Juan Merchan, the judge presiding over Donald Trump's criminal trial in Manhattan, yesterday denied a second defense motion for a mistrial. Trump's lead attorney, Todd Blanche, has objected to aspects of porn star Stormy Daniels' testimony about her purported 2006 sexual encounter with Trump, saying some of the details were legally irrelevant and "so unduly and inappropriately prejudicial" that a mistrial was the only remedy. Merchan rejected that argument on Tuesday and again on Thursday, saying the problem that Blanche perceives was largely a result of the defense team's failures during Daniels' testimony and cross-examination.
Among other things, Blanche cited testimony suggesting, for the first time, that Daniels' alleged encounter with Trump was not fully consensual. This dispute illustrates the risk that the salaciousness of Daniels' account will overshadow the legal issue at the center of the case.
Trump is not charged with adultery or sexual assault. He is not charged with trying to keep Daniels from talking about what she says happened, although Manhattan District Attorney Alvin Bragg has misleadingly suggested that the essence of Trump's crime was keeping that information from voters during his 2016 presidential campaign. Trump is not even charged with instructing his personal lawyer, Michael Cohen, to pay Daniels $130,000 shortly before the election in exchange for her silence. Rather, he is charged with falsifying business records to disguise his 2017 reimbursement of Cohen as payment for legal services.
Proving those 34 charges does not require demonstrating that Daniels is telling the truth at all, let alone that every detail is accurate. Under the prosecution's theory, Trump would be guilty of falsifying business records even if Daniels made the whole thing up. And assuming that Cohen's payment to Daniels amounted to an excessive campaign contribution (a characterization that Cohen accepted when he pleaded guilty to that offense in 2018), Trump's falsification of business records would be a felony if he was trying to conceal that violation of federal campaign finance regulations.
There are several problems with that theory, including the fuzziness of the distinction between personal and campaign expenditures, the question of whether Trump recognized that the Daniels payoff fell into the latter category (assuming that it did), the uncertainty about Trump's involvement in generating the relevant business records and his motive in doing so, and the attempt to convert a 2016 federal campaign finance violation into a state felony via a moribund New York election law that apparently has never been used before. But one thing is clear: Trump's criminal liability in this case has nothing to do with exactly what happened in his Lake Tahoe hotel suite during a celebrity golf tournament in July 2006.
Jurors nevertheless heard a lot about that. For years, Daniels has said she consented to sex with Trump. But during her testimony on Tuesday, she cast doubt on that characterization, saying "I just think I blacked out," although she added that she was not "drunk" or "drugged." She also noted that "there was a bodyguard right outside the door" and said "there was an imbalance of power for sure," since Trump "was bigger and blocking the way," although she conceded that she "was not threatened verbally or physically."
When Blanche complained that Daniels had changed her story, Merchan disagreed. "I disagree with your narrative that there is any new account here," the judge said. "I disagree that there is any changing story." Yet Blanche's complaint is at least partially valid.
It's true that Daniels has mentioned the bodyguard, Keith Schiller, before. He figures prominently in the account she gave in her 2018 memoir Full Disclosure. In that book, she also mentions that Trump did not wear a condom—another detail that Blanche described as irrelevant and prejudicial.
"I was surprised he didn't even mention a condom," Daniels says in Full Disclosure. "I didn't have one with me anyway, because I wasn't meeting him for sex. If I had been, I always brought my own, because I am allergic to latex. Back then I used Avantis"—a brand of nonlatex condoms. While Daniels' testimony on that point was similar, it introduced an element of concern that is not mentioned in the book:
Prosecutor Susan Hoffinger: Was he wearing a condom?
Daniels: No.
Hoffinger: Was that concerning to you?
Daniels: Yes.
Hoffinger: Did you say anything about it?
Daniels: No.
Hoffinger: Why not?
Daniels: I didn't say anything at all.
That exchange, Blanche noted, came after Daniels' testimony that the men with whom she performed in adult films were always required to wear condoms. On Thursday, the defense described the discussion of condoms as "a dog whistle for rape." While that may be an exaggeration, Daniels' testimony that Trump's failure to use a condom worried her certainly reinforced the impression that Daniels was doing something she did not want to do.
Full Disclosure leaves a similar impression—up to a point. After a conversation in which Daniels felt that Trump was treating her respectfully and taking her seriously as a businesswoman, she says, she emerged from a bathroom where she had touched up her makeup to find Trump sitting on a bed in his underwear.
"I had the sense of a vacuum taking all of the air out of the room, and me deflating with it," Daniels writes. "I sighed inwardly, keenly aware of two thoughts in that one moment. There was the simple Oh, fuck. Here we go. But there was also a much more complex, sad feeling that none of what he said was true. He didn't respect me. Everything he said to me was bullshit."
Daniels says she "should have…let him know this wasn't okay." But she didn't. "So, here we go," she writes. "It was an out-of-body experience….I just kind of lay there. A lot of women have been there. He wasn't aggressive, and I know for damn sure I could have outrun him if I tried, but I didn't. I'm someone who doesn't stop thinking, so as he was on top of me I replayed the previous three hours to figure out how I could have avoided this."
