What the Manhattan jury weighing the case against Donald Trump makes of adult film star and director Stormy Daniels’ testimony this week could hinge on societal perception of “lying women,” according to a leading feminist legal theorist and former Manhattan prosecutor.
“All of us are shaped by a culture that casts accusers as unreliable sources of information,” Deborah Tuerkheimer, also a professor at Northwestern Law, told Salon.
Tuerkheimer, the author of the book “Credible: Why We Doubt Accusers and Protect Abusers,” said female caricatures such as the gold-digger seeking fortune above all, the scorned woman seeking revenge or the regretful woman ruing consensual sex are ubiquitous.
“The ready availability of certain stock representations of lying women makes it easy for us to disbelieve,” Tuerkheimer wrote in her book.
On Thursday, Daniels faced additional cross-examination by Trump’s defense team and a round of questions from prosecutors — with the defense seeking to portray Daniels as having entirely invented the story of the sexual encounter on the basis of her salacious background, her efforts to make money off the tryst and her animus toward Trump.
“They're obviously going to try to shame her in front of the jury the best they can,” Matt Cameron, a Massachusetts criminal defense lawyer and co-host of the podcast “Opening Arguments,” said. “They were really pushing to try to get her to say that she was doing this for money or that this was all about money. They're going to try to do whatever they can to undermine it."
He added: “I hate to see witnesses treated that way. That approach makes me uncomfortable, but it's been used for as long as we've had courts."
Trump’s defense lawyer, Susan Necheles, questioned Daniels at length about alleged discrepancies in various accounts of her 2006 sexual encounter with Trump in his Lake Tahoe hotel suite.
“You made all this up, right?” Necheles asked Daniels, according to The New York Times.
Daniels responded: “No.”
Daniels has recounted her story of the tryst in her memoir and numerous interviews, dating back to a 2011 interview for In Touch magazine.
She’s repeatedly said that Trump appeared in pajamas, and that the two did not eat in the hotel room even though she was invited for dinner.
But Necheles questioned why Daniels would have described the episode as “dinner” if they never ate, and why Daniels has said Trump was watching television when she entered his suite.
"Your words don’t mean what they say, do they?” Necheles asked Daniels
According to The New York Times, Necheles pointed out that Daniels wrote in her memoir that she'd made Trump her "b**ch" at the start of the 2006 encounter, which contrasts to Daniels’ testimony Tuesday that she felt intimidated by Trump.
“You’re trying to make me say it’s changed, but it hasn’t changed,” Daniel said later, defending her account to Necheles.
As part of the defense effort to impugn Daniels’ credibility and background, Necheles also pointed to Daniels’ work in the porn industry and her work as a medium.
Necheles also honed in on the idea that Daniels is lying to extort Trump for money and fame, pointing to her merchandise lines.
Daniels in turn defended her ventures: “Not unlike Mr. Trump.”
On Tuesday, she defended her interview with In Touch Magazine, saying: "I would rather make money than people make money off of me, and at least I could control the narrative."
Daniels also defended her tweets insulting Trump, pointing out that he had called her names like “horseface” first.
Daniels insisted she wanted to get her story out — even as Necheles questioned her about why she earned nearly $100,000 and kept her story quiet from 2016 to 2018.
Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying that audio recordings, internal business records and witness testimony prove he was scheming to kill damaging stories ahead of his 2016 campaign in violation of state and federal election law and state tax law.
Each count is punishable by up to four years behind bars. Trump denies those charges, as well as the affairs.
New York Law School professor Anna Cominsky, director of the school’s Criminal Defense Clinic, said that despite all the focus on the particulars of Daniels’ account, jurors will be asked to focus on whether Trump falsified business records to cover up a damaging story and boost his election bid in violation of election and tax laws.
“She's necessary from the standpoint of — if they're saying that there was a conspiracy to unlawfully affect the election, that's the underlying felony and why the business records were falsified,” Cominsky said. “If they're saying that's the underlying crime, they have to have some facts to support that crime.”
Cominsky said that Daniels’ importance comes down to explaining Trump’s motivation for the alleged scheme. Daniels’ lawyer Keith Davidson, in an audio recording, said that Daniels was worried she’d lose leverage for a payout if Trump lost the 2016 election as she presumed he would.
“And so part of that is painting the picture as to why would Trump do this, right?” Cominsky said. “Why would he want to keep this under wraps — and she provides the why, right? This is embarrassing. He was cheating on his wife, supposedly. And also, how will the public view all of this? The voting public, that's the prosecutors theory. And the only person that can provide that part of the story is her.”
Cominsky said she’s not sure how the defense strategy will work with jurors.
“We've seen through the cross-examination that the defense is trying to make her out to be a liar,” Cominsky said. “I'm not sure how effective that's going to be with the jury, and I'm not really sure why that matters, because she knows nothing about the documents that are at the heart of this case.”
Cominsky said the defense strategy of “making everyone look like a liar” could strain credibility with the jury.
“At a certain point, the jury's going to say, ‘Yeah, I don't buy that every single person involved was a liar,’” Cominsky said.
Cameron called Daniels’ testimony “compelling” and said it will be an uphill battle for the defense to convince a juror to dismiss her account entirely, adding that Daniels’ testimony does not itself show that she has enriched herself off Trump.
Daniels testified this week that she cannot, and will not, pay the half-million-dollar judgment she owes Trump: “I don't have the means to pay and I didn't think it was fair.”
She also testified that the impact of telling her story has had a harrowing effect on her personal life and damaged her financially.
Cameron said Daniels had “not only [said] that it didn't make her money really, but it cost her a lot of money. She's got a half-million-dollar judgment pending. She can't really say that came out very well for her.”
Prosecutor Susan Hoffinger asked Daniels at one point whether "telling the truth about Trump" has been a positive or negative in her life.
"Negative," Daniels said.
