'dlove to see Merrick Garland. Of course,
it will never happen, say nomore press conferences. Will let you
all read the indictment, and theindictment speaks for itself. And you may
remember mister Fitzgerald at one point,who is a special counsel who indicted I
(56:07):
think in the Bush years, andhe said at the beginning of his press
conference, let me remind everyone thepresumption of innocence is the person we indicted
is innocent until proven guilty. Atthe very least. I'd like to require
that to be the rule for everyprosecutor who holds a press conference. But
(56:29):
it's never gonna happen. Brilliant idea. That's a great, great ending.
Thank you so much Lanny for comingon. This has been very very informative.
Thank you for your podcast, anddo me a favor. I don't
want to be up against Sarah atleast in the area. And if you
want to check out that debate,you should go to open to debate dot
org. If they have a podcastchannel there you can see Sarah and Lanny
(56:51):
throwing it down. Or you canalso check it out on YouTube. And
while you're on YouTube, you shouldvisit our page YouTube dot com slash at
the presumption that's our social media handle. We're on all the podcast platforms,
so please subscribe. And just toecho what everybody said, hope everyone had
a great holiday season, Happy NewYear. We're so excited to keep releasing
shows for you guys. And untilthen, Sarah and Jim until next week,
(57:15):
we rest. Rest
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