'This isn't hearsay': Legal expert shows how Liz Cheney's book might hurt Trump at trial

Two days after the election, Trump reportedly knew he had lost. And his private whisperings could come back to bite him.

In former Rep. Liz Cheney's book “Oath and Honor,” she describes how then Rep. Kevin McCarthy (R-CA) informed her only two days after Election Day in 2020 that Trump conceded privately that he lost the election.

“He knows it’s over,” McCarthy said, according to her telling in the book and first reported by CNN. “He needs to go through all the stages of grief.”

Harry Litman, appearing on MSNBC's "The Last Word With Lawrence O'Donnell" is convinced that while it might be hearsay for Cheney to shed light on this revelation, McCarthy could be a prime witness for prosecutors attempting to prove that Trump internally knew he had lost.

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Litman doesn't spell it out but he's likely referring to Trump's federal criminal case led by Jack Smith in D.C. accusing Trump and his advisers of spreading false information about voter fraud and stymying attempts to transfer of power to then President-Elect Joe Biden that ended up fomenting a mob who stormed the Capitol Building.

Trump has denied wrongdoing and is fighting the charges.

"On the evidence...it's super straightforward: the code defines an admission by Donald Trump, anything he says is non hearsay," Litman explained. "So even before you get to the 23 exceptions, this isn't hearsay."

He then clarifies exactly where McCarthy could play a focal role as a witness.

"Now it is hearsay for Liz Cheney to say 'Kevin McCarthy told me.' It's not hearsay for McCarthy."

How would prosecutors do this?

"You give him a trial subpoena and 'Mr. McCarthy, what did Donald Trump tell you?' and there's no hearsay protection there," Litman explained. "And of course they all rail against anybody, including McCarthy, but admissibility is straightforward."

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