On July 13, 2006, Stormy Daniels says, she had sex with former President Donald Trump in his suite at the Harrah's Lake Tahoe Hotel and Casino, where he was staying during the American Century Celebrity Golf Championship. At the time, Daniels was a 27-year-old porn star who had started writing and directing adult films, and Trump was a 60-year-old billionaire real estate developer who had gained renewed celebrity as the star of the NBC reality TV show The Apprentice. He had married his third wife, former model and future First Lady Melania Trump, the previous year, and their son was four months old.
A decade later, shortly before the 2016 presidential election, Daniels agreed to keep quiet about that alleged 2006 encounter in exchange for a $130,000 payment from Michael Cohen, Trump's personal lawyer. That agreement is at the center of Trump's first and possibly last criminal trial, in which Daniels testified this week at the New York County Criminal Courthouse in Manhattan. In trying to peddle her story to the press as Trump was running against Hillary Clinton, Daniels told the jury, "My motivation wasn't money. It was to get the story out."
That implausible claim illustrates a broader problem that the prosecution faces in trying to establish that Trump committed 34 felonies by disguising his 2017 reimbursement of Cohen's payment to Daniels as legal fees. Even leaving aside the convoluted, legally dubious theory underlying those charges, prosecutors are relying on the testimony of several key witnesses who do not seem trustworthy.
Daniels said she decided to go public with her story in early October 2016, when The Washington Post published a 2005 video in which Trump bragged to Access Hollywood host Billy Bush about what he could get away with as a celebrity. "You know, I'm automatically attracted to beautiful [women]," Trump said. "I just start kissing them. It's like a magnet. Just kiss. I don't even wait. When you are a star, they let you do it. You can do anything—grab them by the pussy. You can do anything."
Prosecutors have emphasized the importance of that recording in understanding why Trump was eager to silence Daniels. His motivation, in turn, is crucial to the argument that the hush payment was a campaign expenditure, that Cohen therefore made an excessive campaign contribution by fronting the money, and that Trump falsified business records to cover up that crime.
"Those were Donald Trump's words on a video that was released one month before Election Day," lead prosecutor Matthew Colangelo said in his opening statement. "And the impact of that tape on the campaign was immediate and explosive. Prominent allies withdrew their endorsements; they condemned Donald Trump's language….The Republican National Committee even considered whether it was too late to replace their own nominee and find another candidate for the election a month before Election Day."
Trump and his campaign staff "were deeply concerned that the tape would irreparably damage his viability as a candidate and reduce his standing with female voters in particular," Colangelo told the jury. So the next day, when Cohen learned from David Pecker, then the CEO of the company that owned the National Enquirer, that Daniels was pitching her story, Trump "was adamant that he did not want the story to come out. Another story about sexual infidelity, especially with a porn star, on the heels of the Access Hollywood tape, could have been devastating to his campaign."
As Daniels tells it, she was equally determined to tell her story. Yet she ultimately decided that was less important than reaping a windfall from her silence. Daniels did not publicly discuss her relationship with Trump until March 2018, when she appeared on 60 Minutes after unsuccessfully trying to get out of her nondisclosure agreement. This was two months after The Wall Street Journal revealed that Cohen had paid Daniels not to do what she eventually did anyway.
In April 2018, Daniels sued Trump for defamation after he called her account of what happened in Lake Tahoe a "fraud." A federal judge dismissed that lawsuit on First Amendment grounds that October, and Daniels lost her appeal. She was ultimately ordered to cover more than $600,000 in Trump's legal fees, which she said she would not do.
Since going public, The New York Times notes, Daniels "has leaned into her Trump-adjacent fame. She has sold merchandise, filmed a documentary, sat for high-profile interviews and written a book that was so tell-all it included detailed descriptions of the former president's genitalia."
Daniels' testimony on Tuesday likewise was a bit too graphic for Judge Juan Merchan's taste. "At one point," the Times reports, "he even issued his own objection, interrupting her testimony as she began to describe the sexual position she and Mr. Trump assumed." During a sidebar discussion, Merchan remarked that Daniels' testimony included "some things better left unsaid" and "suggested that Ms. Daniels might have 'credibility issues.'"
