It’s unclear if Stormy Daniels’ detailed and salacious testimony in former President Donald Trump’s hush money trial will help prosecutors prove their case.
SCOTT DETROW, HOST:
Describing the third week of testimony in former President Donald Trump’s New York hush money trial as intense may be an understatement. Adult film actress Stormy Daniels took the stand and testified about her alleged sexual encounter with Trump in 2006. The testimony was heated and filled with salacious details about the former president. But the real question is, how much does this matter in the actual case at hand? I spoke about the stormy week of testimony with senior editor and political correspondent Domenico Montanaro as well as Boston University law professor Jed Shugerman. He recently wrote an op-ed titled, quote, “I Thought The Bragg Case Against Trump Was A Legal Embarrassment. Now I Think It’s A Historic Mistake.” I began the conversation by asking Domenico to set the scene for this pivotal week of testimony.
DOMENICO MONTANARO, BYLINE: No one exactly knew where this was going. The guardrails were sort of blown over. As even the judge himself had – at times had to tell Daniels, he kind of objected on his own for the Trump team, essentially saying, hey, you know, you guys could have objected more. In fact, I kind of interceded for you a couple times. And they sort of tried to remind the prosecution to keep her a little bit more within the ground rules.
You can imagine jurors who are also kind of sitting back and thinking, what does this have to do with the broader case? You know, Trump himself, we talked about in other podcasts, is traditionally sort of normally, at least in the courtroom, somewhat subdued, maybe furrowed brows, looking down, you know, some arguments on whether or not he’s asleep. Well…
DETROW: His eyes are closed a lot of the time, regardless of what’s going on behind him, I guess. Yeah.
MONTANARO: Yes, exactly. But, you know, he was clearly upset at times in this. In fact, he was admonished by the judge for cursing under his breath audibly at one point.
DETROW: Jed, thinking about the case that the prosecution needs to make, was this effective? Were these details needed? Was this a key part of the case?
JED SHUGERMAN: Trump and his lawyers made this inevitable. I mean, there would have been a move to just stipulate, yes, they had this relationship and it’s private, and a nondisclosure agreement is perfectly legal. That would have been the move. Whether it was his lawyers but probably Trump himself who directed this and said, we want to deny that this relationship ever happened, they opened themselves up to this. And once they open themselves up to it, then the prosecutors need to put Stormy Daniels on the stand. And once she’s on the stand, this is inevitably salacious. And I don’t think it’s grounds for mistrial. I think the judge ruled correctly on that so far.
DETROW: You mentioned the mistrial request, the two different times Trump’s legal team objected, specifically saying that that Stormy Daniels was implying that the sex was nonconsensual. Explain what Judge Merchan’s response was when he shut that down.
SHUGERMAN: The judge basically said, the door is open to this. And the judge actually admonished one of Trump’s lawyers, Susan Necheles, for not objecting at a point where he thought an objection was appropriate. So the judge is basically saying, I’m going to manage this objection by objection for specific things that come up. But one of the bigger-picture questions is that, you know, things like those salacious details you’re mentioning are part of the prosecution’s case for why there was an intent, not just about protecting his family or not letting Melania find out about it but why it was relevant to a campaign extent. Some more of the salacious details actually help explain why Donald Trump would be worried at the moment after the NBC tape was released, why this would be politically damaging and why that would be so relevant to voters and to the campaign motivation.
DETROW: Domenico, I do want to just take another moment and talk about the politics here because, I don’t know, it just felt like seeing all of these things happen in a criminal courtroom was an interesting moment to me.
MONTANARO: I think seeing is the real issue because we didn’t see it, for the most part, unless you were there. People really sort of interpret video differently than sort of Trump being able himself to just say and spin what happened in the courtroom. You know, we’ve seen the case in Georgia is still up in the air. It’s the only one where there could have been cameras in the courtroom. And, you know, maybe it’s because this is a story that’s eight years old and people feel like they’re familiar with it, but, you know, this is kind of a made-for-TV trial that was not on TV.
DETROW: Jed, looking ahead to next week, Michael Cohen seems to be the last remaining key witness that the prosecution is going to call. What does the prosecution need from Michael Cohen to make its case?
SHUGERMAN: So this is where the prosecution has to be thinking about the problem of the appeals after this case. I think whether Donald Trump is convicted or not has much less to do with what Michael Cohen says next week and much more about how jury selection went. You know, there’s the line, if you can’t do the time, don’t do the crime. In this case, if you don’t like the jury pool, don’t do the crime. They’re full. So you know, Michael Cohen…
(LAUGHTER)
SHUGERMAN: Right. So…
DETROW: Wait. Is that – did you make that up? Or is that…
SHUGERMAN: I did make that up.
DETROW: That’s good. Trademark it.
SHUGERMAN: It’s not bad, right? You know, but it turns out that has a lot to do with trials. The problem is on appeal here. And they need to make sure that they have checked the legal boxes for what the Trump lawyers will certainly appeal. Now, that appeal won’t get decided until after the election. But one of my concerns here is that Trump gets convicted and then that conviction gets overturned on appeal. And that would leave, I think, a lot of questions for American democracy about what is – what happened here.
And so what they need to get out of Michael Cohen is more clarity beyond a reasonable doubt for the jury but that established an intent to violate the Federal Election Campaign Act and also the intent to defraud. And even if Michael Cohen had some problems in the past, the fact that he did plead guilty does not mean that Trump is any more guilty. But the fact that he did plead guilty and spent time in jail for this gives him credibility that overcomes some of the problems of perjury, I think, for a jury.
DETROW: All right. Domenico Montanaro, thanks so much as always.
MONTANARO: You got it.
DETROW: And Jed Shugerman, thanks for joining us.
SHUGERMAN: Thanks for having me.
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