In her book, Daniels describes brief, sad, regrettable, and unsatisfying sex, but she emphasizes that it was an experience she easily could have avoided. Although she never quite explains why she decided to go through with it, there is no suggestion that she was incapacitated. But in her testimony, she said "I blacked out," which she suggested explained why "I don't remember" exactly what happened. Blacking out is not the same as "an out-of-body experience," which involves feeling detached from your body while fully conscious.
"I was not drugged," Daniels said. "I never insinuated that I was on drugs. I was not drunk. I never said anything of that sort." In a sidebar discussion, defense attorney Susan Necheles nevertheless objected that "she is making it sound like she was drugged." Hoffinger suggested that Daniels merely meant that she was "dizzy," possibly because she was hungry for the dinner that was promised but never materialized—a point she emphasizes in her book and mentioned in her testimony.
Merchan sustained Necheles' objection. But that did not stop the jury from hearing Daniels imply that she was not fully aware of what was happening that night. Combined with Daniels' references to the bodyguard and the "imbalance of power," that description strongly suggested her consent was not only passive and unenthusiastic but the product of pressure and incapacity.
Daniels strengthened that impression by saying she could not "remember how your clothes got off." There was Trump in his underwear, she said, and "the next thing I know" she was "on the bed," naked. Hoffinger asked whether she "remember[ed] anything other than the fact that you had sex on the bed." Not really, Daniels implied: "I was staring at the ceiling. I didn't know how I got there. I made note, like I was trying to think about anything other than what was happening there." That also prompted an objection from Hoffinger, which Merchan sustained.
In Full Disclosure, by contrast, Daniels recounts the sex in considerable detail, calling Trump "a terrible kisser," quoting what he said to her, describing the position he used, recalling the size and "unusual" shape of his penis, and remarking on his crotch hair. While these are just the sort of details that the defense (and Merchan) would deem out of bounds, they contradict the idea that Daniels was just "staring at the ceiling," that she didn't know "how I got there," or that she was only dimly aware of "what was happening there."
What does all this have to do with Trump's alleged falsification of business records? "All of this has nothing to do with this case," Blanche told Merchan on Tuesday. "The only reason why the government asked those questions, aside from pure embarrassment, is to inflame this jury to not look at the evidence that matters." He noted that Daniels "has testified today about consent, about danger," which is "not the point of this case."
The prosecution argues that the details of Daniels' story matter because they rebut Trump's contention that she invented the whole episode, which in turn goes to his motivation in arranging her nondisclosure agreement and in trying to keep it a secret with phony invoices, mislabeled checks, and fraudulent ledger entries. "Her account completes the narrative of the events that precipitated the falsification of business records," Hoffinger told Merchan. "Her account is highly probative of the defendant's intent, his intent and his motive in paying this off, and making sure that the American public did not hear this before the election. It is precisely what the defendant did not want to become public."
Merchan agreed with Blanche that "there were some things that would probably have
been better left unsaid." But he said the fault for that lay partly with Trump's attorneys. "The objections, for the most part, were sustained," he said. "Where there was a motion to strike testimony, for the most part, that motion was granted as well. I will also note that I was surprised that there were not more objections at various times during the testimony….So when you say that, you know, the bell has been rung, the defense has to take some responsibility for that."
Merchan was less patient on Thursday, when the defense again moved for a mistrial. "There were many times when you could have objected but didn't," he told Necheles. She objected when Daniels testified that she "touch[ed] his skin" and when she said "we were in the missionary position," for example, but did not object during the condom exchange, which Blanche later argued was prejudicial and irrelevant. Nor did Necheles object when Daniels described the "imbalance of power" or when she noted that Trump was "definitely several inches taller and much larger" than her. And Necheles' objection to "I just think I blacked out" came late, five sentences after Daniels said it.
Merchan also "chided Mr. Trump's lawyers for missteps during their cross-examination of Ms. Daniels," The New York Times notes, "and suggested that the former president's insistence on entirely denying any sexual encounter with Ms. Daniels had opened the door for the prosecution to introduce specific—and graphic—evidence that the encounter did occur." The judge conceded that some details of Daniels' testimony were so needlessly prejudicial that he would have sustained objections to them if the defense had made them. At the same time, he said Daniels could "corroborate her account" by describing details of the encounter because a truthful story "increases the motivation to silence her."
That rationale seems like a stretch, especially since the prosecution has argued that Trump was eager to suppress negative stories even when they were not true. According to testimony that prosecutors presented to establish that pattern, Cohen arranged for the National Enquirer to pay former Trump Tower doorman Dino Sajudin $30,000 for exclusive rights to his story, which alleged that Trump had fathered a child with a woman hired to clean the building. Although the Enquirer investigated that story and determined that it was not true, prosecutors say, Trump was still keen to stop Sajudin from telling it. That suggests Trump would have wanted to silence Daniels even if her story was equally fictitious, making all the quibbling about the details of that story irrelevant.
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