Trump lawyer Susan Necheles highlighted what she said were inconsistencies between Daniels' testimony and the account she gave in her 2018 memoir, Full Disclosure. Necheles also suggested that Daniels had invented an encounter in which she said a Trump supporter had threatened her and her baby daughter in a Las Vegas parking lot, noting that Daniels had not told the girl's father about it.
More generally, the defense team argues that Daniels has financial and personal reasons to lie about Trump. Cohen paid Daniels "in exchange for her agreeing to not publicly spread false claims about President Trump," Trump's lead defense attorney, Todd Blanche, said in his opening statement. "When Ms. Daniels threatened to go public with her false claim of a sexual encounter with President Trump," Blanche told the jury, "it was almost an attempt…to extort President Trump….It was sinister, and it was an attempt to try to embarrass President Trump, to embarrass his family….President Trump fought back, like he always does and like he's entitled to do, to protect his family, his reputation, and his brand. And that is not a crime."
None of this means that Daniels fabricated her account of a sexual encounter with Trump, which is completely consistent with his character and history. And strictly speaking, it does not matter whether Daniels is telling the truth about what she and Trump did in 2006, or even whether her story would been "devastating to his campaign," which is doubtful for the same reasons: Voters knew about his adultery and his disregard for sexual consent, and they elected him anyway. They may very well do so again, even after a jury found him civilly liable for sexual assault. But under the prosecution's theory, all that matters is that Trump was worried that Daniels' story might hurt his chances; that he arranged the payoff for that reason, recognizing that he was thereby violating federal campaign finance rules; and that he tried to hide that crime with phony business records.
Daniels' "credibility issues" nevertheless are apt to affect the weight that jurors give her testimony. Likewise with Pecker, who testified that he agreed to pay off two other people with potentially damaging stories about Trump—former Trump Tower doorman Dino Sajudin and former Playboy Playmate Karen McDougal—as part of an arrangement that included notifying Cohen about such threats, running positive stories about Trump in the National Enquirer, and running negative stories about his opponents. Pecker said he had similar, mutually beneficial arrangements with other celebrities, including politicians, and that he sometimes used dirt about them as leverage to obtain access and information.
In addition to those unsavory details about Pecker's style of journalism, jurors heard that he and his company avoided federal prosecution by agreeing that the McDougal payoff qualified as an unlawful corporate campaign contribution. The legal pressure that resulted in Pecker's cooperation casts doubt on that characterization and on his testimony that Trump was mainly worried about the election when he arranged the nondisclosure agreements with Sajudin, McDougal, and Daniels.
Cohen, the source of crucial links between the Daniels payment and the charges that Trump faces, has yet to testify. But Trump's lawyers argue that he is a vindictive former loyalist who "cannot be trusted."
Cohen "cheated on his taxes, he lied to banks, [and] he lied about side businesses he had with taxi medallions, among other things," Blanche told the jury. He was "disbarred as an attorney, he's a convicted felon, and he also is a convicted perjurer." According to Blanche, Cohen had a grudge against Trump, because he "wanted a job in the administration" and "didn't get one." He therefore decided to "blame President Trump for virtually all of his problems." Cohen is "obsessed with Trump," Blanche said. He "rants and raves" about his former boss on podcasts and social media and "has talked extensively about his desire to see President Trump go to prison."
Even Pecker, who had a relationship with Cohen that long predated the 2016 election, portrayed him as difficult, badgering, hotheaded, and extremely unpleasant. While all that may be legally irrelevant, Pecker's testimony also suggested that Cohen was dishonest and unreliable, repeatedly promising to reimburse Pecker for the Sajudin and McDougal payments, which he never did.
This is the guy that prosecutors will be presenting as their star witness. Blanche claimed that "Mr. Cohen has misrepresented key conversations where the only witness who was present for the conversation was Mr. Cohen and, allegedly, President Trump." Whether or not that's true, establishing reasonable doubt about the veracity of Cohen's account should not be difficult.
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