Adult film star and director Stormy Daniels provided graphic detail in her 2006 sexual encounter with Trump during her testimony Tuesday in Manhattan – but legal experts say whether the tryst ever happened is irrelevant to prosecutors' case and that Daniels' explicit testimony could provide fodder for Trump's appeal.
"Whether they had sex and the details of that encounter, doesn't matter to the central question of whether he falsified payments, and whether he did it to win the election," Fordham Law School professor Cheryl Bader told Salon.
"Even if even if she made up the whole story, it doesn't give Trump license to violate campaign finance rules," Bader said.
Bader said prosecutors likely wanted to pump up the veracity of Daniels' story to make it easier for jurors to believe that Trump was trying to cover something up.
Prosecutors probably felt they could "sell the case better" if jurors believe the affair actually happened "rather than Daniels was making it up," Bader said. "What's relevant is that Trump was consumed with making sure the American people would never hear it, and therefore wouldn't believe it."
But in doing so, Bader warns that prosecutors may have given Trump ammo for an appeal, if he's convicted.
"I think they made a choice to try to bolster her credibility, but it's at the risk of creating evidentiary issues on appeal," Bader said.
In cross-examination Tuesday, Trump lawyer Susan Necheles grilled Daniels about her memoir and her ire for Trump in a bid to impugn her credibility in front of jurors.
In response to Necheles’ questions, Daniels said she hates Trump, that she has tweeted about him landing in jail and that she refuses to pay $500,000 in legal fees she was ordered to pay Trump by a court.
Trump and his lawyers have sought to portray Daniels as an extortionist out to get Trump.
But Chris Truax, an appellate lawyer in San Diego who has served as a legal advisor for the Republican Accountability Project, said that Trump's team asked Daniels so many questions that it provided her the opportunity to refute them.
"The defense went after Stormy Daniels' credibility quite hard," Truax said. "And I think that that was a decision driven more by their client's demand than by legal strategy. Simply because whether or not she's telling the truth isn't something that the prosecution has got to establish. So going after Stormy Daniels, it's kind of a sideshow in terms of the charges and, in fact, the defense kind of went too far in their leading questions."
Truax said that Necheles would "ask one question too many in a lot of cases where Stormy Daniels would say, 'False. That's not true.'"
"I don't think there was anything in there that made anybody on the jury more sympathetic to Donald Trump," Truax said. "So from a purely tactical standpoint, it's not a win for the defense."
Truax said if Trump did not deny the tryst with Daniels, he wouldn't have given prosecutors room to drag out unwanted details and try to bolster her version of events.
"If Donald Trump had stipulated that: 'Yeah, the affair happened. I'm not proud of it, but it happened,' then the defense probably would have been able to put a lot more limits on what Stormy Daniels was able to testify to," Truax said.
During direct questioning, Judge Juan Merchan himself issued an objection as Daniels offered lengthy and explicit testimony on her interactions with Trump – including claiming that Trump was blocking the door following their tryst and that she “blacked out” during the act.
Merchan touched on Daniels’ own credibility issues when he agreed to allow prosecutors to ask Daniels limited details about the sexual act. He's said he'll provide jury with instructions about how they can and cannot use evidence provided in trial.
“I agree with you that she’s got some credibility issues... so it’s more important for the people to establish some information,” Merchan said.
The judge, however, denied Trump's lawyers’ latest request for a mistrial, and said the defense should have objected more. Trump's lawyers, in response, said they had made a general objection to Daniels testifying about the sexual act before she began.
Daniels also shared that Trump didn't use a condom, and she provided the name of the sexual position they used.
"The encounter is not completely irrelevant to the prosecution's theory of the case," Bader said. "The payments were directly related to the sexual affair. So there is some relevance there."
But, Bader said, "there was a lot of the evidence that came in was probably more prejudicial than probative, which is the standard for admissibility."
Prejudicial evidence is unnecessary information that can unfairly impact a case, while probative evidence can prove a relevant fact.
"There's relevance or some relevance to this testimony, but there's also the risk that it confuses the issue for the jury, and it sort of demeans the defendant and might inadvertently become used as character evidence," Bader said.
Bader said the defense team's apparent lack of objections could also end up hurting their appeal.
"The judge on his own admonished the witness at times to simply answer the questions," Bader said.
"You don't want to create appellate issues, if you can avoid it, and I think that these could have been fairly easily avoided," Bader said.
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.
This week, prosecutors have begun to focus on those 34 pieces of paper — including checks and invoices — that they allege shows how Trump paid off Daniels and tried to cover up that payment by falsifying business records.
On Monday, former Trump Organization controller Jeff McConney testified that he was told Trump was reimbursing Cohen for an unknown reason. McConney said former Trump Organization chief financial officer Allan Weisselberg told him the payments should be “grossed up” to help cover Cohen’s state, federal and city taxes.
McConney also said that nine of 11 checks to Cohen came from Trump's personal account, that Trump signed the checks from the Oval Office, and that the accounting department labeled the payments as “legal expenses.”
Truax said that Daniels did provide evidence in her testimony that she got paid — but, he added, prosecutors could have established that without having her testify.
Daniels is back in court Thursday.
