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The testimony carried all of the bawdy details one would expect in a made-for-tabloid tryst. There were silk pajamas. The porn star spanked the billionaire “right on the butt” with a magazine featuring him on the cover. He shared pictures of his wife, who was nowhere near the hotel penthouse. She alleged she felt a power imbalance that left her feeling like she had few options but to proceed with the unprotected and “brief” sexual engagement. She even seemed to suggest the whole affair may not have happened with consent. And that was just the first of at least two days of this.
But let’s not forget that all of this is being disclosed during a trial that is at, at its core, about allegedly falsified paperwork involving Donald Trump’s businesses. We can talk about Trump stripping to his undergarments and posing seductively on his bed until we are numb, but the criminality here hinges on something as basic as a potentially ginned-up expense report. Yet as long as the prosecution’s story is focused on the sex and not the spreadsheets, Trump may wind up with the upper hand given Stormy Daniels’ transparent agenda to bury her one-time bed mate.
Daniels spent Tuesday disclosing in sometimes unnerving detail her night in Lake Tahoe, Nevada, with Trump back in 2006, and she is expected to return to the stand when the trial resumes on Thursday. Trump’s lawyers and occasionally even Judge Juan Merchan seemed in agreement that the level of detail Daniels provided was, at times, unnecessary. Some details, Merchan summarized, might have “been better left unsaid.” At one point, he even chastised the defense for not making more objections to the intrusive questions and cut off Daniels’ testimony when it veered into the salacious.
Prosecutors, meanwhile, realized they had regained the rapt attention of the jurors, who to this point had been buried in otherwise relatively beige details in a case that, ultimately, comes down to whether Trump cooked the books to hide hush money paid before the 2016 election. Even so, they cannot be confident they cleared a credibility hurdle with the witness, who has been open in her contempt for Trump and hardly shy about her motives.
For his part, Trump has pleaded not guilty, denied the affair ever happened, and continues to call Daniels “horseface.”
The two sides of the Manhattan courtroom may be playing to different juries: one, the national judgment of Trump, who is on track to claim the Republican Party’s presidential nomination in July; the other, the 12 jurors and six alternates who will decide what, if any, consequences Trump should face in the bookkeeping probe. The renderings could come completely disjointed, and both political parties might be able to declare victory regardless of any factual decisions made by this jury. Trump has been arguing without nuance that the whole thing is a political prosecution to help President Joe Biden win re-election. The extended public discussion of an alleged private encounter could end up feeding that sentiment with both juries in play.
On the legal front, you can already see the seeds for a Trump appeal taking life as his lawyers repeatedly objected that the details being presented by Daniels were so prejudicial that it would undoubtedly taint the jury’s decision. But Merchan declined their request for a mistrial.
“There will be grounds for appeal. But I don’t think it’s enough to win an appeal,” says Elie Honig, a former federal prosecutor who is watching the case closely and has been critical of the state’s strategy. “Not every error is going to cause a mistrial or a win on appeal.”
Still, Trump’s character is not on trial here. The two questions that matter are whether Trump is guilty of the 34 counts of falsifying business records about the 2016 reimbursement of Michael Cohen, his former fixer who is expected to testify for the prosecution, and whether Trump’s presidential campaign played a factor in using $130,000 in Trump Organization funds to do so. The sex stuff? That’s actually less relevant than GAAP rules or FEC regs.
The enmity between Daniels—born Stephanie Clifford—and Trump was on full display for jurors and judges from afar alike to see. Trump muttered profanity during her testimony and his lawyers were telegraphing on Wednesday that the next day could bring harsh questioning. Daniels was far from circumspect about her motivations, acknowledging she wanted to hurt Trump by coming forward with her story. These two, it is incredibly apparent, loathe each other and want to see the other destroyed—which may make for great drama, but not immediately useful in the court proceedings. In a microcosm, they are fairly good proxies for how half of this country sees the other.
And maybe that’s the whole point: the substance of this case about business records was always going to be about more than improper reimbursements. When a divisive defendant like Trump is facing jail time in the middle of a heated election season, a clear-eyed assessment was always going to be tricky. Add in salacious details that are well beyond the norms of any campaign, it gets downright difficult if not impossible to find a fair verdict. That fact may be what both sides are counting on more than anything established in the witness box.
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